STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )
)
Petitioner, )
)
vs. ) Case No. 00-3066PL
)
LEBYYRRONN DOOMSTORM, )
)
Respondent. )
__________________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Florence Snyder Rivas, conducted a formal hearing in the above-styled case on May 28, 2002, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: William Scherer III, Esquire
Conrad & Scherer
Post Office Box 14723
Fort Lauderdale, Florida 33302
For Respondent: Kimberly Daise, Esquire
1236 Southeast 4th Avenue
Fort Lauderdale, Florida 33316
Brenda D. McCaslin, Esquire
5950 West Oakland Park Boulevard Suite 205
Fort Lauderdale, Florida 33319
STATEMENT OF THE ISSUE
At issue is whether the Respondent committed the offenses set forth in the Administrative Complaint dated June 6, 2000, and if so, what disciplinary action should be taken.
PRELIMINARY STATEMENT
By Administrative Complaint dated June 6, 2000, Petitioner (Petitioner or Commissioner) charged Respondent (Respondent or Doomstorm) with six separate violations of the Florida Statutes and Florida Administrative Code, all arising out of the same incident on June 17, 1999.
At the formal hearing, Petitioner called five witnesses, Katherine Sullivan, Cynthia Fankhauser, Paul Micensky, Diane Arndt and Douglas Iscovitz. Petitioner also offered six exhibits which were received into evidence.
Respondent testified on his own behalf. He called no other witnesses and offered no exhibits.
A two-volume transcript was filed on June 17, 2002. The parties were afforded 20 days from that date to file proposed recommended orders. Respondent’s filing was untimely, but was nevertheless carefully considered along with that of Petitioner in the preparation of this recommended order.
Unless otherwise specified, throughout this recommended order all references to Sections are to Florida Statutes, and all references to Rules are to the Florida Administrative Code.
FINDINGS OF FACT
This case arises out of an incident which occurred on June 17, 1999, (June 17), the last day of the school year at Indian Ridge Middle School (Indian Ridge).
The incident triggered the filing of a criminal
battery complaint against Respondent, a decision by Indian Ridge’s principal that Respondent was no longer welcome to serve at that school, and, finally, these proceedings, in which the Commissioner seeks sanctions against Respondent’s teaching certificate. All of these problems are of Respondent’s own making, for the evidence establishes that he had no legitimate business on school grounds that day.
In the 1998-1999 school year, Doomstorm was one of the assistant principals at Indian Ridge. In that capacity, he had responsibility for, among other things, the eighth grade class which was graduating that June. Doomstorm had proprietary feelings toward this class, referring to the members as “his kids.” He had looked forward to being with them for their graduation related activities.
Unfortunately, at the end of the school year when graduation dances and assemblies were taking place, Doomstorm was on crutches and on "no-work" status due to a work-related injury.
This was not the first time in the school year that Doomstorm had been on medical leave. On each such occasion, his job was performed by Katherine Sullivan (Sullivan).
As an assistant principal, Doomstorm had the use of a small private office. Sullivan was properly provided full access to that office during the weeks in which she substituted for Doomstorm.
Of course, public school offices and work spaces are not private property; rather, they are provided at public
expense for the use of the individual who is performing a specific job.
Although Doomstorm had not voiced any complaints prior to June 17 regarding Sullivan's use of this space, he viewed it as "his" office--a place he was entitled to enter at his discretion.
Doomstorm harbored some resentment toward Sullivan because he believed she had "disrespected [his] pictures" when she had filled in for him on at least one occasion prior to the June 17 incident.
Doomstorm, like any other school employee on "no- work" status, has no professional responsibility except to stay home, follow doctors' orders, and get well so he could return to work as soon as possible.
In addition, a person on "no-work" status is prohibited from being on campus for employment-related as well as for social and personal reasons, lest his employer, the School Board of Broward County, be held liable if he were to exacerbate his injury. If an exception is to be made, it would be made by the school principal, the person who is ultimately accountable for what occurs on school grounds.
Doomstorm had difficulty accepting that his injury would separate him from year-end activities and decided to come to a Saturday night eighth grade dance.
School administrators or teachers who attend and/or chaperone a school dance are considered to be working, a fact that Doomstorm, as a high level administrator, was reasonably presumed to know.
