and Cynthia Hernandez as his witnesses. Respondent’s Exhibits 1 through 17, 19, and 21 were admitted in evidence. Respondent’s Exhibit 20 was not admitted in evidence.
The three-volume Transcript was filed on August 4, 2010. The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. On August 9, 2010, Mr. Cofield filed Respondent’s Motion for Extension of Time to File Proposed Recommended Orders. The motion was granted, and the time for filing proposed recommended orders was extended to September 10, 2010. The parties timely filed their Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
Mr. Cofield has been employed by the Lee County School District (School District) since 1998. At all times material to this proceeding, Mr. Cofield was a world geography and social studies teacher at Bonita Springs Middle School.
On February 18, 2005, at the request of Bonita Springs Middle School principal, John Basil, Mr. Cofield attended an in- service training on Anger Management and De-escalation Training.
On March 2, 2005, Mr. Cofield received a letter of reprimand from Mr. Basil based on allegations that on March 1, 2005,
Mr. Cofield had pushed a student while trying to have the student comply with Mr. Cofield's instructions. The reprimand was given for "act[ing] inappropriately and [violating] effective management of student behavior." The reprimand
provided:
Please be advised that effective immediately, you are not to place your hands on a student while attempting to discipline him or her. Further violations of this directive will result in additional actions.
Mr. Cofield did not file a response or a grievance to the written reprimand of March 2, 2005.
On August 1, 2005, during a pre-school in-service training, Joe Williams, III, who, at the time, was the principal at Bonita Springs Middle School, advised all staff members to keep their hands to themselves and not to place their hands on a student. On September 27, 2005, Mr. Williams gave Mr. Cofield a letter of reprimand based on allegations that Mr. Cofield put his hands in the pants of a female student. The reprimand was for "conduct [which] violated the school district policy that relates to inappropriate contact with students." The reprimand further provided:
Effectively immediately you are directed to refrain from any physical contact with the students. Additionally, you are to refrain
from humiliating or ridiculing students as well. Failure to comply with this directive will result in a formal letter of reprimand.
To assist you in correcting this conduct, I offer the following suggestions. Reread the staff handbook and practice using a completely hands off approach with students.
Mr. Cofield did file a response denying the allegations and requesting that the letter of reprimand be removed from his personnel file. He did not file a grievance concerning the disciplinary action.
On December 7, 2005, Mr. Williams received allegations from a sixth-grade, male student that Mr. Cofield had physically shoved the student with both hands. Mr. Williams investigated the incident and called Mr. Cofield into his office to discuss the matter. Mr. Williams advised Mr. Cofield that, if he received another complaint from a student that Mr. Cofield had placed his hands on the student, Mr. Williams would call for an investigation from the School District's personnel services.
On January 11, 2006, two students made allegations to Mr. Williams that Mr. Cofield had physically shoved them out of class. Mr. Williams contacted the School District's personnel services and asked that an investigation be done. The School District did investigate the allegations. On February 9, 2006, a pre-determination conference was held to give Mr. Cofield an opportunity to respond to the allegations. On March 2, 2006, a
letter of reprimand was issued by Derrick L. Donnell, director of Professional Standards, Equity, and Recruitment, to
Mr. Cofield for violating the Code of Ethics of the Education Profession and the Principles of Professional Conduct of the Education Profession in Florida. Mr. Cofield did not file a response or a grievance to the letter of reprimand.
On September 22, 2006, Mr. Cofield received a letter of reprimand from Mr. Williams for shouting at his students in the hallway in a very harsh and loud tone that could be heard by
Mr. Williams, who was in the office of the assistant principal, and by parents who were in the main office. Mr. Cofield did not file a response or a grievance to the letter of reprimand.
On August 6, 2009, Mr. Cofield received a letter of reprimand from Rancie E. Monroe, director of the Department of Professional Standards and Equity, for exposing students to unnecessary embarrassment or disparagement. Mr. Cofield did not file a response or a grievance to the letter of reprimand.
On October 26, 2009, three of Mr. Cofield's students approached Dr. Ruthie Lohmeyer, the principal at Bonita Springs Middle School, stating that Mr. Cofield had kicked them out of the classroom. Dr. Lohmeyer and the assistant principal, Robert Scallan, escorted the students back to the classroom. As they were approaching the classroom, Dr. Lohmeyer heard Mr. Cofield
yell at the students, "you all are a bunch of idiots."
Mr. Cofield continued to maintain a loud voice at the students.
