STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIRGIL L. MORGAN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2388

)

TIMOTHY MELESENKA, )

)

Respondent. )

) BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

) CASE NO. 92-3425

vs. )

)

TIMOTHY MELESENKA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, conducted a formal hearing in this proceeding on October 19-23, October 26-27, December 1-4, and December 18, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner, Charles T. Whitelock, Esquire

Virgil L. Morgan: 1512 East Broward Boulevard, Suite 300

Fort Lauderdale, Florida 33301

For Petitioner, Margaret E. O'Sullivan, Esquire Betty Castor: Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Sally C. Gertz, Esquire

FEA/United

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Respondent should be terminated from his employment with the Broward County School Board and whether Respondent's teaching certificate should be revoked, suspended, or otherwise disciplined.

PRELIMINARY STATEMENT

This matter was referred to the Division of Administrative Hearings on April 15, 1992, and assigned to the undersigned on April 22, 1992. A formal hearing was scheduled for September 14-18, 1992, pursuant to a Notice of Hearing issued on May 5, 1992. After several continuances, the formal hearing was begun on October 19, 1992. The disposition of the parties' exhibits and the identity and expertise of their witnesses are described in the transcript of the formal hearing filed on February 9, 1993.

The parties timely filed proposed findings of fact and conclusions of law no later than March 30, 1993. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Background

1. Respondent holds Florida Teaching Certificate 595579 in science and elementary education. Respondent's teaching certificate is valid through June 30, 1992. Respondent has filed an application for renewal. Respondent has held a professional service contract with the Broward County School Board (the "School Board") since September 11, 1987.

   
   

2. Respondent began teaching in the Broward County school system in 1987. He taught at Seminole Elementary School. His mid-year evaluation indicated he needed some improvement in the preparation of lesson plans. His final evaluation indicated that Respondent had improved his lesson plans and had good control of his class.

   
   

3. For the 1988-1989 school year, Respondent was employed as a fourth grade teacher at Banyan Elementary School. His mid-year evaluation indicated a need for improvement in lesson plans. His final evaluation, however, was satisfactory.

   
   

4. Respondent continued teaching at Banyan Elementary School until December, 1989. From December, 1989, until he was suspended on January 16, 1992, Respondent taught at Rogers Middle School. Respondent's initial evaluation at Rogers Middle School indicated the need for some improvement, but his final evaluation for the 1989-1990 school year was satisfactory.

   
   

5. At the end of the 1989-1990 school year, Mr. Sterling Dupont replaced Mr. Greg Clark as the principal of Rogers Middle School. Ms. Ellen Etling and Mr. Mike Newman, two of the three assistant principals, were also new members of the administration at Rogers Middle School.

   
   

6. Mr. Dupont assigned Respondent to a self-contained drop out prevention class during the Summer of 1990. A class is self-contained when its students remain with the same teacher for the entire day.

7. The drop out prevention class required a teacher certified in elementary education so that the students' academic needs could be individualized. Mr. Dupont wanted a male teacher in the class because of the students' inability to perform in a school setting and behavioral problems. Respondent is approximately 5 feet 7 inches tall and weighs approximately 112 pounds.

   
   

8. Mr. Dupont did not consider other factors in applicable School Board guidelines for assignment of teachers to a disciplinary drop out prevention class. Mr. Dupont did not consider Respondent's:

   
   

   1. desire and ability to work with problem students;

   2. expertise in behavior management techniques;

   3. desire and ability to identify and solve underlying causes of student behavior rather than merely modify behavior;

   4. ability and expertise in diagnosing difficulties opposed to motivational achievement;

   5. ability to utilize school and community resources to benefit students; and

   6. ability to utilize a variety of instructional approaches to meet individual needs and learning styles of students.

      
      

      Mr. Dupont did not ask Respondent if he wanted to teach the drop out prevention class and did not otherwise confer with Respondent prior to making the assignment. Respondent was informed of his assignment in August, 1990, in accordance with customary practice for all class assignments.

      
      

9. Criteria for placement in the drop out prevention class included excessive absences, being held back a grade or being older than other students, failing to perform at the appropriate grade level, and behavior difficulties. While a majority of the students were not placed in the class due to disruptive behavior, most of the students demonstrated disruptive behavior. The class was officially categorized as a drop out prevention class but was also a very disruptive class.

