The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to discipline Respondent for misconduct as alleged in the Administrative Complaint (“Complaint”) dated March 10, 2020.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At the time of the alleged incident, Respondent was employed as a testing coordinator at Dunnellon Middle, pursuant to a professional services contract with the Board. During the 2018-2019 school year, Respondent served as a dean of discipline at Dunnellon Middle. As dean, she had dealt with discipline of students possessing drugs on campus, as well as students suspected of smoking marijuana either on a school bus or at the school bus stop. Leah Grace is a guidance counselor at Dunnellon Middle. Michelle Reese is the guidance office clerk. On January 30, 2020, student L.L. came to the guidance office and told Ms. Reese he wanted to speak with Ms. Grace about enrollment in a magnet program for the following school year. However, when L.L. entered Ms. Grace’s office, he sat down and began crying. L.L. confided in Ms. Grace that he “had something he was not supposed to have at school.” L.L. stated that he did not know who to trust. L.L. was distraught and Ms. Grace was unable to calm him. She decided to contact his mother to pick him up from school. Aware that L.L.’s mother does not speak English, Ms. Grace sought help from someone at the school who spoke Spanish. Respondent speaks Spanish. Ms. Grace contacted Respondent and asked her to come to the guidance office to help her with a student. When Respondent arrived at Ms. Grace’s office, she observed L.L. visibly upset, sobbing with his face in his hands, rocking back and forth. Ms. Grace relayed to Respondent what L.L. had shared with her—that he “had something he was not supposed to have at school.” Respondent recognized L.L. and asked him three questions in quick succession: Do you have a weapon? L.L. shook his head “no” in response; Do you plan to hurt yourself or someone else? L.L. shook his head “no” in response; and Do you have weed? L.L. nodded his head in response to the third question, indicating that he did have marijuana. L.L. confided that another student, D.G., had given the marijuana to L.L. in the cafeteria that morning to “hold on to” for him. L.L. had grown anxious during the school day about having the drugs in his possession and had come to the guidance office for help. When L.L. nodded in the affirmative that he had weed on him, Respondent stated something to the effect of “that is no reason to go home.” Respondent suggested L.L. just flush the marijuana down the toilet. L.L. promptly went into a small restroom attached to Ms. Grace’s office, flushed the toilet, washed his face, and began to compose himself. Afterward, Respondent told L.L. he needed to find better friends. As Respondent was no longer needed for translation, she left the guidance office and returned to her duties in the testing lab. Ms. Grace allowed L.L. to go to his next class, a grade-recovery course for which he was already late. Julia Roof teaches the class and had been concerned that L.L. was not in class on time. L.L. arrived at the classroom toward the end of the class period, and Ms. Roof observed that L.L. was upset. L.L. initially insisted that he was “fine,” but Ms. Roof pressed him because he was visibly upset. L.L. confided in Ms. Roof about the incident. He admitted that he had marijuana in his possession at school that day, that another student had asked him to hold it, and that he had been to the guidance office where the marijuana had been “flushed.” Neither Ms. Grace nor Respondent reported the incident to the school resource officer or anyone in school administration. Nor did either of them notify L.L.’s mother. Ms. Roof reported the incident to Delbert Smallridge, principal at Dunnellon Middle, at the end of the school day. Principal Smallridge’s Investigation Mr. Smallridge has served as principal at Dunnellon Middle for nine years, and has worked in the Marion County school system in various positions for 31 years. Ms. Roof reported the incident to Mr. Smallridge after school at car pickup. Before he left the school for the day, Mr. Smallridge contacted the school resource officer to notify him that there was a situation with drugs on the school campus that day. He also notified Brent Carson, director of professional practices (i.e., human resources) for the Marion County School District (“the District”), with the limited information he had obtained. The following morning, Friday, January 31, 2020, Mr. Smallridge began an internal investigation into the incident. He first interviewed L.L., in the presence of Ms. Roof; took notes of the events L.L. related; reviewed the notes verbally with L.L.; as well as having L.L. read them to himself. Afterward, he asked L.L. to sign his name at the bottom of the page as his statement of the incident. The next person he interviewed, Ms. Reese, came to him directly. She reported to Mr. Smallridge that she had information she felt he should know. She told Mr. Smallridge that Ms. Grace had confided in her that morning that she had allowed a student to flush marijuana in plastic bags down the toilet in her office the prior day, and that she was concerned that they may come back up or otherwise cause a plumbing