On October 28, 2009, Dr. Lohmeyer issued a letter of reprimand to Mr. Cofield for the incident on October 26, 2009. The letter stated that Mr. Cofield's conduct violated the School District's policy as it related to maintaining a safe and orderly environment.
On December 8, 2009, an incident occurred in Mr. Cofield's class room involving Mr. Cofield and E.C., a
seventh-grade student. Mr. Cofield was teaching a fourth-period world geography class, which was a split-period class beginning before lunch and continuing after lunch. About a minute before Mr. Cofield dismissed the class for lunch, E.C. "just walked out of his class without permission to go to lunch." Prior to going to lunch, E.C. had not completed her work assignments.
When the fourth-period class returned after lunch, Mr. Cofield sent E.C. to the classroom of a neighboring teacher, Mr. Einbinder, whose classroom is adjacent to Mr. Cofield's classroom, with a vacant office between the two classrooms. There are doors from Mr. Einbinder's and Mr. Cofield's classrooms going into the vacant office.
Mr. Cofield explained that the class was studying Japan and had completed the class book part of the assignment before lunch. After lunch, the class would use the information
gathered prior to lunch and put it to use with maps and other facts. After lunch, the class would complete worksheets on the section on Japan and complete their work on Japan.
Mr. Cofield contends that he did not send E.C. to Mr. Einbinder's classroom as a disciplinary measure for leaving class before lunch, but that he sent E.C. to Mr. Einbinder's
classroom because she had not completed any work prior to lunch. Mr. Cofield testified that he sent E.C. to Mr. Einbinder's classroom to complete the work she did not complete before lunch, but he did not explain how she was going to make up the work that was going on in the class while she was in
Mr. Einbinder's classroom. Additionally, if E.C. was not doing any work before lunch, Mr. Cofield should have taken measures to get her on task. Mr. Cofield's contention that sending E.C. to Mr. Einbinder's classroom was not a form of discipline is not credible.
E.C. went to Mr. Einbinder's classroom. Within five or ten minutes of getting to Mr. Einbinder's class, E.C. left Mr. Einbinder's class and attempted to enter Mr. Cofield's class through the vacant office. Her reason for returning was to retrieve the rest of her things so that she would not be late for the next class.
Mr. Cofield saw E.C. coming through the vacant office and thought that she had not had time to complete her
assignment. He told her to return to Mr. Einbinder's classroom more than once, but E.C. was determined to get her things and disobeyed Mr. Cofield. E.C. tried to go around Mr. Cofield, and Mr. Cofield put his hand on her shoulder in an attempt to stop her. E.C. told him: "Don't touch me." E.C. collected her things and went back to Mr. Einbinder's class, and Mr. Cofield called the office for assistance.
Due to the December 8, 2009, incident, Mr. Cofield was suspended with pay and benefits effective December 9, 2009.
On February 4, 2010, Mr. Cofield attended a pre- determination conference with his union-assigned counsel, Robert Coleman, Esquire, to respond to the allegations surrounding the December 8, 2009, incident. Mr. Cofield denied having pushed
E.C.
Following the pre-determination conference, it was
determined that a recommendation would be made to the superintendent for Mr. Cofield’s termination. A letter dated February 10, 2010, was forwarded to Mr. Cofield and his attorney, advising them of this recommendation. On March 9, 2010, Mr. Cofield was suspended without pay by the School Board.
The School Board Policy of Lee County Policy No. 4.09 provides:
The School Board of Lee County is committed to a safe and orderly educational environment and authorizes the
Superintendent and District staff to respond rapidly to any threats, suggestions or predictions of violence that occur on any District-owned property.
There shall be a “zero” tolerance for threats of violence. No student, staff, parent/guardian or any other person shall make any verbal, written or electronically communicated (e-mail) threat, suggestion or prediction of violence against any person or group of persons or to any District-owned facility. Any serious threat of violence shall result in immediate disciplinary action and referral to the appropriate law enforcement agency.
The School Board of Lee County Policy No. 5.02 provides:
A high-performing learning community committed to student achievement must seek and retain a fully qualified and high- performing workforce. Through its professional standards and policies, the School Board of Lee County shall establish high standards and expectations for its professional faculty and staff, including:
Compliance with applicable federal and State laws, rules, codes, regulations and policies concerning professional credentials and employment.
Dedication to high ethical standards.
Establishment of high standards in educational practice.
Commitment to diversity and equity.
Responsiveness and service to the school community.