Thus, Indian Ridge principal Douglas Iscovitz
(Iscovitz) was understandably surprised and concerned when he saw Doomstorm at the dance. Because it was a social occasion and because Doomstorm stayed only briefly, Iscovitz did not chide him for being there, but instead made small talk with him at the event.
Iscovitz did, however, subsequently contact Doomstorm by telephone and instructed him not to come to campus for any reason until he was off no-work status. Iscovitz told Doomstorm that in the event he felt it necessary to be on campus, he must first contact Iscovitz and obtain permission.
Doomstorm does not claim that persons on no-work status are allowed to come to campus. Nor did he challenge the Petitioner’s evidence that exceptions to this rule may be granted only by the principal. Neither did Doomstorm suggest that these facts are not within the purview of what an administrator is reasonably expected to know. Rather, Doomstorm claims much more narrowly that Petitioner’s evidence that Doomstorm had actual knowledge that he should not come to school without advance permission is fiction. This claim is specifically rejected.
In defiance of the reasonable conditions to which he was subject due to his no-work status, Doomstorm drove himself to Indian Ridge on the morning of June 17. He claims he needed to pick up some insurance forms.
When he arrived, Sullivan was conferring with a parent in the office formerly occupied by Doomstorm.
Doomstorm entered the office, and was asked by Sullivan to give her a minute while she finished her conversation.
Doomstorm accommodated that request. After Sullivan completed her conversation, Doomstorm came around to the
opening
of the desk and told her, "You disrespected my pictures" and "I told you not to mess with my pictures."
Sullivan admits that during the time frames in which she was filling in for Doomstorm, she had moved his pictures, which had been spread out across the front of the desk so as to obstruct needed work space. Sullivan put the pictures on the credenza, but refrained from getting them out of the way entirely in deference to the fact that Doomstorm had previously requested that the pictures not be put away.
Doomstorm conducted himself in a manner toward Sullivan which reasonably caused her to conclude that he was agitated and angry. He did not respond to her explanation that she moved the pictures because she needed a place to work.
Doomstorm began to go through office furniture saying he was looking for insurance papers. Sullivan told Doomstorm that she had placed any mail or personal papers addressed to him inside the credenza. She got these papers from where she had been storing them and handed them to Doomstorm.
The incident continued to escalate. Doomstorm turned to Sullivan and told her, "Get out of that chair, it's
not yours." Doomstorm’s demeanor, choice of words, the fact that he had positioned himself so as to block the one entrance/exit to the desk area where Sullivan sat, along with the fact that Doomstorm is much larger than Sullivan, combined to make her feel frightened and intimidated.
When Doomstorm next moved to the side of the entrance to pick up the phone, Sullivan squeezed through the entrance and left the office.
Sullivan proceeded from the assistant principal's office to the nearby office of guidance counselor Janet Raether (Raether). Sullivan was shaken, and asked Raether to contact Iscovitz for assistance with the unfolding events.
Raether reached Iscovitz' secretary Cindy Fankhauser, (Fankhauser), who in turn paged Iscovitz at his dentist's office. Raether also contacted assistant principal Paul Micensky (Micensky), who proceeded to Raether's office.
Iscovitz promptly returned Fankhauser's page. Upon learning that Doomstorm was on campus and that at least some school personnel were upset by his actions, Iscovitz instructed Fankhauser to secure the assistant principal's office and to arrange to have Doomstorm escorted off campus by the school resource officer.
Meanwhile, Doomstorm left the office area. Sullivan re-entered and found that the papers she had been working on had been shuffled into a big pile on the desk. She had previously organized the papers into stacks by subject matter.
Doomstorm’s pictures were also spread back out on the front of the desk. Sullivan gathered her things and returned to the guidance counselor's office.
As Micensky headed toward the eighth grade office, he encountered Doomstorm walking in the opposite direction. Doomstorm stopped and told Micensky that he was upset because
items in his office were "messed up," and that he was looking to get a box in which to put them so he could take them home.
He told Micensky that when he was previously out on medical leave, his pictures were thrown in the corner and were not taken care of. Doomstorm was sincere in this belief, telling Micensky, "I would never do that to your stuff."
Doomstorm also told Micensky that he was upset with Micensky, whom he blamed for the fact that Doomstorm had not been included in a picture taken at the eighth grade dance.
Micensky accompanied Doomstorm to the bookkeeper's office and waited while he had a discussion with the bookkeeper.