problem. Ms. Reese provided and signed a written statement to that effect. Mr. Smallridge also interviewed, and took a written statement from, Ms. Roof regarding the incident. Before the school day ended, he also spoke to Mr. Carson, who instructed him to complete the school-level investigation by interviewing and getting written statements from Respondent and all witnesses, and do his best to determine what had happened. Mr. Smallridge interviewed Ms. Grace the following Monday, February 3, 2020, in the presence of his confidential secretary. Mr. Smallridge took notes of his interview with Ms. Grace, and Ms. Grace provided a written statement of her own. During his interview with Ms. Grace, Mr. Smallridge noted that “both [Ms. Grace and Respondent] were aware [L.L.] had drugs.” In Ms. Grace’s written statement, she stated that she “couldn’t remember” whether it was she or Respondent who told L.L. to flush the marijuana, “but I think it was me.” She stated that L.L. went to the small bathroom attached to her office, “then came out and told me he flushed it, bag and all.” Ms. Grace’s statement also confirmed that both she and Respondent were in her office when L.L. went to the bathroom. Ms. Grace later resigned from Dunnellon Middle. On August 26, 2020, after her resignation, she gave a second written statement regarding the incident. In that statement, Ms. Grace claimed responsibility for telling L.L. to flush the marijuana and called it a “momentary lapse in judgement.” She felt sorry for L.L. and did not want him to get in trouble, either with the school or with law enforcement. Mr. Smallridge also interviewed Respondent, who stated that, when L.L. nodded his head in response to her question, “Do you have weed,” she understood L.L. to mean that he had marijuana in his system, not on his person. Further, she claimed to have left Ms. Grace’s office shortly after she asked those questions and was not aware that L.L. had drugs on his person or that he flushed drugs in Ms. Grace’s office. Respondent also gave Mr. Smallridge a written statement. In her written statement, Respondent described the events of January 31, 2020. She said that when she first observed L.L. in Ms. Grace’s office, “The kid seemed sick, rocking, sobbing and not speaking.” She continued, “I thought he might be intoxicated as to why he would want to go home and not to the nurse. I asked him if he had weed as if in smoked it, had it in his system. He nodded and continued to cry. I said, that is no reason to go home.” Mr. Smallridge gathered all the statements and notes from his investigation, scanned and sent them to Mr. Carson. Jaycee Oliver is the executive director of employee relations for the District and is responsible for disciplinary issues with District employees, including hearings, grievances, mediations, and arbitrations. Ms. Oliver reviewed the documents from Mr. Smallridge, and discussed the incident with Mr. Carson and Mr. Smallridge. Ms. Oliver determined that the incident warranted a District-level investigation. District Investigation and Discipline The District investigation was conducted by Dawana Gary, director of equities and ethics, who worked with Tyson Collins, an investigator in her department. Ms. Gary was present for the interviews of both Ms. Grace and Respondent. Mr. Collins interviewed the remaining witnesses. Their interviews were recorded. Following the investigation, Ms. Gary prepared an investigative report containing written findings and conclusions. Based on the investigation, Ms. Gary concluded that both Respondent and Ms. Grace violated Florida Administrative Code Rule 6A-10.081(2)(a)1., which provides that the educator’s obligation to the student requires that the educator “[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.” She also concluded that both Respondent and Ms. Grace violated School Board Policy 6.27 I., which requires school board employees to comply with rule 6A-10.081. Ms. Gary sent her investigative report to Ms. Oliver, along with a recommendation that both Ms. Grace and Respondent receive a written reprimand, three-day suspension without pay, and mandatory training. Ms. Oliver reviewed the report and recommendation, and was surprised the recommendation was so lenient. Ms. Oliver characterized the violations as “egregious” and recommended to the superintendent that both Respondent and Ms. Grace be terminated. At the final hearing, Ms. Oliver testified that Respondent’s behavior was egregious because, not only did she fail to report the incident or take other measures to protect L.L., but also that allowing the student to dispose of the drugs prevented a proper investigation into distribution of drugs on campus. She maintained that Respondent’s behavior allowed both D.G., who was allegedly selling drugs on campus, and students who may purchase or otherwise obtain drugs from him, to remain in harm’s way. Without the drugs themselves as evidence, any potential investigation was jeopardized. Ms. Oliver discussed the recommendations for discipline at length with the superintendent. The superintendent made the final decision to impose a written reprimand and a five-day suspension, and require Respondent to take a course on “Reasonable Suspicion Drug Training” upon her return to work. L.L.’s statement that Respondent told