   
   

10. Many students in the class came from single parent homes, disadvantaged socio-economic environments, and exhibited low self-esteem. One of the objectives of the class was to raise the students' self-esteem and grade level performance. The class was also intended to ensure that the students made a successful transition to the middle school setting.

    
    

11. The Broward County school system has eliminated corporal punishment as a form of discipline. Teachers are not to become physically involved with students in order to discipline or control them. The use of force is appropriate only to prevent harm or injury to a teacher or student. Teachers may not use physical means to control students, punish their behavior, or maintain order in the classroom.

    
    

12. Respondent violated the policy against corporal punishment. During the 1990-1991 school year and the 1991-1992 school year, Respondent engaged in inappropriate physical contact with students as a means of discipline or control. Respondent used excessive force to control students, yelled at

    students, faculty, and administrative staff, violated rules of the State Board of Education, and engaged in misconduct. Respondent's misconduct was so serious that it impaired his effectiveness in the school system. See paragraphs 21-44, infra.

    
    

13. In most instances, the students involved in the events at issue in this proceeding were engaged in inappropriate behavior which warranted correction, discipline, and punishment. In addition, the relationship between Respondent and the administrative staff at Rogers Middle School was strained by Respondent's dissatisfaction with administrative support and his lack of success in obtaining a transfer. However, the underlying problems between Respondent and the administration and the disruptive behavior of Respondent's students did not justify Respondent's misconduct and violation of applicable rules.

    
    

14. The School Board complied with the requirements in Florida Administrative Code Rule 6B-4.008 for fair dismissal procedures. Respondent received an unsatisfactory evaluation for the 1990-1991 school year. On January 9, 1991, Ms. Etling issued an evaluation that Respondent needed improvement in behavior management, lesson design, and oral speech. Ms. Etling advised Respondent verbally and in writing that he would be given the opportunity to improve his performance by observing other teachers and attending workshops.

    
    

15. On April 22, 1991, Mr. Dupont issued an evaluation that Respondent needed to improve in behavior management, classroom atmosphere, and lesson design. Mr. Dupont advised Respondent to observe other drop out prevention teachers, attend workshops, and review articles and tapes on positive attitudes.

    
    

16. The administration arranged for Respondent to visit drop out prevention classes at other middle schools and offered Respondent the opportunity to attend workshops. Respondent attended some drop out prevention classes at other middle schools. Mr. Dupont made every reasonable effort to assist Respondent in obtaining a transfer to another school, but Respondent was unable to obtain a transfer.

    
    

17. The School Board investigated a complaint regarding Respondent's conduct at school. On March 13, 1991, the Professional Standards Committee found probable cause to support the complaint. The Committee recommended that Respondent receive a letter of reprimand, be referred to Professional Practices Services, and be suspended for a period of time.

    
    

18. In lieu of suspension, the School Board and Respondent entered into a Memorandum of Understanding. Pursuant to the agreement of the parties, Respondent received a letter of reprimand on May 3, 1991, sanctioning him for verbal abuse and battery against his students. The letter of reprimand was issued by Mr. Ronald Wright, Director of Professional Standards for the School Board. Respondent was referred to Professional Practices Services, required to attend in-service programs, required to implement those programs in his classroom, and required to participate in an employee assistance program.

    
    

19. Respondent was assigned to teach seventh grade science for the 1991- 1992 school year. Many of the students in his seventh grade class also demonstrated behavior problems. Some of the students had been in the drop out prevention class during the previous school year.

    
    

20. Respondent was placed on administrative leave effective January 17, 1992. He was suspended with pay on March 11, 1992, and suspended without pay on April 7, 1992.

    Reduced Effectiveness And Rule Violations

    
    

21. In December, 1990, Respondent used excessive force to restrain a female student who was involved in a fight with a smaller male student. Quanika Murray was beating Ladarian Griffin with her fist. After Quanika failed to respond to Respondent's verbal commands, Respondent put both of his arms around Quanika in a "bear hug." Quanika hit Respondent in the ribs with her elbow. Respondent threw Quanika to the ground and pinned her there by holding both of her arms behind her back.

    
    

22. When an administrator came to the scene in approximately 60 seconds, Respondent released Quanika Murray. She lunged at Ladarian Griffin again, and Respondent threw Quanika against the wall and pinned her there until the administrator took her away.

