The Issue The issue is whether Petitioner may terminate Respondent's contract for immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code; misconduct in office, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code; and incompetency, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1), Florida Administrative Code.
Findings Of Fact Respondent came to the United States from British Guyana in 1977. In 1988, Respondent obtained an educator's certificate and began teaching in Dade County. Petitioner hired him in 1992 and assigned him to Silver Lakes Middle School. For several years, Respondent taught language arts, which is the area in which he is certified, to all grades. Petitioner later assigned Respondent to teach students in the dropout prevention program at Silver Lakes Middle School. The students in the dropout prevention program typically represent greater academic challenges to a teacher than do their counterparts in regular education. For the past five or six years, Respondent taught dropout prevention at Silver Lakes Middle School. His teaching approach is to try to develop rapport with the students during the first nine weeks of the school year while, at the same time, identify specific areas of weakness within each student that may require attention during the school year. On October 17, 2001, Respondent administered a diagnostic test to identify areas in which students needed work. Unable to answer some of the questions, some students asked Respondent for help. Respondent declined to help because his assistance would destroy the purpose of the test. Some of the students began to misbehave. After several attempts by Respondent to control these students, they threatened to go to the office and complain about Respondent. Respondent invited the students to go to the office and complain about him. He wrote passes for several students, and several more students joined the others to visit the office, rather than take the test, and complain to an administrator about Respondent. The principal received the students in her office and listened to their complaints, which appear to have been the source of the allegations in this case. The principal took statements from the students and then returned with them to Respondent's classroom. While in the classroom, the principal helped the students with the diagnostic test that Respondent had been administering. Recognizing that the diagnostic value of his test was lost, Respondent then joined the principal in helping the students with their diagnostic test. Prominent among the students' complaints to the principal was that Respondent had struck a student, J. H. Petitioner produced little direct evidence supporting this allegation. Twice, J. H. ignored subpoenas to testify in this case. Respondent testified that J. H. later admitted to him that other boys in the class made him lie and say that Respondent hit him. J. H.'s failure to comply with subpoenas is consistent with Respondent's testimony. Absent J. H.'s testimony, it is difficult to determine exactly what, if anything, happened with him and Respondent. The most likely scenario is that J. H. succumbed to the pressures of other students in the class and lied that Respondent had hit him, knowing that the only contact that had taken place between Respondent and J. H. was incidental contact during a minor incident of horseplay. Three of the four student witnesses whom Petitioner called to substantiate the charges were unconvincing. The fourth--J. G.--was vague and unable or unwilling to supply evidence against Respondent, whom he described as "the nicest man." Student D. S. testified at the hearing that Respondent ignored the students' questions in class about classroom material, called J. H. "peanut head," called "Jarvis" "bumbleclot," told D. S. that he lacked motivation and was lazy, and told other students that they came to school looking like a "bum." "Bumbleclot" appears to be a derogatory term in a Jamaican patois, although the record does not establish the intended or actual effect that any use of the word would have in Respondent's class. When handed a previous statement, D. S. added to his complaints that Respondent often said "bloody" in class and would . . . like nudge [J. H.], like, hit him in the arm." D. S. also recalled that Respondent said "cock-eyed" in class. D. S. admitted that he never heard Respondent threaten to "pop" a student. Discrepancies exist between D. S.'s testimony and his prior statements. First, he initially omitted the most significant allegation--that Respondent struck J. H.--and, when he later mentioned it, he downplayed it to a "nudge." Likewise, D. S. initially omitted any mention of Respondent's use of "bloody." Also, D. S. never mentioned Respondent's use of "bumbleclot" in his previous statements. D. S.'s testimony establishes the unlikelihood that Respondent actually hit J. H. or that he ever threatened to "pop" a student in class. Student J. P. testified that she heard other students say that Respondent pushed D. V. out the door of the portable classroom after ejecting him from class. Due to J. P.'s admitted failure to have observed the incident, the Administrative Law Judge struck the testimony. However, despite admitting that she did not see this incident, J. P. stated that she went to the office with other students and informed the principal of the incident. J. P. also testified that Respondent often said "bloody" and refused to explain all of an assignment to her after she missed school, which she admitted happened frequently. Lastly, J. P. complained that Respondent issued her a referral for going to the bathroom. In addition to missing school, J. P. was often tardy when returning from various errands, and many times she did not do her work. J. P.'s testimony establishes only that