him to flush the drugs is the only credible evidence on which to base a finding that Respondent did in fact do so.1 Respondent attempted to discredit L.L.’s testimony by introducing evidence (all of which was hearsay) that L.L. had previously been untruthful to teachers and had a penchant for drama. This evidence was neither credible nor reliable. L.L.’s testimony was clear: he acknowledged he had “weed;” he showed Respondent and Ms. Grace the weed; Respondent instructed him to 1 L.L.’s statement is an exception to the hearsay rule as an admission of a party opponent. See § 90.803(18), Fla. Stat. flush the weed; and he flushed the weed down the toilet in Ms. Grace’s private restroom. Ms. Grace’s testimony that she was the one who instructed L.L. to flush the marijuana is also not accepted as credible. Ms. Grace’s original statement to Mr. Smallridge (repeated in her first written statement) that she could not remember whether it was she or Respondent who told L.L. to flush the marijuana, was simply not credible. A middle school guidance counselor in her situation would have a clear memory of instructing a student to flush drugs down the toilet. Likewise, her memory that a teacher instructed the student to do so in her presence would likewise be significant enough to remember clearly. Further, Ms. Grace and Respondent were close colleagues, frequently having lunch together, and socializing outside of school on at least one occasion. Ms. Grace’s subsequent statement accepting responsibility for telling L.L. to flush the drugs was likely an attempt to protect Respondent. When she gave her second statement, Ms. Grace had already resigned from Dunnellon Middle; therefore, she could not be disciplined for falsely accepting responsibility for instructing L.L. to flush the marijuana. Finally, Ms. Grace’s testimony at the final hearing was too well- rehearsed to be credible. Notably, Ms. Grace had a well-rehearsed explanation for why Respondent would not have heard her tell L.L. to flush the drugs while they were sitting in her very small office, and she inserted that explanation in answer to a wholly-unrelated question. She attempted to explain Respondent’s state of mind, which she could not have known. In sum, Ms. Grace’s testimony was unreliable and was insufficient to establish that she, rather than Respondent, instructed L.L. to flush the marijuana down the toilet. Respondent’s testimony that she understood L.L. to mean he had marijuana in his system, rather than on his person, was not credible. L.L. had stated that he “had something he wasn’t supposed to have at school.” Respondent asked him if he “had weed” after asking him if he “had a weapon,” clearly seeking knowledge of what he possessed at school that he knew was off limits. Further, L.L.’s testimony that he showed Ms. Grace and Respondent the weed is accepted as true. Even if Respondent’s testimony that she understood L.L. to mean that he had marijuana in his system was accepted as true, that fact, coupled with her description of him as appearing ill, and possibly intoxicated,2 created a responsibility to take some step to protect the student’s health and well- being. If she understood L.L. to mean that he had ingested marijuana, and he appeared to her to be ill, her statement “that is no reason to go home,” was completely unprofessional. L.L.’s mother should have been contacted to pick him up from school, and administration should have been notified so that the situation could be avoided in the future to secure L.L.’s health and safety, as well as other students potentially involved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding both the charges and the discipline imposed against Respondent, Maria Acosta. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2020. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Eric J. Lindstrom, Esquire Egan, Lev, Lindstrom & Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627 (eServed) Heidi S. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent Kenneth D. Humphrey holds a postgraduate rank II teaching certificate, No. 302258, issued by the Department of Education. In the spring of 1975, respondent was employed as a counselor at Palmetto Senior High School in Dade County, Florida. Judith Ann Ewerling was a tenth grade student at the school, and one of respondent's counselees. On May 16, 1975, respondent invited Ms. Ewerling to lunch. They left the school parking lot together in respondent's car. Respondent drove to his house ostensibly to pick up some papers. When they arrived, respondent invited Ms. Ewerling inside, offered her a drink, saying he didn't have any mixers, and asked her if she smoked marijuana. Marijuana was on the premises in plain view. He then announced he was going to ravish Ms. Ewerling's body. An hour and a half of sexual activity, including respondent's ejaculation of semen into Ms. Ewerling, then ensued.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's teaching certificate. DONE and ENTERED this 15th day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 East College Avenue Tallahassee, Florida 32301 Mr. Kenneth D. Humphrey 15245 S. W. 108th Court Miami, Florida 33157
Findings Of Fact Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/ Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.