    
    

23. On December 12, 1990, Respondent used excessive physical force to break up a verbal confrontation between two students and precipitated a physical confrontation between one of the students and Respondent. William Boyd and Tanika Boyd were arguing in the hall. Respondent told the students to go to class. William left but Tanika became verbally abusive and confrontational toward Respondent. Respondent pushed Tanika toward her class. Tanika hit Respondent. When another teacher approached, Respondent and Tanika backed away from each other. Tanika backed into the teacher and fell to the ground. The teacher pinned Tanika to the ground by holding both of her arms behind her. Respondent approached the two and inadvertently kicked sand in Tanika's face.

    
    

24. On February 25, 1991, Respondent used unnecessary and excessive physical force to control and discipline a student. School policy prohibited students from being in designated areas without a pass. The policy was intended to give teachers time to prepare for class before school started each morning. Respondent was monitoring a gate to one of the designated areas. Quincy Wilkins attempted to enter the designated area without a pass. When Respondent told Quincy not to proceed without a pass, Quincy became loud, verbally abusive, and pushed Respondent. Respondent grabbed Quincy's arm, put it behind the student's back, and pushed Quincy against the wall. The hold was painful, and Quincy broke free. Respondent took the student to the front office, and charged Quincy with attempting to fight Respondent.

    
    

25. On March 20, 1991, Respondent was verbally abusive toward a student, used unnecessary physical force to control and discipline the student, and engaged in unprofessional conduct during an IOWA testing procedure in the school cafeteria. Respondent was acting as one of the monitors for the test. He reprimanded a student for failing to follow instructions by yelling at the student, throwing the student's books on the floor, grabbing the student by the arm, and seating the student at a table closer to the front of the room. The incident created a major disturbance and caused some of the students to miss directions for taking the test.

    
    

26. On April 15, 1991, Respondent used excessive physical force to control a student who was not threatening another teacher. Alex Hernandez had been involved in an altercation with another student. Another teacher broke up the fight and reprimanded Alex. Alex was a good student, and the teacher felt that a verbal warning was sufficient under the circumstances. While the teacher was speaking with Alex, Respondent approached Alex from behind, grabbed him by the arms, and threw him against the lockers. Respondent led Alex to the front office with both arms behind the student's back. Respondent charged Alex with

    trying to hit another teacher. The teacher informed the front office at a later time that Alex had not threatened him or tried to hit him.

    
    

27. Respondent yelled at students over minuscule matters. On September 6, 1991, Respondent yelled at a student for chewing gum. Respondent's conduct prompted a complaint by the student's parents and required a conference with the parents to resolve a matter that would have been trivial in the absence of Respondent's conduct. On September 13, 1991, Respondent yelled at students over minuscule matters and called them stupid, arrogant, and rude. An administrator was required to intervene in Respondent's class.

    
    

28. On September 16, 1991, Respondent denied a female student's request to use the bathroom. About 15 minutes after class started, a student with menstrual problems requested permission to use the bathroom. The student returned to her seat and approximately five minutes later began leaking blood onto her clothing. The student left the room and sought the assistance of an administrator.

    
    

29. On September 20, 1991, Respondent engaged in a confrontation with the assistant principal in the presence of approximately 200 students. Respondent's anger, over the behavior of another student, was misdirected at the assistant principal. Respondent screamed and pointed his finger in the assistant principal's face.

    
    

30. On September 30, 1991, Respondent used unnecessary and excessive physical force on a student and filed criminal charges against the student. Ladarian Griffin refused to comply with Respondent's request to behave in class. Respondent properly disciplined Ladarian by placing Ladarian in a separate chair at the front of the class.

    
    

31. Ladarian persisted in his disruptive behavior. Respondent called the front office to have someone cover Respondent's class while Respondent ushered Ladarian to the front office. No coverage was provided. When the class was over, Respondent let all of his students leave except Ladarian and blocked Ladarian's exit through the classroom door. Ladarian attempted to run through Respondent. Respondent physically subdued Ladarian and took him to the front office.

    
    

32. Respondent requested that the principal file charges against Ladarian with the public resource officer. When the principal refused, Respondent filed charges against Ladarian with the Fort Lauderdale Police Department. Respondent later requested that the charges be dropped.

    
    

33. On October 4, 1991, the parents of two students telephoned the school administration to complain about Respondent yelling at their children during a class. The yelling interfered with the students' school work.