Respondent may have said "bloody" a few times in class. Student J. G. testified that he recalled Respondent using "hell or damn" in class, although, on cross-examination, he denied any recollection of any use of either of these words. J. G. testified that he heard Respondent say something about knocking a student into next week, although he could not recall whether the latter comment was made in jest. J. G. added that he saw Respondent give J. H. "a little hit." Student D. V. testified that he saw Respondent hit J. H., although his description of the conversation accompanying the incident was materially different at the hearing than in a previous statement. D. V. testified that Respondent threatened to "pop" students and told them to "shut [their] bloody mouths." D. V. added that he asked Respondent one time if he could call his mother to bring his medication for attention deficit disorder, and Respondent denied him permission to make the call. D. V. also testified that Respondent, while sitting beside the door, pushed D. V. on the shoulder to get him out of the classroom, and D. V. responded by warning that he would get his sister to "kick [Respondent's] ass." Although D. V.'s testimony is not undermined by the inconsistencies plaguing the testimony of D. S. and J. P., D. V. shares the antipathy of these other two students for Respondent. Each of these students resented Respondent's efforts to discipline and teach them. Each of these students betrayed a desire to act in concert to get Respondent in trouble, as they felt he had gotten them into trouble. Respondent called as a witness one student, W. L., who testified forcefully that she heard the other students coercing J. H. to say falsely that Respondent had hit him. W. L. testified that the only improper word that she heard Respondent use was "bloody" and that Respondent and J. H. engaged in some horseplay in class. Perhaps the most useful witness was an assistant principal at Silver Lakes Middle School. At the end of the 2001-02 school year, the assistant principal completed an evaluation of Respondent in which he assigned him a satisfactory rating, which is the highest, in all categories, including classroom management. It is clear from the testimony of the assistant principal that he gave the complaints of Respondent's students exactly the weight that they deserved. Respondent admitted that he used "bloody" in class, but the record fails to develop the appreciation of his students for the intensity of this word in certain non-American cultures. Respondent admitted that he once used the phrase, "pop you one," but the record fails to develop the context so as to preclude the likelihood that Respondent said these words in jest. Respondent admitted that he used "cock-eyed," "skinny boy," and "bony boy," but, again, the record fails to establish a context as to permit a finding that these terms were abusive or disparaging. Respondent, who is black, mentioned that he had been called "black nugget" and "kiwi," but only as part of an effort to develop tolerance for names among students eager to take offense. Respondent ejected D. V. from the classroom for legitimate reasons. According to D. V. himself, any followup contact was with Respondent in the seated position, so as not likely to have been significant. According to another student, D. V. grabbed Respondent. At most, the record depicts an angry, disruptive student who has stubbornly refused to comply with his teacher's ejection of him from the classroom, so that other students have a chance to learn. Likewise, D. V.'s complaint that Respondent denied him the chance to call his mother for his attention deficit medication suffers for the lack of context. Undoubtedly, D. V. joined in ongoing efforts to disrupt the class and avoid receiving instruction. The only context for this request provided by the record is that D. V. asked for permission immediately after returning from lunch, when he would have had ample opportunity to call his mother. Although it is possible that D. V. first thought of the missing medication after lunch, it is at least as likely that he thought of the missing medication as a convenient excuse to extend his mid-day respite from learning. For the foregoing reasons, Petitioner has failed to prove that Respondent was guilty of misconduct in office, incompetency, or immorality.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 2nd day of April, 2003, 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 2nd day of April, 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Carmen M. Rodriguez Law Offices of Carmen Rodriguez, P.A. 9245 Southwest 157th Street Suite 209 Miami, Florida 33157 Mark F. Kelly Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 Tampa, Florida 33675-0638
Findings Of Fact Introduction At all times relevant hereto, respondent, Lawrence J. Ferrara, was an instructional employee of petitioner, School Board of Palm Beach County, Florida (School Board or petitioner). When the relevant events herein occurred, Ferrara was a classroom teacher under a continuing contract assigned to John I. Leonard High School (JIL) in Lake Worth, Florida. He has been employed as a classroom teacher with petitioner since August 16, 1965 and received his continuing contract of employment in June, 1969. He holds teaching certificate number 150262 issued by the State Department of Education and is certified in the areas of American Government and social studies for grade levels 7 through 12. Respondent received a bachelor of education degree from the University of Miami. His first assignment with petitioner was in school year 1965-66 at Lantana Junior High School. He remained there through school year 1967-68. At the end of that year, Ferrara was placed on a fourth year annual probationary contract because he had