Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts are found: With respect to an appropriate bargaining unit: Employees of the Pinellas County School system are classified into three categories for pay purposes. These classifications are for non-instructional or support persons, administrative persons, and instructional persons. The instructional classification or teacher salary schedule is reflected in a document entitled Pinellas County School Board Instructional Lists by Job Code, which was received into evidence as Exhibit No. 10 and contains approximately 5,200 persons. Members of the administrative and supervisory staff do not appear on this list, nor do supporting services personnel. Principals, deans, registrars and substitute teachers do not appear on this list. Curriculum specialists and coordinators, social workers, psychologists, learning disability specialists and attendance officers do appear on this list. Exhibit No. 16 depicts the organization of administration of the Pinellas County School system as it presently exists. Principals would appear on this organizational chart in the place marked "x" on Exhibit No. 16 in the box labeled local schools. All personnel above that level effectively recommend the hiring and firing of employees, direct other Employees, are paid on the administrative salary schedule, and participate in the preparation of budgets, the adjustment of grievances and in the process of collective bargaining. A stipulation that all persons depicted on this chart above the level of principals (whom are not depicted, but would appear at the local school levels) be excluded from the bargaining unit could not be reached. The following persons or classifications effectively participate in the preparation of the budget, have the ability to hire and fire or effectively recommend hiring and firing and are paid on the administrative salary schedule: the Superintendent, the associate Superintendent and assistant Superintendents. The School Board, CTA & AFT all stipulated that these three positions should be excluded from the bargaining unit. Attendance officers are included on the instructional, teacher's salary list, but they do not hold teaching certificates. They report to the administrative assistant to the associate superintendent and work out of the central administrative offices. It was stipulated by all the parties that attendance officers would not be appropriate in a bargaining unit. Principals and deans effectively recommend the hiring and firing of other employees, participate in the preparation of the budget and in the adjustment of employee grievances and are paid on the administrative salary schedule. It was stipulated that principals and deans should be excluded. The duties and functions of assistant principals are essentially the same as those of principal in the principal's absence. They are certificated, but generally not do classroom teaching. They participate in the formulation of the school budget and in the disposition of employee grievances. They effectively recommend the hiring, firing or disciplinary actions of employees, evaluate employees and are paid according to the administrative salary level. Not every school has an assistant principal. The elementary schools generally do not have one, unless they are on double session. Assistant principals are approved by the School Board, as is anyone who is on a supplement. No stipulation was reached as to assistant principals. Registrars participate in budgeting, are paid on the administrative salary schedule and come in contact with confidential material from time to time. They do have an office in the school, have daily contacts with students, receive essentially the same fringe benefits as classroom teachers. They do not have the authority to direct other teachers or employees in the performance of duties. By reason of their confidential status, it was stipulated by all the parties that registrars be excluded from the unit. The Pinellas County school system hires persons known as directors, associate directors and assistant directors. In a vocational program or center, the principal is known as the director and the assistant principal is also called an assistant director. Also there is a director of the budget and other types of directors. There are now approximately 50 directors, 2 or 3 assistant directors and no associate directors. They are paid on the administrative pay scale, have supervisory functions, assist in the preparation of the budget and in the collective bargaining process, deal with confidential materials, supervise employees and recommend hiring, firing or discipline and adjust employee grievances. They are generally at the county level and not the school level. It was stipulated that directors should be excluded from the bargaining unit, but no stipulation was reached with respect to assistant and associate directors. Supervisors are generally curriculum persons who supervise the formulation of the curriculum and supervise the teacher in working with the curriculum. They are paid pursuant to the administrative salary schedule, work out of the central office, evaluate other employees and effectively recommend hiring, firing or discipline, prepare and handle confidential materials and participate in both budgetary policies and the processes leading to collective bargaining. It was stipulated by all parties that supervisors should be excluded. Activity directors work in the schools, but do not teach classes. They are more of a business management type of person. They schedule activities and events, handle ticket or club monies, and hire teachers as ticket sellers at events. While they have occasion to work in the preparation of the budget for their particular school, they do not evaluate other employees, do not assist in the adjustment of Employee grievances, do not effectively recommend the hiring, firing or discipline of other employees and do not handle or prepare confidential records. They are on the instructional salary schedule. While they are not required to hold a teaching certificate, almost all do, and they are on ten-month contracts. No stipulation was reached as to the inclusion or exclusion of activities directors. Curriculum assistants, curriculum coordinators psychologists learning disabilities specialists and social workers are all regular, full-time instructional personnel and are listed on the instructional salary schedule, are not paid for vacations and do not accrue vacation time, have no power or control over budgeting and do not hire, fire or promote. In the same manner as classroom teachers, they earn sick leave, receive group health insurance, have the same retirement benefits and pay increases, have pupil contact and are certified employees. All are located within the schools, with the exception of psychologists and social workers, who are not assigned to a specific school, but work out of the county office. There is a classification known as specialist. There are approximately twelve persons in this classification such as a computer specialists and they are paid pursuant to the administrative salary schedule. If they perform supervisory and/or managerial functions, it would generally be over service personnel rather than instructional personnel. However, there is a group of specialists who fall within a category of a federal program which is in contact with students. No stipulation was reached as to this classification. In addition to curriculum coordinators, there is a classification known as coordinators. Some are purely classroom teachers such as a diversified education coordinator. Coordinators work predominantly in the schools with children and are paid on the instructional salary schedule. There are approximately 75 coordinators, and they receive the same paid holidays, the same group health insurance, the same retirement benefits and earn sick leave the same as classroom teachers. These people are required to hold a teaching certificate, although there may be one or two who do not. Most are in the vocational field. They do not supervise other employees nor do they have the ability to effectively recommend hiring or firing of other personnel. They have no power to establish a budget. No stipulation was reached on this position, or any of the remaining positions which follow. 