Recommendation Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years. ENTERED this 20th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent.
Findings Of Fact Petitioner first employed Respondent, as a custodian, in late 1991. Respondent's first job was as a substitute custodian, which was a temporary assignment offering few benefits. Petitioner assigned Respondent to Sarasota High School. The substitute position is also known as a non-appointed position. On February 1, 1994, Petitioner changed Respondent's status from non-appointed to appointed. Respondent successfully completed the six-month probationary period. Two years later, Petitioner transferred Respondent from Sarasota High School to the Oak Park School. This transfer resulted from the settlement of a grievance proceeding concerning a matter unrelated to the issues in this case. At the end of the 1996-97 school year, Petitioner transferred Respondent to Sarasota High School. By this time, Respondent had sufficient seniority to be able to bid for a job at a school of his choosing, and Respondent desired to work at Sarasota High School. Respondent began to experience serious job-related problems during the 1997-98 school year. He did a poor job cleaning the classrooms and other assigned areas. His supervisor estimated that Respondent would complete about 60 percent of his assignment. Frequently, Respondent was a "no call, no show," meaning that he neither appeared for work when scheduled nor called in advance of his nonappearance. On at least one occasion in December 1997, Respondent left work early, without permission, so that his supervisor had to have another custodian finish Respondent's job. From the 1997-98 school year until Respondent's departure from employment with Petitioner, he was repeatedly late, absent, or early in departing. On the many occasions on which Respondent was a "no call, no show," Petitioner was required to assign Respondent's work to another custodian working the same shift. This custodian would have to complete his or her own work and Respondent's work in the same shift. This repeated situation undermined the morale of Respondent's coworkers, who resented the extra work for which they received no additional compensation and their inability to do a good job, in the available time, on their assignment and Respondent's assignment. By letter dated April 16, 1998, Petitioner suspended Respondent for one day without pay due to his insubordination. After receiving this discipline, Respondent continued to require reminders from Petitioner about Petitioner's policies for requesting leave and documenting sick leave. Respondent's repeated failure to comply with these policies constituted insubordination. In January 1999, another custodian was serving as acting head custodian during the night shift that Respondent worked. A vendor representative visited the high school to examine some equipment. When the acting head custodian asked Respondent to show the representative a piece of equipment normally used by Respondent, Respondent refused. Angry at the persistence of the acting head custodian in repeating the request, Respondent then attacked the acting head custodian, grasping the man's neck so hard as to leave marks. Respondent was again disciplined for his insubordination. By letter dated March 17, 1999, Petitioner suspended Respondent for three days without pay. On March 3, 1999, Petitioner transferred Respondent from Sarasota High School to "Regional," which refers to an area encompassing several schools. During the summer of 1999, Respondent worked at the Sarasota County Technical Institute. On July 13, 1999, the senior head custodian could not find Respondent, who had already displayed the same work habits and attendance problems that had characterized his earlier employment with Petitioner. When the head custodian finally found Respondent, the head custodian accused Respondent of shirking his work. The record does not permit a finding as to whether Respondent was really performing his work. However, about an hour after giving Respondent a new assignment of cleaning some windows, the senior head custodian checked up on Respondent. Finding him productively at work, the senior head custodian complimented Respondent by saying, "Good job." Respondent replied, "You don't know who you are messing with." Respondent left the job early, without permission. The next day, Respondent called the regional manager for the Facilities Department, who is the supervisor of the senior head custodians. He warned her that if she sent him back to Sarasota County Technical Institute, he might do something bad to the senior head custodian. The regional manager immediately reassigned Respondent so that he could work at Riverview High School. After initially proposing to terminate Respondent, by letter dated August 18, 1999, Petitioner suspended Respondent for one day with pay for insubordination. As the 1999-00 school year proceeded, Respondent continued his pattern of "no call, no show," tardy appearances, and early departures. For example, from October 11, 1999, through March 24, 2000, Respondent was "no call, no show" on 11 occasions. The other custodians increasingly resented Respondent's unreliability because they had to perform Respondent's work without additional pay. Evidently learning of the dissatisfaction of one custodian, Respondent angrily confronted her by getting in her face, shaking his finger at her, and warning her that if she did not have anything good to say, she should not say anything at all. Despite the exhortations of his supervisors and coworkers, Respondent continued to disregard Petitioner's attendance and notification policies. Finally, on March 24, 2000, Respondent showed up with 15 minutes left in the eight-hour shift that he had specifically requested the night before and explained that he had had car trouble. He did not offer an explanation for why he had failed to call his supervisors and Petitioner's district office to notify them of this claimed problem. This incident effectively ended Respondent's employment with Petitioner. By letter dated June 19, 2000, Petitioner terminated Respondent's employment, effective July 12, 2000, due to insubordination. During his employment with Petitioner, Respondent repeatedly disregarded Respondent's policies regarding notification and documentation of leave, repeatedly disregarded the reasonable requests of his supervisors that he comply with these policies, repeatedly ignored the reasonable requests of his supervisors to perform specific assignments in a competent manner, and repeatedly abused coworkers, to the point of grasping one by the throat. In context, these behaviors by Respondent constituted gross insubordination.
