STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JIM HORNE, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
NEIL A. MERICA,
Respondent.
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) Case No. 03-3158PL
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RECOMMENDED ORDER
Pursuant to notice and in accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes (2003), this cause came on for final hearing on January 8 and 9, 2004, in Tampa, Florida, before Fred L. Buckine, a duly-designated Administrative Law Judge of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: Aaron W. Proulx, Esquire
Kelly B. Holbrook, Esquire Broad and Cassel
100 North Tampa Street Suite 3500
Tampa, Florida 33602
For Respondent: Robert F. McKee, Esquire
Kelly and McKee
1718 East 7th Avenue Suite 301
Tampa, Florida 33675
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent, Neil A. Merica, committed the offenses alleged to have begun in 1994 through 1999 as stated in the Amended Administrative Complaint dated May 7, 2003, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
The Hillsborough County School Board terminated Respondent, Neil Merica (Respondent or Mr. Merica) in 2000. By letter dated May 7, 2003, Petitioner, Jim Horne, Commissioner of Education (Petitioner or Commissioner), notified Respondent that pursuant to Subsections 1012.795(1) and 1012.796(6), Florida Statutes (2003), and Florida Administrative Code Rule 6A-4.037, probable cause had been found to justify sanctioning the right of Respondent to renew his Florida Educator's Certificate.
Respondent was advised that a permissible sanction ranged from a reprimand to permanent revocation of his Florida Educator's Certificate.
The Commissioner alleged in the Amended Administrative Complaint that Mr. Merica violated Subsections 1012.795(1)(b), 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida
Statutes(2003), and Florida Administrative Code Rules 6B- 1.006(3)(a), 6B-1.006(3)(e), and Rule 6B-1.006(5)(d). Pursuant
to Subsections 1012.796(l) and 1012.796(7), Florida Statutes (2003), the Commissioner seeks to impose an appropriate penalty.
By letter dated July 17, 2003, Respondent timely disputed the factual allegations in the Administrative Complaint by executing an Election of Rights form in which he elected the "Formal Hearing Option," provided by Chapter 120, Florida Statutes (2003).
On September 3, 2003, Petitioner referred the Administrative Complaint and Respondent's Election of Rights form to the Division of Administrative Hearings to schedule a final hearing.
On September 19, 2003, a Joint Response to Initial Order was filed, and, on the same date, the Notice of Hearing, scheduling the final hearing for November 13 and 14, 2003, in Tampa, Florida, and the Order of Pre-hearing Instructions were entered.
On October 23, 2003, Petitioner filed an Unopposed Motion for Leave to Amend the Administrative Complaint and Unopposed Motion for Continuance of Final Hearing. By Order of
October 31, 2003, Petitioner's motions to amend the Administrative Complaint and continue the final hearing were granted.
On November 4, 2003, an Order scheduling the final hearing for January 8 and 9, 2003, in Tampa, Florida, was entered.
On November 6, 2003, Petitioner filed the Amended Administrative Complaint.
On December 19, 2003, Petitioner filed a Motion to Permit Pre-trial Videotaped Deposition in Lieu of Testimony at Final Hearing, and, on December 26, 2003, Respondent filed a motion in opposition thereto.
On December 24, 2003, Petitioner filed a Motion for Leave to Amended Complaint to Correct a Scrivener's Error.
On December 30, 2003, the parties filed their Joint Pre- hearing Stipulation, and a telephonic hearing on all pending motions was held. On that date, an Order granting Petitioner's motion for leave to amend the Amended Administrative Complaint and motion to take and introduce into evidence the videotaped deposition of Kim Kimpton was entered.
Petitioner presented the testimony of 21 witnesses and the video deposition testimony of Kim Kimpton (f/k/a "Rivenburg") taken on December 30, 2003. Of the 71 exhibits Petitioner proffered, 57 were received into evidence.1
Petitioner's ore tenus motion to dismiss subsection (d), paragraph 7, of Count 5 of the Amended Administrative Complaint at the close of Petitioner's case was granted.
Respondent testified in his on behalf, presented the testimonies of three witnesses, and offered two composite exhibits that were received into evidence.
On January 15, 2004, Petitioner filed the post-hearing video deposition of Kim Kimpton.
On February 2, 2004, the three-volume Transcript of the proceeding was filed.
On February 11, 2004, Respondent filed an unopposed Motion for Extension of Time to file Proposed Recommended Order, and the Order granting the motion was entered on February 12, 2004, extending the time for filing proposed orders to February 20, 2004.
On February 19, 2004, Petitioner filed an unopposed Motion for Extension of Time to file Proposed Recommended Order, and, on February 20, 2004, an Order granting the motion was entered extending the time for filing post-hearing submittals to February 26, 2004. The Order(s) granting the two extensions of time to file post-hearing submittals waived the time requirement for this Recommended Order. See Fla. Admin. Code R. 28-106.216.
On February 24 and 27, 2004, respectively, Petitioner and Respondent filed Proposed Recommended Orders, which were considered in preparation of this Recommended Order.
FINDINGS OF FACT
Based upon observation of the demeanor and candor of the witnesses while testifying; the documentary materials received in evidence; evidentiary rulings made pursuant to
Section 120.57, Florida Statutes (2003); stipulations and arguments of the parties; and the entire record compiled herein, the following relevant, material, and ultimate facts, arrived at
impartially, based solely upon the extensive evidence adduced at the final hearing, are determined:
Respondent's Qualification and Teaching Experiences
Mr. Merica holds a degree in speech communication from the University of South Florida. He is also certified in specific learning disabilities (SLD) by that institution. Early in his 13-year tenure as a teacher at Foster Elementary School (Foster), he acquired a degree in computer science from Florida Metropolitan University.
Mr. Merica holds Florida Educator's Certificate No. 532934, covering areas of English Speakers of Other Languages (ESOL), SLD,2 and Speech. His Florida Educator's Certificate expired June 30, 2003. As of the date of this
proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. Mr. Merica also holds a teaching certificate from New Hampshire.
Mr. Merica has a very demonstrative and expressive personality. His voice, when speaking at his normal conversational tone, resounds from the back of his throat in a louder than average volume. During his testimony, the pitch of his voice and his rapid speech pattern was accompanied by an unexpected and sudden outburst of spastic energy.
Hillsborough County School Board's "Pull-out" Classroom Policy
In 1987, the Hillsborough County School Board (Board) operated a Pull-out Classroom Policy (Pull-out Policy) for SLD and Physically Impaired (PI) students. Pursuant to the Board's Pull-out Policy, SLD and PI students were pulled out of their regular classes, divided into various numbered groups, and sent to a designated "resource" class teacher during the school day. Respondent's Initial Teaching Assignment Under the Pull-out Policy in 1987-1988
Mr. Merica began teaching at Foster as a SLD resource class teacher in October 1987 when the Board's Pull-out Policy was in effect. A resource teacher is the teacher whose class consisted of SLD students who were "pulled out" of regular classes of non-SLD students and sent to a resource class consisting of all SLD students for teaching and instruction. In 1989, the Board changed its Pull-out Policy to a "Self- contained" Classroom Policy (Self-contained Policy). The Self- contained Policy was designed to keep all SLD students together in one identified class throughout the school year. Mr. Merica taught SLD students under the Self-contained Policy at Foster until the 1992-1993 school year.
Beginning at the start of the 1992-1993 school year, Foster's administration assigned Mr. Merica to teach a resource class consisting of PI and Learning Disabled Resource (LDR)
students. PI classes consisted of students with a variety of physical impairments, including students who required various assistance devices such as wheelchairs, walkers, braces and "talkers," a machine device that assists the student with speaking difficulties to communicate. Mr. Merica continued as a PI and LDR teacher from the 1992-1993 school year through the 1998-1999 school year.
Foster Elementary Exceptional Student Education Student Population from 1998 to 2000
During the two-year period of the 1998-1999 and 1999- 2000 school years, Foster had a large exceptional student education (ESE) population among its general student population. Foster's ESE community population consisted of 22 units, composed of full-time ESE students. There were six units of mentally handicapped students, with mental handicaps ranging from severe and profound mentally handicapped to mild emotionally mentally handicapped. There were four units of autistic students and four units of PI students. Foster had approximately five units of early exceptional learning programs, and three units of SLD students.
Policy Change to Self-Contained Classes in 1998-1999
During the fall of the 1998-1999 school year, the Board changed their Pull-out Policy for SLD and PI students to a Self- contained Policy. The Self-contained Policy was instituted
because of the severity of the students' learning disabilities, their struggles with academics, and the administration's conviction that the daily routine of shifting the SLD and PI students from "regular class to resource class" did not sufficiently address the students' individual learning disabilities and individual educational needs. Foster's administration identified students whom they believed did not handle transition well and recommended them as candidates for self-contained classes. The primary objective of the administration was to provide more "direct teaching time" and "direct teaching services" to each SLD or PI student. In the self-contained classes, SLD and PI students were assigned to one class and one teacher with a teacher's aide and/or a Department of Education for Exceptional Students (DEES) attendant throughout the day. The teacher's aides were those persons who were permitted to assist, under the oversight of the teacher, the classroom teacher with all facets of teaching, instruction, and classroom control. The DEES attendants were those persons whose duties consisted primarily of assisting the teacher by attending to individual and personal needs of SLD and PI students, i.e. changing their clothing, providing restroom assistance, etc.
Respondent's 1999-2000 Reassignment to Teach Self-contained SLD Class
In mid 1998, Brenda Griffin (Principal Griffin) was appointed principal of Foster replacing Janice Payne, f/k/a Pils (Principal Payne). At the start of the 1999-2000 school year, Principal Griffin changed Mr. Merica from his PI and LDR class and assigned him to teach a self-contained class of SLD students.
A self-contained SLD class is a class composed of SLD students, each of whom has an individual educational plan (IEP) designed as the teacher's guide to assist in teaching each student to achieve specific, individual, and predetermined educational goals. Each IEP is developed by joint agreement of the SLD student's parent, his/her teacher and the assigned therapist (teacher). The IEP also identifies special educational services and supports that may be necessary to achieve desired outcomes and short-term objectives, and it establishes student educational benchmarks. An IEP may or may not contain daily, weekly or monthly checklists to evaluate a student's progress in achieving the benchmarks contained in his or her IEP. To make an objective determination of whether a student with an IEP has made progress (advanced from or to an ascertainable educational position), knowledge of the
educational benchmarks contained in the student's IEP are essential.
During the earlier years as a teacher at Foster, Mr. Merica served as the school's Classroom Teacher's Association (CTA) representative. In this capacity, he would address and argue those issues he believed to have had direct impact upon teachers who were members of the CTA. Mr. Merica attributed many of the comments made during staff meetings to
addressing issues he believed had an impact upon teacher members of the CTA. During the 1997-1998 school year and after lengthy discussions with Principal Payne, but before Principal Griffin was appointed principal, Mr. Merica resigned as CTA representative.
In September of 2000 and after 13 years of annual employment contract renewals, the Board terminated Mr. Merica's employment. At the time of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. In this proceeding, the Commissioner seeks to permanently revoke Mr. Merica's right to renew his Florida Educator's Certificate. The Amended Administrative Complaint
The Amended Administrative Complaint alleged specific instances of specific conduct, specific acts, and specific speech to have occurred at unspecified dates and at unspecified times during a five-year span of time from 1994 through 1999.
Accordingly, only incidents specifically alleged and proven by evidence of record to have occurred on or after January 1, 1994, through December 31, 1999, are considered in determining whether the Commissioner proved each allegation charged in the Amended Administrative Complaint.
STATUTE VIOLATIONS
Count 1: The Respondent is in violation of Section 1012.795(1)(b), Florida Statutes, in that Respondent has proved to be incompetent to teach or perform duties as an employee of the public school system or to teach in or to operate a private school.
Count 2: The Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving mortal turpitude.
Count 3: The Respondent is in violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.
Count 4: The Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession Prescribed by State Board of Education rules.
RULE VIOLATIONS
Count 5: The allegations of misconduct set forth herein are in violation of Rules 6B-1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or
to the student's mental health and/or physical health and/or safety.
Count 6: The allegations of misconduct set forth herein are in violation of Rule
6B-1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.
Count 7: The allegations of misconduct set forth herein are in violation of Rule
6B-1.006(5)(d), Florida Administrative Code, in that Respondent has engaged in harassment or discriminatory conduct which unreasonably interfered with an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment; and further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
WHEREFORE, Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 1012.795(1) and 1012.796(7), Florida Statutes, which penalty may include a reprimand, probation, restriction of the authorized scope of practice, administrative fine, suspension of the teaching certificate not to exceed three years, permanent revocation of the teaching certificate, or combination thereof, for the reasons set forth herein, and in accordance with the Explanation and Election of Rights forms.
Amendment to Amended Administrative Complaint to Correct Scrivener's Error.
On December 24, 2003, Petitioner filed a Motion for Leave to Amend Complaint to Correct Scrivener's Error, which was granted and provided the following:
On November 6, 2003, Petitioner Amended the Administrative Complaint in this matter.
Paragraph 5 of the Amended Administrative Complaint should be further amended to correct the scrivener's error.
Paragraph 5 of the Amended Administrative Complaint currently states: "During the 1998-99 school year, Respondent sexually harassed several different co- workers."
That portion of Paragraph 5 should be amended to state: "Between 1994 and 1999, Respondent sexually harassed several different co-workers," to conform the time period for the allegations of Paragraph 5 with the time period for the allegations of all other paragraphs of the Amended Administrative Complaint.
Janice Payne, Principal at Foster from 1987-1998
Principal Payne was principal at Foster from May 1987 to May 1998. An illness forced her to retire midyear in the 1997-1998 school year. After Principal Payne’s retirement, the Board appointed Principal Griffin as principal of Foster. Principal Griffin held that position during the time of this hearing.
During Principal Payne's 1987 to 1998 tenure as principal at Foster and as required by statute, she performed yearly evaluations of Mr. Merica's professional performance as a teacher of SLD and PI students. Consideration was given to annual performance evaluations for the 1994-1995 and 1998-1999 school years. During the 1994-1995 through 1997-1998 school years, Principal Payne identified, in her annual evaluations of Mr. Merica's overall professional teaching performance, specific areas in which she independently determined Mr. Merica was in need of professional growth and improvement. At the end of each of those four evaluation periods, she met with Mr. Merica and discussed and identified for him those specific areas in which he was in need of professional growth and improvement. She provided him with specific, constructive advice and assistance to facilitate his professional growth and improvement as a professional teacher in the areas she identified.
Undisputed evidence established that Mr. Merica accepted Principal Payne's constructive advice and assistance; he complied and implemented her suggestions in each area identified as in need of growth and improvement, and he grew and improved his performance in each identified area. It is noted, however, that Mr. Merica would sometimes suffer relapses and revert into his old pattern of voicing his personal opinions on a variety of subjects, described by Principal Payne as just:
"talking up and rumoring everybody." Even with his propensity to occasionally "talk up and rumor everybody," Principal Payne concluded that he was a very good teacher and that he could be better. Principal Payne's methodology of assisting her young professional teachers' growth was to identify areas in need of improvement followed by personal conferences with each teacher explaining areas in need of improvement, making individualized suggestions tailored to the need(s) of the teacher, and, after an appropriate time interval, completing a follow-up assessment to evaluate the teacher's growth, improvement, and compliance with her suggestions. The record evidence demonstrated the existence of a professional and respectful relationship between Principal Payne and Mr. Merica, spanning the eight or more years they worked together, including the few occasions when there were disagreements.
1998-1999 Performance Evaluation of Mr. Merica
In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE co-worker. Nevertheless, when Principal Payne evaluated his overall professional teaching performance for the 1998-1999 school year, including his personal conduct, she gave him a "satisfactory" rating in every area, without comments. Principal Payne made her independent written evaluation of Mr. Merica without
assistance of any criteria or standards, other than as indicated on the evaluation form.3 In reaching her independent assessment of Mr. Merica's proficiency and effectiveness, scoring them on the characteristics and numerical scale indicated, she relied upon his teachings, his problems, and his improvements experienced. Her professional judgment of Mr. Merica was based upon her personal observation and day-to-day association with her teachers. Mr. Merica's 1998-1999 Performance Evaluation is the most accurate, reliable, and undisputed evidence of his competence and overall professional performance as a teacher during the 1998-1999 school year. There is no credible evidence of record that Mr. Merica engaged in unprofessional conduct evidencing either a past, an onset or a continuation of professional incompetence as a teacher in the school system during the 1998-1999 period covered by Principal Payne's annual evaluation.
In response to the general inquiry of “whether or not her previous discussions and her prior improvement expectations of Mr. Merica as a teacher over the [unidentified] years were successful,” Principal Payne, convincingly, testified:
Yes, temporarily, absolutely. My philosophy about Mr. Merica--first of all, he could be a good teacher if he wanted to be because I have observed him. I know that. He could behave if he wanted to. He could be a strong staff member. But, you know, he could do that probably for maybe four months
or five months and all of a sudden it was just--he was just doing the same old thing, just going around, talking to everyone, rumoring people or getting rumors to people. It's just like this school was his life.
Continuing, Ms. Payne testified:
Mr. Merica would frequently apologize and realize what he had done was wrong, because at one time he's like a lamb and help to do whatever he can do and other times he just be so angry and upset to the point of where I said his behavior would frighten me.
As the professional supervisor who worked with
Mr. Merica for more than a ten-year period, Principal Payne was the most experienced and most knowledgeable person from years of hands-on experiences to have observed "the beginning of professional teaching incompetence that was not responsive to assistance provided by other professionals and continued unabated throughout her tenure." The Commissioner failed to prove, through the testimony and documentation of Principal Payne, "a beginning of demonstrated professional incompetence in 1994" or even as late as the school year of 1996-1997, as alleged in the Amended Administrative Complaint. Based on the testimony of Principal Payne, it is a reasonable inference, and I infer, that the "behavior of anger" sometimes demonstrated by Mr. Merica in Principal Payne's presence was directed toward the subject matter of "what he had done was wrong" and not directed toward the person of Principal Payne.
Through the above testimony, the Commissioner failed to prove that between 1994 and 1998-1999, Respondent was insubordinate and confrontational towards Principal Payne during her tenure as principal. The Commissioner failed to prove the allegation that Mr. Merica's personal conduct began to demonstrate "incompetence" as a professional teacher during the period of the 1994-1995 through mid-year of the 1997-1998 school years while Principal Payne was principal of Foster. A review of the record demonstrated, and the undersigned so finds, that no other witness called by the Commissioner provided credible, material and substantive evidence, based on personal knowledge contradicting the testimony of Principal Payne, that related to Mr. Merica's professional "teaching skills" during the period of the 1994-1995 through mid-year 1997-1998 school years.
Brenda Griffin Principal at Foster Elementary beginning in 1998
After the 1997-1998 midyear resignation of Principal Payne, the Board appointed Principal Griffin as principal of Foster. The professional relationship between Principal Griffin and Mr. Merica became tense, and, based upon the collective testimonies of teachers and administrative staff members hereinafter, the tension was known by both the professional staff and administrative employees at Foster Elementary.
Principal Griffin recalled that during her first year as principal at Foster (approximately the latter half of the 1997-1998 school year), she made an unannounced visit to
Mr. Merica's self-contained classroom of PI students. Recalling her visit, she testified:
[T] hey [students], all had IEPs that have specific goals for each student and what I observed was group instruction, but I felt like the PI students were not being stimulated. (Emphasis added)
There is no record evidence of the particular teaching materials being used by Mr. Merica during this single visit. There is no record evidence establishing ascertainable professional expectations or teaching standards below which Mr. Merica was performing during Principal Griffin's initial visit. There is no record evidence of specific educational benchmarks or educational goals contained in the PI students' IEPs. Within the situational circumstances of this one visit as testified to, Principal Griffin's conclusiory opinion that Mr. Merica's "PI students were not being stimulated" lacks an objective benchmark for evaluation, as well as any reasonable degree of reliability to produce a firm belief as to the truth of the matter sought to be established.
Continuing, Principal Griffin testified:
Mr. Merica would go to the board, where there may or may not have been written some vocabulary words, and he would start some
kind of instruction and I felt that was because I was in the room--sometimes the aides would get up to work with the kids and sometimes not, and I was sure they were waiting on the direction from their teacher at that time. (Emphasis added)
Principal Griffin recalled another separate incident, but omitted providing the month or year, when she "observed
Mr. Merica sitting at his computer--she "did not know what he was doing at his computer"--but she had been in his classroom on a previous (unidentified time) occasion when a golf game was on the computer and she--"knows that he was not tending to the students."
Principal Griffin's conclusions, her feelings, and her opinions in findings 24 and 26 herein above, minus evidence of the situational circumstances surrounding each incident, lack reasonable reliability to produce a firm belief of the truth of the allegations sought to be established.
Principal Griffin also recalled (unspecified) occasion(s) on which she observed Mr. Merica outside his classroom. She characterized those observations as having seen Mr. Merica:
verywhere- in the hallways, in the lunchroom, at the PE field, in the back of the school--in the ESE wing building, where the buses are for the kids, in the clinic, in the office, everywhere-at any period of time during the day.