insufficient control of his classes. He transferred to John F. Kennedy High School for school year 1968-69, and received a continuing contract of employment at the end of that school year. Respondent then transferred to Boynton Beach Junior High School for the 1969-70 school year. Ferrara desired to teach at the high school level because he preferred to teach students having greater maturity and interest in learning. He secured an assignment to JIL in September, 1970, where he remained until his suspension in 1986. Ferrara was initially assigned to the social studies department teaching American History to the eleventh grade. He remained in that position until the fall of 1981. During this period of time, Ferrara's evaluations showed steady improvement in his performance, and Ferrara characterized the 1980-81 school year as the happiest and most enjoyable year in his teaching career. In fact, he referred only two students to the dean for disciplinary reasons during the entire year, and both were referred during the final week of school. Prior to the 1981-82 school year, Ferrara had a reputation as a good teacher, and his relationship with other faculty members was favorable. JIL sits on a forty acre campus in Lake Worth, Florida. During the relevant years the school had a student enrollment ranging in size from 2,200 to 2,850 students. Most recently its faculty numbered approximately 145. The principal is the chief administrator at JIL. In dealing with employees, the principal follows guidelines set out in the collective bargaining agreement with the Classroom Teachers Association (CTA), School Board policy, administrator's directives and the JIL Teacher and Student Handbooks. There are several assistant principals, including deans, who have been given authority to counsel with and reprimand employees. Among other things they are responsible for discipline of students. There are also guidance counselors who may counsel with other staff members and students as the need arises. The principal designates department chairmen who have authority to reprimand or evaluate teachers, and to recommend course assignments within the department. In the case at bar, Ferrara was assigned to the social studies department, which had approximately sixteen teachers. Its chairman was responsible for reviewing lesson plans of all teachers to insure that curriculum objectives were being met. This action is mandated by the School Board. At JIL lesson plans were required to be prepared one week in advance. In addition, faculty were required to prepare emergency lesson plans to be used by substitute teachers if the regular teacher was absent. Finally, the department head issued textbooks to each teacher who was obligated to turn in the books (or monies from the student) at the end of the semester or school year. According to the CTA-School Board contract introduced into evidence as petitioner's exhibit 9, and which is applicable to Ferrara's employment, Subsection A1. of Article II provides that "teachers are expected to serve on school committees, self-evaluation and accreditation committees, attend meetings and workshops . . . such service (to be) on a voluntary basis . . " Subsection A2. provides that "employees shall assume reasonable responsibility for the safe return of all school property." Subsection F4. of the same Article requires employees to "assume the responsibility for taking a positive approach to discipline and to maintain constructive classroom control." Subsection B1. of Article III prescribes a duty day for faculty at JIL of seven and one-half consecutive hours per day. Subsection B2. requires that an employee obtain approval from the principal to leave the school premises for personal reasons during the defined duty hours. Subsection E4. of the same Article provides that "the teacher shall be responsible for the preparation of daily lesson plans to be made available to the substitute in the absence of the teacher. Such plans shall be made in advance at all times." The School Board has also promulgated various "local" rules which pertain to suspension and dismissal of employees, as well as the rehabilitation process to be following once a teacher is cited for deficiencies. They apply to Ferrara's employment. School Year 1981-82 In the spring of 1981, Ferrara heard rumors that he was being reassigned the following school year from exclusively teaching eleventh graders to teaching ninth grade American Government classes as well. At the same time he learned that the teacher of an advanced history class was leaving JIL at the end of the school term. Ferrara approached the social studies de- partment head, Catherine Thornton, concerning the vacancy but was told the vacant slot had been promised to a new teacher named Martin. Ferrara then met with the JIL principal, Dr. Munroe, in June, 1981 and asked that his teaching assignment not be changed. During that meeting he criticized Munroe's selection of athletic coaches to teach in the social studies department. Ferrara considered the department as a dumping ground for coaches and other unqualified teachers. Ferrara's request was turned down and he was reassigned to teach three periods of ninth grade American Government classes and two periods of eleventh grade American History the following year. Moreover, JIL was on double sessions at that time, and Ferrara was switched from the early session (6:45 a.m. to 2:15 p.m.) to what he considered to be the less desirable second session that ran from 9:45 a.m. to 5:15 p.m. He was also required to teach during the last three periods of the second session. Ferrara was extremely displeased, and felt that he was being treated as the new teacher who was typically given the lower grade assignment and the afternoon shift. In an effort to get the new assignment