1/ There is also a vocational teacher coordinator. The person occupying this classification teaches students in class and then coordinates their work outside of class and sees to it that students obtain jobs. They are generally assigned to a school and report directly to the principal of that school. They have no budgetary functions and they do not evaluate other teachers. They are usually certified. Also, there is a classification known as health coordinator. Most are certified and they work primarily with students. They coordinate the various phases of the health programs in the school to which they are assigned. They are on the instructional pay scale, have no power to make budgetary determinations and do not supervise instructional personnel. There are also secondary education coordinators who deal with the vocational aspects of a school. They work with students, receive regular retirement benefits and do not evaluate other teachers. There is one person involved in a classification known as RESRVOL. This is a federal program pertaining to the recruiting of adult volunteers to help senior citizens. While she is on the instructional payroll, she does not teach and she is not certificated. On the instructional payroll, there is a classification known as self- renewal. This too is a federal program comprising about four persons. While certification is not required, all who occupy the position are certified. Their function is to deal with children who have lost confidence in themselves and attempt to restore self-confidence. They receive the same emoluments as a classroom teacher and are not involved in the evaluative process of other teachers. They are not assigned to any particular school, but work out of a county office. This description would also fit a Position known as educational self-renewal. Enhanced learning personnel supplement the classroom teachers with respect to teaching the gifted child. They do not evaluate other teachers nor do they have any role in the budgetary Process. Some are permanently assigned to a school and others are on a county-wide basis. Their emoluments with respect to retirement, sick leave and vacation are the sane as classroom teachers. A curriculum assistant helping a kindergarten teacher exists on the instructional salary list. Only one person is involved. This person does evaluate teachers, has no classroom duties and is involved in the budgetary process. She reports to the supervisor of kindergarten and receives the same emoluments as classroom teachers with respect to retirement, sick leave and pay and vacations. Other helping teachers do exist and the positions are supervisory, supportive type positions. They evaluate teachers and report to their supervisors. A junior high school work experience teacher teaches children and finds them jobs outside of school. They do not coordinate teachers and they receive the same emoluments as a classroom teacher with respect to retirement, sick leave and vacation. An adult home economics teacher teaches post high school students in the evenings. They do not evaluate other teachers and report to their supervisor in the evening program. Substitute teachers are hired and paid on a daily basis. They are not required to be certified. However, there is a distinction between a short-term and a long-term substitute teacher. The long-term substitute takes a regular teacher's place over a long period of time. After the first ten days, the long term substitute is allowed to go on a teacher's contract (whatever contract they would be eligible for were they a regular teacher) for the period of time they are going to be substituting, if it is determined that the period of substitution will be extended. It was not determined whether long-term substitutes go on the same instructional list as Exhibit No. 10, but no long- term substitutes are now on said list due to the recent opening of school. They do not participate in the same retirement or receive the same insurance that a classroom teacher does. While several other positions were discussed, there were no other employees who were in the list of instructional personnel (excluding personnel heretofore discussed) who have the ability to effectively recommend the hiring or firing of other employees, who participate in the adjustment of Employee grievances or evaluate other employees, or who work in the preparation of the budget. All remaining positions receive their pay on the same day, earn sick leave in the same fashion, participate in the same group insurance and retirement benefits as regular classroom teachers and are required by the School Board to be certified. With respect to requests for recognition and bargaining history: Pursuant to local legislation enacted in 1971 granting to instructional personnel employed by the School Board the right to bargain collectively, the CTA has engaged in collective bargaining with the School Board. The first contract was ratified in September of 1971. The last contract expired on August 1, 1975. The 5,018 employees covered by this latter contract included counselors, librarians, classroom teachers, media specialists, special education teachers, vocational teachers, curriculum coordinators, psychologists, social workers and other employees of the public schools having whole or in part classroom teaching duties. This is essentially the same group listed in Exhibit 10. The CTA made a formal request for voluntary recognition by the School Board on April 30, 1975. Certain events (unfair labor practice charges and the filing of RC petitions) then ensued, which events are well known and are on file with the Public Employees Relations Commission. On or about April 24, 1975, the AFT requested, by letter, the School Board to officially recognize the AFT for the rights to bargain collectively with the School Board for the teachers. As noted above in the Introduction, the parties agreed that the School Board is a public employer; that both petitioners are employee organizations, and that there is no contractual bar to the holding of an election. In accordance with F.S. s. 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 22nd day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether the Respondent, Sharon Lambeth, should be reprimanded and reassigned from her position as Countryside High School principal to a position as a supervisor with the school system's Title I office, at the same rate of pay.
Findings Of Fact The Respondent, Sharon Lambeth, has been involved in the field of education for over 20 years. She moved to Volusia County in 1985 to begin her career in Florida. She began as assistant director of personnel but went through target selection and became an elementary school assistant principal, an elementary school principal, and then the principal of Volusia County's largest high school. She married and moved to Pinellas County in 1993 and was hired as an assistant principal at Gibbs High School for the 1993-94 school year. She was promoted to principal of Countryside High School for the 1994-95 school year. During her tenure in Pinellas County, Lambeth was a very effective principal and generally very well-liked (although, like almost all principals, she had her detractors as well as her supporters.) Lambeth's performance evaluations during her tenure in Pinellas County through May 8, 1998, have been excellent. Lambeth's employment as principal of Countryside High School has been under successive annual contracts with the Pinellas County Schools. The contract for the 1997/98 school year provided, in pertinent part: . . . The Board may, upon recommendation of the Superintendent, transfer and assign the Employee to a similar position in any other location of the district, provided that the duties shall be similar to the duties originally assigned, and the salary shall be heretofore set forth. * * * 5. The Board may suspend or remove the Employee for just cause. The Employee shall not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Employee be entitled to any compensation subsequent to the cancellation of this contract. * * * 11. Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions, hereof, or as otherwise provided by law, shall constitute sufficient grounds for the termination of this contract by the other party, provided, however, no termination shall be effective without reasonable notice. On April 28, 1998, Lambeth again was appointed to a position for the 1998/99 school year, "subject to assignment and transfer." Lambeth accepted the appointment on May 8, 1998. There exist Pinellas Administrators Association Personnel Practices and Grievance Procedures. These documents were developed jointly by the Superintendent of Schools and the Executive Board of the Pinellas Administrators Association; they were approved by the School Board on July 14, 1976. The Personnel Practices provide in pertinent part: COMPLAINTS A. Complaints, oral or written, involving administrators or supervisors shall be investigated through line offices. A copy of such a complaint shall be immediately forwarded to the employee concerned so that he may respond. The employee shall be entitled to know the name of the person or group making the complaint. * * * TERMINATION Termination for Cause. Administrative and supervisory personnel may be terminated for cause on the same grounds as delineated in F.S. 231.36(6) at the discretion of the School Board. Termination shall include discharge, suspension without pay, demotion in salary or status, or any other action involving fault on the part of such administrator or supervisor. * * * C. Any administrator or supervisor terminated for cause subjected to a personnel action as defined above shall have the right to register his complaint through the Pinellas administrators' grievance procedures. However, the significance of these documents is not clear; nor is it clear that they are still are applicable at this time. They apparently are not duly promulgated School Board policy, and the School Board does not refer to them in the conduct of its employment relationships. They also are not part of Lambeth's employment contract. Even if generally applicable, it also was not clear whether they would apply to administrators who are not members of the Pinellas Administrators Association, and there was no evidence that Lambeth is a member. In August 1997, someone approached Countryside assistant principal, Kathleen Novak, to explain the circumstances of a 1997 graduate. The student was a few points short of the minimum grade required in certain core high school courses by either his college's admission requirements, the National Collegiate Athletic Association's (NCAA's) athletic scholarship requirements, or both. Novak went to her principal, Lambeth, to discuss the matter. Another assistant principal, Paula Flott, also participated in the discussion. The outcome of the discussion was that Lambeth asked Novak and Flott to try to contact "their" teachers (i.e., the teachers "assigned" to them for purposes of supervision and division of duties) to find out if there were any grades that could be raised enough through re-testing to meet the minimum requirements the student needed to meet. Before contacting the teachers, Novak first had