There is no record evidence of personal knowledge by the witness or evidence of the situation and/or circumstances that caused Mr. Merica to be outside his classroom on those occasions when he was observed by this witness. The witness' summary characterization, "everywhere-at any period of time during the day," lacks certainty, reasonableness, and a degree of believable reliability to produce a firm belief as to the accuracy of the matters to which she testified. Viewed most favorably, Principal Griffin's testimony failed to establish that on each of those occasions she observed Mr. Merica outside his classroom; his presence outside his classroom was not within the scope of his professional responsibilities and duties as a professional staff member at Foster. The credibility of this witness is further diminished by her exaggerated testimony of facts at issue. This testimony and the intended inference that his absence from his classroom caused a direct and negative impairment on his students' learning, lack essential details to provide a reasonable degree of reliability and cast insurmountable doubt as to the truth of the allegations sought to be established.
Principal Griffin testified she talked with Mr. Merica about not being in his classroom and he told her:
[H]e needed a break or that it was his break time and that his aides were in the
classroom and they were capable of instructing his students.
Mr. Merica disputed and denied making the particular statement,
i.e. "that his aides were capable of instructing his students." His version of the reason(s) for absences from his classroom were reasonable explanations(s) corroborated by other witnesses as found infra. Even if Mr. Merica's denial of the inferred accusation is unbelievable, it does not prove the accusation by the Commissioner to the contrary.
The acceptable and unacceptable reasons or situations a teacher may or may not be out of his or her classroom, and personal knowledge of those unacceptable occasions that
Mr. Merica was not in his classroom, were not established through the testimony of Principal Griffin. The evidence does not support the frequency or extent of her assertions but, instead, casts doubt on the accuracy of the witness' testimony. The Commissioner failed to prove through the testimony of this witness that on each occasion Mr. Merica was observed outside his classroom, his presence was unreasonable, unprofessional, and caused a direct and negative impairment on his students' learning.
Principal Griffin testified, unconvincingly, regarding another incident (again with no record evidence of the month, school year or the situational circumstances) that "a mother"
called her to bring to her attention "that the teacher was not using the touch-talker in the classroom and at one point took it away from the child as part of a discipline."
The witness did not provide the mother's identity.
The witness did not provide the child's identity. The witness did not provide the teacher's identity though those three persons were allegedly involved in this undocumented incident. The presumed inference(s) that Mr. Merica was "the teacher" referred to by the unidentified mother, who (inappropriately) disciplined "a child" by taking away the unidentified child's touch-talker, is unreasonable. The vague, non-specific testimony of this witness, and her inability and/or her refusal to identify the mother, the child, and the teacher, create an unacceptable level of credibility due to the absence of three significant points of identity. The credibility of this witness' testimony was further diminished by the lack of corroborating testimony by other witnesses, and the witness' credibility disappeared because no recording was made of such an important call from a parent to the principal of a school. The testimony by this witness does not establish or corroborate other testimony regarding the issue of "some teacher using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The Commissioner, through the testimony of this witness, failed to demonstrate that
Mr. Merica "inappropriately disciplined a student," as alleged in the Amended Administrative Complaint. The testimony of this witness, based solely on debatable expressions as her personal "feelings" and personal "opinions" regarding alleged conduct in the past reflected in findings 24 through 32 herein above, viewed most favorably, lacked reasonable reliability and substantial weight to produce a firm belief as to the truth of the allegations sought to be established.
Respondent's 1998-1999 Personnel Performance Evaluation
At the end of the 1998-1999 school year and notwithstanding her testimony in findings numbered 24 through 32 above, Principal Griffin, independently, determined that
Mr. Merica's overall professional teaching performance, to include his personal conduct and, by reasonable and objective implication, his teaching competence, was satisfactory in every category for the 1998-1999 school year. The overall "satisfactory" performance evaluation given Mr. Merica by Principal Griffin for his professional teaching competence and personal conduct in the 1998-1999 school year is significant when juxtaposed to her testimony at the final hearing. As late as May 1999, this witness' independent evaluation of
Mr. Merica's professional teaching competence and his personal conduct was reflected on his 1998-1999 performance evaluation as "all satisfactory." However, the testimony contained in
Findings of Fact 24 through 32 in this 2004 proceeding is a direct contradiction. This aspect of the witness' 2004 testimony and written 1999 evaluation raised substantial issues of the witness' intent and cast insurmountable doubt on the witness' credibility. The lack of consistency in opinion and the ambiguity created by the 2004 testimony of conduct having occurred from pre-termination to post-termination are resolved in favor of Mr. Merica. Mr. Merica's competence as a teacher, his teaching skills, classroom management, and student discipline, as evaluated and determined by Principal Griffin, for the 1998-1999 school year, ending May to June 1999, is the more substantial, reliable, and persuasive indicator of his past performance and competence as a professional teacher during the preceding 1998-1999 school year.
Debora Bragdon, Secretary to Principals Payne and Griffin
Debora Bragdon testified that during the 1999-2000 school year (ending May to June 2000), Mr. Merica came into the administrative office a minimum of once and "sometimes" twice a day, depending upon the day. According to Secretary Bragdon:
Mr. Merica and Principal Griffin had discussions in the principal's office a minimum of once and sometimes twice a day throughout the entire school year.
Secretary Bragdon could not recall the subject matter discussed nor did she recall hearing Principal Griffin's voice at any time during the alleged daily office discussions.
Mr. Merica's voice, however, she heard stating that "Mr. Merica would be screaming so loud that I could hear him clearly." However, she could not recall a word or phrase spoken by Mr. Merica. Secretary Bragdon did not enter the principal's office when Mr. Merica and Principal Griffin were having their daily conferences. Secretary Bragdon surmised, from the tone of Mr. Merica's voice only, that Principal Griffin was in danger. Secretary Bragdon further testified that during those daily conferences she would buzz Principal Griffin on the intercom asking if she needed assistance, and Principal Griffin repeatedly assured her that "she did not need assistance." Principal Griffin did not corroborate or confirm Secretary Bragdon’s testimony on the issue "once and sometimes twice a day throughout the entire school year she had discussions with
Mr. Merica in her office." Any reasonable consideration of Secretary Bragdon's above recollection requires acceptance of the fact that a minimum of 180 (once a day) to a maximum of
360 (sometimes twice a day) conferences occurred in Principal Griffin's office during the 1999-2000 school year between Principal Griffin and Mr. Merica. The intended inference that during each daily office conference, whether 180 times or more,
Mr. Merica was always screaming at Principal Griffin while she sat silently in her office is rejected. Secretary Bragdon's exaggerated testimony lacks any appreciable degree of reasonableness, reliability or credibility. Her entire testimony failed to produce a firm or a precise belief as to the truth of the allegations sought to be established, and the Commissioner failed to prove through this witness that
Mr. Merica was confrontational and argumentative with Principal Griffin during unspecified conferences while in her office.
Negative Statements
Continuing, Secretary Bragdon testified, unconvincingly, regarding unidentified sounds she overheard on the intercom system:
rom the sounds I overheard on the intercom system when Mr. Merica called the administrative office for help with control of his students,-not all the time but sometimes you could hear disorder, confusion, kids maybe not under control. (Emphasis added)
From unidentified sounds she allegedly overheard on the intercom, Secretary Bragdon concluded that the sounds she heard were "disorder," and, from that, she inferred that the "kids were maybe not under control" in Mr. Merica's class. The intended inference that Mr. Merica's "student behavior management and student control" was not effective at unspecified
times, alluded to by this testimony, is rejected for want of reasonable credibility.
Secretary Bragdon's testimony in findings 33, 34,
and 35 consisted of exaggerated and speculative conjectures. As such, her testimony was not substantial in specifics nor competent in knowledge to establish as fact the allegations testified to in findings 33, 34, and 35 hereinabove. Secretary Bragdon was secretary to both Principal Payne and Principal Griffin, but there is no record evidence of the school year the alleged intercom activities she purported to have overheard, and of which she testified, occurred. The Amended Administrative Complaint alleged misconduct during the period 1994 through 1999 (1999 ending December 31, 1999), not throughout 1999-2000. The ambiguity regarding the time period the alleged conduct occurred is resolved in favor of Mr. Merica.
Subversive Statements
Secretary Bragdon also testified about a personal conversation between her and Mr. Merica "shortly after the Oklahoma City bombing."4 Although she could not remember the day, month or year, she specifically recalled:
I was in the cafeteria getting coffee and Neil was also in the cafeteria. He brought his children in there to have breakfast.
And he was up at the same table that I was and he basically just said that, you know, -
- everybody was basically talking about it and I don't know word for word, but
basically what he said was it would be good if we could do something like that here, but we just have to make sure the administration are in the building.
This statement, if true, demonstrated, at its worst, bad taste on behalf of Mr. Merica. When considered within the context (everybody was talking-about it), circumstances (just after the news report of the occurrence), and the location (at a table in the cafeteria) with everyone talking, the alleged statement does not evidence a manifested "subversive" intent of Mr. Merica, as alleged in the Amended Administrative Complaint. Sectary Bragdon's demeanor, attitude, and manner of responding to questions seemed calculated to provide little light on the substantive facts of the situation, but rather an exaggerated version of the nature and circumstances of the incidents. I find the testimony of Secretary Bragdon unworthy of reliance upon as a true foundation to support findings of fact as to the matters testified to hereinabove.
Negative Attitude Toward Administration Statements
Cynthia Blake, a DEES attendant at Foster from 1985 to 2002, testified regarding "statements" allegedly made by
Mr. Merica that demonstrated his negative attitude (state of mind) toward the school administration. When asked the following question: "[W]hat comments were made or what comments have you overheard that would support your belief that
Mr. Merica had a negative attitude about the administration," Ms. Blake gave the following answer:
Well, there was a lot and sometimes he would just walk away. He did not want to hear it. He would walk behind me, say it again, and would say, you know, be careful or whatever and it never changed. At this one given time, we was just outside and I was watching some kids, I think, and he came up and they was painting the school and he just said that ought to get all the kids out of the school and blow the school up and leave the administration in the school.
During her earlier deposition, Ms. Blake was asked: "[W]hat comments were made or what comments have you
overheard that would support your belief that Mr. Merica had a negative attitude about the administration?" As seen below, her response then differed from her present testimony.
Q. Do you remember a situation where
Mr. Merica said something about blowing up the school?
A. Yes.
Q. Can you tell me about that?
A. Well, we at some point always told Neil, you know, to you know, you'd better calm down because you never, you know, people -- the teachers and -- I mean the administration -- you have to just watch yourself. There are certain things you just can't say and probably in a joking way, but it was a lot of stuff going on at the time. The schools had been with firearms and up in Columbine and different situations, so probably it was in a -- I don't know what to say -- but he just spoke of we need to get
all the kids about and leave the administration in and blow up the school.
Q. Do you remember saying that it was probably in a joking manner back when your deposition was taken?
A. Well, basically when Neil spoke about things, he laughed about it, so at the time, like I said, there was so much going on between the news and that, I would never know anymore.
Q. All right. So he might have though it was funny, but you didn't think it was funny; is that fair?
A. No, sir.
The testimony of Ms. Blake, mirroring the testimony of Secretary Bragdon, demonstrated bad taste on behalf of
Mr. Merica. When subject to cross-examination about the statement or other aspects of her prior testimony, Ms. Blake became vague and uncertain about her prior versions and was inconsistent on matters that seriously undermined her credibility. Consideration of the situation and circumstances when Mr. Merica made the alleged statement supports a reasonable inference that Mr. Merica's statement was a crude and boorish attempt at making a joke, not in good taste, but nonetheless a joke. The Commissioner did not prove by the above testimony that Mr. Merica was hostile and subversive or intended his comment as derogatory and disrespectful toward his principal as alleged in the Amended Administrative Complaint.
Physical Restraint and Classroom Management Allegations
Pat Drennan, assistant principal at Foster, by her admission was primarily responsible for the school's educational curriculum. In her "educational curriculum" capacity,
Ms. Drennan assisted teachers, students, and parents in curriculum matters and assisted teachers in discipline in the classroom, student testing, and student grades. She was unable to recall the year and date, but she recalled she had been in her position as assistant principal for four years, approximately 1998 through January 2004.
When asked about the Board's policy regarding an educator's physical restraint of students, Ms. Drennan responded that her "understanding" of the Board's policy was:
[B]asically teachers are not to restrain students unless they have been trained-- unless they have ACT training they can not bring a child down on the ground or anything.
She did not know whether Mr. Merica was ACT trained or not at all times pertinent and at the time of her testimony. No writing in the record speaks to this issue, and no predicate was laid to show that the witness was in a position to know the Board's policy. This witness stated her "understanding" of the applicable rule. A finding of fact that a violation of a penal statute or rule occurred cannot be based upon loose interpretations and problematic evidence, but on evidence as
substantial as the penalty for violation of such statue or rule. The testimonial evidence given by this witness failed to establish the "rule." Thus, her opinion regarding violation of a rule she does not know, lacks a foundation upon which a reasonable degree of reliability will support.
Ms. Drennan recalled one occasion on which (no evidence of the month and year) on which she instructed Mr. Merica "not to restrain a student she 'thought' he had
restrained." She recalled making one general suggestion (not explained) to Mr. Merica regarding classroom behavior management, adding, but "he did not have to do it." Ms. Drennan did not know whether during his last year at Foster (1999-2000) Mr. Merica taught the entire year. When asked if she knew why Mr. Merica left Foster she answered:
[I]n my mind, the situation was that he no longer was able to control himself and the class--the management of the class.
No evidence of record speaks to the issue of a standard of classroom management from which to evaluate Mr. Merica's conduct. To demonstrate this issue the Commissioner's reliance on witnesses who could but state their "understanding" from various and dubious vantage points, failed to prove what was required of Mr. Merica and the specific conduct that fell below the required standards. The intended inference to be drawn from the above testimony of Foster's assistant principal, that
Mr. Merica was "unable to control himself" and "unable to manage his class" and thus incompetent, is rejected for a lack of personal knowledge on behalf of the witness and evidence of an objective standard from which to evaluate "control" and class "management" by a teacher.
The Commissioner failed to establish, by the testimony of Ms. Drennan, that Mr. Merica was unable to control himself and unable to manage his class and, thus, demonstrated incompetence, during the (unspecified) period inferred by
Ms. Drennan's testimony, as alleged in the Amended Administrative Complaint.
Ms. Drennan testified, unconvincingly, about hearsay from another teacher, Ms. Parson, who told her, "for information only." According to Ms. Drennan:
Ms. Paula Parson, a teacher who did not want anything done about it but for information only, told her she was apprehensive about Mr. Merica bringing her lunch and giving her unwanted attention.
Paula Parson was not called to testify. The intended inference of unwanted attention is not accepted by the undersigned. The Commissioner failed to prove by the uncorroborated hearsay testimony of Ms. Drennan that Mr. Merica sexually harassed several different co-workers, as alleged in the Amended Administrative Complaint.
Code of Conduct and Rules of Professional Responsibility
When asked if she was familiar with the Code of Conduct and the Rules of Professional Responsibility, Ms. Drennan again, unconvincingly, testified:
I think yes, basically, the rule that deals with personal conduct that seriously reduces an educator's effectiveness in the school district,--when someone coming into the district-I would want to look at previous-- what had happened previously with the person and I would think they would be ineffective; I would find them ineffective in the fact if they were not open to interaction with faculty and staff in an appropriate, professional way; They are ineffective if they don't know how to deal with children in the proper way. If they couldn't tell me that they could do a management plan--have one before they walked in.
I would find them ineffective if they were not--didn't have the right tools for teaching, basically, and those tools are many. Besides a degree, it would be how you get along with people, how open you are to learning new things, and that type of thing.
There were no incidents of Mr. Merica being insubordinate or confrontational with Principal Payne witnessed by Ms. Drennan. This witness presented no evidence that she had personal knowledge of Mr. Merica's classroom management skills or the lack thereof. Her "opinions" about what conduct would be inappropriate and what conduct that would seriously reduce an educator's effectiveness (and competence) in the school district are her "opinions" and nothing more. The "right tools for
teaching, basically, and those tools are many," standard coming from an assistant principal does not establish an objective and acceptable standard by which to evaluate a teacher's competence as a professional teacher. Viewed most favorably, the "opinions" of Ms. Drennan are not appropriate, objective standards by which to determine whether the professional conduct of a fellow teacher fell below the Code of Conduct and/or violated the Rules of Professional Responsibility. The Commissioner failed to prove, by the testimony of Ms. Drennan, that during the period starting approximately in 1998 and continuing through December 1999 Mr. Merica engaged in conduct that fell below the Code of Conduct and/or violated the Rules of Professional Responsibility as alleged in the Amended Administrative Complaint.
Confrontations with Principal Griffin
Ms. Drennan testified that at some point in time (of which she was not sure and unable to identify) her office was located next door to Principal Griffin's office, and she would "intentionally" leave her door open. According to
Ms. Drennan, by leaving her door ajar she "could overhear and 'tell from the tone of the voice'--when someone was loud and confrontational like that [sic] you just never know and I just worried that there could be something else happening." Asked
what she meant by "loud and confrontational," Ms. Drennan responded:
Well, anger. Obviously, the man was angry when he was in there sometimes. I'm not saying every time, but the times that we're talking about like that, he was angry and anger sometimes can lead to other things, so . . .
Ms. Drennan purportedly could overhear Mr. Merica speaking with her door open, but she gave no testimony of what, if anything, she overheard Mr. Merica say.
Ms. Drennan's testimony, regarding loud talking by Mr. Merica toward Principal Griffin, inferring his state of mind as being emotionally out of control while conferencing with his principal, is speculative conjecture. There is no record evidence that this witness observed nor personally confirmed with Principal Griffin that Mr. Merica was, in fact, angry with Principal Griffin on each of those "sometimes" occasions she heard "someone was loud." This witness did not observe nor subsequently confirm with Principal Griffin that Mr. Merica pointed his finger her face, during those unspecified occasions when she sometimes left her office door ajar and sometimes heard someone was loud, as alleged in the Amended Administrative complaint. Secretary Bragdon recalled Mr. Merica yelling “everyday all the time,” and Ms. Drennan contradicts that testimony recalling he was loud and angry, but, qualifying that
statement, she added she was “not saying every time [he was in the office].” The testimony of both witnesses, considered separately and together, failed to produced a firm belief, without hesitancy, as to the truth of the allegations sought to be established.
Refusal of Failure to Comply with Requests and Instructions
When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of any failure or the refusal by Mr. Merica to comply with an identified request or instruction given by either Principal Payne or Principal Griffin. When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of Mr. Merica having made derogatory and/or disrespectful remarks about Principals Payne or Griffin in her presence.
Ms. Drennan's opinion that Mr. Merica deviated from her "understanding" of the principles contained in the Code of Conduct and Rules of Professional Responsibility standards were speculative and insufficient to establish as fact that
Mr. Merica deviated from or violated the Code of Conduct and the Rules of Professional Responsibility. The Commissioner failed through this witness to establish any violation or any deviation from standards found in the Code of Conduct and the Rules of Professional Responsibility by Mr. Merica.
Ms. Drennan failed to establish an objective, ascertainable standard of professional level of effective teacher behavior and teacher classroom management for SLD and IP students. Her testimony and the intended inferences regarding Mr. Merica's alleged ineffective and unprofessional student behavior, teaching, classroom control, and student management is incompetent to establish as fact that Mr. Merica deviated from clearly, established professional standards as alleged in the Amended Administrative Complaint.
Ms. Drennan testified as did other co-workers who were present that Mr. Merica's had occasional disruptive verbal conduct in faculty and staff meetings and that during collegiate discussions he often demonstrated an argumentative attitude.
The Commissioner proved, through the testimony of
Ms. Drennan and other witnesses who were present and testified, that at one or more (unspecified) faculty and/or staff meetings that Mr. Merica occasionally engaged in disruptive verbal conduct accompanied by an argumentative attitude.
Derogatory and/or Disrespectful Remarks About Principal
Shelley Opila worked as a PI and ESE teacher at Foster from August 1996 to July 2001. When asked to give an example of "bashing the principal," Ms. Opila testified that during (unspecified) faculty meetings, Mr. Merica would often state: "Oh, that will never work," in response to unspecified matters
under discussion. There is no record evidence of the situation or circumstances of the particular subject matter under discussions when this witness overheard the statement. Viewed most favorably, the isolated statement, "Oh, that will never work," is a personal opinion and, as such, does not evidence a manifest intent by Mr. Merica to make derogatory statements about the Foster administration as alleged in the Amended Administrative Complaint.
Ms. Opila testified that she overheard Mr. Merica several times voice his personal opinions "[t]hat you have to be blonde or a female," and "It's who you know to be a principal." Without evidence of the situational circumstances when the statement was made, Ms. Opila assumed that Mr. Merica was referring to one or both, Principal Payne and/or Principal Griffin. There was no corroboration from either Principal Payne or Principal Griffin that Ms. Opila conveyed her concerns to either of them regarding Mr. Merica's alleged derogatory and/or disrespectful remarks.