Recommendation It is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent's employment with the school board effective July 12, 2000. DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 18th day of September, 2000. COPIES FURNISHED: Dr. David Bennett, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Charles D. Bailey, III Bowman George 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 Wayne Goff 107 20th Street West Palmetto, Florida 34221
The Issue Whether Respondent, Stephen Lauster (Mr. Lauster or Respondent), violated section 1012.795(1)(g) and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1. and (2)(a)5.; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Respondent is a teacher in the School District and has been since 1990. He holds Florida Educator’s Certificate 664969, covering the areas of educational leadership and music, which is valid through June 30, 2021. The Commissioner is the head of the state agency, the Florida Department of Education. The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. During the period relevant to the allegations in the Amended Administrative Complaint, Respondent was employed as a music teacher at the Middle School in the School District. Respondent’s annual professional evaluations for the relevant periods show scores considered “effective” and “highly effective.” Despite this, Respondent has an extensive disciplinary history with the School District, which is set forth below. On or about March 17, 2006, Respondent received a letter of reprimand from his then-principal, Frank Zencuch. On or about March 27, 2009, Respondent received a warning of unsatisfactory behavior from Principal Zencuch. On or about April 2, 2009, Respondent submitted a rebuttal to the March 27, 2009, written warning. On or about May 13, 2009, a Grievance Procedure Level II hearing was held to determine whether the letter of reprimand should be removed from Respondent’s personnel file. The grievance was denied by a School District representative and the letter of reprimand remained in Respondent’s file. On or about December 12, 2013, Respondent’s then-principal, Margaret Jackson, completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about February 7, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning insubordination. On or about April 24, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about March 30, 2018, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about April 5, 2018, Respondent submitted a rebuttal to the March 30, 2018, conference summary. The Bus Incident on May 28, 2018 On May 28, 2018, Respondent was on his way home from school and was driving behind a school bus, which had left the Middle School ahead of him. Respondent was driving a large sports utility vehicle which allowed him to see into the rear window of the bus he followed. Respondent noticed students on the bus leaving their seats and moving around. Respondent contacted the School District’s transportation center to report the actions of the students on the bus. Respondent testified that after making his complaint to the transportation center, he saw no change in the actions of the students on the bus, who continued to leave their seats. Respondent continued to follow the bus until it made its first stop in a private gated community. Student M.O. lived in the gated community and got off at this stop to go home. At the time of the incident, M.O. was eleven years old. Her mother, K.O., waited in the community parking lot to pick M.O. up from school. When the bus stopped, Respondent pulled his car alongside the bus, exited his vehicle, and hurriedly approached the bus. M.O. disembarked the bus and walked towards her mother’s car. Respondent stood in front of the opened door of the bus and began to yell at the bus driver. Respondent then beckoned M.O. back to the bus. Respondent angrily yelled at M.O., telling her that the next day, “you come to the band room straight to the band office. If I have to come and find you it’ll be worse than what you are going to already get.” Seeing this transpire, K.O. approached Respondent to inquire about what was happening and why he was yelling at her daughter. K.O. asked Respondent who he was. Respondent told K.O. that the bus and M.O. were “in violation” and that M.O. was required to report to him in the morning. Respondent then continued to yell at the bus driver. He demanded the driver send another student to him—a student he claimed he witnessed standing in the bus’s aisles while it was being driven. K.O. touched Respondent’s arm from behind, to gain his attention. Respondent yelled at K.O. that she should not touch him. They engaged in a verbal exchange that was transcribed by a court reporter during K.O.’s. deposition: Respondent: Get your hands off me. Don’t ever touch me. I am doing what I’m supposed to do. K.O.: (Unintelligible.) Respondent: Lady, it’s fixing to get a lot worse. K.O.: What did you say to me? Respondent: I said, “Lady, it’s going to get worse.” Respondent scolded the bus driver for what he considered to be the driver’s inaction. He threatened all of the students on the bus with a “referral.” K.O. remained at the bus stop until the bus left. M.O. was upset and embarrassed by the incident. She did not know Respondent personally; she only knew that he was the school’s band director. The other students witnessed Respondent yelling at M.O. and K.O., which added to M.O.’s embarrassment. Later that evening, when K.O. arrived at home, she emailed Edward Laudise, the