    
    

34. On October 10, 1991, Respondent improperly accused a student of committing a felony against him. When the bell rang to end the sixth hour class, Respondent refused to allow his students to leave until the students returned their books. Respondent stood at the door to the classroom until each student placed a book on his or her desk. When Respondent turned to answer a knock at the door, Anthony Maclemore ran into Respondent with his head, shoved Respondent to the side, and ran out the door. Respondent mistakenly thought the student was Lashaun Johnson. Respondent wrote a referral for Lashaun and asked the principal to have Lashaun arrested. Mr. Dupont refused. Respondent filed a report and a complaint for prosecution against Lashaun with the local police

    department. Respondent told Lashaun's guardian that the police were going to arrest Lashaun that evening.

    
    

35. The following day Lashaun and Lashaun's guardian participated in a conference with Ms. Etling and Respondent. Respondent realized his mistake and apologized. The mistaken identity caused substantial distress to Lashaun and Lashaun's guardian. Anthony Maclemore was suspended for three days.

    
    

36. On October 15, 1991, Respondent yelled at Ms. Etling during a discussion on an educational matter. This incident occurred in the presence of numerous students.

    
    

37. On November 13, 1991, Respondent issued a semester grade of "F" to 72 of his 160 students. During a conference with the parents of one of the students who received an "F", Respondent engaged in a tirade against the students' behavior and the failure of the administration to assist him in correcting that behavior. During a conference with the parent of another student, Respondent alluded to the student's bad behavior as a basis for the poor grade but was unable to present one disciplinary referral for that student.

    
    

38. Between November 14 and November 21, 1991, several students or their parents complained to the administration of Respondent's verbal abuse and mistreatment of students. Respondent repeatedly yelled at students and disparaged them for their lack of academic effort.

    
    

39. On November 21, 1991, Respondent took a folder away from Alex Holmes and told Alex he could get the folder back from Ms. Etling at the end of the day. Alex was disrupting the fifth period class by banging the folder on his desk. The folder contained materials Alex needed for another class. At the end of the class, Alex attempted to retrieve the folder himself, and Respondent attempted to prevent Alex from retrieving his folder before the end of the day. Alex hit Respondent. Respondent attempted to restrain Alex by placing his arms around Alex and pulling Alex's shirt over his head. Before Alex was restrained by other students, Alex hit Respondent in the head, forehead, face, and chest. Alex also used a bone from a skeleton that had been knocked over during the fight to hit Respondent on his leg and leave puncture wounds.

    
    

40. Respondent filed criminal charges against Alex. Alex was arrested, prosecuted, and sentenced to one day house arrest.

    
    

41. Respondent was absent from work until December 20, 1991, due to injuries sustained from the incident with Alex Holmes. From December 20, 1991, through January 13, 1992, Respondent was involved in several confrontations with students and administrative staff in which Respondent yelled at students and staff.

    
    

42. On January 16, 1992, Mr. Dupont informed Respondent that Respondent was being placed on administrative leave. Mr. Dupont instructed Respondent to return to his classroom and remove his personal belongings.

    
    

43. Respondent was escorted to the classroom by the school's resource officer. Respondent threw his personal belongings on the floor of the classroom. Documents were discarded and tossed about the classroom leaving it in complete disarray. The school resource officer was instructed by Mr. Dupont not to arrest Respondent. A police officer was called in to escort Respondent from the school campus. Respondent used a school cart to transport his personal

    belongings to his automobile. Respondent pushed the cart over prior to leaving the school campus.

    
    

44. Respondent left his classroom in disarray. The classroom was cleaned by the cleaning service that night and used the next day for another class.

    
    

    CONCLUSIONS OF LAW

    
    

45. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

46. The burden of proof in this proceeding is on Petitioners. Petitioners must show that Respondent committed the acts alleged in their respective administrative complaints and that Petitioners are entitled to the relief sought. Petitioner, Virgil L. Morgan, must satisfy his burden of proof by a preponderance of the evidence. Degroot v. Sheffield, 95 So.2d 912 (Fla. 1957); Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3d DCA 1990); Ferris

    v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986). Petitioner, Betty Castor, must satisfy her burden of proof by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

47. The parties satisfied their respective burdens of proof. Respondent engaged in misconduct by using excessive force to control students, yelling at students, faculty, and administrative staff, and otherwise violating rules of the State Board of Education. Respondent's misconduct was so serious that it reduced his effectiveness as an employee of the School Board in violation of Sections 231.28(1)(f) and 231.36(3)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(3). Respondent violated applicable rules of the State Board of Education by failing to make a reasonable effort to protect students from conditions harmful to learning or to their health and safety and by exposing students to unnecessary embarrassment or disparagement. Rules 6B- 1.006(3)(a) and 6B-1.006(3)(e).