Viewed most favorably, the general statement "You have to be blond or a female," could have been a true statement if the record evidence established the color of Principal Payne and Principal Griffin's hair during their respective tenure as principal. The record evidence, however, does not. As reflected in the record, the testimony of this witness does not
evidence a specific intent of Mr. Merica to make derogatory comments about Principal Griffin or Principal Payne. The record evidence reflects that approximately 120 educational personnel worked at Foster during the time in question and among that number only five or six were males. The reference to "blond and female to be principal" applied equally to approximately
100 females at Foster who, if they were not at the time the opinion statement was made, were capable of being blond and also capable of being a principal. Neither Principal Payne nor Principal Griffin testified regarding their respective hair colors during times pertinent to when the alleged statements were made by Mr. Merica, and the undersigned did not notice and can not recall with any certainty, the hair color of each of the twenty-plus female witnesses who testified in the proceeding. With the presence of more than 100 other females at Foster, and no evidence of the hair color of the principals at any time, an inexplicable ambiguity of "intent" is here presented. The ambiguity is resolved in favor of Mr. Merica.
The Commissioner failed to prove, clearly and convincingly, through the testimony of Ms. Opila, that Mr. Merica intended to, and did specifically, make the
derogatory comments about Principal Payne and/or Principal Griffin by the "blond [hair color] to be principal" statement as alleged in the Amended Administrative Complaint.
Mr. Merica's Students Performance
Ellen Lipari was a teacher of third and fourth grade PI students with various physical ailments and/or traumatic brain impairments from the 1992-1993 school year to approximately the 1997-1998 school year. She taught forth grade PI students during the same five-year period Mr. Merica taught first grade PI students.
According to Ms. Lipari:
[U]nder the pull-out school board policy in effect during that time, Mr. Merica would pull out and send his kindergarten and first grade level PI students to her third and fourth grade level classes.
At some unspecified period during the five-year time period, she and Mr. Merica switched grade levels, Ms. Lipari moved down and taught the kindergarten and first grade level PI students, and Mr. Merica moved up and taught the third and fourth grade level PI students. After the switch, she would send her kindergarten and first grade level PI students to his third and fourth grade level classes.
According to Ms. Lipari, during the 1997-1998 school year she had many opportunities to observe students Mr. Merica taught when they were thereafter assigned to her class. During that year, she personally observed Mr. Merica's teaching methodologies, his classroom management methods, and his in- class teaching conduct and style. Ms. Lipari described her
impressions, gained from close, extended, daily and weekly contact, of his classroom control and management skills and his teaching skills of PI students with various physical ailments and traumatic brain impairments as:
Well, you know, he was a very technically-he was technically doing his job, but there was a lot of humanized things that you do with younger children to try to get them to learn to read and those kinds of things that primarily he did not do. He was mostly teaching out of the textbook and trying to teach very specific things and not doing the kinds of things and that's why we decided it would be better if I moved down so that I could do more mothering and maternal type activities and maybe the older children would respond better to having a man teacher.
Alleged Complaint from an Unidentified Mother
Ms. Lipari moved down to teach the kindergarten and first grade level PI students, and to provide what she described as "mothering and maternal type activities," in keeping with the stated policy and goal of Principle Griffin as chief of the Foster administration. As a male teacher, Mr. Merica could not provide "mothering and maternal type activities to first grade level PI students," and it was not established that "mothering and maternal type activities" were requirements of all teachers, male and female, by this policy. During an unspecified period after she moved down to teach the kindergarten and first grade level PI students, unidentified parents of her former
kindergarten and first grade student(s) called her complaining to her about the differences in the curriculum used to teach their children who were then in third or fourth grade levels under Mr. Merica. According to Ms. Lipari, some unidentified parents of PI students complained to her that "their former kindergarten and first grade children had been allowed to do certain things, like watch TV programs to which they had become accustomed."
Based upon complaints from parent(s) she could not identify, Ms. Lipari reached conclusions and, based upon those conclusions, offered her opinion:
I personally did not see any educational benefit to students watching TV because our kids [PI] are at least developmentally delayed, if not mentally handicapped, as well as being physically impaired because those children are primarily mentally impaired. Most of our children's IQs go maybe up to 70-75, so the kind of math that you would do in The Price is Right [TV program] would not be valid for those age level of children.
During her years of working with Mr. Merica and observing
Mr. Merica's teaching methodologies, his classroom management, and his in class teaching conduct, she never once personally observed Mr. Merica's students watching TV programs.
Ms. Lipari's recollection of one phone call and her failure to identify the parent(s), who were so concerned about their children that they personally called Ms. Lipari, fairly
detracted from the weight and believability of her testimony rendering it unreliable to establish facts alleged therein. Her testimony was further diminished by the lack of corroborating testimony from other witnesses. Ms. Lipari's testimony failed to produce a firm belief, without hesitancy, as to the truth of the allegation sought to be established.
Ms. Lipari's opinion regarding educational benefits derived from watching a TV program, based upon the hearsay of unnamed parent(s), failed to prove, such activity actually occurred, or if it did occur, failed to prove that Mr. Merica’s use of such methods and skills were ineffective teaching methods and deviated from the Code of Ethics or Standards of Competent Professional Performance standards as alleged in the Amended Administrative Compliant.
IPE Preparation and Assistance
Ms. Lipari testified that she assisted
Mr. Merica, on unspecified occasions, by "explaining the particulars of an IEP and the mechanics of writing an IEP." According to Ms. Lipari:
[F]or every student with an IEP, the teacher, parent and therapist [another teacher] agree on goals and objectives that in their collective determination can be achieved by the child during the forthcoming school year. The IEP is a joint collaborative endeavor requiring discussions, disagreements, compromises and
finally an acceptable document; subject to subsequent modifications.
Ms. Lipari gave her personal belief that:
[T]he teacher(s) has to find different ways of handling their PI students' problems because each child is different, according to their disability, according to their ability to write or not be able to write.
Some PI children cannot write at all. Some PI children cannot speak at all. Therefore, the teacher has to find some ways to show that the child can read. Because he can't read out loud to the teacher, the teacher would find different methods that can used to show the student is making progress.
IEPs are personalized crafted documents designed to address the perceived needs and method of instructions to address the need(s) of each handicapped student.
The evidence of record does not speak to the issue of accepted standard(s) for writing an IEP nor is there evidence that Mr. Merica did not comply with accepted standards for writing an IEP. The Commissioner's reliance on Ms. Lipari's "belief" that Mr. Merica needed her assistance in writing one IEP, without more, failed to establish that Mr. Merica was incompetent in his professional teaching skills and/or in IEP writing and/or implementation skills. Viewed most favorably, Mr. Merica had five to six years of writing IEPs with other teachers and counselors before Ms. Lipari's offered assistance which she characterized as "explaining the particulars of an IEP and the mechanics of writing an IEP." The intended inference of this testimony requires first a belief that other teachers and
counselors who had worked with Mr. Merica on IEPs during the preceding five years (1987-1992) either did not know "the particulars of an IEP and the mechanics of writing an IEP" or were unable or unwilling to recognize a need for "the mechanics of writing an IEP" and to offer and suggest methods of improvement to Mr. Merica, to include Principal Payne who worked with Mr. Merica for almost 10 years. The testimony of this witness was not corroborated. The testimony of Ms. Lipari failed to include essential details that are central to the facts sought to be established and, thus, failed to produce any belief of conviction as to the truth of allegations sought to be established. The testimony of Ms. Lipari also failed to demonstrate a single refusal by Mr. Merica to accept and implement one positive necessary suggestion that was, in fact, made by Ms. Lipari to Mr. Merica relating to teaching students with IEPs. This testimony failed to establish the existence of, the beginning of, or the continuation of, a demonstration of professional teaching incompetence as alleged in the Amended Administrative Complaint.
Physical Restraint and Control of Unruly Male Students
Ms. Lipari recalled one occasion an unidentified male student in her class was unruly in the hall. During the time her male student was being unruly, Mr. Merica came along with his class. He asked her if he could be of help with her unruly
student and according to her, without waiting for her to reply, physically restrained her unruly male student. No evidence of record establishes an injury to any unruly male student that resulted from the physical restraint by Mr. Merica. This testimony demonstrated that on one occasion Mr. Merica restrained one unruly male student in the hallway who was in Ms. Lipari's class. This evidence also demonstrated that PI and SLD students were routinely unruly in the hallways and elsewhere in the school, when Ms. Lipari was the teacher in control and in charge as well as when Mr. Merica was the teacher in control and in charge of a class. This evidence also demonstrated the propensity of young male students to react to female teachers and to male teachers in a different manner. Ms. Lipari's testimony regarding unruly conduct of students, in the hallways when Mr. Merica was the teacher in charge, does not evidence his lack of ability to control and manage his unruly students, as alleged in the Amend Administrative Complaint. This testimony does establish as fact that Mr. Merica restrained an unruly male student during a period when his ATC certification was expired. This technical violation of ATC certification by Mr. Merica is accompanied by the fact that the unruly student was unhurt; other PI students were not harmed; and Ms. Lipari, a female, who provided "mothering and maternal type activities," was rendered assistance by a male co-worker, in keeping with the school's
policy, according to Ms. Lipari, of having a male teacher in charge of the older and larger male PI students.
Ms. Lipari further testified that on one unspecified occasion when she was present in the school hall, Mr. Merica's class was "very loud and unruly." This is the same witness whose class had an unruly male student in the hall when
Mr. Merica restrained him. According to Ms. Lipari, during Mr. Merica's loud and unruly class in the hall incident, her class was under her supervision and her volunteer, an unnamed "grandmother," who was assisting her with her class on that unspecified date. According to Ms. Lipari, she and the grandmother observed Mr. Merica:
[M]oving from the front of his class line to the back of his class line, swinging his arms back and forth for his unruly students to get in line and stay in line; but, he was not swinging his arms at his students or in their faces.
"Grandmother(s)" are community volunteers who come in to assist teachers with PI and SLD students. According to the witness, the objective of grandmother assistants is to provide a soothing and calming presence in the classrooms. Assuming the intended inference to be drawn from this vague, non-explicit, testimony was to demonstrate Mr. Merica's inability to control his class and his unprofessional conduct in the presence of an unidentified member of the community, it failed.
The testimony in finding 70 above was not corroborated by other witnesses and was sufficiently vague so as to cause doubt and raise substantial issues of credibility. Viewed most favorably, the above testimony failed to produce a firm belief of the truth of the allegations sought to be established. The Commissioner failed to prove, through the testimony of this witness, that Mr. Merica's conduct was inappropriate or unprofessional in any manner toward his students in the hall at some unspecified period or in the presence of a member of the public/community as alleged in the Amended Administrative Complaint.
Negative Feelings About School Administration
Ms. Lipari acknowledged that Mr. Merica was a very outspoken person on all issues he addressed. From that observation she went on to testify about an incident in the teacher's lounge when she overheard him make the statement: "[n]o woman was going to tell him what to do." From overhearing that part of a single statement at some unidentified time and without providing the circumstances and context in which the alleged statement was made, Ms. Lipari assumed she knew how
Mr. Merica felt about Principal Payne, Principal Griffin and, in general "all females." Based on her assumptions, Ms. Lipari concluded Mr. Merica's statement was specifically intended to be derogatory about a particular unnamed principal. She further
assumed the statement "no woman was going to tell him what to do" included her. Based upon those assumptions, she inferred Mr. Merica was speaking first, in a negative fashion; second, he was speaking about all women in general; and third, he was speaking about Principal Griffin in particular. Ms. Lipari's testimony regarding Mr. Merica's general opinion statement "no woman was going to tell him what to do," without establishing the context, situation, and/or circumstances at the time the statement was made failed to establish anything other than the statement was made. To this non-specific and ambiguous testimony, any number of meanings can reasonably be attributed, including his private and personal relationships with women in his past. Testimony of this isolated statement is not competent to establish a manifested intent on behalf of Mr. Merica to be disrespectful toward Principal Griffin or Principal Payne or women in general.
The testimony in finding 72 was not placed in a situational circumstance that would have enabled the undersigned to render an objective evaluation. The alleged out-of-context statement is not competent to establish as fact allegations that Mr. Merica intentionally made derogatory and disrespectful statements about Principal Griffin and other female co-workers as alleged in the Amended Administrative Complaint.
IEP Preparation and Principal Griffin/Mr. Merica Relationship
Linda Thomas was an ESE specialist at Foster from 1997 through 2002. Her duties included giving suggestions for curriculum or classroom management, assisting teachers with paperwork, and assisting resource teachers as needed. The usual method of contact would originate from a principal who would call Ms. Thomas and request her to lend assistance to a specific teacher.
Answering the open-ended question, "what caused her concern about the Principal Griffin-Teacher Merica relationship," Ms. Thomas, without providing the year or month, answered:
In my opinion, I don't believe that
Mr. Merica had much respect for Ms. Griffin-
-that he demonstrated that in the school setting. A number of times I overheard him say things such as that he would be around longer than she would. He was frequently making comments in faculty meetings just in general about the leadership and the administration in the school and his dissatisfaction with it.
Ms. Thomas' testimony confirmed testimony of others that Mr. Merica often spoke out in faculty and staff meetings. Her opinion regarding what she "believed" to be Mr. Merica's opinion about the administrative leadership, even if true, was based on the alleged "frequency of unspecified comments," and her opinion that "I don't believe that Mr. Merica had much
respect for Ms. Griffin--that he demonstrated that in the school setting," failed to establish as fact any allegation contained in the Amended Administrative Complaint.
Answering the question regarding Mr. Merica's preparation for IEP meetings, and without identifying the number of IEP meetings she attended with Mr. Merica during the 1994 through 1999 period in question, Ms. Thomas stated:
I believed preparation was very minimal. There was not -- he was not always ready. Most of his IEPs were all the same. Yet, it's -- an IEP is an individual education plan which is written specifically for each child, so every child in your class should not have the same thing written for them.
Regarding his preparation of IEPs during the five-year period from 1994 to 1999, and without evidence of the number of IEP prepared by Mr. Merica and/or the number of occasions she personally inspected one or more of those IEPs, Ms. Thomas concluded that "[f]requently he wasn't prepared."
This witness’ "belief" was not a "belief" based upon personal knowledge or facts. Though she believed "most of his IEPs--frequently not prepared," there is no evidence of record that she had personal knowledge or had occasion to review the content of an IEP prepared by Mr. Merica upon which to base her "belief," and, without more, her belief is speculative.
Ms. Thomas was not qualified as an expert on IEPs and her personal "beliefs" and opinions regarding unidentified IEPs that
she may or may not have reviewed, is lacking in preciseness to produce a firm belief as to the truth of the allegations sought to be established. As such, Ms. Thomas' testimony is not competent to corroborate and does not corroborate or support Ms. Lipari's testimony purporting to support the allegation that Mr. Merica's preparation of IEPs "in the school year of 1994- 1995 evidenced his ineffective teaching performance and demonstrated the beginning of his alleged incompetence that allegedly continued undiminished until not later than the end of the 1999 calendar year," as alleged in the Amended Administrative Complaint. The Commissioner failed through the testimony of Ms. Thomas to establish as fact or to prove that Mr. Merica initially or began to demonstrate an inability, refusal, improper, or any other negative aspect of his professional teaching responsibilities at any time during the 1994-1995 school year.
Ms. Thomas testified of overhearing statements made by Mr. Merica of which she shortly thereafter made the following written notation dated August 12, 1999:
This morning at bus arrival time Mr. Merica left his students unsupervised to go into the clinic to talk with the nurse. His conversation consisted of suggestions that the clinic should have cell phones that could be used at home. He also commented that he should talk to the television reporters who were outside to let them know how the county runs things. He came in and
out of the clinic at least 3 times in a 10 minute time span and made these comments in the presence of staff and at least one student.
Ms. Thomas' testimony and her subsequent written notation regarding a conversation consisting of "suggestions" that the clinic should have cell phones and that Mr. Merica "should talk to the television reporters who were outside," if true, were suggestions and nothing more. The witness did not know why or for what reason Mr. Merica entered the clinic. The identification of the staff member (other than herself) or identification of the unnamed student alleged to have been present and presumably overheard Mr. Merica's suggestions are not in the record. The witness' testimony demonstrated a distinct lack of a specific memory of the facts at issue to which she testified. The testimony in findings 77 through 80 failed to establish a firm belief without hesitancy as to the truth of the allegations sought to be established.
Classroom Visits and Observations
Ms. Thomas testified that over an unidentified three- year period she visited and observed Mr. Merica teaching his PI class approximately ten times with each visit lasting ten to
30 minutes. Ms. Thomas' visits and observations were neither made at the request of the principal nor were they made after notice was given to Mr. Merica. She did, however, make note of
a single incident outside the school cafeteria, apparently for future reference and not to help a fellow teacher; but of the ten visits she made to observe and presumably help a fellow teacher, she made no written notations evidencing the dates of her visits and observations, at or near the time of each visit. Her alleged visits to Mr. Merica's class, without specifying the reasons for her visits, were more or less one co-worker visiting another co-worker; if, in fact, those ten, undocumented visits actually occurred.
Documents Prepared Critical of Mr. Merica's Performance
Ms. Thomas did, however, within a 45-day period, prepare seven documents, each critical of either Mr. Merica's conduct or professional teaching methods, and purportedly gave a copy of each document to Principal Griffin. The seven documents prepared by Ms. Thomas were all dated over a three-month period (August 11, 1999 to October 27, 1999), when from evidence of record, Foster administration was preparing to recommend to the Board termination of Mr. Merica's contract employment with the county. Ms. Thomas dated her first document August 11, 1999. She dated her six additional documents Augusts 12, October 19, 20, 21, 25, and 27, 1999. The seven documents prepared by
Ms. Thomas did not include any of the alleged ten visits she made over the three-year (from 1997 through August 11, 1999) observation period of Mr. Merica to which she testified from
long past memory in Finding of Fact 81 hereinabove. No other witness, including Mr. Merica, corroborated Ms. Thomas' alleged ten visits to Mr. Merica's class. I find the lack of documentation and the witness' lack of recall ability regarding specifics that occurred more than four years past an insurmountable barrier in accepting the witness' testimony as creditable on those significant points sought to be established.
When asked on cross-examination whether Principal Griffin requested her to prepare the two August 1999 documents and the five October 1999 documents, Ms. Thomas suffered a sudden lapse of memory. When asked about each document individually, Ms. Thomas gave answers of either "I don't remember," "I couldn't say for sure" or "I couldn't guarantee." The seven documents prepared by Ms. Thomas in August and October 1999 contained alleged statements made by Mr. Merica, some personal observations, a prepared historical statement beginning with her first meeting with Mr. Merica in 1996 throughout 1997 and 1999, and hearsay statements from several students that were not recorded at or near the time they were made. The witness' failed memory, coupled with her inability to recall if she was asked by her principal to prepare those seven documents within such a short time span, rendered suspect and unreliable both the author and the content of her seven documents. The witness was defensive, evasive, and reluctant on
significant points, evidenced by her lack of memory and confusion regarding who made the request and for what purpose she wrote seven different documents in a short time period. Her answers were not forthright and this aspect of her testimony raised insurmountable issues regarding her credibility. The testimony of Ms. Thomas lacked sufficient reliability, due to her uncertainty, to produce a firm belief in the mind of the undersigned as to the truth of the allegations sought to be established.
Classroom Management by Mr. Merica Compared to Classroom
Management by Other Teachers
When asked about problems regarding classroom management Mr. Merica had with his PI classes as "compared with class room management problems of other teachers," Ms. Thomas answered "[t]here are children in most classes who present behavior problems." Her memory was better on this issue and she recalled observing a few instances with two or three students creating problems in Mr. Merica's class. However, she did not identify the "other teachers" to whom she compared Mr. Merica nor did the witness establish "the other teachers" class room management standards. I find the witness' testimony was intentionally slanted to exaggerate the nature of Mr. Merica's classroom management without providing specific incidents from which an objective evaluation could have been made. The
Commissioner failed, through the testimony of Ms. Thomas, to prove allegations that Mr. Merica demonstrated incompetence as alleged in the Amended Administrative Complaint, by evidence that he had "more" behavior problems in his ESE and PI classes than other unidentified ESE and PI teachers similarly situated. Classroom Management by Mr. Merica as Compared to Classroom
Management by New Teachers with Less Teaching Experience
Ms. Thomas testified, unconvincingly, that after Mr. Merica left Foster in 2000, new unidentified teachers came in and taught self-contained SLD classes with acceptable
classroom management style. With improved memory on this issue, Ms. Thomas recalled that she observed the new teachers' classroom management style but could not remember if she documented classroom management problems observed with the new teachers, as she had with Mr. Merica. Assuming the intended purpose of this particular testimony was to demonstrate an appreciable difference between Mr. Merica's classroom management skills and teaching methods, after years of experience, to the classroom management skills and teaching methods of new teachers with much less experience, it failed. The testimony of
Ms. Thomas regarding the issue of her comparison of class management and teaching skills of Mr. Merica to those of new unidentified teachers, including documents she prepared, those referred to, and the alleged acts therein, whether used for
comparison or not, occurred beyond the 1994 through 1999 time period alleged in the Amended Administrative Complaint or some comparable pleading. On that basis, this testimony of Ms.