assistant principal of the Middle School, regarding the incident. The next day, Respondent reported to the Middle School, where he was told by Principal Jackson that he was not allowed to have any contact with M.O. On or about July 31, 2018, the School District’s Director of Human Resources recommended that Respondent be terminated based on the bus incident. The School District’s Superintendent joined in the recommendation for termination. However, on or about August 21, 2018, the School District suspended Respondent for a period of five days, without pay, instead. Thereafter, Respondent was the subject of several other disciplinary actions, unrelated to the bus incident. On or about August 27, 2018, Principal Jackson completed a conference summary regarding Respondent’s language/conduct toward students, co-workers, and parents, and his poor attendance and tardiness. On or about May 7, 2019, Principal Jackson held a meeting with Respondent to discuss allegations that Respondent told students, among other things, that “they would be the first generation of young people to die before their parents,” and that they “sound like they have stage 4 cancer.” On or about May 28, 2019, Respondent received a letter of reprimand and recommendation for a four-day suspension from the School District Director of Human Resources. On or about May 29, 2019, Respondent received a letter of reprimand and four-day suspension from the School District Superintendent. In September 2019, Respondent entered into a settlement agreement with the School District, through which the four-day suspension was reduced to two days. The P.E. Incident on January 30, 2020 A.H. and L.H. are students who attend the Middle School. On the date of the hearing, which was held approximately six months after the incident, A.H. and L.H. were 13 years old. On or about January 30, 2020, A.H. and L.H. were participating in physical education (PE) class. Melea Morgan was the PE teacher. A.H. and L.H. left PE class to go to the restroom. There is conflicting testimony as to the amount of time A.H. and L.H. spent in the bathroom, but the amount of time is irrelevant. After leaving the restroom, the students walked towards a water fountain. Respondent contacted Ms. Morgan to let her know that A.H. and L.H. were in the bathroom for a long time. He asked if she approved of him going to get them and Ms. Morgan agreed. Respondent approached A.H. and L.H. as they walked towards the water fountain. Respondent admonished A.H. and L.H. for being in the bathroom for an extended amount of time. He told them that they should be participating more in PE class and that he would be referring them to in-school suspension (ISS). Both A.H. and L.H. distinctly and explicitly recalled the events that took place that day. A.H. credibly testified about her interactions with Respondent, stating: And then Mr. Lauster – and then I started telling Mr. Lauster, so we will participate more, can we please not go to ISS. And he said, well, you’re on the soccer team, you shouldn’t be hanging out with a loser. She’s a do-nothing. You can’t -- you shouldn’t be hanging. And then I was just, like, we will participate more and I’m sorry. He was like, I expect more from you because you’re on the soccer team. And I was just -- and L said nothing. And I was just, I will do more. And then he just kept calling L a loser. A.H. distinctly recalled that Respondent referred to L.H. as a “do- nothing” and a “loser.” L.H.’s testimony was the same. She recalled that Respondent referred to her as both a “loser” and a “do-nothing” and that he asked A.H. why she was hanging out with “this loser,” referring to L.H. Respondent threatened to send A.H. and L.H. to ISS, but then told them he would give them another chance. The School District initiated an investigation into the matter. On or about March 6, 2020, Respondent received a letter of termination from the School District’s Superintendent. On or about April 22, 2020, Respondent entered into a settlement agreement with the School District. Pursuant to the terms of the settlement agreement, the School District did not terminate Respondent. Rather, the settlement agreement operated as a “last chance agreement,” which provided for an automatic termination should any future infractions occur. Respondent was neither apologetic nor remorseful for how he handled A.H. and L.H. Instead, in testimony that was wholly unconvincing, he maintained that he did not call L.H. a “do-nothing” or a “loser,” but, rather, that he told the students that they “made a loser decision” and “chose to be do-nothings in the bathroom.” At only 12 or 13 years old at the time of the incident, L.H. was impressionable. By all accounts, she is a very shy girl. L.H.’s mother testified that L.H. struggles with anxiety and that in the past she has felt like she is a loser and does not have friends. She was “shook up” by Respondent’s comments. Similarly, Respondent was unremorseful and unapologetic about his actions during the bus incident. Respondent attempted to justify his behavior towards M.O., her mother, and the bus driver. He testified that he needed to stop the bus because he saw inappropriate activity on the bus that could have been dangerous to everyone onboard. Respondent is correct that the students on the bus were engaging in inappropriate behavior—they were getting in and out of their seats, walking in the aisles, and playfully fighting with each other. However, Respondent handled it poorly. Principal Jackson