occasion to confer with yet another assistant principal, Henry Moore. Moore helped Novak review the student's report cards and identified two grades he thought could be raised enough to give the student the minimum grade required. One was a "mid-point" grade in a history class the student took during his junior year (1995-96). Under School Board Policy 6Gx52-8.24(2)(g): "At the mid-point of each grade level, i.e., 3.5, 2.5, 1.5, .5, it will be the option of the teacher, subject to review by the principal, as to whether the higher or lower grade will be given." Moore also identified a psychology grade from the student's senior year (1996-97) which was borderline. It is not clear from the evidence whether Moore thought it was necessary to contact the history teacher, David Ferguson, about the mid-point grade. Moore understood Countyside's unwritten policy to be that, if a student improved his or her grade during the grading period, a mid-point grade would be increased to the next higher whole number or letter grade unless the teacher went to the principal to justify deviating from the policy. There was some evidence to suggest that Moore thought Lambeth, as principal, could raise the mid-point grade without re-testing; but the evidence was not clear that Moore communicated this to Novak or Lambeth at the time. In any event, Moore testified to his assumption that Novak would next contact the teachers concerning re-evaluation of the two grades. The next day, Novak reported to Lambeth the results of her conversation with Moore. Lambeth decided that the student should re-take the final examinations in both classes. She testified that she instructed Novak to contact the teachers about the re-evaluations and re-testing. Novak denied receiving explicit instructions to contact the teachers at this point. It is found that Novak would not have disregarded a direct instruction to contact the teachers. It is more probable that Lambeth simply instructed Novak to proceed to take care of it and assumed that Novak would contact the teachers. Novak also saw Flott that day. Flott told Novak that Flott had not contacted any of "her" teachers yet. Novak told Flott not to worry about it, that Novak had "taken care of it." Flott assumed Novak meant Novak had contacted the teachers. Actually, Novak meant that, since the two grades Novak and Moore already had been identified were enough, there was no need for Flott to contact any of "her" teachers. At this time during the summer, the teachers were on vacation, and Novak researched files of past exams maintained by the school administration to document grades and reproduced the final exams for the grades she and Moore had identified. Novak then made arrangements for the student to retake the exams and notified Lambeth that the student had improved his grades enough to meet the student's college requirements. When Novak reported to Lambeth, the deadline for the student's college requirements was imminent. Lambeth assumed but did not ask whether Novak had contacted the teachers whose grades were involved. Lambeth did not ask to see any documentation of the teachers' assent to a grade change or any documentation of the retesting. Lambeth just told Novak to change the grades in the official records and notify the college and/or the NCAA. Novak responded that she did not know how to do this. Lambeth told her to get assistance from clerical personnel who knew how to change grades; Lambeth herself took care of notifying the college and/or the NCAA. To notify the college and/or the NCAA, Lambeth modified a form used by Countryside's athletic department to document that a student-athlete's grade had been properly re-evaluated so as to regain eligibility to participate in interscholastic athletics. The form utilized had a place for the signature of the teacher whose grade was being re-evaluated. In modifying the form for purposes of notifying the college and/or the NCAA, Lambeth deleted the provision for the teacher's signature. Lambeth signed the form as principal on August 15, 1997, and sent the notification to the college and/or the NCAA. Lambeth denied that she deleted the teacher signature provision in the form because she knew the teachers were unaware of the grade re-evaluations. Although the teachers were at school on August 15, 1997, preparing for the start of the 1997-98 school year, Lambeth said she dispensed with the teacher signature provision in order to expedite the notification. A few days after the start of the 1997-98 school year, the girl friend of the student whose grades were changed told Ferguson that the student had retaken Ferguson's final exam. Ferguson was busy and told the girl that they would discuss it later, which they did about a month later. For another month or more, Ferguson did nothing about it. Towards the end of October or early November 1997, Ferguson approached Lambeth to let her know what had happened and that students were talking about it. To his surprise, Lambeth told him she knew all about it, having been directly involved herself in the grade re-evaluation. Lambeth did not act as if she saw anything wrong with what was done; she even seemed proud of her participation. Ferguson, who did not think it was right for one of his assigned grades to be re-evaluated without his knowledge, was taken off-guard by Lambeth's response and decided not to say anything else about it at the time. In about December 1997, Ferguson found the time to spend several hours looking into the circumstances of the grade re-evaluations. He discovered that the grades were changed in the student's official transcript, but that the changes were not otherwise documented. The lack of documentation also seemed wrong to Ferguson. During the spring semester of the 1997-98 school year, Ferguson approached Jim Watters, the psychology teacher whose assigned grade was changed. By this time, Watters was at a different school, and Ferguson thought it would be logical for Watters to be the one to complain about the grade changes since Ferguson not only still was at Countryside but also had to deal with Lambeth in his capacity as Pinellas Classroom Teachers Association (PCTA) union representative. Watters told Ferguson that he did not want to complain because he was near retirement and did not want controversy at that point in his career. Subsequently, Ferguson sought the advice of the PCTA as to whether he would be opening himself to discipline if he did not report the incident to the school district administration. It was concluded that the incident should be reported. On April 23, 1998, Rik McNeill of the PCTA contacted Dr. Martha O'Howell, an administrator in the school district's Office of Professional Standards, to report the grade change incident; the next day, Jade Moore of the PCTA sent O'Howell a letter reporting the incident. On or about April 30, 1998, O'Howell's office began an investigation of the reported incident. On May 11, 1998, O'Howell interviewed Lambeth, Novak, and others at Countryside and took written statements from them. When O'Howell told Lambeth that teachers had complained, Lambeth wondered aloud why, since they had participated. Novak's statement, on the other hand, was that the teachers were not notified or involved because they were not at school at the time. On May 14, 1998, O'Howell re-interviewed Lambeth and Novak. In her re-interview of Lambeth, the principal maintained her understanding that Novak had discussed re-testing with the teachers whose grades were involved. During her re-interview of Novak, O'Howell asked Novak for the second time to produce the re-tests she administered, but Novak reiterated that she could not find the re-tests or any documentation that re-testing had in fact taken place. She got the impression that O'Howell questioned the truth of her assertion that re-tests actually had been administered and became defensive. Novak got the impression that it was very important for her to be able to produce the re- tests. On May 21, 1998, Novak submitted a supplement to her earlier written statement. In the supplement, Novak expressed confusion about Ferguson's complaint in light of her recollection that Ferguson had told her "emphatically last year that it wasn't his responsibility to give early exams or make up exams if they might extend beyond contract hours" and said: "That's administration's problem, not mine." Afraid of what might happen to her if she could not produce the re-tests (that it could end her career and jeopardize her retirement benefits), Novak panicked. She tried to again re- produce the examination questions, and she forged answers. She presented the forgeries to O'Howell on June 2, 1998. O'Howell quickly saw through Novak's inept forgeries for what they were, and Novak was in even more trouble than she thought she was in before the forgeries. On or about June 9, 1998, Lambeth asked for a meeting with the investigator and Area Supervisor Bill Williamson. Their assessment of the situation was that it was "serious"; they suggested that Lambeth consider what parents would think. But Lambeth also knew about Novak's forgeries and assumed that Novak had become the focus of the investigation, not her. Indeed, at a meeting on June 18, 1998, O'Howell informed Novak that her job was in jeopardy; O'Howell said she was prepared to recommend that the Superintendent terminate her employment. At that point, Novak retained an attorney, who asked to meet with the School Superintendent, J. Howard Hinesley, and the School Board's attorney, Wesley Bridges. The meeting took place on June 24, 1998. At the meeting on June 24, 1998, Novak and her attorney tried to explain to Hinesley and Bridges why Novak forged the re- tests. They also told Hinesley and Bridges that Novak thought Lambeth was trying to