Thomas must be, and is, rejected in toto. It is a basic tenet of common law pleading that "the allegata and probata must correspond and agree." See Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987).
The documents Ms. Thomas prepared and the testimony she presented herein above in findings 78 through 85 failed to establish as fact that on those occasions Ms. Thomas observed Mr. Merica, he failed to perform to professional expectations as a competent teacher as alleged in the Amended Administrative Complaint.
Statements Made to Principal Griffin's Daughter
Tamiko Council believed, but was not certain, that she was a DEEDS attendant at Foster the 1997 to the 1999 or the 2000 school year. She testified that during a (unspecified) summer school session, Principal Griffin's daughter had been introduced to her earlier in the day but she was unable to give the date of the incident. As she recalled, she and Principal Griffin's daughter were coming from the bus ramp in route to the cafeteria when Mr. Merica noticed Principal Griffin's daughter and, in her presence, said to the child:
You need to tell your mom to quit worrying about teachers around the school. She needs to focus more on what the children are doing.
Later that day Principal Griffin called Ms. Council into her office and made inquiry regarding the incident, as told her by her daughter, and Ms. Council confirmed the incident had occurred. Mr. Merica acknowledged making a statement to Principal Griffin's daughter.
The Commissioner proved that Mr. Merica made a statement to the daughter of Principal Griffin. The appropriateness of a teacher stating his opinion to a young person who was a student attending a Hillsborough County school was inappropriate. However, the statement alone, under the above circumstances, does not demonstrate a "failure to protect student[s] attending for educational purposes from harmful conditions." There is no evidence of record offered to demonstrate that Principal Griffin's daughter, after the comments by Mr. Merica, "experienced harmful conditions to her educational purposes," during the summer she was at the school of which her mother was principal.
Pamela Wilkins was a teacher of educable mentally handicapped students at Foster for a five-year period from 1993 to 1998. During the three-year period of approximately 1995 through 1998, Ms. Wilkins was an ESE specialist.
Harassment and Unreasonable Interference with Co-workers
Ms. Wilkins testified regarding an incident that allegedly occurred when she asked Mr. Merica into her office for an unspecified discussion. Ms. Wilkins did not remember the school year or the month the incident of which she testified occurred nor did she remember the situational circumstances, the context or the issue over which she and Mr. Merica had their alleged discussion and subsequent disagreement. With no memory of any specifics as to why she would ask him into her room,
Ms. Wilkins only recalled Mr. Merica’s discussion with her that she characterized as "his getting upset and her saying nothing."
Ms. Wilkins did not know why she invited him into her office, but emphasized her "only reason" for inviting "him into her office would have been to discuss an ESE issue." There is no record evidence regarding the ESE issue of such importance that this witness called Mr. Merica into her office for a discussion of an issue she does not recall, when her "only" time calling him into her office was so memorable. Having established her ability to ”call Mr. Merica into her office" for reasons unknown to her, this witness then testified about some purported disagreement between she and Mr. Merica. Even assuming the alleged disagreement occurred and was, in fact, over an ESE issue between she and Mr. Merica during their single discussion the witness testified:
I really don't recall the entire situation. The main thing 'is just his response.' We were talking about--obviously it was ESE issues and he ended up getting upset, and I was on one side of the desk and he was on the other side. He ended up leaning over the desk and was in my face. His veins in his neck were bulging and kind of trembling and just was yelling at me and I was completely stunned and shocked the way he had responded and so I really did not say anything else at that time.
The testimony of Ms. Wilkins evidenced her characterization of one party's reaction to an alleged disagreement over an alleged and unidentified ESE issue. Absence evidence of the context, circumstances, and the ESE issue that precipitated the purported disagreement between co- workers, the record contains no basis upon which to determine with reasonable certainty the appropriateness of one party's alleged reaction to the other party's input during a collegiate disagreement. The referenced reaction, even if accepted as factually true, absent evidence of the issue, context and circumstances, failed to clearly and convincingly establish an unprofessional, hostile behavior on behalf of Mr. Merica toward a co-worker, Mr. Wilkins, as alleged in the Amended Administrative Complaint.
The witness' apparent stunned and shocked reaction to a co-workers' disagreement with her over an unidentified ESE issue was not so unprofessional and shocking, at the time of
occurrence, to compel Ms. Wilkins to report such shocking disagreement to the school administration. It was not of such importance, at that time, to prompt Ms. Wilkins to document her shocking outrage for future reference and possible investigation by proper school authorities. Ms. Thomas' lack of recall of the circumstances to an incident to which she was a major participant, and the record evidence of scant circumstances surrounding the alleged one-party reaction to a two-party discussion and alleged violent disagreement, created an insurmountable credibility gap in her testimony. Based on the foregone, it is found that the testimony of this witness lacks credibility. This testimony is rejected because it is wholly unreliable regarding the truth of the allegations sought to be established.
The testimony of Ms. Wilkins in findings 90, 91, 92 and 93, hereinabove, absent record evidence of the issue which caused the alleged disagreement between colleagues, is sufficiently vague and imprecise that it failed to establish a firm belief, without hesitation, of the truth of the allegations sought to be established. The alleged conduct by one party over an unidentified issue during a mutual disagreement between colleagues does not establish unprofessional conduct or a violation of established standard of professional protocol. The Commissioner failed, through the testimony of Ms. Wilkins, to
prove that Mr. Merica, while in Ms. Wilkins' office engaged in conduct that was unprofessional, belligerent, hostile, confrontational, and subversive in the workplace toward his co- worker as alleged in the Amended Administration Complaint.
Sexual Harassing Statements Made in Presence of Child
Evelyn Tait, at all times material, was the administrative data processor at Foster. Before her promotion to administrative data processor, she was a teacher's aide for a few years. Ms. Tait is the sister of Secretary Bragdon.
Ms. Tait first qualified her testimony stating that she "believed but was not certain," that the Investigation Manager for the Board (Michael Saia) came to her and asked her if she would write a statement about Mr. Merica. In her effort to comply with the request of the Board's investigator, and on October 2, 2001, Ms. Tait wrote the following document purporting to detail a "forgotten and previously unreported incident" that allegedly occurred, some three years earlier, in 1999. Ms. Tait's efforts to comply with the request of the Board Investigator resulted in Ms. Tait writing the following October 2, 2001, addendum to her 1999 written statement:
On August 27, 1999, I wrote a statement regarding Mr. Neil Merica. The statement that I wrote was true and accurate [sic] as I recall. However, I would like to add a time that I was out in the pickup area picking up my son from school. I was in my care [sic] and Mr. MERICA came over to my
window and made a commet [sic] regarding to what was under my shirt. I was made to feel very uncomfortable, and was inappropriately addressed [sic] from a teacher to a pa [sic] and also to a parent of a child in this school.
Back in August 27, 1999, Ms. Tait wrote: To Whom It May Concern:
I am writing this letter to you regarding the actions of Mr. Neil Merica that I have observed. I am a paraprofessional at Foster Elementary School and have only been employed as a permanent employee since the beginning of this school year.[1999] On several occasions, I have seen Mr. Merica screaming at a student with his face being very close to theirs. The child on each occasion looked very scared. Since I am such a new employee at the school, I am not familiar with the discipline procedures of the instructors, but being a parent of an eight year old, I know that the behavior that I have seen him display with the students is very uncalled for. As a parent, I would be very upset if I thought for once that a teacher was yelling at my child in such a manner.
I have also witnessed Mr. Merica when he was upset for one reason or another with the administration. He sometimes appears to be out of control, saying things that are unnecessary.
I am writing this letter for documentation of what I have observed and for the welfare of the children involved. I am requesting that my name not be revealed to Mr. Merica because being "a smoker", I am in contact with him daily. I am afraid of retaliation from him if he were to find out.
Sincerely,
Signed by Evelyn B. Tait /s/
The two documents signed by Ms. Tait, and her explanations when questioned, evidenced not truth, but rather confusion caused by this witness' attempt to comply with the request by Mr. Saia, in preparation for her testimony at this hearing. The truth and accuracy of the documents as well as Ms. Tait's understanding, explanation, and lack of credibility regarding these two documents are best demonstrated by her cross-examination:
Q. Would you look back at number exhibit 23 again? You wrote that statement on October 2, 2001; is that correct?
A. Um-hum.
Q. And the first sentence says:
"On August 27, 1999 I wrote a statement regarding Mr. Merica." (as read) Were you referring the Exhibit 22?
A. I think I was ---
Q. All right. You were referring to the other statement when you write that?
A. I think I was.
Q. I want you to take your time and made sure. That one is dated August 27th, 1999; correct?
A. Yes. This happened on two separate occasions.
Q. That's what we're going to get to in a minute if you'll let me walk you through this.
A. Yeah, it did.
Q. You go on to state that you gave a statement back in August '99 and everything you said in that was true, but you want to add something. And what you want to add is this incident that happened at the pickup circle: correct?
A. Yes, sir.
Q. How long ago had that incident happened at the pickup circle?
A. What do you mean, how long ago?
Q. How long prior to the time when you wrote this statement?
A. I would say probably close to the date that it was signed.
Q. Okay. So the incident at the circle would have been close to October 2001?
A. I don't remember the dates sir. I don't remember the dates that I wrote the statements. I don't remember the dated.
Q. Al right. The incident at the circle -- did you complain about it when it happened?
A. Yes, I did.
Q. Who did you complain to?
A. I went and obviously told the principal's secretary again. I don’t' know who I would complain to. I'm just not going to -- you know, I wasn't out to get Mr. Merica in trouble.
Q. I'm not suggesting that --
A. I was just ---
Q. I'm not suggesting that you were.
[Witnesses instructed by the undersign to answer the question asked by counsel without editorializing]
Q. All right. Let's walk back through it. An incident happened at the pickup circle; correct?
A. Um-hum.
Q. And at some point after that incident, you reported the incident to someone; is that correct?
A. It was immediately.
Q. Immediately? That day?
A. Yes.
Q. All right. You got out of your car when you picked up your child?
A. No. It wasn't immediately that day. It was -- like I said, the principal's secretary is my sister, so I probably reported it that afternoon.
Q. After you picked up your child?
A. Um--hum.
Q. Is that a "yes"?
A. Yes, sir.
Q. All right. You took your child home?
A. Yes.
Q. And then went back to the school to report it?
A. No. I probably called her on the telephone.
Q. All right. You've said "probably a number of times. Do you --
A. I called her on the -- I don't remember. I'm sorry. I don't remember. You know, I don't remember when it was placed, to be honest with you. I don't remember exactly when it was reported, how it was reported. I don't remember.
Q. All right. Did anyone ask you to write a statement about the incident that occurred at the pickup area?
A. I don't remember that, either. I guess someone must have asked me to write a statement or I wouldn't have written one.
Q. And when you say you wrote one, you're talking about Exhibit 23; correct?
A. I wrote this statement as well.
Q. Is there another statement besides Exhibit 23 that addresses the incident that allegedly occurred at the pickup circle at the school?
A. No. It's this one.
Q. So to your knowledge that is the only statement that you made; correct? You made that statement a couple of years after the incident occurred; correct?
A. That would be 10-02 -- I mean, 01.
Q. All right.
A. August 27th is the first statement.
Q. Of '99; correct?
A. Right.
Q. So here we are a couple of years later in 2001 and you're making a statement for
the first time about the traffic circle incident; correct?
A. Right.
Q. That's the only statement that you're written about that?
A. Yes. I am very sorry. This is very confusing to me. I wrote statement when they were reported -- you know, when I reported them. I don't remember dates. We're taking how many years ago and I apologize you know.
Q. Could it be, ma'am that the first time that you reported the incident that occurred at the traffic circle was around October 2001 when you wrote this statement?
A. Yes.
When subjected to cross-examination about her two written statements, her confusions, and her lack of personal knowledge of specific details of the alleged curb-side incident, Ms. Tait contradicted her entire testimony as reflected in findings 96, 97, and 98 above, to include the two documents she authored. It is apparent that Ms. Tait's preparation for this hearing, at a minimum included writing a statement three years after the alleged occurrence. It is also reasonable to infer that Ms. Tait's testimony and her 1999 and 2001 documents were an attempt to exaggerate "negative personal conduct on behalf of Mr. Merica" in a decided attempt to appease her employer.
Ms. Tait's entire testimony hereinabove, lacks credibility and failed to produce a belief to the undersigned as to the truth of the allegations sought to be established therein.
Sexual Harassment of Co-workers Allegations
Kelley Kolinsky (f/k/a Toms), a self-employed Occupational Therapist (OT) since 1998, worked at Foster for two and one-half years, doing evaluations and arranging treatment protocol for ESE children. As an OT, she recalled one pre-K evaluation she covered for Kathy Prado, Ph.D., another occupational therapist. Though she tried to recall the persons present at the meeting, she was unable to do so. She recalled an unnamed parent and a unnamed male who were also present.
Ms. Kolinsky testified that she was not going to cover any more meetings at Foster. When asked why? Ms. Kolinsky answered:
I don't know exactly. It's been like -- I don’t' even know how long, but I just remember being uncomfortable with -- I don't even remember if it was comments or notes, looks, whatever, but something like with the male teacher that was present at the meeting. But it's been so long that I really can't give any more specifics.
When asked if during the meeting there was anything of a sexual nature, Ms. Kolinsky replied:
I can't say. I mean, I remember I was uncomfortable, but I don't remember specifically now.
The Commissioner, by the uncertainty of
Ms. Kolinsky's testimony, failed to establish as fact that during the 1994-1999 school years, Mr. Merica sexually harassed a co-worker by making inappropriate comments to Ms. Kolinsky, an occupational therapist, in the presence of other colleagues and/or in the presence of a parent as alleged in the Amended Administrative Complaint.
Kara Twohy was an ESE teacher at Foster from December 1996 through 2000. Ms. Twohy first met Mr. Merica when she was a teacher-intern in an EMH class at Foster during the 1995-1996 school year.
Ms. Twohy testified that Mr. Merica made her "feel uncomfortable" giving as an example the following incident:
He would do things like put his arms around me. One thing I can remember is he said I had an ink spot on the back of my shirt and he was attempting to rub it off. He would come -- and this is afterwards when I became a teacher -- he would come to the classroom and he brought a rose at one time, and he was constantly -- whether I was at art or I was in the classroom, he was constantly visiting the classroom. I can remember an incident where I was really ill and he came to an assembly and brought me some tissues. All in all, it just made me very uncomfortable.
When she was "really ill," Mr. Merica brought her tissues and once gave her a rose. Bringing tissues to one's colleague when the colleague was "really ill" may have been
either an appropriate or an inappropriate gesture. However, the act itself does not prove it was sexual harassment.
According to Ms. Twohy, she initially expressed her uncomfortable feelings to other unnamed co-workers and Principal Griffin, but not to Mr. Merica. When she told Principal Griffin about her uncomfortable feelings around Mr. Merica, she testified that Principal Griffin said to her: "there's nothing really that anyone could do, but to start writing everything down. So I began writing them down." There is no evidence of record that Principal Griffin initiated an administrative investigation into the "uncomfortable incidents" related to her by the young teacher, Ms. Twohy. It is, thus, reasonable to infer, and I so infer that at the time and under the circumstances, Principal Griffin did not consider that
Ms. Twohy's "uncomfortable" feelings resulting from Mr. Merica's attention to have been "sexual harassment" as that term is generally understood when placed in the above situational context.
According to Ms. Twohy, after she told Mr. Merica that his presence, his attention, and his conduct made her feel uncomfortable, she recalled he apologized:
There was in incident that occurred between him and my aide at the time who was Adele Morris, and basically she told him to leave me alone and he said well, I'm a big girl so I should be able to tell him myself. And he
approached me the following day, I believe, after the confrontation and asked me if he made me feel uncomfortable, and I told him yes, he did. I felt very uncomfortable around him and he did apologize and say that he was sorry for making me feel uncomfortable.
As a employee of the Board, Ms. Twohy knew the Board’s sexual harassment policy requirement of reporting harassment to the school's administration. She followed the policy by reporting her uncomfortable feelings and concerns to Principal Griffin. When Ms. Twohy informed Mr. Merica that his attention and conduct made her uncomfortable, he immediately discontinued all contact and apologized to her. If, as the Commissioner argued, Mr. Merica sexually harassed Ms. Twohy during the time above-stated, she followed protocol and reported the matter to her principal. There is no evidence of record that the principal of Foster initiated or requested an investigation by the School Board and a determination of whether or not Mr. Merica committed the alleged sexual harassment. If the matter was not properly investigated and determined by the Board to have been sexual harassment when it occurred, it will not be determined to be sexual harassment now by the undersigned based solely upon the unconvincing testimony of Ms. Twohy.
The Commissioner failed to establish as fact, by findings 96 through 103 hereinabove, that Mr. Merica sexually harassed Ms. Twohy, a co-worker and sexually harassed
Ms. Kolinsky, as alleged in the Amended Administrative Compliant.
Kim Kimpton, via her video-taped testimony, was convincing and unequivocal in her response to the question, "[D]o you consider Mr. Merica's action(s) towards you to be sexual harassment? "No, not specifically." The "actions toward you" referred to what was described by the Commissioner as unwanted attention, several instances of on school-property encounters and off school-property encounters, to include buying lunch for her on one or more occasion, giving her presents, and thereafter writing a letter of apology.
The Commissioner failed to prove by the evidence of record that during the 1998-1999 school year, Mr. Merica sexually harassed Ms. Kimpton, as alleged in the Amended Administrative Complaint. I find that the Commissioner failed to prove by clear and convincing evidence that Mr. Merica sexually harassed any present or past female member of Foster's administration as alleged in the Amended Administrative Complaint.
SLD Student's Version of Classroom Management and Student Control
Patricia Rumlin, mother of Jarmaal Rumlin, a 15-year- old SLD student witness who, at the time of the hearing, was in ninth grade, accompanied him at the hearing. When asked,
Jarmaal remembered he had been a student in Mr. Merica's class for his fourth and fifth grade school years (1997-1999 school years), but he did not remember the specific school years.
During the period Jarmaal was a Foster student, the Board was operating under the self-contained class policy, and Jarmaal was in Mr. Merica's self-contained class throughout the school day.
When asked the open-ended question, "[W]hat about the incident when the kids were kicking a ball in the classroom?" Jarmaal gave the following, incomplete, confused, response:
We was [sic] playing in the class. Takela kicked the ball to the back of the room and she went to go get it and he trapped us in the back of the room and we bust out and we ran down to the PE field.
When asked "[D]id Mr. Merica ever come into any contact or anything with Takela?" Jarmaal, again confused,
answered:
No. He just holding in the back of the room. [sic] Holding her and she was trying to run and trying to grab her. She was going to fight back, until she got loose and ran.
When asked, "[W]hy did you not mention or report this incident to other teachers, the principal [1997-1998/Payne and 1998-1999/Griffin] or the Board’s investigator?" (1999 to 2003) Jarmaal answered: "They didn't talk to me."
Jarmaal's above testimony, did not corroborate the testimony of another witness who stated: "Ms. Teresa Joslyn
entered a room and found Mr. Merica seated on a couch holding Jarmaal by the arm and yelling in his face and that Ms. Joslyn took him by the hand and stood him up and Principal Griffin came into the room and observed those actions," as argued by the Commissioner in its post-hearing submittal.
Jarmaal admitted that "kids in his class misbehaved in class, played kickball and got up and walked around when they were not suppose to." When asked if he liked Mr. Merica, Jarmaal answered "[N]o." When asked if he learned anything in Mr. Merica's class Jarmaal answered, "I didn't learn nothing [sic]." When asked if he wanted Mr. Merica as his teacher again, Jarmaal, answered, "[N]o I don't Mr. Merica as my teacher again."
Testimony from other teachers at Foster established that SLD students were, if not daily, most certainly, routinely unruly in their classes and in hallways. Jarmaal's testimony seemed rehearsed, but he was confused about the facts critical to the situation of which he testified. The witness' inability to recall and his manner of testifying raised substantial issues of the witness' credibility primarily because of his seemingly rehearsed responses and confused factual response, often mixing several parts of separate incidents. Through the testimony of Jarmaal, a SLD student, the Commissioner failed to demonstrate and prove by example that: (1) Mr. Merica engaged in
inappropriate discipline, (2) he failed to engage in meaningful teaching methods, (3) he lacked professional classroom control and management of his SLD class, and (4) he was incompetent as a teacher, as alleged in the Amended Administrative Complaint. I find the SLD students' reply he did not "like" Mr. Merica an insufficient foundation from which to infer that the SLD student did not "respect" Mr. Merica as a teacher.
Tawnya Clark, mother of Demetrie White, another 15- year-old SLD student, accompanied him in the hearing. Demetrie only remembered attending Foster. He did not remember the years he attended Foster (1997-1998/Principal Payne and 1998- 1999/Principal Griffin). He did not remember the grades he was in when he was attending Foster. He did not remember the class (fourth and fifth grades) he was in when Mr. Merica was his teacher.