changed, Ferrara met with the department head and later with Dr. Munroe. After having no success, he met with the area superintendent and finally the school superintendent. Their advice was to take the assignment, be evaluated and then see what happens. Ferrara thereafter approached five of the seven members of the school board seeking their assistance in overriding the reassignment decision. This too was unsuccessful. At one of the meetings in Dr. Munroe's office on September 4, one administrator said that if Ferrara was unhappy with the new assignment then maybe he should quit. By this time Ferrara had engaged the services of an attorney, and after he and his attorney were unsuccessful in persuading the administration to change the assignment, he instructed the attorney to file a civil rights action in federal court. This was done on July 29, 1982. The lawsuit sought, among other things, the reassignment of Ferrara to his former teaching assignment in the eleventh grade. That suit has remained pending since then, and at time of final hearing, was on rehearing of an order of the Eleventh Circuit Court of Appeals which affirmed the trial court's earlier dis- missal of the action. Charles L. Thornton (no relation to the department chairman) replaced Dr. Munce as principal at JIL in October, 1981. He had previously served as dean of boys at JIL in 1970-71 and recalled that he frequently visited Ferrara's eleventh grade class that year because Ferrara was having a "hard time" with his students. Before he left JIL in September, 1971, Thornton told the then principal of JIL that they had "problems" with Ferrara because of his inability to control his students. This was borne out by Ferrara's 1970-71 evaluation which cited Ferrara for deficiencies in no less than five areas, most of which were attributable to the fact that Ferrara was then an inexperienced high school teacher. When Thornton returned to JIL in October, 1981, he learned that Ferrara had hired an attorney to challenge the school's decision to reassign Ferrara to the ninth grade classroom. Even so, when Ferrara approached Thornton about changing his assignment, Thornton told Ferrara that no teacher assignments would be made mid-stream in the semester, but he would "revisit" the matter at the end of the semester. His denial was confirmed in a written memorandum to Ferrara. He also told Ferrara the change was not to be considered a demotion and that he would keep the same title, salary and number of work hours. At the end of the first semester, Thornton did not change respondent's course assignment because it would have disrupted the master schedule and he had some concern about respondent's performance. Unquestionably, ninth grade students are less mature and more difficult to control from a disciplinary standpoint than other students, but the subject matter of their coursework is easier than the subjects taught to higher grade levels. Although Ferrara considered his new assignment as being the most undesirable of all assignments in the social studies department, other teachers stated that it made no difference to them as to which group of students they were assigned to teach. During the batter part of the first semester, Ferrara was absent due to illness on several occasions. In the second semester he took a leave of absence for the entire semester due to illness apparently brought on by job stress. According to Ferrara, teachers assigned to the first session, which he preferred, were allowed to leave the school around 2:15 p.m. each day. Ferrara's classroom faced the parking lot and he could see them through his windows departing the school while he was required to remain there teaching until 5:15 p.m. He also acknowledged having "problems" with students during the last three periods of each day, and when coupled with the aggravation of seeing his colleagues leaving early, it induced a physical ailment which led to his taking the lengthy sick leave. During his second semester absence, Ferrara prepared no regular or emergency lesson plans for his substitute, although he was responsible for doing so for the entire year. His substitute contacted him for assistance, but Ferrara declined to offer any, saying it was the substitute's responsibility to do the work. It is noteworthy that Ferrara's substitute had some disciplinary problems when she took over his class, but after receiving assistance from the deans, she had only "minor" problems the remainder of the semester. Thornton prepared an annual evaluation of Ferrara in June, 1982, and gave him an overall rating of satisfactory. However, he found Ferrara deficient in the following areas: discipline of students, attending required extracurricular activities, teaching in a manner in which all students in the class could comprehend and relating in a more positive manner with his peers. Other than Ferrara's use of "various methods and materials," Thornton made no comments concerning Ferrara's areas of strength. The first deficiency was based upon Ferrara's inability to control the classroom environment. More specifically, Ferrara referred more students to the dean than any other classroom teacher at JIL, and for what appeared to be minor infractions. These included talking out of turn, squeaking a chair, going to the pencil sharpener without permission and leaving one's desk without permission. On some occasions Ferrara would refer entire groups of students. In all, Ferrara's referrals constituted around 25 percent of all referrals made by the 145 JIL faculty members. The dean of students was asked by Ferrara on at least three occasions to visit his classroom because his class was out of control. The dean observed that Ferrara had very little control over his students, managed the class "poorly," and concluded that very little learning