blame Novak for the incident but that Lambeth never told Novak to contact the teachers whose grades were involved. Hinesley took this and other information given by Novak at the meeting into consideration in evaluating the situation. Based on the discussion at this meeting, Hinesley decided to reprimand and demote Novak to an instructional position with no reduction in pay, instead of terminating her employment. On or about June 29, 1998, Area Supervisor Williamson told Lambeth that it was time to have a meeting to resolve the matter. Williamson again emphasized that it was "serious," this time communicating to Lambeth that she was also in jeopardy. The meeting was set for July 2, 1998. At this point, Lambeth hired an attorney. The meeting was attended by Lambeth, Hinesley, their attorneys, Williamson, and O'Howell. Lambeth was informed that she was being removed as principal at Countryside for her role in the grade change incident and would be transferred to another position. She was told that a letter to that effect had been mailed to her. She was required to hand over her office keys and was told to make arrangement to clean-out her office at 5 p.m. She was told that she would not be allowed to return to campus without campus police being present. Campus police escorted her to her car. On or about July 8, 1998, Lambeth received Hinesley's letter dated July 2, 1998. Besides reciting facts found through the investigation, the letter accused Lambeth of failing "to ensure that the teachers of the two courses involved had knowledge of or approved the final examination re-takes and the subsequent grade changes" and "to ensure that the re-takes were properly administered and graded and that the results were documented." The letter reprimanded Lambeth for "violation of School Board Policy 6Gx52-8.23, as well as the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida." (School Board Policy 6Gx52-8.23 sets the district's High School Credit and Student Performance Standards; section (6) of the rule provides that a student's mastery of performance standards "shall be determined by the teacher with the principal's approval.") The letter also stated that Lambeth's conduct "reflects a lack of sound professional judgment and seriously diminishes your effectiveness as a school leader." As a result, the letter stated, Lambeth was being removed her from her position as Countryside High School principal, was being placed on administrative leave, and would be reassigned to another position. By letter dated July 8, 1998, Hinesley notified Lambeth that she was being reassigned as a supervisor with the school system's Title I office. Lambeth's contract was not changed, and her pay was not reduced. Her new position is classified as Level 4 in the School Board's personnel system, while high school principal is a Level 8 position. There are some similarities between the two positions, but there also are differences. Both positions require a master's degree, certification in administration and supervision, and five years of related professional experience; a program supervisor for Title I also requires an additional minimum of three years of teaching experience. Both positions involve working with teachers; but while a principal supervises 95 teachers (plus non-teacher personnel and 1500 to 2000 students) at a school site, a Title I program supervisor works with but does not supervise principals, assistant principals, and teachers at 18 different elementary schools. Both jobs involve budget planning, but the nature of the budgets are different; a Title I program supervisor reviews budgets for federal funds. There is no provision for re-evaluating a student's grades after graduation. There is a policy to allow a student who has passed all 24 courses required to graduate, but did not earn the minimum grade point average (GPA) required to receive a diploma, to "walk" at graduation , receive a "certificate of completion," and return to school in the summer and/or an additional year of high school to re-take classes to hopefully raise his or her GPA enough to receive a high school diploma. But there is no evidence that the student involved in this case did not receive a diploma when he graduated at the end of the 1996-97 school year. He was no longer a student and should not have been able to change his grades at that point. In circumstances when it would be permissible to re- evaluate a student's grades, it should only be done in consultation with the teacher who assigned the grade. Subject to the requirement that grading policies are followed, student grading is the province of the teacher's exercise of professional judgment, subject only to the principal's approval. The integrity of the grading system depends the teacher's exercise of professional judgment. Likewise, the "education contract" among the administration, teachers, students, and parents presumes and requires integrity in the grading process. School Board Policy 6Gx52-8.28(4)(g) is clear that, in the case of "mid-point" grades, it is the "option of the teacher, subject to review by the principal, as to whether the higher or lower grade will be given." Clearly, this policy gives the principal the ability to review the teacher's grade and argue forcefully that a different grade should be assigned. Some teachers would succumb to the principal's choice, either because of the force of the principal's arguments or because of fear of the possible consequences of disagreeing with their principal. The policy may even enable a principal to overrule the teacher. But it is a violation of policy for a principal to change a grade without following the mid-point grade policy. Because of the importance of integrity in the grading system, it is incumbent on the principal to take reasonable steps to ensure that teachers are involved in any grade re-evaluation. Clearly, a principal must delegate responsibilities to assistant principals when necessary and appropriate, and a principal should be entitled to rely on an assistant principal to follow the principal's instructions (whether expressed ad hoc or in policy). For that reason, Lambeth normally would have been entitled to expect an assistant principal to involve the teacher in any grade re-evaluation. But re-evaluation of a student who had graduated was not normal, and Lambeth should have made it clear to Novak that Novak was not to proceed with re-testing and grade re- evaluation without the teachers' participation. It is not clear from the evidence that Lambeth made reasonable efforts make this clear to Novak. By the same token, because the situation was not normal, Lambeth should have made some effort to ensure that Novak properly documented the re-take of the examinations and the grade change instead of relying entirely on Novak. There is no question but that Lambeth's effectiveness as a school leader diminished as a result of this grade change incident. As Lambeth pointed out at final hearing, most principals have their supporters and detractors, and predictably there were some teachers and parents who testified that the grade change incident did not reduce Lambeth's effectiveness as far as they were concerned. But most of these witnesses did not know all of the facts and circumstances of the case and spoke from their limited perspectives. Meanwhile, there were many witnesses who testified that Lambeth's effectiveness was seriously diminished in their view, and they were not all detractors of Lambeth; they included Hinesley, other Pinellas County school administrators, retired Pinellas County School Superintendent Scott Rose, administrators from other school districts, teachers at other schools, and parents. Some of these also did not know all of the facts and circumstances of the case and spoke from their limited perspectives; but some knew all or most of the facts and circumstances and spoke from broader perspectives. Some witnesses expressed the idea that the reduction in effectiveness would not be insurmountable or permanent if Lambeth would admit her error, ask for forgiveness, and promise not to do it again. Unfortunately, Lambeth did not admit error until her testimony at the end of her case-in-chief. While she complained that she was not given the opportunity to do so before the meeting on July 2, 1998, she missed innumerable opportunities since; indeed, much of her case seemed aimed at proving that she had done nothing wrong. The authenticity of her eleventh-hour repentance is suspect. At the same time, while Lambeth's effectiveness certainly was diminished by the incident (and her refusal to admit her error, ask for forgiveness, and promise not to do it again), it is not clear just how seriously her effectiveness has been diminished. There were mitigating factors. First, Lambeth has an excellent record as an effective administrator. Second, while her efforts were misguided, her motive was to help a student gain educational benefits. The student was African- American and, while the Petitioner criticized Lambeth for testifying in deposition that the student's minority status was a factor in her efforts to help, the School Board in fact has a policy of emphasizing the delivery of educational benefits to minority students. Also, after what she has been through, it seems unlikely that Lambeth would be foolish enough to repeat this or any similar grade change blunder in the future. A reprimand and reassignment to Title I program supervisor certainly is a setback for Lambeth's career as a school principal. But, contrary to Lambeth's concern and contention in this case, it is found that such an action does not necessarily mean the end of Lambeth's career as a school principal in this or any other school district. Certainly, if Lambeth's offense is as minor as she contends it