After Doomstorm completed his business with the bookkeeper, the two began to walk toward Doomstorm's old office to enable him to collect his things. Doomstorm stopped to speak to someone in the hallway, so Micensky arrived at the office before Doomstorm.
There, Micensky encountered Sullivan and Fankhauser, and another school secretary. Sullivan was visibly upset and appeared to have been crying. Sullivan was beginning to tell Micensky her version of events, but had gotten only as far as expressing how afraid she had been of Doomstorm moments ago in her office.
At that point, Doomstorm entered the area, approached the closed front door of Sullivan's office, and was informed by Fankhauser of the principal's instruction that he was not permitted to enter the office and must leave the
campus at once. This was the first Micensky learned of the principal's order, as well.
As an assistant principal, Micensky knew, and Doomstorm knew or should have known, that all of the school’s staff are obliged to follow any lawful directive from the principal. Thus, Micensky reasonably assumed that Doomstorm would follow this instruction; the moment it became clear that Doomstorm was not cooperative, Micensky properly turned his full attention to securing Doomstorm’s removal without exacerbating the situation.
Doomstorm neither complied with the order to leave campus nor questioned its bona fides. Instead, he twice stated his intention to enter the office. Attempting to follow her boss’ orders that Doomstorm not be allowed into the office, Fankhauser kept her hand on the door and her body in front of the door. In the ensuing commotion, Doomstorm states that he “accidentally stepped on Ms. Fankhauser’s toe with my crutch.”
Fankhauser is convinced that Doomstorm acted intentionally to cause injury to her left foot. This is entirely possible, given the other childish behaviors in which Doomstorm indulged on June 17, but the record lacks clear and convincing evidence that Fankhauser was injured due to an intentional battery by Doomstorm. It is equally likely that the injury was accidentally inflicted by Doomstorm during the course of the scuffle over access to the office. The evidence is clear and convincing that Fankhauser's injury was the
result of Doomstorm's inappropriate insistence upon immediate access to the office, with or without Fankhauser’s cooperation, and not, as Doomstorm suggests, Fankhauser's appropriate efforts to follow the principal's directive.
Fankhauser’s left foot was injured severely enough to require medical attention.
Attempting to defuse the situation, Micensky asked Doomstorm to go to another room to talk privately. Although neither Micensky nor anyone else in the area had proposed bringing Fankhauser with them for this conversation, Doomstorm was so upset with Fankhauser -- a woman less than half his size whom he had just injured -- that he continued to escalate the situation by pointing at Fankhauser and saying, “Not with her.”
At the time of the incident and at the time of the hearing, Doomstorm was plainly offended that a secretary had stood between him and the office he perceives to be “his.” Doomstorm is of the view that there is a class distinction between "mere" secretaries, who may be ignored even when they bear instructions from the principal, and peers, such as fellow assistant principals or others who hold administrative positions. Having indicated his contempt for Fankhauser, Doomstorm was ready to confer privately with his “peer,” Micensky.
Micensky and Doomstorm entered a nearby conference room. An awkward conversation followed. A frustrated Micensky raised his voice to Doomstorm, but lowered it when asked to do
so by Doomstorm. Doomstorm’s demeanor alternated between being quiet and being angry. Finally, the men left the conference room and went to the office. Micensky entered and collected Doomstorm’s belongings and pictures and put them into a box. Meanwhile, the school resource officer, Diane Arndt, joined Micensky and assisted with packing and with escorting Doomstorm to his car.
Upon his return to the campus, Iscovitz was briefed on his staff's collective recollection of Doomstorm's time on campus that day. Iscovitz also made several unsuccessful attempts to contact Doomstorm to obtain his side of the story.
Doomstorm did not return these messages, which Iscovitz had emphasized were urgent.
Following his own investigation, Iscovitz decided he would not allow Doomstorm to return to his position at Indian River. However, subsequent to his return from disability leave, Doomstorm was re-employed as an assistant principal at another middle school in Broward County.
Doomstorm was also prosecuted for battery on Fankhauser. The criminal case was resolved when Doomstorm agreed to sign a letter of apology prepared by his attorney, and to complete an anger management course.
Doomstorm's conduct toward Sullivan and Fankhauser created within them a reasonable belief and fear that Doomstorm is capable of repeating and possibly escalating intimidating behaviors toward them if given the opportunity to do so.