When asked "[I]n what ways Mr. Merica would get upset?" Demetrie, hesitantly, gave the following response:
When like students get like up out of they seat and walk around the classroom and talk to other students, he'd get mad then and then after that he'd like -- Jonathan he would be like getting up out of his seat and talk to me, Eldrid and another friend who go to my school and he would like grab Jonathan, try to twist his wrist and then slam him on the ground and then Jonathan would be like, Get up off me. And then that's when like he would like flip. He would try to get up off the ground,
Jonathan. That is when he tried to grab Mr. Merica's neck. That's it.
Demetrie admitted that the kids would get up and walk around in class when they were not supposed to do so. He admitted that Jonathan tried to grab Mr. Merica's neck. He remembered a female teacher's aide but he did not remember her name or whether she was black or white. As with Jarmaal, Demetrie remembered Mr. Merica yelling at students when they were acting up. He remembered Mr. Merica yelling in the faces of students. Demetrie, like Jarmaal, said he did not like
Mr. Merica, "he didn't learn nothing" and he "didn't want Mr. Merica as his teacher again." Utter confusion permeated
Demetrie’s understanding of the questions asked of him and his seemingly rehearsed answers to those questions. I find the SLD student's reply that he did not "like" Mr. Merica an insufficient foundation from which to infer the SLD student did not "respect" Mr. Merica as a teacher.
Viewed most favorably, the testimonies of these two very large young boys consisted of a confused misunderstanding of questions asked of them and their rehearsed answers. The testimony of these two young boys established that at times, Mr. Merica yelled at them and, on occasion, restrained them for his personal defense and/or to regain classroom control when they were acting out of control, being disobedient, playing
kickball in the class room, and yelling at each other and at him. The situational circumstances of the separate incidents to which the witnesses testified occurred four or five years earlier. These two SLD students were confused, and their testimony consisted of a mixture and intermingling of critical factual portions of two separate incidents into one continuous dialogue. From their individual and collective testimony, the appropriateness or inappropriateness of Mr. Merica's conduct, in an attempt to control and manage his SLD class, cannot be determined with a reasonable degree of certainty to produce a firm belief as to the allegations in the Amended Administrative Complaint. The ambiguity created by the testimony of Jarmaal and Demetrie relating to a specific portion of their testimony related to a specific incident is decided in favor of
Mr. Merica.
The Commissioner proved that Mr. Merica "restrained" Takela, a student in his SLD class, by holding her arm. The Commissioner proved that Mr. Merica "restrained” Jonathan, a student in his class, by holding the wrist and arm of Jonathan. Based upon the testimony of these two young SLD students, assuming accuracy and truth, Mr. Merica’s physical restraining actions were, given the circumstances and situation at the time of physical restraints, appropriate for the defense of his person and for the protection of other students in the class.
Disagreement Over IEP Content and Student Control
In 1995 Ms. Teresa Joslyn began teaching at Foster Elementary as an EMH teacher. She affirmed other witnesses' testimonies that Mr. Merica was loud and argumentatively disruptive during staff and faculty meetings.
Ms. Joslyn, however, gave unconvincing testimony regarding one IEP meeting she attended with Mr. Merica, but she could not provide the month or school year the IEP meeting occurred. According to Ms. Joslyn, during this IEP meeting an unnamed parent wanted unspecified items included in her unnamed child’s IEP, and Mr. Merica, the teacher, was apparently of the opinion that those items desired by this parent were not necessary. The IEP in question was not entered into evidence.
When asked whose opinion determined the make up of the IEP, Ms. Joslyn replied, "[t]he case manager, who is generally the teacher [Mr. Merica in this instance]-- the person that serves the child the most.” During this particular IEP meeting, and with no evidence, or personal knowledge of the specific IEP items under discussion, Ms. Joslyn never the less concluded an unspecified position maintained by Mr. Merica was unreasonable and, by implication, unprofessional, and the position taken by the unidentified parent was reasonable.
Ms. Joslyn's testimony is not credible, competent or of substantial weight to support a firm belief of the truth of the allegations sought to be established.
Ms. Joslyn, without giving the year or month, remembered occasions when she would visit Mr. Merica’s classroom. According to Ms. Joslyn:
On the occasion(s) when I would enter
Mr. Merica's room, oftentimes I did not find him engaged in active teaching. There were times when I would walk in and he was--there was a game on the computer that he was playing or he'd be reading the newspaper or magazine at his desk. The aides -- the children would --have may or may not have worksheets on their desks and the aides seemed to be the ones that were more engaged with the children.
Ms. Joslyn testified again, unconvincingly, about one incident she remembered, but she was unable to provide the month or year, when she heard a "kind of ruckus and loud voices." She remembered hearing an unnamed child's voice and Mr. Merica's voice, but she did not hear the words being spoken by either person. She supposedly entered the room and saw
Mr. Merica seated on a couch holding Jarmaal (Rumlin) by the arm and Jarmaal trying to resist and get up. Continuing, she also remembered that Mr. Merica was agitated, upset, and yelling, and the child was also yelling. Ms. Joslyn specifically recalled that while she was "taking Jarmaal by the hand and Merica
letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office."
According to Ms. Joslyn, both "the Principal" (Griffin) and Jarmaal were actively involved in this arm holding incident. Principal Griffin did not corroborate Ms. Joslyn's vague and non-specific memory of an undated arm holding incident. Jarmaal was not asked about this specific incident nor did he corroborate Ms. Joslyn's testimony. No other witness called by the Commissioner gave corroborating testimony in support of Ms. Joslyn’s testimony. This is critical to the credibility determination in this proceeding since allegations of inappropriate conduct in his professional relations with children are specifically alleged in the Amended Administrative Complaint and form the bases, in part, to support the allegation of professional incompetence.
I find that Ms. Joslyn's vague, non-specific testimony, without corroboration of the other alleged participants to establish the context, circumstances, and time, raised substantial issues of her credibility. Her testimony and credibility was further diminished by the lack of corroborating evidence from other witnesses who were allegedly involved. The testimony contained in findings 128 and 129 hereinabove is rejected for its lack of credibility.
I find that the Commissioner failed to prove, through the testimony of Ms. Joslyn, that between 1994 and 1999
Mr. Merica was not engaged in active teaching and that on unidentified occasions he was playing computer games or reading a newspaper or magazine while some unidentified staff taught his class and failed to prove that Mr. Merica engaged in inappropriate conduct by "holding Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office."
The Commissioner has failed to prove that Mr. Merica was incompetent, as alleged in the Amended Administrative Complaint.
Debbie Maronic, physical education teacher at Foster, gave repetitive testimony affirming the fact that Mr. Merica was loud, often disruptive, and sometimes argumentative with colleagues at staff and faculty meetings.
Ms. Maronic also testified of having heard "numerous stories about how Mr. Merica behaved inappropriately to other female staff members at meetings or in the hallway or other places," without recalling any one of those numerous stories. Ms. Maronic admitted that she heard her information, not from Kelly and Kim Rivenburg, the females alleged to have been recipients of inappropriate conduct, but from second-hand people. The hearsay upon hearsay summary testimony of "stories" Ms. Maronic heard regarding inappropriate conduct toward females
is not competent to establish a finding of fact. The testimony of Ms. Maronic is rejected in toto by the undersigned. When the testimony of Ms. Kolinsky, Ms. Twohy, and Ms. Kimpton, that they were not sexually harassed by Mr. Merica, is juxtaposed to the hearsay upon hearsay testimony of Ms. Maronic that Mr. Merica "behaved inappropriately to other female staff members," a pattern of gossip, moving from witness to witness presented by the Commissioner, emerges for which there is no defense and very little, if any, truth to be objectively determined. The uncorroborated testimony of this witness lack credibility and is rejected.
The Commissioner failed to prove, through the testimony of Ms. Maronic, that between 1994 and 1999 Mr. Merica engaged in unprofessional conduct, inappropriate conduct, and/or sexually harassed female co-workers as alleged in the Administrative Complaint.
Ms. Maronic testified, again unconvincingly, concerning a throwing incident in the school cafeteria in 1999, she did not observe and therefore could not provide situational circumstances surrounding this incident. According to
Ms. Maronic, as she walked by she could see Mr. Merica out in the hallway very upset and yelling very loudly at very close proximity to the unidentified students. Ms. Maronic testified that she was not "comfortable" witnessing that situation and
would not leave the area until an administrator came. Nothing in her testimony identified the administrator who allegedly came so she could leave; she knew nothing, who, what, where, when or why, about the incident, though so "uncomfortable," she believed her presence was required. She neither attempted to record this "uncomfortable" incident for future reference nor did she report the matter directly to the school administration. This testimony was not internally consistent and the character of this witness' testimony, as well as the witness' demeanor, did exaggerate the nature or circumstances of the incident.
The testimony of this witness lacks precise explicitness to produce a belief as to the truth of the allegations sought to be established.
The Commissioner failed to establish as fact through the testimony of Ms. Maronic that, at some unspecified time in 1999, Mr. Merica's student behavior management was inappropriate or that Mr. Merica demonstrated professional incompetence as alleged in the Amended Administrative Compliant.
Professional Assistance Offered by Resource Teachers
Virginia King, with over 21 years of teaching experience, held the position of Hillsborough County, Area IV, administrative resource teacher (ART) since 1981. Ms. King's primary duty was to provide support and training for teachers of ESE. Her three-part support and training program consisted of:
(1) teacher evaluation followed by (2) teacher assistance and concluded with (3) specific training for the teacher. Ms. King was not qualified as an expert.
Based solely upon her experience, Ms. King opined that--"dealing with student behavior issues are [sic] challenging to teachers and most difficult for teachers in emotionally handicapped full time programs,” as was Mr. Merica. She further opined that "both SLD and ESE classes have behavior issues; but, in full-time ESE classes, student behavior control is most difficult for teachers regarding overall classroom control and classroom management, as compared to full-time programs where teachers of PI classes classroom control and management is least difficult."
Ms. King testified that in her 21 years of teaching experience, many ESE teachers have difficulty with classroom behavior and management issues, and the training of teachers of those students is ongoing training in the Hillsborough County school system that never ceases. She is of the opinion that yelling in students' faces is unreasonable and physically restraining a student is "never" justified. Ms. King's opinion regarding physical restraint of a student is "never" justified conflicts with the statutory authority of teacher(s) to remove disrespectful, violent, uncontrollable or disruptive students from classes when appropriate, to include physical restraint, as
provided in Subsection 1003.32(1)(j), Florida Statutes (2003). The Commissioner did not introduce evidence of physical restraints standards adopted by the Board of Education. The opinion of Ms. King is contrary to the statute and disregarded for all purposes in this proceeding.
Proffered Evaluation and Assistance Offered to Respondent
During the 1999-2000 school year, Principal Griffin requested that Ms. King visit Foster to evaluate, assist, train, and help Mr. Merica with his SLD class. According to Ms. King (without giving the year and month), she made two visits to
Mr. Merica's class. She testified only about her initial visit that took place during the morning class session. When she returned for a second visit, the school administration had removed Mr. Merica from his teaching position. This one visit by Ms. King was the first step of her three-part support and training program, i.e. teacher evaluation. There was no teacher assistance and specific training offered to Mr. Merica by
Ms. King.
When asked to give her "general impression" of
Mr. Merica's professional ability and competence to teach SLD students after just one visit, Ms. King replied:
Well, in our interview I was a little surprised because I didn't really -- he has a background in SLD so he had a lot of knowledge of SLD and how to teach children with learning disabilities, addressing their
different learning styles and I was actually able to observe that in class.
It was a math class and I thought that he did a very nice job of addressing the student's individual needs, and that's a difficult thing to do because they're all so different and they were all at different math levels and I did see that he was able to use different teaching techniques all in one lesson.
He did mention to me that -- well, I knew that there were behavior problems and I did see behavior problems and that did happen after the lesson in the transition period. The children were unruly and not really doing, you know -- you could tell that there was a lack of control was obvious. But at this particular time, the children had been really fairly well-behaved and he had mentioned to me that I should come back in the afternoon -- because this was a morning visit -- that I should come back in the afternoon so that I could see their true behavior which he said was truly out of control.
Through the testimony of Ms. King, the Commissioner, clearly and convincingly, proved to the undersigned that during the 1999-2000 school year, Mr. Merica's competence as a professional teacher of children with learning disabilities ("the children had been really fairly well-behaved") was the same as and/or equal to competence as a professional teacher in the classroom of other teachers of children with learning disabilities whom the witness had observed. Conversely, the Commissioner failed to prove, clearly and convincingly, through the testimony of this witness that Mr. Merica demonstrated
"incompetence" in his classroom teaching skills or that his classroom student behavior management was ineffective. The Commissioner failed to prove that Mr. Merica utilized ineffective lesson plans and ineffective classroom behavioral management plans. The Commissioner failed to prove that
Mr. Merica failed to keep students academically engaged in class and that he failed to control his students and/or gain their respect as the manager of the class, as alleged in the Amended Administrative Complaint.
The Commissioner failed to establish as fact, through Ms. King's testimony regarding her single classroom visit, that Foster administration, by and through Principal Griffin, offered Mr. Merica meaningful, professional, constructive help and assistance program plan that he intentionally disregarded and that he failed and refused to accept and implement the suggested offering of assistance as alleged in the Amended Administrative Complaint. The record evidence does not specify whether
Ms. King's one visit occurred during the school year of 1998- 1999 or the school year of 1999-2000. This omission creates an ambiguity between the year 1999 (alleged in the complaint) and the year 2000 (the year beyond the time alleged in the complaint). The ambiguity is resolved in favor of Mr. Merica. The testimony in findings of fact 139 and 140 is incompetent and
irrelevant to establish as fact allegations contained in the Amended Administrative Complaint.
The Commissioner presented testimony of Sue Hindman.
Ms. Hindman, with over 27 years of teaching experience and at all times material, was an ART and an ESE supervisor for Area II, in Hillsborough County.
Model Classroom Observation Prior to and in Preparation for Termination by the Hillsborough County School Board
Near the end of the 1999-2000 school year, Principal Griffin called Ms. Hindman and requested her to do a model classroom observation of Mr. Merica's class. A "model classroom observation" consisted of Ms. Hindman's selecting another classroom and SLD teacher (the model) in the same or similar position of the teacher (Mr. Merica) to be observed. The teacher (Mr. Merica) being observed, along with Ms. Hindman, would then visit the "model" SLD class to observe how the classroom itself was arranged and how the lessons were presented to SLD students.
Based on the teacher's personal observation, and with the help and assistance of Ms. Hindman, the teacher (Mr. Merica) would then modify and model his/her classroom arrangement, classroom behavior management, SLD students' lesson planning and presentation, and other educational matters involved with teaching SLD students to that observed in the model classroom.
After a reasonable period of adjustment, the ART would return to evaluate the "results of implemented changes" made after the model classroom.
On October 8, 1999, after observing Mr. Merica's classroom, his teaching, his student control and classroom management, and after observation of the model SLD teacher and classroom, Ms. Hindman made unspecified suggestions for improvement to Mr. Merica. After she made her suggestions for improvement, Ms. Hindman returned to observe whether her unspecified, suggested improvements had been accepted and put into effect by Mr. Merica, and, if so, to document what results were observed.
Ms. Hindman documented improvements she noted in Mr. Merica's class on her return visit as follows:
The new behavior rules were typed clearly and colorfully.
The post-it-notes [tickets] were being used to reward positive [student] behavior.
Instructions was hampered by inappropriate student behaviors.
On October 18, 1999, Ms. Hindman made a second follow-up visit to observe the progress of her earlier unspecified suggestions. During this second return visit,
Ms. Hindman made additional unspecified suggestions for improvement. Ms. Hindman returned to observe whether her second
suggested improvement had been put into place and if so, the effect and impact of her second suggestions.
Ms. Hindman documented improvements observed in Mr. Merica's classroom management and student control and professional teaching competency on her second return visit as follows:
Student behavior was better. Students responded to the LLP redirections. They also responded to the additional tickets given for good behavior. More positive comments were made when students were on task.
Student behavior will improve as teacher consistency improves. The more aggressive students are getting, all the attention (and tickets) while the good students tend to be neglected.
Curriculum must now become a priority. Your students really settle down while working on assignments and seem eager to accomplish tasks. Capitalize on that momentum!
On October 26, 1999, Ms. Hindman made a third return visit to observe Mr. Merica's implementation of her earlier suggestions. During this visit, Ms. Hindman made additional suggestions for improvement and documented improvements she observed in Mr. Merica's classroom teaching and classroom management and student control as follows:
Reading groups began today using a sequential program.
Math groups began learning higher skills plus using manipulative.
Individual work folders were used for seatwork.
Through the testimony and corroborating documentation of Ms. Hindman, the Commissioner proved, clearly and convincingly, that as late as October 26, 1999, Mr. Merica accepted and implemented constructive criticism and assistance from those administrators whose positions required giving such constructive criticism and assistance. The Commissioner failed to prove, through the testimony of Ms. Hindman, as it did through the testimony of Ms. King, allegations that Mr. Merica intentionally disregarded and failed and refused to accept and implement the suggested offering of assistance.
The undisputed testimony of Ms. Hindman clearly demonstrated that when given constructive professional assistance, a reasonable opportunity to implement the constructive assistance, and an objective evaluation thereafter, Mr. Merica was amenable and put into practice professional assistance and suggestions that proved to be helpful. He responded positively by implementing suggestions made by
Ms. Hindman and to those made by Ms. King. During each return visit by Ms. Hindman, Mr. Merica demonstrated continued improvement in his professional ability as a SLD teacher. I find that through the testimony and resulting documentation of
three separate occasions of Ms. Hindman rendering professional help and assistance and Mr. Merica's positive response thereto established as fact that the competence of Mr. Merica was not diminished so as to impair his effectiveness as a teacher in the Hillsborough County school system as of October 26, 1999.5 Petitioner's Presence Outside His Classroom, His Teaching, and
Classroom Management
Mr. Merica presented the undisputed testimony of Mary Evans-Bauman, a DEEDS Attendant who worked with over
15 teachers during her employment at Foster. From January through July of the 1997-1998 school year, Ms. Evans-Bauman was assigned and did work with Mr. Merica in his self-contained PI class. She did not work with Mr. Merica during any period he was teaching a SLD class.
According to Ms. Evans-Bauman, Mr. Merica did not leave his classroom more often than any of the other 15 teachers with whom she worked during her employment at Foster. Based upon her daily observations, Ms. Evans-Bauman opined that
Mr. Merica's PI students respected him, and she did not observe any problems with his classroom management. She denied observing Mr. Merica playing video games or reading newspapers when he should have been teaching. She testified that she never observed Mr. Merica exhibiting out-of-control behavior or imposing inappropriate discipline on students in his PI class.
She acknowledged that PI students, because of their restricted physical mobility, were less likely to become disruptive and unruly because of their physical limitations.
Mr. Merica presented the testimony of Carolyn Mobley.
Ms. Mobley worked 21 years at Foster as a teacher's aide and as a DEES attendant. During her extended tenure at Foster, she worked with approximately ten different teachers, including
Mr. Merica.
Ms. Mobley began working with Mr. Merica during the 1998-1999 school year, the first year he taught a PI class with Ms. Payne as principal. She continued working with Mr. Merica when Principal Griffin moved him to an SLD class during the 1999-2000 school year. According to Ms. Mobley, she worked with Mr. Merica continuously, five days per week for seven and one- half hours per day, for two consecutive years.
Based upon her continuous presence in Mr. Merica's classrooms, she had abundant opportunities to observe
Mr. Merica's interactions with students in both his PI and SLD classes; she answered the question of how she would characterize his relationship with his students as follows:
I would say he didn't have no problems that I would consider problems because I have kids and I wouldn't want nobody to mistreat mine, and I'm a fair person.
On the mistreating kids in any way question, Ms. Mobley answered:
No. He always seemed to be generosity [sic]. He would always treat them with respect and do the things most teachers wouldn't do, I would say.
On what kind of things he would do that other teacher wouldn't do, Ms. Mobley answered:
Well, you know, sometimes if they didn't have their lunch and they wanted something, then he would treat them to it, you know.
On Fridays when they had free time, he would give it to them out of the cafeteria.
Answering the question whether she observed
Mr. Merica being off task--off his teaching duties during the time that you were the aide in the PI class, i.e. reading a newspaper during the time when he should have been teaching or playing computer games during the time he should have been teaching, Ms. Mobley answered: "No."
Answering the question whether Mr. Merica would leave the classroom and leave the aides to take care of the kids,
Mr. Mobley answered:
No, because if he left the classroom, he would say, "I'm going to the office," run some papers or basically we knew where each other was. We always knew.
Answering the questions whether Mr. Merica leaving the class occurred more often than other teachers, acting in an
unprofessional way, being belligerent, and being confrontational with students, Ms. Mobley answered each question "No."
Answering the question whether there were more behavioral problems in the SLD class than in the PI class, Ms. Mobley answered:
SLD kids do have a behavior, [sic] where PI kind is not as verbal word-wise--.
Answering the compound question of Mr. Merica's interactions with students in the SLD class, acting in an unprofessional way to any of the kids, being belligerent with the children, being hostile with the children, and being confrontational with any of the children, Ms. Mobley answered: "No" to each question within the compound question.