was, she may well be able to convince a school superintendent other than Hinesley to assign her as a school principal. It certainly seemed that retired School Superintendent Rose would have been open to the idea; there is no reason to be certain that others may not also consider Lambeth for a principal position. If Hinesley's position as Pinellas School Superintendent is as tenuous as Lambeth's evidence attempted to suggest (i.e., that he may be just one School Board vote from being the former Pinellas School Superintendent), the chances are that it may not be long before Lambeth could apply to a subsequent Pinellas School Superintendent for such a position. It even seems possible (although perhaps not likely) that Hinesley himself might reconsider and reassign Lambeth as a principal at some point in the future. Lambeth also contended that other School Board employees have been treated more leniently for worse offenses. But the evidence did not prove selective enforcement against Lambeth. The other situations either were too dissimilar to compare, or Lambeth's treatment was not clearly excessively harsh by comparison. Lambeth first points to the treatment of Novak. While it is true that Novak forged the re-tests, she was Lambeth's subordinate and subject to Lambeth's direction, and her treatment (reassignment to a completely nonsupervisory position) was somewhat harsher than Lambeth's. Lambeth also points to Ferguson, who Lambeth contends went unpunished after alleged violation of School Board Policy 6Gx52-6.22 by posting a copy of a portion of the School Board's investigative report on Lambeth and Novak on the bulletin board in the teacher's lounge. But Policy 6Gx52-6.22 provides: Employees shall not use the classroom, nor any other part of school facilities, as a platform for making disparaging remarks against students, parents, teachers and/or administrators. Conduct contrary to this policy may constitute grounds for disciplinary action. In addition, it is not clear that posting information about an investigation that was of genuine concern to the teachers is the same thing as using the bulletin board "as a platform for making disparaging remarks." Nonetheless, Lambeth's replacement as Countryside's principal considered the posting to be bad for morale and asked Ferguson to remove it. Initially, Ferguson refused to remove it; eventually, he removed it at the request of and as a favor to Jade Moore of the PCTA. (The evidence was that Hinesley was not aware of the posting.) Lambeth's other evidence on this point consisted of letters of reprimand to a principal and an assistant principal for not following proper procedures and immediately notifying the proper authorities of allegations of sexual abuse. It is not clear that these offenses are so similar to Lambeth's as to have required the School Board in fairness to also remove and reassign them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing the Amended Petition for a Name Clearing, Due Process and Florida Statute 120.57 Hearing and approving the reassignment of the Respondent, Sharon Lambeth, to Title I program supervisor under the same contract and at the same pay. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 2nd day of April, 1999. COPIES FURNISHED: Oscar Blasingame, Esquire Orange Park Center 696 First Avenue, North, Suite 400 St. Petersburg, Florida 33701 Louis Kwall, Esquire Kwall, Showers & Coleman, P.A. 133 North Ft. Harrison Avenue Clearwater, Florida 33755 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street, Southwest Largo, Florida 33770-2942
Findings Of Fact A review of Exhibit 1, the personnel record of Respondent, discloses that Respondent has been employed by the Pinellas County School Board since 1959; that he has taught science at various junior high schools and middle schools from 1958 to present; that deficiencies in maintaining discipline in his classes, judgment, maturity, and planning have been noted on his evaluation reports throughout that period; his evaluation reports have generally been below average; after extending his probationary period he was granted continuing contract status in 1971; and his evaluations have been unsatisfactory for the last three years. All of the witnesses called by Petitioner have been associated with Respondent in the school system and all considered his performance as a classroom teacher unsatisfactory. Specific incidents observed by the witnesses which led to their evaluation an characterization of Respondent include: Children in Respondents classroom intentionally hyperventilating and passing out while Respondent was in the room presumably continuing his instruction. Children in Respondent's classes more disorderly, rowdy, and noisy than in any other class. Noises from Respondent's classes of sufficient volume to disturb adjacent classes. Respondent continuing his reading of a lesson in a voice that could be heard only a few feet away while the students in other parts of the classroom talked, fought, played games and otherwise ignored Respondent. No rational grading system adopted or used by Respondent. This resulted in numerous complaints from both students and their parents respecting the grades assigned. In this respect more complaints were registered against Respondent's grades that any other teacher. Respondent often sent children to the principal for minor disciplinary problems while he ignored much more serous misconduct. Lack of coherence in Respondent's instruction in jumping from one subject to another with no plan and no continuity. Children in Respondents class recognized his inability to control the class and evinced lack of respect for Respondent. Despite numerous counselling sessions and help, Respondent never produced adequate lesson plans for his classes. Lack of plans led to less continuity in the lessons and a lower teaching level. A combination of lack of discipline, lack of proper planning and inconsistent reaction to the students in his class led to the inevitable conclusion that the students in Respondent's classes were not learning those things he was supposed to teach them. On one or more occasions Respondent disobeyed the orders of his principal to come to his office to discuss problems. respondent refused to be counselled without a union representative present. Following nearly three years of counselling, guidance and attempts to assist Respondent to improve his effectiveness at Fitzgerald Middle School, the school authorities apparently determined that Respondent should be terminated and requested an evaluation of Respondent by a Professional Practices Council Evaluator. Respondent was advised some two weeks before his arrival that an evaluator would come to observe Respondent conduct his classes and that the evaluator would submit a report following the observation. Pursuant thereto the evaluator spent February 27, 28, and March 1, 1979 observing Respondent conduct his classes. His report of this evaluation comprises Exhibit 11. In this report Respondent was evaluated as unsatisfactory in the following duties expected of a teacher: Grade record book from which students grades are taken was improperly kept and contained insufficient information to make a rational determination of the grade actually earned by each student. Respondent made no distinction among his diverse students and consequently gave them all the same assignments. Respondents lack of control over the classroom was so inadequate that an incredible amount of cheating was going on. Answers to questions were exchanged orally between students during tests and this was ignored by Respondent. As a result there was no incentive for learning and little, if any, learning took place in Respondents classes. Classroom management and discipline was practically non-existent. As stated in Exhibit 11: "Mr. Barlow cannot discipline his students well enough to get their cooperation to carry out what would otherwise be an almost acceptable (1.e. needing some definite improvement) program. Thereafter the evaluator submitted three pages of specific incidents occurring in Respondent's classes on February 27, and three more pages of incidents which generally support the conclusion that in such an atmosphere either teaching or learning is, for all intents and purposes, impossible. Planning of lessons by Respondent, both short and long-term, was so inadequate that these plans across school year 1978-79 were described to "violate, more than follow, those guidelines" [established for lesson plans]. Instead of having self-confidence and self-sufficiency in exercising authority Respondent "radiates insecurity in the classroom". Following these unsatisfactory reports the evaluator concludes that Respondent's students are being deprived of a vital part of their education. This conclusion is supported by the testimony of all other witnesses. Even those witnesses who testified on behalf of Respondent acknowledged that Respondent did not maintain order and discipline in his classes. Even those witnesses who testified on behalf of Respondent acknowledged that Respondent did not maintain order and discipline in his classes. Testifying in his own behalf Respondent did not deny that his classes were disorderly and unruly, or that the incident of the children in his class hyperventilating and passing out occurred. He contends that if he had more administrative help he could operate effectively in a classroom. His problems at Fitzgerald Middle School he blames largely on the Assistant Principal in charge of the seventh grade teachers, who, while frequently visiting Respondent's classes, undermined him. Other than Respondent's testimony no credible evidence was submitted that the Assistant Principal was doing anything other than trying to help Respondent improve his performance.