Because of the events of June 17, Iscovitz reasonably lost all confidence in Doomstorm's fitness to hold a position of trust in the school in general, and in his fitness to hold a position of authority over professional and clerical personnel in general, and Sullivan and Fankhauser in particular.
Iscovitz testified, "The job of an administrator is to resolve conflict, not create conflict. . . . When I returned back to school all I saw was frightened people who were totally upset, devalued, put in a position where they had to defend themselves and I just feel that is not the appropriate means that a person should employ as an administrator. So my answer would be absolutely not (be willing to work with him again)."
The totality of the evidence clearly and convincingly supports the conclusions drawn by Iscovitz. The testimony of each of the Petitioner's witnesses was internally consistent, and consistent from witness to witness. It was appropriately detailed given the length of time between the date of the incident and the time of the hearing.
The undersigned carefully observed the demeanor of all witnesses under direct and cross examination, and further finds that the testimony of the Petitioner's witnesses was straightforward and accurate in all significant respects. Respondent did not persuasively suggest that any or all of the witnesses had any motive to shade their testimony, or that they did in fact do so.
Doomstorm, by contrast, was evasive or unresponsive at various significant places in his testimony. Worse, after three years to think about it, Doomstorm took no responsibility for the distress of his colleagues, portraying himself as a bewildered victim who can't understand why all these people are imagining or making things up. Whether the injury to Fankhauser's foot was intentional, as Fankhauser believes, or accidental, as Doomstorm insists, it would not have happened had Doomstorm not ignored Fankhauser when she delivered Iscovitz' order to leave the premises at once.
The clearest and most convincing evidence against Doomstorm comes from Doomstorm himself. He acknowledged that Sullivan and Fankhauser became upset when they were required, through no desire or fault of their own, to deal with him on the last day of school, but claimed to have no idea why they became upset.
He dismisses the injury to Fankhauser as accidental and unintentional, never acknowledging that his decision to go to the school while on no-work status, and his refusal to leave after being ordered to do so by individuals authorized to communicate that order, inexorably led to her injury.
With respect to his interaction with Sullivan, Doomstorm suggests that ". . . the conversation . . . was no more acrimonious than might reasonably be expected under the circumstances in which one employee's workplace and personal effects are disturbed by another or when one's access to the workplace is restricted without notice or reason being
provided."
Even if his access had been restricted without notice or reason being provided, a contention which the undersigned rejects, it would not excuse Doomstorm's behavior.
The record is silent as to whether Doomstorm in fact completed the anger management class upon which his plea bargain was conditioned. If he did, the benefits were not long lasting. At the time of the hearing, Doomstorm had no apparent insight into the fact that, through his own conduct, he has destroyed the working relationship he had with three staff members at Indian
Ridge, including the principal of the school, and he is not cognizant of the effect his anger has on others.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto.
In this case, Petitioner has the burden of proving the allegations of the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence, as defined by the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983),
requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In Count I of the Administrative Complaint, Doomstorm is alleged to have violated Section 231.28(3)(c), now Section 231.2615(1)(c) in that he has been guilty of conduct demonstrating moral turpitude.
Rule 6B-4.009(6) defines moral turpitude as a crime that is evidenced by an act of baseness, vileness or depravity
in the private and social duties, which, according to the accepted standards of the time, a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
The court in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), observed that moral turpitude
involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
In Adams v. Professional Practices Council,
406 So. 2d 1170 (Fla. 1st DCA 1975), the court concluded that teachers "charged by sections 231.09 and 231.28(1) with providing leadership and maintaining effectiveness as teachers
. . . are traditionally held to a high moral standard in the community."
Even holding Doomstorm to the high moral standard applicable to teachers, based on the findings of fact herein, the Commissioner failed to carry his burden of proving by clear and convincing evidence that Doomstorm's actions on June
17 constituted acts of moral turpitude. As inappropriate as the behavior was, Doomstorm did not exhibit "flagrant disregard of proper moral standards" or an "inherent baseness
or depravity" sufficient to support a finding that this section was violated.
Count II of the Administrative Complaint charges the Respondent with violation of Section 231.28(1)(f), now Section 231.2615(1)(f) in that he has, upon investigation, been found guilty of personal conduct which seriously reduced his effectiveness as an employee of the school board.