    
    

48. The Educational Practices Commission, is authorized in Section 231.28(1), Florida Statutes, to suspend or revoke Respondent's teaching certificate if Respondent engages in personal conduct which seriously reduces his effectiveness as an employee of the School Board or otherwise violates the rules of the State Board of Education. Sections 231.28(1)(f) and (h). The School Board is authorized in Section 231.36(1)(a) to dismiss Respondent for just cause. Just cause is defined in Section 231.36(1)(a) to include misconduct in office. Misconduct in office is defined in Florida Administrative Code Rule 6B-4.009(3) as a violation of the Code of Ethics of the Educational Profession, as set forth in Rule 6B-1.006, which is so serious as to impair Respondent's effectiveness in the school system.

    
    

49. In determining the appropriate disciplinary action to be taken against Respondent's teaching certificate, all of the surrounding facts and circumstances should be considered. Respondent has no disciplinary history prior to this proceeding. Respondent was assigned to a self-contained drop out prevention class in violation of applicable guidelines. Respondent had no prior experience in such classes, no expertise in behavior management techniques, and no desire to teach such a class. Respondent was not consulted prior to his assignment to the drop out prevention class. Respondent was denied a transfer to another school.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED that the School Board enter a Final Order finding Respondent guilty of misconduct in office and terminating Respondent from his employment with the School Board. It is recommended that The Educational Practices Commission enter a Final Order finding Respondent guilty of engaging in conduct which seriously reduced Respondent's effectiveness as an employee of the School Board and otherwise violated applicable rules of the State Board of Education. It is further recommended that the Final Order of the Educational Practices Commission suspend Respondent's teaching certificate for one year from the date Respondent was first suspended without pay and place Respondent on probation for two years after the expiration of his suspension. Respondent's probation should be subject to such terms and conditions as may be determined by the Educational Practices Commission to be reasonable and necessary.

DONE AND ENTERED this 9th day of August, 1993, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2388 and 92-3425

Proposed findings of Petitioner, Virgil L. Morgan. 1.-2. Accepted in substance

4.-5. Accepted in substance 7.-8. Accepted in substance 10.-13. Accepted in substance

18. Accepted in substance

3.,6.9. Rejected as not supported by the weight of evidence 14.-17. Rejected as not supported by the weight of evidence 19.-21. Rejected as not supported by the weight of evidence

Proposed findings of Petitioner, Betty Castor. 1.-16. Accepted in substance

17.-21. Rejected as not supported by the weight of evidence

1. Accepted in substance

2. Rejected as not alleged in the administrative complaint 24.-25. Accepted in substance

26.-27. Rejected as not alleged in the administrative complaint

1. Accepted in substance

2. Rejected as not supported by the weight of evidence

30.-32. Rejected as not alleged in the administrative complaint

1. Rejected as not supported by the weight of evidence

2. Rejected as not alleged in the administrative complaint 35.-36. Accepted in substance

37.-40. Rejected as not alleged in the administrative complaint 41.-46. Accepted in substance

47.-50. Accepted in substance

51.-52. Rejected as not supported by the weight of evidence 53.-68. Accepted in substance

Respondent's Proposed Findings of Fact

1. Accepted in substance

2. Rejected in part as irrelevant and immaterial 2.-13. Accepted in substance

14. Accepted in part and rejected in part as not supported by the weight of evidence

15.-16. Accepted in substance

1. Accepted in part and rejected in part as not supported by the weight of evidence

2. Accepted in substance

3. Accepted in specifics but rejected as to the generalization for the reasons stated in findings 21-44

4. Accepted in substance

5. Rejected as contrary to the weight of evidence 22.-25. Accepted in substance

26. Accepted in part and rejected in part as contrary to the weight of evidence

27.-33. Accepted in substance

34. Accepted in part and rejected in part as contrary to the weight of evidence

35.-38. Accepted in substance

39. Rejected as contrary to the weight of evidence 40.-55. Accepted in substance

COPIES FURNISHED:

Charles T. Whitelock, Esquire 1512 East Broward Boulevard Suite 300

Ft. Lauderdale, Florida 33301

Margaret E. O'Sullivan, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Sally C. Gertz, Esquire FEA/United

118 North Monroe Street Tallahassee, Florida 32399-1700

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Virgil L. Morgan, Superintendent Broward County School Board

1320 Southwest 4th Street

Ft. Lauderdale, Florida 33312

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs. EPC CASE NO. 92-071-RT

DOAH CASE NO. 92-2388

TIMOTHY MELESENKA, 92-3425

EPC INDEX NO. 93-132-FOF

Respondent

/

Respondent, TIMOTHY MELESENKA, hold Florida educator's certificate no.

595579, Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on August 9, 1993 was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part or this Order.)

A panel of the Education Practices Commission (EPC) met on September 24, 1993 in Tampa, Florida, to take final agency action. Petitioner was represented by Robert J. Boyd, Esquire. Respondent was represented by Sally C. Gertz, Esquire. The panel reviewed the entire record in this case.

Petitioner filed exceptions to the Recommended Order on August 30, 1993.

On September 3, 1993 the parties filed their Joint Motion and Agreement whereby they agreed not to contest the penalty recommended by the hearing officer and Petitioner agreed to withdraw her exceptions. Each party filed recommended terms of probation which were considered by the panel.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1- 44 of the hearing officer's Findings of Fact.

CONCLUSIONS OF LAW

The Commission adopts paragraphs 45-49 in the hearing officer's Conclusions of Law as its Conclusions of Law.

Based upon the foregoing findings of fact, Respondent is guilty of misconduct which was so serious that it reduced his effectiveness as an employee of the School Board in violation of Sections 231.28(1)(f) and 231.36(3)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(3.) and Respondent violated applicable rules of the State Board of Education by failing to make a reasonable effort to protect students from conditions harmful to learning or to their health and safety and by exposing students to unnecessary embarrassment or disparagement (Rules 6B-1.006(3)(a) and 6B-1.006(3)(e); for of which, the Commission may impose discipline pursuant to Sections 231.262(6) and 231.28, Florida Statutes.

WHEREFORE, it is ORDERED AND ADJUDGED that Respondent violated Section 231.28(1)(f) and 231.36(3)(a), Florida Statutes and Florida Administrative Code Rule 6B-4.009(3). Therefore, it is Ordered that Respondent's educator's certificate be revoked for a one-year period effective retroactive to the date he was suspended without pay by his employer. Upon reemployment in a position requiring a Florida educator's certificate, Mr. Melesenka shall be placed on a two-year probation.

The terms of probation are:

1. Mr. Melesenka shall not be placed in any position in exceptional or alternative education.

   
   

2. He shall arrange for his immediate supervisor to submit performance reports to the EPC at least every three months.

   
   

3. He shall submit true copies of all formal observation/evaluation forms within ten days of issuance.

Prior to reemployment Respondent shall: provide written verification from a licensed psychologist, psychiatrist, or mental health counselor that applicant poses no threat to children.

Any costs incurred in fulfilling the terms of probation shall be borne by Respondent.

This Order become effective upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty days of the date of filing.

DONE AND ORDERED, this 18th day of October, 1993.

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services Judith Ratzlaff, Presiding

Officer

Rivers Buford, Jr.

Attorney General's Office I HEREBY CERTIFY that a copy of

the foregoing Order in the

Barbara J. Staros, matter of BC vs. Timothy

General Counsel Melesenka was mailed to Sally C. Gertz, Esq., 118 N. Monroe St.,

Florida Admin. Law Reports Tallahassee, FL 32301, this

28th day of October, 1993,

Virgil L. Morgan, Supt. by U.S. Mail. Broward County Schools

K.C. Wright BLDG., 10 FL 600 S.E. 3rd Avenue

Ft. Lauderdale, Florida 33301

Thomas P. Johnson, Asst. Supt. Personnel Services KAREN B. WILDE, Clerk

Broward County Schools

Robert J. Boyd Attorney at Law

711 East College Avenue Tallahassee, Florida 32301

Daniel Manry, Hearing Officer Division of Administrative Hearings Desoto Building

Docket for Case No: 92-002388

Orders for Case No: 92-002388