testified that the appropriate reaction would have been for Respondent to contact the School District’s transportation department (which he did) and then report the inappropriate behavior to school administration the next day. He should not have approached the bus or condemned the students or the bus driver. Respondent was clearly angry when he spoke to M.O. He lost his composure. Worse still, he directed his anger to K.O. Ultimate Findings of Fact The undersigned finds that Petitioner proved by clear and convincing evidence that Respondent inappropriately yelled at and intimidated M.O. who had changed seats on the bus while it was moving. Respondent also became confrontational with M.O.’s mother and threatened the remaining students on the bus with referrals, regardless of whether they were misbehaving or not. Petitioner also proved by clear and convincing evidence that Respondent told L.H., in front of A.H., that she was a “loser” and a “do nothing.” The undersigned finds that based on the findings of fact above, Respondent’s conduct during the bus incident and the PE incident have been proven by clear and convincing evidence and that Respondent, through his actions, violated the statutes and rules as alleged in the Amended Administrative Complaint. None of the other factual allegations contained in the Amended Administrative Complaint were proven by clear and convincing evidence.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission finding that Respondent, Stephen Lauster, violated section 1012.795(1)(j) by violating rule 6A-10.081(2)(a)1. and (2)(a)5.; and as sanctions for such violations, suspending his educator’s certificate for one year from the date of the Final Order. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Should the State of Florida, Education Practices Commission impose discipline against the Respondent for sexual misconduct with a student.
Findings Of Fact The Respondent held Florida Teaching Certificate No. 686332, covering the area of emotionally handicapped education, which was valid through June 30, 2002. At all times pertinent hereto, the Respondent was employed as a teacher at Bayonet Point Middle School in Pacso County School District. A.Y. was an emotionally handicapped student who had been a student of the Respondent in the 1999-2000 school year. Between June and December 2000, when A.Y. was 13 years old, the Respondent engaged in an inappropriate relationship with A.Y. This relationship included kissing, fondling, and on more than one occasion the Respondent's digital penetration of A.Y.'s vagina. On or about December 15, 2000, the Respondent was observed meeting A.Y. at a library when she got into his car and drove away. He later claimed he was counseling her. The Respondent was charged with two counts of committing lewd and lascivious acts with a minor as a result of his behavior with A.Y. On November 26, 2001, the Respondent entered a plea of guilty to both counts. The Respondent was adjudicated guilty on both counts, and sentenced to eight years in prison, followed by seven years of probation, concurrently on each charge. James Davis, the Director of Human Resources for the School Board of Pasco County where the Respondent taught, testified. Mr. Davis was a certified teacher with many years of experience and testified about professional standards and the impact of the Respondent's acts upon the school system. For a teacher to enter into a sexual relationship with a student, especially a young, emotionally handicapped student, is very harmful to the student emotionally and academically. A.Y. became defensive, and then felt guilty that she had caused the Respondent to get into trouble. Furthermore, such conduct destroys the faith the parents and other community members have in the educational system. There were articles in the newspaper about the situation which were adverse to the educational environment. The parents of A.Y. were very angry about the acts committed by the Respondent. The Respondent, when questioned by administrative staff for the Pasco School District, admitted he made an error in meeting A.Y., but denied any other inappropriate conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered permanently denying the Respondent a teaching certificate. DONE AND ENTERED this 27th day of February, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2003. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 James C. Howard Gulf Correctional Institution 500 Ike Steele Road Wewahitchka, Florida 34655 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
The Issue The issues here are as presented through an administrative complaint brought by the Petitioner against Respondent. In particular, it is alleged that Respondent falsified applications related to her certification as a teacher in the State of Florida and her employment as a teacher in the Duval County, Florida School System. In particular it is alleged that Respondent falsely answered questions pertaining to her arrest or conviction for a misdemeanor offense in Jacksonville, Florida. For these acts, Respondent is alleged to have violated Section 231.28(1), Florida Statutes, in that she has obtained her teaching certificate by fraudulent means and been guilty of personal conduct which seriously reduces her effectiveness as an employee of the school system. Moreover, it is alleged that further fraud was committed related to Rule 6B- 1.06(5)(a)(g) and (h) Florida Administrative Code, pertaining to fraudulent statements or disclosures.