The Issue The issues in this case are whether Respondent, Linda Lindquist, committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsections 1012.795(1)(b), 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, whether Respondent's teaching certificate should be suspended or otherwise sanctioned pursuant to Subsections 1012.795(1) and 1012.796(7), Florida Statutes.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 300763, covering the area of art. The certificate is valid through June 30, 2011. At all times pertinent to this proceeding, Respondent was employed as an art teacher at Pinecrest Elementary School in the Hillsborough County School District. Vicki R. Dotson has been the principal of Pinecrest Elementary School since July 1999. Prior to that time, she was the assistant principal at the school. Dotson was Respondent's supervisor during the years 1999 to the present. During the 1999-2000 school year, Respondent would arrive late for work and leave work early without permission. She was reprimanded for those indiscretions, but did not alter her behavior. The behavior continued throughout the 2000-2001 and 2001-2002 school years. During the 2000-2001 and 2001-2002 school years, Respondent failed to properly complete student referral forms and had to be frequently admonished about using proper classroom management techniques. She did not modify her management style. Respondent received an overall unsatisfactory evaluation during the 2001-2002 school year. An action plan was prepared by the school administration to assist Respondent during the 2002-2003 school year. Respondent yelled at and/or physically struck students during the 2002 school year. Her overall evaluation for the 2002-2003 school year was unsatisfactory. Respondent failed to provide lesson plans for a substitute teacher in 2002. In response to a request by the school principal that she do so, Respondent faxed a response saying, "Please use your full time art teachers [sic] sub plans. I'm sure they are excellent." The school board terminated Respondent's employment on or about October 27, 2003. Respondent appears to be incompetent or unwilling to properly perform her duties as an art teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission permanently revoking Respondent's Florida Educator's Certificate. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 15th of November, 2006. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Linda Lindquist 2209 North Riverside Drive Tampa, Florida 33602 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's teaching certificate should be disciplined by Petitioner, the Education Practices Commission and whether Respondent should be dismissed as an instructional employee from the Pinellas County School Board based on allegations set forth in the administrative complaint filed herein and the charges and amended notice of charges filed herein by the School Board by letters dated March 5 and July 8, 1992.
Findings Of Fact Respondent currently holds Florida teaching certificate No. 179606, covering the areas of administration and supervision, elementary education, french, spanish, special learning disabilities and varying exceptionalities. That certificate is valid through June 30, 1996. Respondent has been employed as a teacher by the Pinellas County School Board at Lealman Comprehensive Middle School (Lealman) and Tyrone Middle School (Tyrone). On November 5, 1976, Respondent received a letter of reprimand for striking a student with a belt. During various times in the 1978 and 1979 school year, Respondent appeared at work with alcohol on his breath which was noticed by administrators at Lealman. On April 30, 1987, Respondent received a letter of reprimand from Scotty East, principal at Lealman because of excessive absences and violation of school procedures. Respondent was advised to follow proper procedures for notifying the administration of his absence(s). Respondent was charged a personal day for the noted procedural infractions. During the 1986-87 school year, Pamela Coachman and Donna Strongoski were instructors at Lealman and worked with Respondent. Prior to and during the 1986-87 school year, Respondent made comments and inappropriate sexual advances to Pamela Coachman. Ms. Coachman rejected Respondent's advances. Respondent retaliated by making harassing and degrading comments such as calling her a "whore with champagne taste." Respondent's actions were offensive to Ms. Coachman. Respondent made inappropriate comments to Donna Strongoski about her appearance, the tone of her voice and her marital status. Specifically, from 1986-1988, Respondent questioned Strongoski's womanhood often telling her that she was "too strong to be a woman", that she had a voice like a man and questioned why she had never been married. Strongoski was angered by Respondent's comments. As a result of Respondent's comments to Strongoski and Coachman, they notified school administrators and district officials about his conduct. Nancy Zambeta, Director for Personnel Services, discussed the allegations with Respondent and advised him to refrain from making personal comments to colleagues and to avoid similar situations in the future. Coachman and Strongoski met with Respondent and cautioned him that they would not tolerate his behavior. Respondent received a memorandum from Lealman's principal advising him to refrain from similar behavior of a harassing nature. Respondent thereafter submitted his resignation but later rescinded it prior to the Board's acceptance. Respondent was permitted to return to employment as an annual contract teacher and was transferred to Tyrone. On March 7, 1988, Lois Beacham, assistant principal at Tyrone, observed Respondent acting in an incoherent manner and detected the odor of alcohol on his breath. Ms. Beacham requested a substitute for Respondent's class and later spoke to him about changing his behavior. Beacham advised Respondent to follow procedures to indicate absences in the future. On the same day, Tyrone's principal, Paul Brown, advised Respondent by letter not to arrive at work in an unprofessional condition (under the influence of alcohol). On January 3, 1989, Respondent requested a day off from work whereupon Principal Brown noticed that Respondent's speech was slurred and he detected an odor of alcohol on his breath. On January 4, 1989, Sandy Murray, secretary at Tyrone, encountered Respondent when he arrived at the office to pick up his paycheck. Ms. Murray noticed that the air "reeked of alcohol" around Respondent. On January 6, 1989, Steve Crosby, Director of Personnel Services for Petitioner School Board, met with Respondent to discuss allegations that Respondent reported to work under the influence of alcohol. Crosby warned Respondent that such conduct constituted poor judgment and misconduct in office and would not be tolerated by the Board. On January 25, 1989, Respondent entered into a stipulation with the Board agreeing to accept a three-day suspension without pay for reporting to work under the influence of alcohol. On April 17, 1989, Respondent encountered teachers Barbara Skatzka and Evelyn Villazon in a school hallway. Respondent improperly touched Ms. Skatzka's pants and commented that he had seen a lesbian who wore similar clothing. Respondent commented upon the fact that Ms. Skatzka was divorced, asked her if she was a lesbian and asked her if she had a man in her life. Such comments caused Ms. Skatzka to feel uncomfortable. On April 19, 1989, Charles Einsel, the Director of Personnel Services, met with Respondent to discuss the allegations. On April 25, 1989, School Superintendent Scott Rose issued a letter of reprimand to Respondent for the referenced unprofessional conduct. On June 7, 1989, Commissioner Castor filed an administrative complaint against Respondent. The complaint alleged several incidents including one that Respondent reported to work under the influence of alcohol, made improper comments to colleagues, used inappropriate corporal punishment and made improper comments to a student. On January 3, 1990, Commissioner Castor and Respondent entered into a settlement agreement to resolve the charges. The EPC accepted the settlement in its final order of February 26, 1990 (EPC Case No. 89-092-RT[PE4]). The agreement included the following provisions: Respondent received a letter of reprimand for the misconduct alleged. Respondent was placed on probation for three years. Respondent agreed to attend Alcoholics Anonymous and be subjected to random alcohol testing. Respondent agreed to undergo psychological evaluations. Respondent agreed to violate no law and to fully comply with all school rules, district school board regulations and rules of the State Board of Education. On February 4, 1990, Respondent was arrested in Pinellas County and charged with driving under the influence of alcohol. He was adjudicated guilty of the DUI charge on June 29, 1990. On February 16, 1990, Personnel Director Steve Crosby met with Respondent to discuss the arrest. Mr. Crosby subsequently issued a letter of reprimand to Respondent warning him that any future instance of poor professional judgment by him could result in his dismissal. On or about December 20, 1990, Commissioner Castor filed a second administrative complaint against Respondent. The complaint alleged that Respondent violated the terms of his EPC probation as a result of his DUI conviction. On May 7, 1991, Commissioner Castor and Respondent entered into a settlement agreement to resolve the charges. The EPC accepted the settlement on June 25, 1991. (Petitioner's Exhibit 5) The May 7, 1991 agreement included the following provisions: Respondent