was taking place. The dean discussed with Ferrara how to handle minor classroom infractions and advised Ferrara to review the JIL Handbook provisions regarding discipline. However, Ferrara was not responsive to these suggestions. Ferrara was also criticized because his students had difficulty in understanding "his approach to teaching." This was apparent from the fact that Ferrara had an extremely high rate of failure for his students. Ferrara himself conceded that his teaching performance began deteriorating in the 1981-82 school year and never again reached the level of performance achieved by him prior to that year. The evaluation noted that Ferrara did "not have an effective relationship with associates." This was confirmed through testimony that after his reassignment became effective, Ferrara would not speak to most of the members of the department, and no longer socialized with staff at the department's workroom. Even Ferrara acknowledged that after September, 1981 he became "reserved," did not talk to colleagues arid appeared unhappy and upset. Thornton required mandatory attendance by faculty at only two school functions each year: open house when parents, students and faculty met at the school, and graduation. Ferrara attended neither saying graduation was "too sentimental" and that he was always ill whenever open houses were held. Ferrara was given a copy of the above evaluation by Thornton, reviewed it and signed it on June 8, 1982. However, he told Thornton he disagreed with the contents of the evaluation. At their meeting, Thornton acknowledged to Ferrara that he had sufficient knowledge of the subject matter, and found Ferrara to be well-versed in his subjects. School Year 1982-83 Because of problems with Ferrara in 1981-82, the department chairman recommended that Ferrara be assigned to teach five ninth grade American Government classes in school year 1982-82. This recommendation was approved by the assistant principal for curriculum who draws up the semester schedule, and later by Thornton. While teaching a class in November 1982, respondent caught a student, K. B., mimicking him in class, grabbed the student by his arm and escorted him to his seat. He did so with such force that it left bruise marks on the student's arm. Ferrara was counseled by Thornton following this incident. In January, 1982, respondent gave a student an F in her coursework for disciplinary reasons. This is contrary to school board policy and resulted in the issuance of a memorandum by Thornton to Ferrara on January 21, 1983. Various former students of Ferrara during the 1982-83 school year testified concerning their impression of his teaching style and manner. Their comments included statements that he "wasn't normal" and was "different" from other teachers. It was established that he would not answer questions from many students, either ignoring them or telling them the answer was in the textbook. He called them "stupid," "immature" and "jackasses" on a number of occasions, that he `hated" teaching them, and told them he should be teaching a higher grade level but was being punished by the administration. It was further established that Ferrara frequently yelled in class, and that his efforts to discipline students were unsuccessful. After awhile, some students would make deliberate efforts to provoke Ferrara by beginning coughing, spells or squeaking their chairs, knowing that his efforts at discipline were merely a "show" and that they need not obey him. Ferrara would also frequently discuss in class his lawsuit against the school board without relating it to the subject matter. His most common teaching technique was to give students a reading assignment from the textbook and have the students answer the review questions at the end of the chapter. Only occasionally did he give a lecture. Most students indicated they did not learn a great deal in his class, and found the instruction boring. It was established that cheating frequently occurred when tests were given, and answer sheets were passed around while Ferrara was in the room. Many believed he was punishing them by keeping the windows shut and the air-conditioner turned off on hot days. Indeed, on one day in late April, Thornton went to Ferrara's class and found it extremely "hot" with the air-conditioner off and the windows closed. Ferrara was teaching the class wearing a sweater. Thornton ordered that the windows be opened to avoid having a student pass out from the heat. Ferrara justified his actions by contending the air-conditioner was frequently inoperative and that the windows often times stuck. This was disputed by the building maintenance chief. He also stated that he kept the windows closed because of traffic noises emanating from a nearby street. However, he conceded that he kept the students in a hot room on at least one occasion as punishment. Because of complaints made by parents and students to Thornton during the first semester, a conference was called by Thornton with respondent on January 28, 1983. At that time he gave Ferrara written notice that his behavior was "inappropriate," and that he must regain control of his classroom. On April 20, 1983, Thornton had a conference with Ferrara concerning an allegation that he had called a student an "ass." After Ferrara admitted this was true, Thornton told him not to call students such names again, that it would not be tolerated and that he should refer to the teacher's Code of Ethics which proscribed such conduct. On May 23, 1983, Thornton found two of Ferrara's students wandering in the hallway without a hall pass. They had been told to leave Ferrara's class, and that he did not care where they went. During the school year, Ferrara continued to disregard the requirement to complete lesson plans. On occasions when Ferrara