STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, )

AS COMMISSIONER OF EDUCATION,1 )

)

Petitioner, )

)

vs. ) Case No. 01-0382PL

)

ANDREW CORDEK, )

)

Respondent. )

________________________________ )

RECOMMENDED ORDER

On June 18 and 19, 2001, a formal hearing was held in this case in accordance with Sections 120.569(1) and 120.57(1), Florida Statutes. The hearing location was the Jacksonville City Hall, 117 West Duval Street, Jacksonville, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: J. Wiley Horton, Esquire

Pennington, Moore, Wilkinson, Bell and Dunbar, P.A.

Post Office Box 10095 Tallahassee, Florida 32302-2095

For Respondent: David A. Hertz, Esquire

Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207-3364

STATEMENT OF THE ISSUE

Should the Education Practices Commission (the Commission) take disciplinary action against Respondent's Teaching Certificate for grounds described in the Administrative Complaint, Case No. 990-0840-R before the Commission?

PRELIMINARY STATEMENT

Through the Administrative Complaint, Case No. 990-0840- R, it is alleged in part:

MATERIAL ALLEGATIONS

1. During the 1998-1999 school year, Respondent made inappropriate comments to students that were derogatory to different ethnic groups. Respondent called one student "Dumb Blonde" and another a "Black Puerto Rican." Respondent also made comments about a particular student M.B. that he had the type of personality to commit a murder similar to the murders at Columbine High School and that the student's book bag was big enough to bring guns into the school. When asked about these comments, Respondent was rude and unprofessional toward the School Resource Officer. Respondent also threatened a student H.H. that she "might fail" his class if she continued to make allegations against him concerning his comments about her fellow male student M.B. Respondent also discussed with a parent of another student K.S. that the student would fail his class if the student insisted on making derogatory comments to [sic] school administration about him.

2. On or about November 13, 1998, Respondent failed to follow a directive from his Vice-Principal that he cover

another teacher's class for a short period because of an emergency. Respondent not only refused the request but flew into a rage, left his class unattended and went to another classroom where he disrupted that class as well. On or about November 17, 1998, Respondent received a letter of reprimand for his insubordination and refusal to cooperate and supervise the class as requested.

According to the Administrative Complaint these facts represent violations of Sections 231.28(1)(f) and 231.28(i), Florida Statutes, as well as Rule 6B-1.006(3)(a), Rule 6B- 1.006(3)(e), Rule 6B-1.006(3)(g), Rule 6B-1.006(4)(a), Rule

6B-1.006(5)(d) and Rule 6B-1.006(5)(f), Florida Administrative Code, set forth in Counts 1 through 8 respectively.

When served with the Administrative Complaint Respondent requested the opportunity to pursue a settlement option, failing which he sought a formal hearing to contest the aforementioned allegations. Subsequently, the case was forwarded to the Division of Administrative Hearings for conduct of a formal hearing in accordance with Sections 120.569(1), 120.57(1), and 231.262(5), Florida Statutes.

Following two continuances the hearing was conducted on the dates described.

At hearing official recognition was made of the various provisions within Rule 6B-1.006(3), Florida Administrative Code, that are cited in the Administrative Complaint.

Petitioner called Respondent; H.P., formerly known as H.H.; K.S.; Mrs. M.E.S., who is K.S.'s mother; Gregory Dale McCandless; Richard C. Bowen; and Juanita Gresham-Johnson as witnesses. Petitioner Exhibits 2, 4, 11, 14, 16, and 17 were admitted. G.N.S., E.T., R.S., and Respondent testified in his case. Respondent's Composite Exhibit 1 was admitted.

Initials and not names have been used to protect the identity of witnesses who were students in the Duval County public school system. Certain transcript pages were placed under seal to protect student information in relation to K.S.

A transcript was filed on July 3, 2001. The parties timely submitted proposed recommended orders. Those proposed recommenced orders have been considered in preparing the recommended order.