Answering the compound questions of whether
Mr. Merica raised his voice toward the students; talked loud when he was close to a student, screamed, or yelled, Ms Mobley answered:
I wouldn't say raise his voice, but he talked loud, like scream or yell- No. Well he always talked loud, so to me it was always a loud voice. He don't have a soft voice. He had a loud voice.
Through the undisputed testimony of Ms. Mobley, Mr. Merica demonstrated that from the school year beginning in 1998 and ending in 1999 his teaching and student behavior
management, as observed by Ms. Mobley, was not ineffective; that
he did not frequently leave his own class with his aides; that he did not walk around campus, socialize, and/or monitor other teachers and their students; and, when in class, that he did not play video games on his computer, read newspapers, or review architectural designs, as alleged in the Administrative Complaint.
Human Resources Manager's Testimony Based upon her Summary Reports of Letters and Reports Received From Staff
The Commissioner presented, as a summary witness, the testimony of Janice Velez.6 Ms. Velez had over 30 years in the school system during which time she has occupied the positions of classroom teacher, teacher trainer, school-based administrator, and director of personnel services. For four years (1999-2003), she occupied the position of General Manager of Human Resources (HR) for the School Board. The Commissioner did not qualify Ms. Velez as an expert.
As director of personnel services for the School Board, Ms. Velez receives information, via written reports from Foster administration, from individual teachers, from medical personnel, and from other sources regarding school personnel. Ms. Velez rarely, if ever, has personal knowledge of instructional personnel activities at the many schools in the county, before such activities are reported to her in written form through the chain of administrative protocol. It is noted
that her reports in evidence are not sworn to or notarized by the person(s) with personal knowledge nor are they "tested" for accuracy by independent investigation by Ms. Velez. She accepts each report as factually accurate. It was against this background and based upon many such unspecified reports that Ms. Velez summarized and posted a letter to Mr. Merica reflecting her summarized version of those hearsay reports that the Commissioner asked Ms. Velez to "explain" the first sentence of her July 1, 1994, letter to Mr. Merica. The sentence counsel for the Commissioner asked for as an explanation read: "Some information has come to my attention that you and I need to discuss." To the question "explain what did you mean by that sentence," Ms. Velez answered with the following editorial:
What he acknowledged, and I don't have the report in front of me, but I remember the student was a difficult child and he had -- what upset me and the reason I asked him about the ACT [Aggression Control Techniques] certified was that in the course of taking care of this child, had dragged her across the carpet or something and then other adults were present that assisted him in the process. That's when I asked him if had had been trained and he said no, he had never been scheduled.
There is no evidence that tends to corroborate the hearsay evidence contained in Ms. Velez's July 1, 1994, letter to Mr. Merica. Ms. Velez did not possess personal knowledge of the information reflected in her letter. Consequently, her
testimony regarding Mr. Merica's alleged response merely amounts to hearsay upon hearsay upon hearsay. There is no record evidence identifying the context and circumstances of "[w]hat he acknowledged” as testified to by Ms. Velez. The intended inference that Mr. Merica acknowledged-—“that in the course of taking care of this child, he dragged her across the carpet or something," was not corroborated by any "other adult present that assisted him." Mr. Merica's denial "that he dragged her across the carpet or something," even if unbelievable, does not prove the Commissioner's accusation contained in the Amended Administrative Complaint.
Ms. Velez’s recollection explanation is an assumption and not fact (that he dragged a child and other students and adults were present). Based upon her assumption, Ms. Velez concluded that Mr. Merica acknowledged her assumption as fact. The assumption and conclusion of “acknowledgement” by Mr. Merica of that assumption is incompetent, not credible and insufficient to establish the incident as fact or to establish that
Mr. Merica admitted and acknowledged her assumptions and her conclusions “that in the course of taking care of this child, he dragged her [a child] across the carpet or something and then other adults were present that assisted him in the process."
Ms. Velez testified that she met with Mr. Merica on four separate occasions, the first meeting occurred on or about
the first week in July 1994, during the period Ms. Payne was principal. At the time of her first meeting with Mr. Merica in July of 1994, Ms. Velez was not general manager of HR for the Board. The evidence of record does not establish Ms. Velez’s position in the school system in July 1994, other than she was a teacher assigned to personnel services. Continuing, Ms. Velez testified that during the first week in July 1994, she was “initially concerned” because Mr. Merica was not ACT certified. The Board's policy required each teacher to be ACT certified before engaging in physical restraint of students. In 1993 to 1994, Ms. Velez was a teacher assigned to personnel services, and the record evidence does not provide any authority for her to “meet with Mr. Merica” as a part of her duties in personnel services. There is no evidence of record that Principal Payne, who was principal and who did not corroborate this story, requested Ms. Velez’s involvement with her teachers, including Mr. Merica. Assuming Ms. Velez had authority to read Mr.
Merica’s personnel file, why in 1994 did she only recall his restraint certification status? Principal Payne testified that she, and she alone, identified Mr. Merica's needs for improvement and provided him with useful suggestions that he incorporated and showed improvement. Principal Payne buttressed her testimony by giving Mr. Merica all "satisfactory" annual performance evaluations. Ms. Velez's testimony regarding any
facet of Mr. Merica professional competence in the school year of 1994 to the contrary is not accepted by the undersigned as credible evidence. The Commissioner, through the testimonies of
21 witnesses, failed to produce clear and convincing evidence that Mr. Merica exhibited any indicia of professional incompetence in July of 1994.
Through the testimony of Ms. Velez the Commissioner again affirmed other witnesses' testimony that Mr. Merica was not ACT certified at certain periods. However, the undisputed evidence demonstrated that Mr. Merica’s last year of ACT certification was the year of 1995 and not, as Ms. Velez mistakenly assumed in her testimony, 1994.
The Commissioner failed in its attempt to establish 1994 as the beginning year of Mr. Merica's alleged incompetence through the above testimony by Ms. Velez. In 1999, Ms. Velez was appointed to the HR position. Six years before, in 1993, she was in personnel services. It was during the 1993-1994 period that the Commissioner sought through her testimony to prove Mr. Merica knowingly admitted and acknowledged that in July 1994 "he used excessive force or restrained a [unidentified] child inappropriately as reported by a parent [unidentified] to the police department and the school internal investigators." The bare hearsay "admission against interest"
hearsay statements of unproven acts from unidentified hearsay sources is not corroborated and is rejected by the undersigned.
Ms. Velez gave her explanation of meeting with
Mr. Merica for a second time on August 12, 1999, which she later reduced to a letter dated September 24, 1999. In that letter Ms. Velez recited the purpose of the August 12, 1999, meeting-- "for discussion of an investigative report into coworker's allegation that during the summer he made threatening remarks against the school administration and comments made about Principal Griffin, i.e. "She dyed her hair blond to get her job, "I got rid of one principal; I'll get rid of her too," and "If she wants to go head-to-head, then I'll win." In her 1999 letter, Ms. Velez stated that Mr. Merica admitted making the alleged statements, explaining the statements were "hearsay" and because, as he viewed the situation, "others wanted to bring [him] down to their own misery levels."
Her third meeting with Mr. Merica occurred in September of 1999. This meeting, she explained, was convened "for discussion of a letter of reprimand written by Principal Payne." (In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE coworker.) Later during that school year when she evaluated his overall professional teaching performance, Principal Payne gave
Mr. Merica a "satisfactory" rating in every area, without comments, for the 1998-1999 school year. This meeting and the letter of reprimand concerned Mr. Merica's professional conduct on two separate incidents. Those two incidents were a faculty meeting disruption and a school improvement team and parent meeting. No testimony was elicited or given by Ms. Velez regarding the situational circumstances attendant to those two incidents.
When asked her opinion of Mr. Merica's "attitude" toward her during this third meeting, Ms. Velez replied:
I would say it ranged in the typical realm of employees. When they meet with me sometimes they're angry. He was in denial that the letter was warranted. He said he didn't perceive himself to have lost his temperament. He did not recall -- in one of the two incidents, someone said he banged his hand or fist on the table. I don't recall doing that. There were several letters that the principal also forwarded to me from colleagues and they said that he was out of control. He said, I'm not out of control. I have a loud voice. And basically he was in denial that the incident was as significant as the principal had alleged in her letter or reprimand.
The fourth meeting between Ms. Velez and Mr. Merica occurred on October 1, 1999. Also present at the meeting were Carl Crosson, CTA representative, and Dr. David Binnie, assistant superintendent for HR. The purpose of this fourth meeting was to discuss a specific classroom incident that had
occurred on or about September 23, 1999, where it was alleged that Mr. Merica retained five students in the classroom due to their misbehavior while the other students went to lunch with the paraprofessional.
In her 1999 letter, in the first paragraph, Ms. Velez wrote her version of an incident she did not personally observe:
During the timeout period, you asked these students to sit quietly in their desks, while you placed your own lunch in the microwave. When they began to dance about the room and to toss and roll a kickball among themselves, you summoned several times for assistance on the intercom. During this period, you stated you remained at your desk, although once you tried to kick the ball away and once you moved your elbows in an effort to keep a student from retrieving the ball that had rolled behind your chair. Another student subsequently hit you on the head with a folder, and you chased him briefly until he, at your direction put the folder down. You summoned additional times for assistance.
Continuing with the second paragraph, Ms. Velez stated:
As a result of your poor performance this year, and its negative impact on the quality and continuity of instruction for students assigned to you, your principal recommended that you be either administratively transferred or dismissed as a teacher.
Actions on these recommendations was placed in abeyance since you asked for, and Dr.
Binnie granted, additional time and assistance from school and district personnel for you to develop and implement a plan to appropriately regain control of and develop respect from your students. He
provided you with three days of paid duty time and a month of implementation to accomplish this end.
In her last paragraph, Ms. Velez stated:
Dr. Binnie will review the effectiveness of your plan, your professional conduct at work, and your future employment status during a meeting scheduled for Monday, November 1, 1999, at 3:45 pm in the Human Resources conference room, 2nd floor of the School Administration Center, 901 East Kennedy Boulevard. Ms. Brenda Griffin, your principal, has also been invited to attend.
Ms. Velez testified that the November 1, 1999, meeting never occurred, "due to an error where [sic] his address was not in the system correctly, he was not in attendance at the meeting. So, we rescheduled it for November 3rd." Considering Mr. Merica was an employee with 13 years of service and had met four times with administration within a six-month period (July through October 1999), the loss of his address--"his address was not in the system correctly"--by the Board becomes suspect.
Continuing, Ms. Velez testified that:
[O]n November 2nd her office received a call from Foster Elementary School regarding an incident in the hallway that teacher could hear Mr. Merica scream at a child and described that he was in their face and we removed Mr. Merica from teaching at that time for a continuing pattern of being unable to control his students and control his temperament, creating a dangerous situation for children. (emphasis added)
No witness presented by the Commissioner testified to having observed the incident above described by Ms. Velez.
When subjected to cross-examination, Ms. Velez reluctantly admitted that her intentional use of the term “creating a dangerous situation for children" was not an accurate statement. During all times (1999-2000) pertinent to matters herein above, the goal of Principal Griffin, via
Ms. Velez and through the Board, was to terminate Mr. Merica's employment with the Board. Thus, the HR manager's intentional selection and use of the statutory phrase, “creating a dangerous
situation for children," that she knew at the time to be an inaccurate statement, revealed her intent and thus seriously undermined her credibility. The witness' credibility and testimony were further diminished by the fact that at the time she knowingly made her "inaccurate statement," she was an active participant in, and thus fully aware of, the Board's engagement in the procedural protocol process of terminating Mr. Merica's contractual employment. Ms. Velez's knowing misrepresentation, that Mr. Merica's continuing pattern of being unable to control his students and control his temperament was "creating a dangerous situation for children," was biased and inaccurate.
Ms. Velez's unconvincing explanation of her understanding of the factual basis for the School Board's removal of Mr. Merica from teaching at Foster was vague:
[B]ased on a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children.
When asked to clarify her inaccurate misrepresentation of whether or not Mr. Merica's conduct resulted in an unacceptable environment or created a dangerous situation for children, Ms. Velez stated: "[D]uring the five years Mr. Merica taught the PI student class [from 1992-1993 to 1998-1999], Mr. Merica’s conduct and teaching did not create an environment that was dangerous to the students in those classes."
Ms. Velez further testified that "[T]the [Hillsborough County School] Board determined that it was during the 1999-20007 school year a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children, that Mr. Merica was creating an environment that was dangerous to the students in his classes." Ms. Velez did not identify incidents that occurred August 12, 1999, through December 31, 1999, separate and apart from incidents that occurred between January 1, through May 24, 2000; thus, there is no basis to determine whether alleged incidents occurred in 1999 or 2000. Her testimony included "essential and substantial facts in support of the allegation" having occurred in a timeframe (1999-
2000) not embraced in the 1994-1999 period (ending December 31, 1999) alleged in the Statement of Charges of the Amended Administrative Complaint. "[T]the allegata and probata must correspond and agree." This ambiguity is resolved in favor of Mr. Merica. On that basis the testimony of Ms. Velez in findings 183 through 186, hereinabove is rejected.
The Commissioner did not prove, by clear and convincing evidence, that during the period between 1994 and 1999 Mr. Merica "created a pattern of similar incidents thus creating an environment that was dangerous to the students in his classes." Conversely, through the testimony of Ms. Velez, the Commissioner proved, clearly and convincingly, that "during the 1992-1993 through the 1998-1999," including the 1994 through 1999 period alleged in the complaint, Mr. Merica did not engage in a pattern of similar incidents that created a dangerous situation for children."
Regarding the school year when allegedly Mr. Merica initially became or his teaching methods demonstrated incompetence, Ms. Velez demonstrated a lack of knowledge and lack of expertise by her following qualified answer:
It was my feeling--my personal and professional feeling when I reviewed the file--that he had indicators of incompetence for quite some time, especially in his personal conduct. I am not an expert in curriculum. It's been a long time since I taught in the classroom. [emphasis added]
But Mr. Merica's statement to me was he's the best teacher that was at Foster Elementary, and I had an opportunity to look at his lesson plans one afternoon when I went to meet with Ms. Griffin and although I haven't written them in years, there were no lesson plans. They were subjects. Math, math, math. Nothing to distinguish between the levels of his children.
When I reviewed the record at Foster, his conduct that created an uncomfortable working environment for employees had been there a long time. The former principal, Ms. Payne, had dealt with it from time to time. It's my professional opinion that she put him in physically impaired so he had less opportunity to be inappropriate with children, and she began then to deal with his personal conduct issues.
So to answer your question, I believe -- I don't know that -- I don't know when it began, but I don't think it surfaced his last assignment at Foster, but rather sometime prior to that. [emphasis added]
Ms. Velez was unable to identify the school year Mr. Merica became, as she characterized, "incompetent in his
personal conduct." Ms. Velez's personal feeling of incompetence is an inadequate standard by which to measure professional competence, to include one’s personal conduct. Ms. Velez did not know when, if at all, Mr. Merica's alleged professional incompetence, to include his alleged personal conduct, began.
The evidence of record established that the Board, as of January 13, 2000, had concluded its investigation and made a final determination that Mr. Merica was incompetent. Therefore,
the Commissioner failed to prove, by clear and convincing evidence, through the summary testimony of Ms. Velez that Mr. Merica was or to began to become incompetent, as
demonstrated by his professional teaching skills, at any time during the 1994 through 19997 period as alleged in the Amended Administrative Complaint. Violation of a penal statute or rule is not found on loose interpretations of the Human Resource Director with 31 total years of education experience and a Master's Degree in Education Administration, or based on problematic evidence. Evidence more objective and substantial of critical matters in issue should be as substantial as the consequences. Clear and convincing evidence is not present in this record nor established by testimony presented by this witness that Mr. Merica was incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 1999 period as alleged in the Amended Administrative Complaint.
Ms. Velez testified that teachers hired by contract (as was Mr. Merica), a veteran teacher, or a tenured teacher are required to be evaluated once annually by their principal, and the purpose of the principal's annual evaluation is for performance improvement.
The testimony and documents prepared by Ms. Velez regarding a report from an unidentified mother about her
unidentified child is unconfirmed, uncorroborated, incompetent, and thus insufficient to establish any purported facts of actual occurrence.
Following protocol and to effectuate his contractual termination with the Board, on November 18, 1999, Ms. Velez submitted four of her letters, dated July 1, September 14
and 24, and October 20, 1999, to James A. Edgar, M.D., P.A., as the basis for her referral of Mr. Merica to Dr. Edgar for a psychiatric evaluation that was conducted by Dr. Edgar on November 18 and 23, 1999. Accepting as accurate and true the content of Ms. Velez's four letters and using those letters as the foundation of his examination, Dr. Edgar evaluated
Mr. Merica. At the conclusion of his examination, Dr. Edgar opined that Mr. Merica did not have a diagnosable psychiatric disorder, either Axis I or Axis II, Diagnostic and Statistical Manual of Mental Disorders (4th Ed.). According to Dr. Edgar, "None of the problems, as reflected in Ms. Velez's summary taken from non-notarized reports from unnamed third parties, makes him in and of themselves incapable of functioning as a teacher." He then goes on to qualify his opinion with a "[H]owever, taken together they 'could' make him very difficult to work with as part of a team effort.” Dr. Edgar's evaluation resulted in a qualified conclusion that Mr. Merica is aware of his actions but minimizes or denies the effect of those actions on others and
thus rationalizes his verbal aggressive behavior as his "constitutional right" to express his opinion. From that position, Dr. Edgar reaches what appears to be the desired conclusion that: "Mr. Merica's current behavior does not appear to be an escalation of previous behavior just more of the same. I can not say whether he might become more aggressive or violent but I do believe his behavior will not improve." The attempt to lay a factual foundation that Mr. Merica's alleged incompetence was present in 1994 through the conclusiory testimony of
Dr. Edgar failed for want of competence. The one line in
Dr. Edgar's 1999 opinion that Mr. Merica's "behavior does not appear to be an escalation of previous behavior just more of the same," is insufficient in weight and substance to establish as fact and/or establish the basis from which to infer, and I do not infer, that in 1994, Mr. Merica demonstrated an "aggressive behavior," which demonstrated emotional "incompetence," and that behavior continued through 1999 as alleged in the Amended Administrative Complaint.
Respondent's Response to Allegations
Mr. Merica presented the testimony of Janice Wilson who worked as a DEES attendant at Foster from 1992 through 1998. Ms. Wilson was Mr. Merica's DEES attendant during the 1997-1998 school year and worked all day, five days a week, with
Mr. Merica in his classroom when he taught PI students. She was not his DEES attendant when Mr. Merica taught SLD students.
For the six-year period, 1992-1998, Ms. Wilson was in Mr. Merica’s classroom daily. She had occasion to
observe his teaching as she worked with Mr. Merica. Based on her six-year association, Ms. Wilson testified as follows:
When asked how would she characterize his rapport with his students, she answered: "wonderful, wonderful."
When asked did she have problems or concerns working with Mr. Merica, she answered: "none, none, whatsoever."
When asked had she ever observed Mr. Merica mistreating, in any way, students, she answered: "No."
When asked did she ever see him getting in the faces of any of his students, she answered: "None whatsoever."
When asked if she had observed Mr. Merica screaming at his students, she answered: "No." When asked if she would have any problems working with Mr. Merica in the future, she answered: "I would work with him any day."
Regarding Mr. Merica leaving his classroom, Ms. Wilson testified that:
When Mr. Merica would leave the classroom, he has been called from the front office or any other classroom for computer. If the computer goes down, he was the man that they will find to fix the problem with the computer. That's the only time he would
leave the classroom, when they request they need it.
To the question other than his lunch time and his planning period, did you know of Mr. Merica just to get up from the classroom and go walk around, she answered: "Not at all."
When asked did Mr. Merica socialize, she answer: "Not at all."
When asked did she ever know of Mr. Merica to be unprofessional, belligerent, hostile or confrontational, she answered: "No."
When asked did she ever observe Mr. Merica trying to subvert the administration, she answered: "No."
When asked how his students reacted to Mr. Merica, Ms. Wilson replied:
Oh, they were glad to see him every day. I mean, a lot of times they would be hungry before lunch, and Mr. Merica would go to Sam's that night before and have snacks in the classroom to make sure they have snacks to eat before they went to lunch. I mean, he was a wonderful teacher. Nobody could never ask of --and I mean, he was outnumbered as male teachers at the school. There was only two, you know, and I think he was a wonderful teacher.
Presence Outside His Classroom
When asked if she personally received calls for Mr. Merica to assist someone with their computers, Ms. Wilson answered:
Yes. It comes over the intercom and he always asked, will you be okay for five or ten minutes? Let me see what's wrong with the computer and that's the only time he would leave the classroom.