agreed to undergo psychological evaluations. Respondent agreed to complete two courses in the area of classroom management and techniques of instruction. Respondent agreed to submit to evaluation and counseling with a substance abuse program. Respondent was placed on probation for an additional three years to begin at the expiration of his current probation which, by its terms, ends March 3, 1993. Respondent agreed to violate no law and to fully comply with all school rules, district school board regulations and rules of the State Board of Education. During the 1990-91 school year, Kimberly Coleman worked as a teacher's aide in a class for emotionally handicapped (EH) students taught by Barbara Day. After one of the EH students was assigned to Respondent's class, Respondent approached Coleman to discuss the student although Ms. Day was the teacher who supervised that student's progress. Respondent often looked at Coleman in a sexually suggestive manner and, as a result, Coleman attempted to avoid contact with Respondent whenever possible. During the 1990-91 school year, Kenneth LeBrant, a teacher at Tyrone, while checking on plants that he planted under Respondent's classroom window, observed a student misbehave in Respondent's classroom whereupon LeBrant shouted at the student to "knock it off". At about the same time, Respondent entered his classroom, angrily belittled LeBrant and demanded that he leave his class. LeBrant felt embarrassed at being shouted at in the presence of students and returned to his classroom. Respondent later encountered LeBrant in the faculty lounge and attempted to continue to confront LeBrant in a threatening manner. Both Respondent and LeBrant received a reprimand from the principal about their conduct in the faculty lounge. During the 1990-91 school year, Respondent entered the teacher's lounge and called Larry Mann, a "judaist" in an angry manner. Respondent used profanity in his classroom during the 1991-92 school year. Specifically, on occasion he called his class a "bunch of motherfuckers" and "you white motherfuckers". On one occasion while students prepared to leave his class, Respondent said "so long, motherfuckers". Respondent also directed profanity at specific students in his classroom. On occasion, Respondent's students heard him shout at students the words "dumb motherfucker", "asshole", "fuck off", "bitch" and "dumb bitch". On one occasion, Janet Masciotra, a teacher at Tyrone, entered Respondent's classroom while he yelled at an African American male student "you dumb nigger". Ms. Masciotra was surprised at Respondent's language and left the room without Respondent having observed her. Throughout the period, Respondent yelled similar disparaging remarks to students who wanted to make up homework after being ill and absent from class. Respondent often times made disparaging comments to students concerning their ability to learn and referred to students as "retarded" and "EH". On numerous occasions, Respondent slept in class by putting his feet on his desk, leaning back in his chair and closing his eyes. Respondent engaged in such behavior for varying lengths of time and while so doing, his class was most often not engaged in any school related or other meaningful activity. Respondent on occasion drank mouthwash from a bottle in the presence of students. Also, during this period Respondent often asked students in his class for gum and breath mints. When he did so, students complained of smelling alcohol on his breath. During this period, Respondent also left his classroom for varying periods of time leaving students unsupervised and left school grounds during the day. Respondent was familiar with the rules and procedures in effect at Tyrone Middle School and was aware of the expected hours for instructional employees to be on campus. Respondent was often late to school and was absent without following the proper procedures of notifying the school administration. On one occasion, the school resource police officers covered Respondent's classroom during his absence. Respondent's tardiness and absences during the school day meant that other staff members had to open Respondent's classroom and supervise his students. Students and parents expressed concern throughout the 1991-92 school year that Respondent was not properly teaching his classes and that he did not assign enough work. One student asked to withdraw from his class because "nothing was really happening". Other parents expressed concern about the Respondent's use of profanity in class. One student, P.K., went home after Respondent used inappropriate language. P.K. became upset to the point of crying while telling her mother what Respondent said. P.K.'s mother was offended by Respondent's conduct. During the 1991-92 school year, Respondent engaged in inappropriate conduct toward Bennie Smith, a teacher at Tyrone. Respondent's comments to Ms. Smith included attempting to solicit her to have an affair with him. Ms. Smith told Respondent that she was married and tried to avoid further contact with Respondent. During the spring semester of 1992, Smith rushed down a hallway in order to make "dittos" for her class. Respondent called to Ms. Smith and she slowed down. Respondent caught up with Ms. Smith and brushed his genital area against her buttocks. Later in the semester, Smith and Mark Benson, another instructional employee, walked down a school corridor on the way to a meeting. Respondent, who was walking behind them, reached forward and grabbed Ms. Smith's buttocks. Because the incident happened in the proximity of students and other teachers, Ms. Smith did not confront Respondent however she later made Respondent's conduct known to administrative officials. Mark Benson observed Respondent's hand move toward Ms. Smith's buttocks and later discussed it with Smith. Josephine Trubia worked as an aide in Barbara Day's EH classroom during the 1991-92 school year. Respondent made comments about Trubia to Kimberly Coleman, the sister- in-law of Josephine Trubia. Respondent told Coleman that Trubia was a "sixties kind of woman" that "walked like she was going places". When Coleman told Respondent that Trubia was her sister-in-law, and that her husband was a police officer, Respondent backed off. Respondent made compliments to Trubia about her appearance and attire which Trubia found to be sexually suggestive. Specifically, on one occasion, Trubia went to Respondent's classroom with a student to retrieve the student's make-up work. Respondent made comments about her appearance and asked her if she would wear her black skirt and pantyhose. Respondent further asked Trubia to date him and go with him (on a date) to Tampa. Trubia declined Respondent's advances although he continued to make suggestions that they go on a date and on one occasion backed Trubia toward a wall in his classroom. Trubia returned to her classroom whereupon teacher's aide Ronnell McDaniel noticed that she was visibly upset and nervous. Trubia confided to Ms. McDaniel that Respondent had made comments about her appearance and cornered her in his classroom. The following day, Trubia reported the incident to Barbara Day and expressed concerns about Respondent. Ms. Day advised Trubia to discuss the incident with the school's administration. Trubia resigned and found employment elsewhere. Respondent's actions made Trubia feel uncomfortable and was a factor in causing her to leave her employment at Tyrone. During the 1991-92 school year, Respondent was a member of an academic team with three other teachers. In January 1992, Respondent met with the three academic team members in the teacher's lounge. Respondent appeared incoherent and spoke in a disjointed fashion. Respondent became agitated and accused the team members of "playing games". He further threatened them by remarking that things were going to get physical. Respondent's actions caused the team members to feel upset and uncomfortable causing one team member to start locking her classroom door after school. On February 20, 1992, while walking behind several teachers including Jim Joyer, David Blacuk and Richard Bessey, Respondent was heard to use profanity. On another occasion, Blacuk walked down a school corridor when Respondent stepped out of his room and used profanity such as "motherfucker" and "son-of-a-bitch" in the presence of Blacuk and other students. During a faculty meeting held in the media center after school, Respondent became visibly agitated while Blacuk spoke. Respondent stood up and stated "bullshit. This is bullshit" in a tone loud enough to be heard by everyone in the room. Carolyn Chester was employed as an aide at the media center during the 1991-92 school year. On a Monday morning in January, Ms. Chester went to Respondent's classroom to retrieve some video equipment. Ms. Chester encountered Respondent outside his classroom door as he approached from the parking lot. Respondent angrily told Chester not to play games with him and shouted that he did not have the equipment. Ms. Chester returned to the media center and told media specialist Sheila Chaki about the incident. A few minutes later, Respondent entered the media center and again spoke to Chester in a loud and angry manner. Respondent had also became upset about the S.O.S. table which was set up in the media center with self-help books for students. Respondent threw down a flier about the S.O.S. table and stated "this is bullshit, too". Respondent's conduct in the media center was observed and heard by Ms. Chaki and several students who were present. During the 1991-92 school year, staff members detected the odor of alcohol on Respondent's breath. Article XVI, Section