FINDINGS OF FACT

1. Respondent holds Florida Teaching Certificate No.

   
   

   728458 in the area of Social Sciences, effective July 30, 1997, through June 30, 2002.

2. At times relevant to the inquiry Respondent was employed as a Social Studies teacher at Mandarin High School, part of the Duval County School District in Jacksonville, Florida.

   CLASS COVERAGE

   
   

3. On November 13, 1998, a secretary in the office at Mandarin High School, contacted Respondent over the school intercom to ask Respondent if Respondent could cover another class than his own during fourth period, which was Respondent's planning period. Respondent answered, "No I cannot, I have to call my doctor." This refers to a health condition which Respondent had which he was treating with an over-the-counter medication and felt the necessity to contact and discuss his condition with his doctor and arrange an appointment to see the doctor if necessary. Ultimately, Respondent did see the doctor concerning this health problem. Beyond the point in time at which the secretary contacted Respondent, Juanita Gresham-Johnson, vice-principal at Mandarin High School, came to Respondent's first period class to speak to Respondent about covering the fourth period class for the teacher not in attendance at school on that date.

   Ms. Gresham-Johnson explained that she needed Respondent to

   
   

   cover half of the fourth period class where the teacher would be absent and wanted to know which half Respondent would cover. Respondent again commented that he had a medical condition and that he needed to talk to his doctor by telephone. Having been directed by Ms. Gresham-Johnson to cover a portion of the missing teacher's fourth period class,

   Respondent declined by saying that he was not going to do it. Respondent then left his classroom and went two or three doors down the hall to speak to another teacher, a Mr. Gill who at the time was the Building Representative of Duval Teachers United at Mandarin High School. Mr. Gill came into the hall from his classroom upon Respondent's request. During this encounter Respondent's first period class was left unattended for approximately two minutes.

4. As a result of the incident involving the request to cover the classroom and Respondent's refusal Ms. Gresham- Johnson as vice-principal of Mandarin High School wrote a letter admonishing Respondent. Through counsel, Respondent wrote Dr. Milton Threadcraft, principal at Mandarin High contesting the admonition. Both letters are in Respondent's school personnel file.

   NAME CALLING

   
   

5. During the 1998-1999 school year students S.M. and

   
   

   K.S. were involved in a verbal altercation in Respondent's class. The remarks the students made to each other were unflattering. Respondent called K.S. outside the classroom and in a discussion concerning the circumstance involving K.S. and S.M. stated to K.S., outside the presence of others, "Well, how would you like it if I called you a Black Puerto Rican?" To which K.S. replied, "Well, you know, you can call

   me a Black Puerto Rican. I'm not going to say nothing to you, but you are going to deal with my parents."

   COLUMBINE

   
   

6. On April 20, 1999, students at Columbine High School shot persons at the school. The shootings at Columbine involved deaths. This became public knowledge, to include Respondent and persons who taught or attended Mandarin High School.

7. On April 21, 1999, the subject of the shootings at Columbine High School were a topic of discussion at Mandarin High School.

8. On April 21, 1999, the subject of the Columbine shootings was brought up by students in Respondent's third period class. In particular, remarks were made about student

   M.B. at Mandarin High School. M.B. was not at school on April 21, 1999. Respondent entered into the conversation in open class. The conversation included a reference by Respondent to M.B.'s backpack being "big enough to hold a rifle." All this was in association with the discussion of the Columbine shootings. Other remarks not attributable to

   Respondent were that M.B. read a lot of criminal books and was the silent type like the students that were involved in the Columbine shootings.

   CONVERSATION WITH K.S.' PARENT

   
   

9. K.S. was interviewed by District personnel concerning the circumstances surrounding Respondent's remarks about M.B. that have been set forth. Respondent called Mrs. M.E.S., K.S.' mother, and referred to the students who had been pulled out of his class to give statements against Respondent, K.S. among them. Respondent told Mrs. M.E.S. if K.S. made negative statements against him in reference to M.B., then Respondent would fail K.S.