When asked if she knew "specifically" where Mr. Merica went on computer calls, Ms. Wilson answered:
The school has changed a lot with teachers. A lot of the teachers has left. A lot of times he would go to like an autistic class which is down the hallway from us. He would go to the room next door to us to help with the computer. Now, with names I'm not familiar with the teachers because like I said, the school has changed a lot since I've been there and maybe those teachers are not even working there. He used to help Rita Airwood (ph.) a lot with the computer because she wasn't--she didn't know where the power button was. Most of the teachers there didn't know where the power was. A lot of us would, after school, when all the kids were gone, we would have him to teach how to work the computer and be on task when the next day come. So, therefore, a lot of the teachers would come to our classroom to let Neil show them were the computer--what screen you start on and all before the next day because a lot of times we would get worksheets. We didn't have workbooks. A lot of times we would get worksheets off the computer. So when I say names, it's a whole bunch of names I would have to go through.
When asked, "[h]ow do you personally know, from viewing him going to that room--witness him go to where he said he was going?" Ms. Wilson answered:
Because we have windows. The aisles run from east to west. We have -- and I'm looking out the door to make sure he gets to that classroom. A lot of times when he gets
to that classroom, he'll either do this here, a thumbs up, and he's on his
way back.
According to Ms. Wilson, she always knew where
Mr. Merica went when he left his class because he would tell her before leaving; i.e. "They want me in the front office." "I need to be here." He would not just walk out of the class.
Though she did not follow him out the classroom, she testified:
A lot of times I would be doing bathroom and he would say, "Hey, I'll be right back." He may go and get a cup of tea and he's right back there helping me in the bathroom, because normally I think we had -- at the time I worked with him, we maybe four to five wheelchairs, and a lot of times he would give me help with the boys, you know, and then I would do the young ladies. I would take the girls first and he would stand right outside the bathroom and wait with them if I said I needed him, he'll come inside and help me.
Through the undisputed testimony of Ms. Wilson, Mr. Merica established those purposes for his frequent departures from his classroom; to assist other teachers with computer problems in their classrooms. Whether or not one
agrees with the stated purposes Mr. Merica gave for being out of his classroom, that fact does not affirm the Commissioner’s allegation of unprofessional conduct by his frequent presence outside his classroom.
When asked if he was called upon by the Administration to provide technical computer assistance to the teachers Mr. Merica replied:
Very often. I would not fix a computer unless it was on my planning time, unless it was instructed by the administration office, by Ms. Pils or Mr. Drennan--Ms. Payne, I'm sorry--or Ms. Drennan--that they needed me and it was a real emergency and I would also make sure with my class that there was the kind of instruction that wasn't going to hurt me to be pulled out for a few minutes.
Regarding ACT training and physical restraint of students, Mr. Merica admitted that he received ACT training and was certified only for the 1995 school year. He was aware of the policy requirement of annual ACT re-certification, but he elected not to be re-certified.
Mr. Merica admitted physically restraining students on approximately three to five separate occasions during the period of 1995 to 1999. When questioned as to his understanding of physically restraining students when his ACT certification had expired, Mr. Merica responded:
That is not my understanding. I think another ESE teacher touched upon it that if a person is about to harm themselves or others or harm you, where you really feel that they're going to physically harm themselves, another student or yourself, then you can restrain them because what you are trying to do is keep a dangerous situation from becoming more dangerous.
Mr. Merica denied having classroom behavior problems during his tenure as a SLD resource teacher (1987-1988 through 1992-1993 school years) as well as during his tenure as a PI resource teacher.
Mr. Merica admitted engaging in disruptive conduct when attending faculty and staff meetings. He characterized his disruptive actions as "tapping a pencil on the table or tapping his fingers on the table," but denied "pounding his shoe on the table." He matter-of-factly acknowledged making arguably argumentative comments when he agreed or disagreed with some things presented by the speaker with callous disregard that the speaker was speaking. I find that such callous disregard of rendering reasonable respect to the person speaking and those of his colleagues in attendance under the circumstances demonstrated unprofessional conduct by Mr. Merica. I further find Mr. Merica's ". . . constitutional right" justification for unprofessional conduct unconvincing.
Mr. Merica acknowledged he has a loud voice and a strong personality, and he is sometimes loud, but not "always" loud as testified by co-workers.
Mr. Merica testified that he got along and related very well to the PI and the SLD students in his classes, and he believed they related very well to him and none of his children came to him personally with a complaint. According to
Mr. Merica, during his tenure at Foster, he never received a written document from a parent that said "we have a complaint."
Mr. Merica opined that other than academic concerns-- normal academic concerns--when he asked for a conference with parents of his children, a few parents would come on conference nights because most of the parents of his kids knew him because he had been there for a while.
Regarding Principal Griffin's decision to move him from his PI resource class to a regular SLD class, Mr. Merica recalled that before summer school of the 1998-1999 school year, Principal Griffin and he discussed the matter. His recollection of their discussion follows:
She basically said --she looked at my record and said, "As far as discipline goes -- I know we have some other issues, but as far as discipline goes, you look like somebody who could handle that class because it's very difficult class with mostly boys and we'd like to see a man in there,"--and to be perfectly honest, I told her I just went through a divorce. I needed stability. I would prefer to stay in PI or I would like a transfer, and unfortunately at that time, the transfer period was over or they had a freeze. It was one or the other. I think they might have had budget problems and had a freeze at the time. It was one of the two reasons.--It's just that I needed that stability and I hadn't done -- I had done resource before, and I've done PI, which I felt really comfortable in, but hadn't done a full time SLD unit. Even though I was qualified to do it, I just didn't really feel comfortable going into another area after the domestic problems I was having at
home. I went through a divorce, which was not an easy thing, during that summer. (emphasis supplied)
Mr. Merica's recall of Principal Griffin's comment, "[w]e'd like to see a man in there," was corroborated by Ms. Lipari testimony that during the 1997-1998 school year she was moved down to teach kindergarten and first grade level PI students to provide "mothering and maternal type activities," and Mr. Merica was moved to third/fourth grade to teach older, larger male students.
Mr. Merica gave the following reason for resigning as CTA representative in the spring of school year 1998-1999:
I resigned because there was undue pressure from the principal [Principal Griffin] and they actually were putting some pressure on my child that was going to that school.
Concerning his role as a resource teacher, Mr. Merica
stated:
As a resource teacher, I had to implement the IEP that was generated by either me or a teacher before me, describing the amount of pullout time, and pullout means that they were in a "regular education class" and they were pulled out for special services. What special services I generally gave them was either math or reading, but it could be social studies or science. Those were rare occasions. Most of them were math or reading. You pull them out for the amounted time specified by the IEP at the level that the IEP indicates, and when that period of time during the day is over, you send them back or you walk them back. In Hillsborough County they had some problems at that time
with kids running off campus, so they recommended that we pick up our students and take them back to class.
Administrative Leave and Observation of Model Class
According to Mr. Merica, on or about August 12, 1999, he was assigned to the SLD class and his last day in that class was November 2, 1999, a total of 83 days before he was placed on administrative leave for five work days plus the weekend.
Mr. Merica's assignment by Foster administration to Lake Magdalene was for him to observe a class at Lake Magdalene similar to his SLD class at Foster. After he sat in the Lake Magdalene class for approximately two hours, he spent the next few days sitting next to the principal's office trying to compile materials that would work for his SLD class.
Mr. Merica concluded that the Lake Magdalene (SLD) class was not similar (as a model) to his Foster (SLD) class based on following reasons:
I was working in an inner city school, this was a very rich, affluent area with totally different set of behavior problems. The makeup of the class was totally different. There were more girls. They were more [sic] white. It was just a totally different makeup. They were younger. And I sat in the classroom for about two hours and then I spent the next few days sitting next to the principal's office supposedly trying to compile materials that would work for my class.
Lock Down Drill and Student Running Out of Classroom
Responding to questions raised about the "lockdown drill" situation when students were observed running from the classroom onto the PE field, Mr. Merica testified he was given a walkie-talkie because the school intercom system was down. He did not receive notification of the lockdown drill via the walkie-talkie, and so he was not made aware of the scheduled lockdown drill. The evidence is undisputed that students that were seen by his co-workers running "about" the facility during the lockdown drill were not under the supervision of Mr. Merica at that time. The evidence demonstrated those kids were in their scheduled PE class under the supervision of the PE teacher, who put them in "time-outs" and sent them to Mr. Merica for their "time-outs" periods. Undisputed evidence demonstrated and it is found as fact that during this "time-out" period that the incident of students kicking the ball and playing in the classroom and being generally unruly and disobedient that
Mr. Merica had justifiable cause to defend himself when a student put his/her hands around his neck and attempted to choke him. His testimony regarding the conduct of students in his class was corroborated, in part, by the testimony of two students, Jarmaal Rumlin and Demetrie White.
Mr. Merica denied yelling at either Principal Payne or Principal Griffin. In defense of his voice volume, he
characterized his discussions as "forceful," "assertive," and sometimes with a "loud voice." He described pointing of his
finger as
[u]nder normal conversation when some people use their hands, they might consider that pointing, were I was just, you know, just using my normal gestures of speaking, as far as I was concerned, and if I was pointing, it was only --again, it was not to be pointing at anybody. It might be, that's point number 1; that's point number 2; that's point number 3.
Continuing, Mr. Merica said he never lost his temper at school with either principal, was never "out of control" with any students under his supervision, and never injured a student under his supervision. Mr. Merica's explanations for his finger-pointing and verbal barrages during conversations with authority figures evidenced a defensive attitude that did not lend itself to the appearance of a professional team player.
Principal Payne did not testify that Mr. Merica pointed his finger in her face during their many meetings over the years. Principal Griffin's testimony of "pointing his finger in her face by Mr. Merica" was not accompanied by specific circumstances and situational context of the incidents.
Accordingly, the appropriateness of such conduct, without evidence of each party's participation in the conversation and the specific circumstances and situational context at the time
of occurrence, was not shown by the evidence of record to be, clearly and convincingly, inappropriate.
Answering allegations of making derogatory or disrespectful remarks about Principal Payne or Principal Griffin, Mr. Merica replied:
That's the eye of the beholder, but as far as I was concerned, I was just trying to make them a better person and there were some things that they were criticizing me about. I criticize people for things that I feel they have weaknesses too. So, you know, it's the eye of the beholder.
Responding to Offered Assistance and Suggestions
When asked if he had received assistance to help improve his classroom management techniques with regard to his regular SLD class, Mr. Merica replied:
Yes. I always took suggestions and implemented every suggestion. Some things did work and some things did not work. You know, sometimes certain personalities -- certain things won't work and certain things will, but I certainly implemented every plan. Now, hey, I can even say this: some plans that I wasn't that good at and probably somebody else could have made it work -- maybe.
But I know that some things I did that they implemented -- some things worked and some things didn't and I can even go further without trying to be editorializing that we learn from others. Some of the other teachers have suggestions --not just the ones from administration. There were some teachers that came up with some plans that worked for me.
Mr. Merica's above recollection of receptivity and implementation of constructive assistance was confirmed through the undisputed testimony of Ms. Hindman, who on three separate occasions documented specific improvements she observed in
Mr. Merica's classroom on each of her return visits. Use of Computer, Games, and Newspaper as Teaching Aids
Answering those allegations regarding his use of video and computer games as teaching tools, Mr. Merica's undisputed response was:
I said I never played them [video games] during instructional time. Students played them sometimes and it was part of the IEP. There were various video games. There was many of them and one they talked about a lot was the golf. But, you see, these kids have kinesthetic problems and we're trying to teach them how to manipulate the mouse, keyboards and other things.
There was a racecar game that they used to use, plus it was good for their eye-hand coordination because they were kinesthetically challenged kids. They were in IEP.
It was in the IEP that they were supposed to be kinesthetically challenged to whatever level they were to try to take them another year's worth. They didn't even call it grade level, but another year's worth of progress.
They were approved, by the way. As far as I know, every game that I brought was approved by the school board or if it was not, nobody told me it was not.
There was a list of computer software that you could use for kinesthetic(s), but the list was not always complete.
There was also ones for learning and some of the software I even created myself and I made sure it was approved by the office before I even used it because I created it. I wrote it and I wanted to make sure that it was okay with them. But they were very, very, academic. Mine dealt more with reading and -- it never had any kinesthetic(s) in it at all. So mine was easy to approve.
---I knew the list, but again the list -- it even says it does not include all the new software. It does not include all the new software. There are ones that we know about. And the same thing with video list. They had a video list. They have a video list, but it also said under these circumstances, these are -- generally a "G" movie is approved, but you know -- the list was always being compiled. It was always new it always had a little thing in there like, we may be incomplete, check with your principal.
Answering the question, "[w]hat is kinesthetic?" Mr. Merica stated:
Kinesthetic is using hand-eye coordination. They are physically impaired kids. Some of them were trying -- they might even some kind of physical deformity or nerve damage or cerebral palsy and they were trying to get them to manipulate their hands.
Mr. Merica's selections of newspapers, computer games, and specific TV programs as associative resource educational tools for his students were undeniably appropriate resource materials and activities related to learning goals for
his students with various learning and physical disabilities. No witness for the Commissioner, including Principal Griffin, the ART, and the ESE specialists, testified to the contrary.
Mr. Merica denied that he had sexually harassed his co-workers, and his denials were confirmed by the testimonies of the alleged victims who were called to testify by the Commissioner. He denied "being off task when in the classroom." He denied playing video games in class during teaching and instruction time. Mr. Merica's denials of essential elements in the Amended Administrative complaint, even if unbelievable, does not prove the accusations. The burden remains with the Commissioner.
Answering the allegation of "reading the newspaper in class," Mr. Merica stated:
If there was a current event and we were talking about current events or -- the kids even had papers at that time, so we have used the paper in an educational way in the school before.
Answering the allegation of allowing his class to watch the television program, The Price is Right, Mr. Merica stated:
That's a possibility, because at one time in PI, our kids were not going to the lunchroom. They were served lunch in the room. Well, that was a time where I was not present. It was the aides on attendance.
It was their duty. That was my time. I have a duty-free lunch is what they call it.
It's part of the contract. I didn't always take that time. They knew if they needed help, I would help. If there was some special function going on or something like that, I would not necessarily go to lunch.
But as a general rule I did do lunch, and those kids were in the room and sometimes the TV was on and the news during lunch period. It was lunch period for the children, too. Mr. Merica added that he was not aware of any prohibition against putting the TV on during the children's lunch period.
Answering his attorney's question why he placed a "Do you need a Sub?" note (the Board's Exhibit 62) in some but not all his co-workers mailboxes, Mr. Merica stated:
That's self-explanatory. It says: "Do you need a sub? If so please call Mr. Merica at 985-0203. Do not call before 6:00 a.m., or, you will have to deal with me personally.
Can you spell DEAD?" I put it in a few teachers' mailboxes--friends mainly--I'm not a sub. People know that. The people that I gave this to know that I was not a sub.
It's obviously a joke. The joke means that I don't think its appropriate to call anybody before 6:00 a.m. in the morning, you know, to disturb their family.--- As far as I know, they wanted to have a new policy because the secretaries didn't want to have to deal with sub calls anymore. So they said to start calling the subs before 6:00 o'clock in the morning to make sure they get there, and by the way, it doesn't say--can you spell dead? That's a little inside pedagogy, whatever you want to call it.
It's a little inside teaching joke. "I hope you can spell."
Based on the situations and circumstances at the time he engaged in activities and conduct in findings 206 through 211
and findings 229 through 234, I find Mr. Merica's explanations were plausible, reasonable, and within a teacher's authority and obligation to be creative and innovative by providing one or more methods of training to attain specific individual educational goals, based upon the physical and/or mental limitations of students and in concert with the educational goals as stated in their respective IEPs.
Realizing that Foster administration and the Board were in the process of terminating his employment contract at the next Board meeting, Mr. Merica wrote a November 2, 1999, memorandum to Dr. Binnie and Principal Griffin, suggesting that he be transferred (to another school) as an alternative solution. The request of transfer was denied. By letter of January 13, 2000, Dr. Earl Lennard, Superintendent, the Board, suspended Mr. Merica with pay until the Board meeting on January 18, 2000, at which point his contractual employment with the School Board was terminated. The School Board's annual renewal of Mr. Merica's yearly contract of employment during Principal Payne's tenure as principal of Foster provides a reasonable inference, and I so infer, that the 2000 termination of Mr. Merica's annual contractual employment was based primarily upon issues that were identified and raised by Principal Griffin during the mid-1998 through 2000 period when she, and not Ms. Payne, was principal at Foster. There is no
evidence of record that Foster brought to the attention of the Board or that the Board considered allegations of or findings of professional misconduct that had occurred during the 1994 through 1998 time period when Ms. Payne was principal at Foster Elementary.
Amended Administrative Complaint Material Allegations
Paragraph 3(a)
The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica, at unspecified times, demonstrated heightened anger while conferencing with Principal Payne. The evidence proved clearly and convincingly that between 1998 and 1999,8 Mr. Merica yelled at Principal Griffin while conferencing with her as alleged in Paragraph 3(a) of the Amended Administrative Complaint. I do not find that Mr. Merica "pointed his finger in his principal's face and being emotionally out of control while conferencing with Principal Griffin."
The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica failed or refused to comply with specific requests or specific instructions given by Principal Payne during her tenure as principal at Foster during the period of 1994 through mid 1998 or that Mr. Merica refused to comply with specific requests or specific instructions given by Principal Griffin during her tenure from mid-1998
through 1999, as alleged in paragraph 3(b) of the Amended Administrative Complaint.
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica made derogatory and/or disrespectful remarks specifically about Principal Payne or specifically about Principal Griffin to and in the presence of his co-workers as alleged in paragraph 3(c) of the Amended Administrative Complaint.
Paragraph 4
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica rejected constructive criticism and assistance from those whose positions required giving such constructive criticism and assistance as alleged in paragraph 4(a) of the Amended Administrative Complaint. To the contrary, the reliable evidence proved that between 1994 and 1999, specifically in the mid and latter part of the 1999 calendar year, Mr. Merica accepted and responded positively to constructive criticism and offers of assistance from those whose position required giving such constructive criticism and assistance.
The material and relevant evidence proved, clearly and convincingly, that on unspecified dates between 1994 and 1999, Mr. Merica was disruptive at faculty meetings by speaking aloud; speaking to co-workers, sometimes argumentatively; and
interrupting speakers when they were speaking during faculty meetings as alleged in paragraph 4(b) of the Amended Administrative Complaint.
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica was disruptive at faculty meetings by banging on tables and by making subversive and derogatory statements about the administration, in the presence of students and parent and faculty as alleged in paragraph 4(b) of the Amended Administrative Complaint.
Paragraph 5
The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, during February 1999 as alleged in paragraph 5(a) of the Amended Administrative Complaint.
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, an intern and teacher at Foster as alleged in paragraph 5(b) of the Amended Administrative Complaint.
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica sexually harassed co-worker, K.R., a teacher at Foster
Elementary as alleged in paragraph 5(c) of the Amended Administrative Complaint.
Paragraph 6
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999
Mr. Merica frequently left his class with his aides so that he could walk around campus, socialize, and/or monitor other teachers and their students as alleged in paragraph 6(a) of the Amended Administrative Complaint. The material evidence proved on those occasions, recalled by Mr. Merica and his DEES attendant who was an on-scene observer, that his absences from his classroom were for legitimate purposes within his obligations as a professional teacher in the Hillsborough County school system.
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999
Mr. Merica's use of alternative methods such as video games, newspapers, and other tools and equipment to teach his students were "ineffective teaching tools and student management" as alleged in paragraph 6(b) of the Amended Administrative Complaint. To the contrary, the undisputed evidence proved that Mr. Merica's use of other supportive, available, and permissible means and methods such as video games, newspapers, and other
tools and equipment for stimulating his PI students' interest were effective teaching tools.
The material and relevant evidence failed to prove, clearly and convincingly, the factual basis to support allegations that between 1994 and 1999 Mr. Merica (1) utilized ineffective lesson plans, (2) utilized ineffective behavioral management plans, (3) failed to keep students academically engaged, and (4) failed to control his students and/or gain their respect as the manager of the class as alleged in paragraph 6(c) of the Amended Administrative Complaint. Paragraph 7
The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica restrained students without the required ACT certification as alleged in paragraph 7(a) of the Amended Administrative Complaint. The evidence proved that Mr. Merica restrained "unruly" students and restrained "a student" in defense of his personal safety and that of other students in the time-out class incident herein found.
The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica yelled in the faces of students as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. Through the testimony of two students, Demetrie White and Jarmaal Rumlin, it is clear
when Mr. Merica was yelling in their face(s) it was, in part, to be heard over their yelling at him and/or each other when they were kicking the ball and playing during time-out.
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record,
Mr. Merica exhibited out-of-control or emotional forms of discipline as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint.
The material and relevant evidence proved that between 1994 and 1999, Mr. Merica restrained one unruly large male ESE student that was not enrolled in his class without a request from the teacher who was responsible for the class, as alleged, in part, in paragraph 7(c) of the Amended Administrative Complaint. Paragraph 7(d) was withdrawn by the Commissioner.
The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999,
Mr. Merica's teaching and student behavior management was ineffective, including:
frequently leaving his class with aides so that he could walk around campus, socialize, and/or monitor other teachers and their students.
when in his class, frequently playing video games on his computer, reading a newspaper, or reviewing architectural designs.
utilizing ineffective lesson plans and behavioral management plans, failing to keep students academically engaged, and failing to control his students and/or gain their respect as the manager of the class.