Findings Of Fact On April 28, 1981, Shirley Lambert made application to be certified as a teacher in the fields of health education and physical education. This certification request was made with a State of Florida, Department of Education Teacher Certification section. A copy of the application may be found as Petitioner's Exhibit No. 2, admitted into evidence. As part of the application, question V asks, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Lambert responded in the negative. Lambert also signed the application form below that portion of the application related to notarization which states "I understand that Florida Statutes provide revocation of a teacher's certificate if evidence and proof is established that the certificate is obtained by fraudulent means. (Section 231.28 FS). I certify that all information pertaining to this application is true and correct." As a result of this application, Respondent was issued a teacher's certificate from the State of Florida, Department of Education in the field of physical education. The date of the issuance was June 25, 1982, for a period ending June 30, 1983. A copy of this certificate is found as petitioner's Exhibit No. 1, admitted into evidence. In fact, as was known to the Respondent at the time of making the application for certificate, she had been arrested and charged with petit theft for an offense that occurred on April 11, 1978, the taking of clothing less than $100 in value. The basis of the charge was Section 812.014(2)(c), Florida Statutes. Respondent pled guilty to this offense and was given a ten day jail sentence which was suspended and probation imposed for a period of six months. The particulars of this disposition may be found in Petitioner's composite Exhibit No. 3, which contained records of court related to the offense. On August 10, 1982, Respondent made application for employment with the Duval County School Board, Jacksonville, Florida. A copy of that application may be found as Petitioner's Exhibit No. 4. This application had a similar question related to prior criminal offenses. The application stated, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Again, the question was answered in the negative although Respondent was aware of the aforementioned criminal violation at the time she answered this questionnaire. The application was signed by Respondent and at the place of signature, Lambert was exposed to the language at the signature line which states "I certify that all information on this application is true and accurate and recognize that it is subject to verification and that my employment and/or continuance thereof is contingent upon its accuracy." Not being mindful of her prior criminal involvement the Duval County School System hired Respondent as a substitute teacher on September 13, 1982. Her criminal record was later disclosed to the administrators within that system and her employment was terminated effective October 12, 1982. Had the administration known of the prior criminal involvement, they would not have hired Lambert in view of the fact that they could be more selective and not choose a person with a prior criminal involvement, given the high number of applicants for jobs within their system. Dalton Epting, Director of Certified personnel of Duval County Public Schools, felt that a prior conviction of a misdemeanor offense of petit larceny would be in violation of standards required of teachers in Duval County. Likewise, the offense of petit larceny would be sufficient grounds to deny certification when requested of the State of Florida, Department of Education. Respondent testified that in the course of the final hearing and indicated in discussing both applications which are at issue that she read those applications too fast and made a mistake in answering the questions related to her prior criminal involvement. She felt in effect that she had not read the applications carefully. Moreover, in giving her explanation at final hearing, even though she recognized her prior criminal involvement in the way of arrest and the plea of guilty to petit theft, she stated that she did not feel the questions in the applications related to misdemeanors. She was of the opinion that the questions pertained to more serious crimes. Given the plain language of the questions in the application for certification with the State of Florida and the application for a position with the Duval County School Board and the precautionary statements related to accuracy and possible penalties for inaccuracy, Respondent's explanations are not plausible. Respondent's comments do not constitute a reasonable excuse for having falsified her applications for certification and employment.