   PERFORMANCE EVALUATIONS

   
   

10. For the most part, during his time at Mandarin High, Respondent has been found a competent teacher in all areas of professional evaluation.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this matter in accordance with Sections 120.569(1), 120.57(1), and 231.262(5), Florida Statutes.

12. Petitioner must prove the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is defined in Solmowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA).

13. Through Count 1 Respondent is alleged to have engaged in misconduct in violation of Section 231.28(1)(f), Florida Statutes, which states:

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board.

    
    

    Clear and convincing evidence was not presented to demonstrate personal conduct which seriously reduced Respondent's effectiveness as an employee of the School Board.

14. Through Count 2 Respondent is alleged to have engaged in misconduct in violation of Section 231.28(1)(i), Florida Statutes, which states:

    1. Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

       
       

       This Count is supported by Counts 3 through 8 which address provisions within Rule 6B-1.006, Florida Administrative Code, constituted of the Principles of Professional Conduct for the Education Profession in Florida. To the extent that any violations are shown pertaining to Counts 3 through 8, likewise it would constitute a violation of Count 2.

15. Through Count 3 Respondent is alleged to have engaged in misconduct in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, which states:

    (a) Shall make reasonable effort to protect the student from conditions harmful

    to learning and/or to the student's mental and/or physical health and/or safety.

    
    

    Clear and convincing evidence was presented that the comment by Respondent concerning M.B. and the comment to Mrs. M.E.S., K.S.'s mother, evidence a lack of reasonable effort to protect those students from conditions harmful to learning.

16. Through Count 4 Respondent is alleged to have engaged in misconduct in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, which states:

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

    As was the circumstances in relation to Count 3, clear and convincing evidence has been presented to demonstrate that Respondent had intentionally exposed M.B. and K.S. to unnecessary embarrassment or disparagement by his comments about M.B. and directed to K.S.

17. Through Count 5 Respondent is alleged to have engaged in misconduct in violation of Rule 6B-1.006(3)(g), Florida Administrative Code, which states:

    (g) Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

    Clear and convincing evidence has been presented that Respondent intended harassment of K.S. on the basis of race, national and ethnic origin in remarks directed to K.S. referring to "Black Puerto Rican."

18. Through Count 6 Respondent is alleged to have engaged in misconduct in violation of Rule 6B-1.006(4)(a), Florida Administrative Code, which states:

    (a) Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual

    is affiliated.

    
    

    Facts were not alleged which would implicate a violation of that count, and no facts were presented to support the count. Therefore the violation has not been shown.

19. Through Count 7 Respondent is alleged to have engaged in misconduct in violation of Rule 6B-1.006(5)(d), Florida Administrative Code, which states:

    (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 processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

    
    

    Petitioner has failed to prove a violation of Count 7.

20. Through Count 8 Respondent is alleged to have engaged in misconduct in violation of Rule 6B-1.006(5)(f), Florida Administrative Code, which states:

(f) Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

Petitioner has failed to prove that Respondent violated Count 8.

RECOMMENDATION

Based upon the consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered in accordance with Section 231.262(6), Florida Statutes, finding the Respondent in violation of Counts 2 through 5, dismissing Count 1 and Counts

6 through 8 and suspending Respondent's Teaching Certificate for a period of 30 days pursuant to Section 231.28(1), Florida Statutes.

DONE AND ENTERED this 27th day of July, 2001, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative 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 Hearings this 27th day of July, 2001.

ENDNOTE

1/ Charlie Christ, as Commissioner of Education, has been substituted in the style for Tom Gallagher, as Commissioner of Education, who served when the Administrative Complaint was drawn in Case No. 990-0840-R before the State of Florida, Education Practices Commission.

COPIES FURNISHED:

J. Wiley Horton, Esquire Pennington, Moore, Wilkinson,

Bell, and Dunbar, P.A. Post Office Box 10095

Tallahassee, Florida 32302-2095

David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207-3364

Kathleen M. Richards, Executive Director Education Practices Commission 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, Room 224E 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.

Docket for Case No: 01-000382PL

Orders for Case No: 01-000382PL