The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record,
Mr. Merica restrained unruly students without the required ACT certification. The evidence demonstrated that in each proven encounter of unruly student restraint, Mr. Merica acted to protect the unruly student, other classmates, and, on two occasions, protect himself and another colleague.
The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica restrained an unruly male student who was not enrolled in his class without waiting for the female teacher to ask for such assistance as alleged in paragraph 7(c) of the Amended Administrative Complaint. The evidence demonstrated and it is found that by restraining the unruly male student, Mr. Merica prevented possible potential injury to the unruly student, to the female teacher, to the grandmother volunteer, and to other
students of both classes who were present in the hallway at the time of the incident. Paragraph 7(d), alleging inappropriate discipline of several students on or about September 23, 1999, was withdrawn by Petitioner.
Paragraph 8
The Commissioner failed to prove, by clear and convincing evidence, allegations in paragraph 8 of the Amended Administrative Complaint that Respondent met with his principal and county employees to discuss and received letters of reprimand for each act alleged in paragraphs 1 through 7 of the Amended Administrative Compliant.
Paragraph 9
The Commissioner proved, by clear and convincing evidence, that the Board terminated Respondent's contractual employment as a teacher with Hillsborough County in 2000. The burden of proof required to terminate a contract of employment is not the clear and convincing evidence burden of proof standard required to revoke a license. The Commissioner offered no documented proof, however, proving the Board's decision was based specifically on the allegations found in paragraph 9 of the Amended Administrative Complaint.
There is no documented evidence of record that identifies the specific basis upon which the ultimate determination to terminate Mr. Merica's 2000 school year
employment contract was made by the Board. The Commissioner did not prove, clearly and convincingly, by material and relevant evidence of record, the allegations that "[E]ffective
September 22, 2000, the school board terminated Respondent's employment on charges on [sic] insubordination, persistent violation or willful refusal to obey laws or policies relating to the public schools, and failure to demonstrate competency relating to the instruction, evaluation and management of students in accordance with accepted standards," as alleged in paragraph 9 of the Amended Administrative Complaint.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2003).
Authority to Discipline
Section 1012.795, Florida Statutes (2003), authorizes the Education Practices Commission to discipline educators and provides as follows:
(1) The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as
provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:
* * *
Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.
Has been guilty of gross immorality or an act involving moral turpitude.
* * *
(f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.
* * *
(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
* * *
(k) Has violated any order of the Education Practices Commission.
* * *
(3) The revocation by the Education Practices Commission of an educator certificate of any person automatically
revokes any and all Florida educator certificates held by that person.
(4)(a) An educator certificate which has been suspended under this section is automatically reinstated at the end of the suspension period, provided the certificate did not expire during the period of suspension. If the certificate expired during the period of suspension, the holder of the former certificate may secure a new certificate by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate. An educator certificate suspended pursuant to a court order for a delinquent child support obligation may only be reinstated upon notice from the court that the party has complied with the terms of the court order.
(b) A person whose educator certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate.
Burden of Proof
In the Amended Administrative Complaint, the Commissioner has sought, among other penalties, the revocation Mr. Merica's right to renew his Florida's teaching certificate based upon an ongoing pattern of inappropriate and unprofessional conduct having begun in 1994 (on or about January 1) through 1999 (not later than December 31).
Disciplinary licensing proceedings are penal in nature and therefore, the Commissioner has the burden of proving the allegations in the Amended Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investors Protection v. Osborne Stern and Co., 670, So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).
Clear and Convincing evidence has been defined as evidence which:
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.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler
Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).
Id. The Florida Supreme Court later adopted the Fourth District's description of the clear and convincing evidence standard of proof. Clear and convincing evidence standard is an intermediate level of proof that entails both qualitative and quantative elements. The sum total of the evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davey, 645 So. 2d at 404.
The grounds proven in support of the Commissioner's assertion that Mr. Merica's right to renew his teaching certificate should be revoked or suspended must be those specifically alleged in the Administrative Complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulations, 458 So. 2d 842 (Fla. 2d DCA 1984).
The Commissioner has alleged in the Administrative Complaint that Mr. Merica committed four separate statutory violations (paragraphs 1 through 4 inclusive) and three separate rule violations (paragraph 5, 6, and 7), discussed in greater detail, infra.
The statutory violations which the Commissioner has alleged Mr. Merica violated are Subsections 1012.795(1)(b),
paragraph 1; 1012.795(1)(c), paragraph 2; 1012.795(1)(f), paragraph 3; and 1012.795(1)(i), paragraph 4, Florida Statutes (2003).
The rule violations alleged by the Commissioner are Florida Administrative Code Rule 6B-1.006(3)(a), paragraph 5; 6B-1006(3)(e), paragraph 6; and 6B-1.006(5)(d), paragraph 7. Allegations Proven by the Commissioner
The acts or conduct alleged in the Amended Administrative Complaint, which the Commissioner has alleged supports the conclusion that Mr. Merica's teaching certificate should be disciplined, are those that follow:
Paragraph 2(b): The material and relevant evidence proved, clearly and convincingly, that at unspecified dates between 1994 and 1999, Mr. Merica was disruptive at faculty meetings by speaking aloud; speaking to co-workers, sometimes argumentatively; and interrupting speakers when they were speaking, as alleged, in part, in paragraph 2(b) of the Amended Administrative Complaint.
Paragraph 5(a): The material and relevant evidence proved, clearly and convincingly, that at unspecified dates between 1994 and 1999 Mr. Merica physically restrained (unidentified SLD and PI) students when his ACT certification had expired, as alleged, in part, in paragraph 5(a) of the Amended Administrative Complaint.
Paragraph 5(b): The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica yelled in the face(s) of unruly SLD and PI students, as alleged, in part, in paragraph 5(b) of the Amended Administrative Complaint.
The evidence failed to clearly and convincingly prove those acts alleged in the Amended Administrative Compliant which are not found in paragraph 270 hereinabove.
In paragraph 2 of the Amended Administrative Complaint, the Commissioner has alleged that Mr. Merica violated Subsection 1012.795(1)(c), Florida Statutes (2003), which provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude."
The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 231, Florida Statutes (2003). See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used in Subsection 1012.795(1)(c), Florida Statutes (2003).
Florida Administrative Code Rule 6B-4.009(2) defines "immorality" as follows:
Immorality is defined as conduct that is Inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
"Gross immorality" has been defined by the courts as misconduct that more egregious than mere "immorality":
The term "gross" in conjunction with "immorality" which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards.
Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981). Frank T. Brogan v. Eston
Mansfield, DOAH Case No. 96-0286 (EPC Final Order 1996).
Florida Administrative Code Rule 6B-4.009(6) defines "moral turpitude" as follows:
Moral turpitude is 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 (1933), observed that moral turpitude
involves the idea of inherent baseness or depravity in the private social relations or duties owned 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.
Id. at 661.
In determining whether any teacher is guilty of gross immorality or an act (or acts) involving moral turpitude in violation of Subsection 1012.795(1)(c), Florida Statutes (2003), it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practice Council, 406 So. 2d 1171, 1172 (Fla. 1st DCA 1981).
None of the acts proven by clear and convincing evidence that were committed by Mr. Merica in this case, paragraph 2(b) and paragraphs (5)(a) and (b), rises to the level of gross immorality or moral turpitude. While it maybe arguable that Mr. Merica failed to exercise the better professional judgment because he did, on occasion, restrain unruly SLD and PI students without ACT certification, and, because he employed different teaching aids to assist his PI and ESE students in their comprehension, read in context of this Rule, Mr. Merica took the steps he took out of concern for his students' safety and concern for their educational development.
The Principle of Professional Conduct for the Education Profession (hereinafter referred to as the "Principles"), are found in Florida Administrative Code 6B- 1.006, violation of which shall subject the teacher penalty from revocation to suspension of the individual's education certificate. The particular Principle which the Commissioner has alleged that Mr. Merica violated is found in Florida Administrative Code Rule 6B-1.006(3)(a), which provides that a teacher:
[s]hall 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.
Of the professional conduct, acts and statements proven by the material and relevant evidence of record, to include Mr. Merica's "restraining unruly student" without proper ACT certification, the evidence is clear and convincing that Mr. Merica was always "making reasonable effort to protect the student's mental and/or physical health and/or safety." Each incident of student restraint occurred when the students were unruly, either in the halls or when in time-out in his classroom, and prevented injury to both Mr. Merica and other students. Mr. Merica used "selected and limited" T.V. programs when, in his opinion, those programs aided his PI and ESE students in their understanding and comprehension. Although
occasional "yelling" at his PI and ESE students may not have been the better approach to unruly student control, when viewed in context of the size of his male students who were unruly and the loudness of the entire class, as testified by two of his ESE students, Mr. Merica's yelling is not completely unreasonable on every occasion it occurred. The Commissioner's argument in its Proposed Recommended Order that "a failure to abide by a school district's rules impairs a teacher's effectiveness as a teacher in the school system," citing School Board of Polk County v.
Canova, DOAH Case No. 84-4483 (December 1995), is based upon the erroneous assumption that each allegation in the Amended Administrative Complaint filed in this proceeding was proven, clearly and convincingly, by relevant and material evidence of record.
Subsection 1012.795(1)(f), Florida Statutes (2003), provides for sanctions where the certificate holder has engaged in personal conduct which "has seriously reduced his or her effectiveness as an employee of the school board." Without discussing the degree which Mr. Merica's proven misconduct (restraint of unruly students, yelling at students, and talking loud at times with Principal Griffin) violated the Code of Ethics or the Code of Professional Conduct, no material and relevant evidence was presented that directly addressed the issue of "whether Mr. Merica's effectiveness as a teacher has
been seriously reduced or impaired." Therefore, no finding of fact has been made regarding this element of the proof, that Mr. Merica's actions were so serious that his effectiveness as a member of the instructional staff was impaired, and neither the nature of his misconduct nor the circumstances in which the misconduct occurred can reasonably support an inference that Mr. Merica's "effectiveness as teacher was seriously reduced or impaired--between 1994 and 1999," as alleged as alleged in the Administrative Complaint. Accepting as fact that the presentation of specific evidence to support the allegation of impaired teaching effectiveness is not "absolutely" necessary; the matter of depriving one of his/her means of support, which is a sacred right to the accused, is given serious consideration. See MacMillian v. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993); See also McNell v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996). There is no competent, material, and relevant evidence in the record that leads the undersigned to infer and/or conclude that
Mr. Merica's over-all teaching effectiveness, between 1994 and 1999 as alleged, was seriously reduced or impaired by the occasional misconduct herein found and proven by the clear and convincing evidence. See Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000).
Significant is the fact that the Amended Administrative Complaint (paragraph 8) alleged specific charges that were considered and found as fact by the Board in making the 2000 decision to terminate Mr. Merica's employment contract with the county. However, there is no documented evidence of the official actions of the School Board, taken during its regular scheduled meeting, to substantiate allegations in the Amended Administrative Complaint that "[E]ffective September 22, 2000, the school board terminated Respondent's employment on charges on [sic] insubordination, persistent violation or willful refusal to obey laws or policies relating to the public schools, and failure to demonstrate competency relating to the instruction, evaluation and management of students in accordance with accepted standards."
Discipline may be imposed against Respondent consistent with the disciplinary opportunities in Subsection 1021.795(1)(i), Florida Statutes (2003).
Based upon the foregoing Finding of Fact and Conclusions of Law, it is:
RECOMMENDED that the Commissioner of Education enter a final order finding Respondent, Neil Merica, in violation of Subsection 1012.795(1)(i), Florida Statutes (2003), and imposing the following penalties:
Suspend Respondent's right of renewal of his teacher certificate and place Respondent on probation for a period of three years, to require successful completion of an anger management course and other such conditions as the Commissioner may specify upon re-application under existing requirements for certification by the State Board at the time the suspension expires.
Impose a fine on Respondent in the amount of $1,000.00 for violation of Section 1012.795(1)(i), Florida Statutes (2003), to be paid prior to or at the time of re-application for certification, and other such conditions as the Commissioner may specify.
DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida.
S
FRED L. BUCKINE
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 31st day of March, 2005.
ENDNOTES
1/ Petitioner's Exhibits 1 through 10, 12 through 20, 25, 26,
27, 32 through 35, 37, 39, 41 through 45, 47 through 49, and 51 through 71 were admitted into evidence, for a total of
57 exhibits admitted in evidence. The numbered exhibits heretofore, as identified as being admitted reflect the "numbered" exhibits from the Joint Pre-hearing Stipulations of the parties and do not coincide with the "numbering" of Petitioner's notebook of exhibits submitted as part of the record.
2/ The following is a list of acronyms used throughout the final hearing and their meanings:
IEP (Individualized Education Plan): An IEP is a written statement developed for a student for special education services pursuant to Section 602(a)(20), Part A of the Individuals with Disabilities Education Act, 20 U.S.C., Section 1401(a). IEPs are developed and modified as needed, in concert with the student's parent, teacher, and therapists in the area of the student's disability. Each IEP is to have a clearly defined goal and methodology of achieving that goal to assist the disabled child's progress toward his/her potential as determined and limited by the particular disability. The IEP serves as the teacher's overall goal and guide for individual students.
SLD (Specific Learning Disabilities): SLD students have been identified as having problems with the "learning processes."
TMH (Trainable Mentally Handicapped): TMH students have mental handicaps that require specific training, teaching techniques and methodology. These students also have IEPs establishing what is believed to be attainable by training- learning goals and providing one or more teaching methods of training to attain those individual goals.
EMH (Educable Mental Handicapped): EMH students are identified as educable-within the parameters of their mental handicap. These students also have individual IEPs establishing what is believed to be attainable educable goals and providing one or more methods of training to attain those identified and individual goals.
EELP (Early Exceptional Learning Program): The EELP is an internship program for college students doing internship
training in teaching students with exceptional learning disabilities.
ESE (Exceptional Student Education): ESE is the term used to identify those teachers who have gained experience in teaching students with learning disabilities. As a designated specialist, these teachers assist other teachers in any manner requested, based upon their experiences. They primarily concentrate their attention on compliance issues. Their varied duties include attending IEP staffings; providing classroom assistance when requested; and working with teachers on any particular problem a teacher is having, i.e. academics, planning, classroom management, student control and other issues as directed by the Principal. Foster, at all times material, had an average of 22 units of ESE students. A unit is defined as a class of identified ESE students.
FDRS (Florida Diagnostic Resource Services/System): FDRS is a resource entity providing a variety of services for special education teachers, such as training and curriculum assistance.
3/ Personnel Evaluation-Principals are required to annually, accurately, and timely complete a performance evaluation on each teacher in that principal's school. The local school board considers the Personnel Performance Evaluation completed by the principal as the accurate report based upon the principal's knowledge and observation of the teachers' performance. This evaluation is important in determining: promotions, whether to renew the yearly employment contract or terminate the contractual relationship, or impose modification of the contractual relationship.
The Confidential School District of Hillsborough County, Florida, Classroom Certificate Personnel Evaluation Form is divided into the following major sections and subsection:
PLANNING AND PREPARATION
Plans lessons consistent with State and District curriculum framework(s).
Identifies lesson objectives appropriate for the level of achievement of individual students, based on curriculum goals.
Selects appropriate resource materials and activities related to lesson objectives.
Selects lesson materials and activities for effective lesson presentation.
Sequences the use of materials and activities related to lesson presentation.
Identifies procedures to assess attainment of lesson objectives.
PROFESSIONAL BEHAVIOR
Adheres to State, District and School policies and procedures.
Completes records and reports accurately, up-to-date, and on time.
Is punctual in reporting to school and in carrying out school assignments.
Observes confidentiality relating to students, teachers and school.
Performs with a minimum of supervision.
Answers or initiates parent communication.
Works cooperatively and supportively with school staff.
Demonstrates logical thinking and makes practical decisions.
Make suggestions and offers criticism with discretion.
Responds reasonably to and acts appropriately upon constructive criticism.
Engages in self-assessment and participates in professional development activities.
TECHNIQUES OF INSTRUCTIONS
Demonstrates knowledge of subject matter.
Uses instructional time efficiently, while employing the principles of continual quality improvement in an instructional setting with students.
Orients students to class work and maintains academic focus.
Uses vocabulary and presents content appropriate to the subject area and to the students' abilities, while using appropriate strategies for teaching from diverse cultural backgrounds, with different learning styles, and with special needs.
Presents subject matter effectively, while using appropriate skills and strategies that promote the creative/critical thinking capabilities of students.
Gives directions in a clear, concise manner.
Uses students' responses/amplifies/gives corrective feedback.
Uses praise appropriately.
Checks for comprehension during instructions.
Holds students accountable for and gives appropriate feedback on seat/homework.
Circulates and assists students during seatwork.
Demonstrates enthusiasm when presenting content.
Uses traditional and alternative assessment procedures that provide for individual, ethnic and cultural differences.
Uses supportive data to arrive at a grade of indication of students progress, and uses technology to manage systems of instructions, record keeping, and reporting systems where appropriate and available.
CLASSROOM MANAGEMENT
Establishes and maintains standards for acceptable student behavior.
Maintains instructional momentum.
Stops misconduct using effective, appropriate techniques.
Exhibits consistency when dealing with student behavior.
Enhances and maintains student's self-esteem.
Monitors student to remain on task, and
Uses and maintains equipment and classroom property.
INSTRUCTIONAL EFFECTIVENESS
(a) Promotes academic learning that result in improved student performance.
4/ The bombing occurred in 1995.
5/ Rejected, for facts not substantially proven by competent evidence consisting of the testimony this witnesses, was the Commissioner's post-submittal argument that Mr. Merica's incompetence began "prior to October 26, 1999" and was demonstrated and known to Principal Griffin and that knowledge was the reason for her request for assistance in the months of October and November 1999. §§ 120.51 et seq. and 120.68(10), Fla. Stat. (2003). The rejection is based upon the instructive principle found in Bowling v. Department of Insurance, 394 So. 2d 165, 171 (Fla. 1st DCA 1981). Addressing the issue of assessing past conduct beyond the power to conform it to debatable expressions announced prospectively that may result in the loss of a valuable license, the critical matter must be shown by evidence as substantial in weight and specificity as
the consequence of this proceeding, the permanent revocation of his teaching certificate, the court held that:
In a proceeding under a penal statute for suspension or revocation of a valuable business or professional license, the term "substantial" competent evidence takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120. Although all questions of fact as distinguished from policy are determinable under the Administrative Procedure Act by substantial competent evidence, Section 120.68(10), we differentiate between evidence that "substantially" supports conventional forms of regulatory action and evidence which is required to support "substantially" a retrospective characterization of conduct requiring suspension or revocation of the actor's license. Evidence, which is "substantial" for one purpose may be less so on another, graver occasion.
Having alleged Mr. Merica's incompetence began in 1994, the Commissioner must substantially demonstrate, by clear and convincing evidence, a factual allegation that occurred in 1994. The vague referenced testimony of Ms. Velez, that Mr. Merica's incompetence began "prior to October 26, 1999," lacks the requisite "substantially." The Commissioner must carry the clear and convincing burden on each allegation in the Amended Administrative Complaint, as pled. The Commissioner does enjoy the benefits of legal presumptions.
6/ The testimony of Ms. Velez, paragraphs 167 through 192 inclusive, was based upon documents she prepared from documents provided her by third parties. The latter documents were not sworn or notarized by the respective authors and not recorded or kept by the Hillsborough County School Board's official custodian of record and are, therefore, legally insufficient to corroborate Ms. Velez's hearsay upon hearsay testimony. §§ 90.801(1)(c) and 90.803(6)(a), Fla. Stat. (1987). See Johnson v. Department of Health and Rehabilitative Services, 546 So. 2d 741 (Fla. 1st DCA 1989).
7/ The 1999-2000 school year began September 12, 1999, and ended June 24, 2000. The 2000-2001 school year began
September 9, 2000, and ended June 31, 2001.
8/ The 1998-1999 school year began August 13, 1998, and ended May 27, 1999.
COPIES FURNISHED:
Robert F. McKee, Esquire Kelly & McKee
1718 East Seventh Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400
Aaron W. Proulx, Esquire Kelly B. Holbrook, Esquire Broad and Cassel
100 North Tampa Street, Suite 3500 Tampa, Florida 33602
Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education
325 West Gaines Street, Suite 224-E 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. 03, 2005 | Agency Final Order | |
| Mar. 31, 2005 | Recommended Order | Petitioner was fired from his position by the School Board and the Commissioner of Education sought revocation of his teaching certificate, alleging general incompetence beginning in 1994 through 1999. The burden of proof was not carried. |
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION vs TERESA HENSON, 03-003158PL (2003)
BROWARD COUNTY SCHOOL BOARD vs TIMOTHY MELESENKA, 03-003158PL (2003)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs KRIZIA COLUMNA, 03-003158PL (2003)
SCHOOL BOARD OF DADE COUNTY vs. MARIANNE CARR MARSHALL, 03-003158PL (2003)
NASSAU COUNTY SCHOOL BOARD vs NANETTE AUTRY, 03-003158PL (2003)