In this case, the question of Respondent's effectiveness is problematic. On the one hand, it is clear that Doomstorm's effectiveness at Indian Ridge was destroyed, at least as long as Iscovitz, Sullivan, and Fankhauser work there.
It is equally clear that these individuals were so appalled or traumatized by Doomstorm’s conduct on June 17 that they would not willingly submit to working with him again.
But the statute by its express terms requires that Respondent's effectiveness be examined in terms of service to the entire school system, not with respect to any one school or individual. The events of June 17 did not lead to Doomstorm's termination of employment by the School Board. Rather, he came back from disability leave and was promptly reemployed as an assistant principal at another Broward County school. There is no evidence to suggest that he is not performing competently in this position. It is therefore recommended that the Commissioner defer to the School Board's view that Doomstorm's effectiveness within the school district has not been sufficiently diminished to sustain Count II.
Count III is predicated upon the violation of the Rules of Professional Conduct further specified in Counts IV, V and VI and will therefore not be separately considered.
Count IV was withdrawn by Petitioner and is thus moot.
In Count V, Doomstorm is charged with violation of Rule 6B-1.006(5)(d) which states:
(5) Obligation to the profession of education requires that the individual:
* * *
(d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further shall make reasonable efforts to assure that each individual is protected from such harassment or discrimination.
Doomstorm’s conduct with regard to Sullivan and Fankhauser on June 17 plainly violated of this rule. Even three years after the event, Sullivan and Fankhauser become visibly distressed when required to relive June 17. The facts established by clear and convincing evidence fully justify their belief that they were indeed being harassed, intimidated, abused and subjected to an oppressive environment for simply doing their jobs. Doomstorm came to Indian Ridge under circumstances where he had no reason to be there, created a scene which prevented these persons and several other colleagues from attending to their regular duties, and which continued to take them away from their duties as three
separate legal processes unfolded, and caused physical injury to Fankhauser, along with emotional distress to all who were forced to participate in the June 17 incident and its aftermath. There is no excuse for an assistant principal to contribute to workplace stress in the manner Doomstorm did.
Finally, Doomstorm is charged with violation of
Rule 6B-1.006(5)(f) which prohibits the use of coercive means or the promise of special treatment to influence the professional judgment of colleagues. Petitioner argues that Doomstorm attempted to coerce Fankhauser to allow him to enter the office despite Iscovitz' instructions that he not be permitted to do so. On the facts of this case, this charge is subsumed within the pleading and proof as to Count V.
While it is true that Doomstorm wanted to enter his office and Fankhauser did her best under difficult circumstances to follow Iscovitz’ order to get him off campus, Fankhauser was not exercising professional judgment within the usual meaning of that phrase. The evidence is thus not sufficient to sustain Count VI.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a final order finding Doomstorm guilty of Count V of the Administrative Complaint.
It is further RECOMMENDED that Doomstorm be given the following discipline by the Education Practices Commission:
A letter of reprimand, a copy of which should be
placed in Respondent's certification file with the Department of Education; and
Probation for a period of one year, subject to reasonable conditions to be determined by the Education Practices Commission. Such conditions might include a requirement for peer mentoring, for counseling, and additional training in anger management, as well as in conflict resolution.
DONE AND ENTERED this 30th day of July 2002, in Tallahassee, Leon County, Florida.
___________________________________
FLORENCE SNYDER RIVAS
Administrative Law Judge Division of Administrative
Hearings
Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative
this 30th day of July, 2002
COPIES FURNISHED:
Kimberly S. Daise, Esquire 1236 Southeast 4th Avenue
Fort Lauderdale, Florida 33316
Brenda D. McCaslin, Esquire
5950 West Oakland Park Boulevard Suite 205
Fort Lauderdale, Florida 33319
William R. Scherer, III, Esquire Conrad & Scherer
633 South Federal Highway Post Office Box 14723
Fort Lauderdale, Florida 33302
Kathleen M. Richards, Executive Director Department of Education
325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400
Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education
325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
James A. Robinson, General Counsel Department of Education
The Capitol, Suite 1701
Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 15, 2002 | Agency Final Order | |
| Jul. 30, 2002 | Recommended Order | Assistant principal unjustifiably harassed and intimidated colleagues while improperly on school grounds, warranting a reprimand and probation. |
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