E of the agreement between the School Board and the Pinellas County Teachers Association provides that "teachers are to treat other employees of the system in a professional manner at all times". According to Miller, the principal at Tyrone, Respondent's sexually offensive actions and confrontational conduct caused morale problems among some staff members at Tyrone. Respondent's use of profanity directed toward students and his sleeping while in the classroom undermined the confidence of parents and caused a disruption in the educational process. Doctor Howard Hensley, superintendent of schools for Pinellas County, and who was qualified as an expert in the area of education and education administration, testified as to the manner in which Respondent's conduct reduced his effectiveness as an instructional employee. The Pinellas School Board expects its instructional employees to be role models and to avoid the use of profane language as it fails to set a proper example as role models for students. The use of racial epitaphs and derogatory comments are also counter- productive to Pinellas County School Board's policies and its attempts to promote cultural diversity and tolerance among its students. Likewise, vulgar language directed toward other members of the school staff is unacceptable in that it harms the ability of staff members to work together cooperatively. Inappropriate and threatening comments reduce the effectiveness of the person making the comments and adversely affect staff morale. The Pinellas County School District intends that all employees feel comfortable in their work places and that they be free from sexual harassment and confrontational conduct from its fellow employees. Sexual harassment of staff members violates this intention and possibly subjects the district to legal liability. Sleeping in class violates the School Board's expectations that its teachers supervise and set a good example for students. Vulgar language directed towards students violates the expectations of the Pinellas School District in that it sets a poor example for students and reduces that teacher's effectiveness. Individual ridiculing of a student by the use of profane or disparaging comments subject the students to embarrassment. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Pinellas County School Board, enter a Final Order terminating the professional service contract between Respondent Jerome W. Jackson and the School Board of Pinellas County, Florida. Petitioner, Betty Castor as Commissioner of Education, the Education Practices Commission, enter a Final Order revoking Respondent's teaching certificate for a period of seven (7) years to be followed by a three (3) year period of probation with the Education Practices Commission upon his recertification following the period of revocation. The terms of the probation shall include the requirement that Respondent follow such terms and conditions imposed by the Education Practices Commission. DONE and ENTERED this 7th day of December, 1992, at Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1992.
The Issue Whether Respondent is guilty of immorality, gross insubordination, or misconduct in office.
Findings Of Fact At all times relevant hereto Walter Phillips, Respondent, was a continuing contract teacher employed by the Pinellas County School Board, Petitioner, to teach woodshop, math, graphics and drafting at Largo High School. In the 1988-89 school year, Brent Roth, a senior at Largo High School, served as teacher's aide to Respondent. Roth was interested in guns and gun magazines and often engaged Respondent in conversation regarding hand guns. On one occasion while looking at a gun magazine at school, Roth showed Respondent an advertisement for a 9 mm Baretta pistol and asked Respondent would he like to own a Baretta. Respondent indicated yes. Several times thereafter Roth told Respondent that he (Roth) knew where he could purchase a gun at a large discount over the retail price, indicating the gun was "hot" or stolen in the robbery of a truckload of weapons. Respondent knew Roth was prone to exaggeration and didn't believe that Roth could obtain such a weapon. Nevertheless, Respondent decided to proceed with these discussions and, if Roth ever procured such a weapon, Respondent would call in the FBI. At no time did Respondent ever give Roth money to purchase a weapon, nor had Roth ever before purchased such a weapon. Respondent is a member of the Coast Guard Reserve and apparently considers himself a federal law enforcement officer, despite the fact that Coast Guard jurisdiction in law enforcement is limited to the navigable waters of the United States and then only to active duty personnel. Nevertheless, Respondent purported to conduct his own investigation. During the time Roth bragged to Respondent about his ability to acquire a Baretta pistol which had been stolen, and therefore, cheap, the Pinellas County Sheriff's Office was conducting an undercover investigation at Largo High School principally to find out if drugs were being dealt at school. They had an agent posing as a student. This agent, detective Wojciechowski, armed with a body recorder, taped several of the conversations in which Respondent, Roth and other students discussed the purchase of a stolen or hi-jacked gun or guns. The taped conversations were not transcribed and, although the undersigned devoted nearly two hours listening to this tape (Exhibit 3), the speakers were not identified and, without devoting an inordinate amount of time to the project, the speakers cannot be identified. Accordingly, from the posture of the evidence presented, Respondent's specific participation in the purported acquisition of a Baretta pistol cannot be determined. When confronted with the undercover deputy sheriff's tape of his conversations relative to the purchase of a stolen gun, Respondent acknowledged that he had engaged in such discussions for the purpose of discovering if the students actually had access to stolen weapons, but not for the purpose of acquiring such a gun. Had the student been able to get possession of a stolen weapon, Respondent would promptly notify the FBI (Exhibit 6). Respondent never notified his principal, Ms. Westfall, or the campus police regarding his "investigation" because he really didn't believe the student could obtain possession of such a weapon and he had insufficient evidence to support such an allegation. In the summary of the conference (Exhibit 6) between Respondent, the school principal, the school personnel officer and the PCTA member, prepared by Steve Crosby, the Director, Personnel Services, and signed by Respondent, the latter is reported to have acknowledged: If the student had been able to get the gun, he [Respondent] would have had him bring it to him at school, rather than taking a chance in meeting him alone. In his testimony at these proceedings, Respondent stated that he never intended for Roth to bring the pistol to school, only to bring some evidence that Roth could obtain such a weapon. If a weapon was to be delivered, Respondent would have arranged for an off-campus place of delivery and then notified authorities. Respondent's testimony is accepted as the factual version of this proposed transfer. It is significant in assessing the seriousness of the allegations that the closest any participant in the "plot" to purchase a gun ever came to a gun was a picture of a gun in a magazine. No money was ever exchanged, no fixed price for a gun was ever established and, in fact, no actor in this play had any real knowledge that the stolen gun or guns was available to be purchased. In his handling of the discussions pertaining to the purchase or acquisition of a presumed to-be-stolen-pistol, Respondent exercised poor judgment in failing to alert local authorities to these discussions. However, since no hard evidence was available that any student had access to such a weapon there was little to investigate; and it is unlikely that the police would have taken action other then ask Respondent to keep them advised of developments. Petitioner's expert witnesses opined that, by failing to report these conversations to school authorities and in planning the delivery of a gun on school premises, Respondent exercised poor judgement. This, in their opinion, created doubt of his ability to make a proper judgment at school and thereby impaired his effectiveness as a teacher. That part of these opinions predicated upon Respondent negotiating with a student for the purchase of a stolen gun to be delivered to the school premises did not have factual support and is disregarded. Respondent has been a certified teacher for fourteen years and, although he doesn't hold a bachelor's degree, he holds a teacher's equivalency. He has been employed by the Pinellas County school system on a continuing contract since 1979. At no time during the Respondent's tenure in the Pinellas County school system has he been subjected to disciplinary action as a result of charges being brought against him for an infraction of statute or rule.
Recommendation It is recommended that the charges of immorality, gross insubordination, and misconduct in office preferred against Walter Phillips be dismissed, his suspension vacated, that he received back pay for the period his pay has been suspended, and that he be restored to his former status as a continuing contract teacher with the Pinellas County School Board. DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, SW Largo, Florida 34640 ================================================================= AMENDED RECOMMENDED ORDER =================================================================