Commitment to best practices, research, innovation, and staff development that results in improved student learning.
The School Board of Lee County Policy No. 5.29 provides, in part:
All employees are expected to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students. All employees are expected to meet the specific standards described in the Employee Handbook(s), negotiated contracts, the Principles of Professional Conduct for the Education Profession in Florida as described by State Board of Education Rule, and all local, State, and federal laws.
Mr. Cofield is subject to the provisions of the TALC Collective Bargaining Agreement between Petitioner and the Teachers Association of Lee County (Collective Bargaining Agreement). Section 6.024 of the Collective Bargaining Agreement provides that any discipline for a teacher while under a teaching contract shall be for just cause.
Mr. Cofield has received awards for his work with students. In 2005, he received the Wal-Mart Teacher of the Year award, representing the School District. In four different years, Mr. Cofield was honored as the College Reachout Program Coordinator of the Year by the Florida Gulf Coast University.
Mr. Cofield is an eight-year member of Phi Delta Kappa, an educational organization that supports public education. He was selected as a representative to attend a
conference in January 2009 to discuss the Troops to Teachers Program, of which he was a participant. He was in charge of a computer-giveaway program for seven years in conjunction with a retirement residential community presenting some 200 computers to Bonita Springs Middle School. He was successful with the Cadet and College Reachout Programs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).
Petitioner has the burden to establish the allegations in the Administrative Complaint by a preponderance of the evidence. McNiell v. Pinellas County School Board, 678 So. 2d
476 (Fla. 2nd DCA 1996).
Mr. Cofield is a teacher and is, therefore, an instructional employee as defined in Subsection 1012.10(2)(a), Florida Statutes.
Subsection 1012.33(1)(a), Florida Statutes, provides that instructional staff may be dismissed for just cause and states:
(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All
such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause.
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office,
incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
The School Board has alleged that Mr. Cofield is guilty of misconduct as defined by Florida Administrative Code Rule 6B-4.009(3), which provides:
(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.
The School Board has also alleged that Mr. Cofield is guilty of violating the following School Board policies:
School Board Policy 4.09, Threats of Violence, by threatening and then placing his hands on the student[;] . . . School Board Policy 5.02, Ethical Standards, by failing to adhere to the highest ethical standards expected of District
employees[; and] . . . School Board Policy 5.29, Complaints Relating to Employees, by failing to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students.
The School Board did establish that Mr. Cofield placed his hand on a student's shoulder without the permission of the student. Mr. Cofield had been warned and disciplined in the past for placing his hands on students without the student's permission. Mr. Cofield chose not to heed those warnings.
Mr. Cofield argues that placing his hand on E.C. was reasonable force needed to control his classroom. This argument is without merit. Mr. Cofield did not need to put his hand on E.C.; he could call the office for assistance.
The School Board has established that Mr. Cofield's conduct constitutes misconduct as that term is defined by Florida Administrative Code Rule 6B-4.009(3). He placed his hand on a student without justification. That action alone is sufficient to show that Mr. Cofield's effectiveness in the school system is impaired. "Misconduct in office" may be established, even in the absence of "specific" or "independent" evidence of impairment, where the conduct engaged in by the teacher is of such a nature that it "speaks for itself" in terms of its seriousness and its adverse impact on the teacher's effectiveness. In such cases, proof that the teacher engaged in the conduct is also proof of impaired effectiveness. See Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands County School Board, 752 So. 2d 127,
128-29 (Fla. 2d DCA 2000); Summers v. School Board of Marion County, 666 So. 2d 175, 175-76 (Fla. 5th DCA 1995).
The School Board did establish that Mr. Cofield violated School Board of Lee County Policy No. 5.02 by failing to adhere to the highest ethical standards expected of an employee and School Board of Lee County Policy No. 5.29, which requires teachers to adhere to the Principles of Professional Conduct for the Education Profession in Florida. Florida Administrative Code Rule 6B-1.006(3)(a) requires a teacher to protect a student from conditions harmful to the student's physical or mental health or safety. Mr. Cofield failed to adhere to this standard.
The School Board failed to establish that Mr. Cofield violated School Board of Lee County Policy No. 4.09. The policy refers to threats of violence and not actual violence. The evidence does not establish that Mr. Cofield threatened E.C.
Mr. Cofield has performed outstanding work with the various programs designed to assist students, such as the computer give-away program, the Cadet program, and the College Reachout Program. This work mitigates against termination. However, placing a hand on a student without justification warrants a serious disciplinary action.