was absent, the substitutes found no regular or emergency lesson plans available. Instead, the substitutes had to write their own plans and give assignments, without having any idea when Ferrara would return. The assignments completed by the students for the substitute teacher were thrown in the waste basket when Ferrara returned because he found them ungraded. However, substitute teachers do not normally grade papers. During the school year the dean of students continued to receive numerous discipline referrals from respondent. The reasons for referral were generally minor, which indicated Ferrara did not have proper control of his classes. In contrast, his substitute teachers did not experience this type of problem when they substituted for Ferrara. Some of the referred students were those who had no other disciplinary problems with other teachers. On some occasions, entire groups were once again referred to the dean. In short, there was no improvement in respondent's classroom management from the prior year. At the same time, the guidance counselors continued to receive numerous requests from students to transfer out of his classes. At the end of school year 1982-83, the department chairman wrote Thornton a memorandum which listed by teacher the number of textbooks missing or not returned to the teacher. Ferrara had sixty-three textbooks missing, which was far in excess of other department staff. In addition, although he returned twenty-three of forty-eight new textbooks assigned to him at the beginning of the semester for one course, seventeen were so defaced with obscenities that they were unusable. Ferrara did not deny that he lost the textbooks, but stated that some books were smaller than normal classroom size, and could be easily carried out of class in a concealed fashion by a student. He feared that if he began searching students, he would suffer possible repercussions from doing so. Despite these losses, Ferrara refused assistance from the area director of secondary education in creating a system of inventory and control for textbooks. In his annual evaluation prepared on May 26, 1983, Ferrara was cited for deficiencies in the following areas: teaching techniques, classroom environment, teacher attitudes and professional standards and work habits. In addition, Thornton attached to the evaluation a typed sheet containing specific recommendations for improvement in each of the four areas. The sheet noted that Thornton was "willing to provide (Ferrara) whatever assistance necessary in each of the . . . cited areas." Thornton also noted that Ferrara has strength in the areas of knowledge and understanding of the subject matter, appearance, educational qualifications and in adherence to the defined duty day. Thornton and Ferrara held several meetings concerning the annual evaluation. Each deficiency was discussed, and Thornton made suggestions on how to improve in those areas. However, Ferrara was not receptive to these suggestions, and complained of unfair treatment in his course assignments. He also repeatedly discussed his lawsuit. He continued to maintain he was better suited to teach the eleventh grade even though he was certified to teach both the ninth and eleventh grades. Thornton advised Ferrara he was responsible to his students no matter what other problems he believed he had, and that he should work to improve his performance. School Year 1983-84 In school year 1983-84, Ferrara's teaching assignment did not change. In fact, unlike the prior two years, Ferrara did not request a change in his teaching assignment. He also did not request a transfer to another school although these were procedures for doing so. 1/ Ferrara's failure to control his classroom continued into the new school year. During the year the assistant principal (dean) in charge of discipline visited Ferrara's classroom at least ten to fifteen times after Ferrara requested his assistance in regaining control of the classroom. On his visits the dean found a "hostile" atmosphere, and verbal exchanges taking place between Ferrara and his students. He concluded that no learning could take place in this atmosphere. The dean noted that no other regular teacher or substitute had such classroom management problems. Ferrara's referrals to the dean represented a larger number than all other faculty members combined. The dean also observed Ferrara telling his students that he did not like teaching immature ninth graders. Similar observations were made by another JIL dean. Ferrara was counseled by the dean who told him that students felt Ferrara did not like them, and that his discipline techniques were unfair. Testimony by Ferrara's students confirmed that his teaching style did not change. He continued to call them names such as "stupid" and "immature" and told them he did not enjoy teaching ninth graders. His lawsuit was also a frequent subject of class discussion. The students also complained that Ferrara refused to open the windows on hot days when the air-conditioning was inoperative because of outside noise. The latter complaint was noteworthy since Thornton had previously given written instructions to Ferrara on September 16 and 26, 1983 concerning complaints about Ferrara keeping the room too hot. During the year, a parent requested that she and her daughter meet with Ferrara and a school counselor concerning a problem the daughter was having in Ferrara's class. At the conference, Ferrara dwelled primarily on his lawsuit against the school board and did not seem concerned with the real purpose of the conference. This prompted a complaint by the parent against Ferrara. Students continued to request transfers out of Ferrara's classroom at an increasing rate. Although two guidance counselors advised Ferrara of these complaints, they observed no change in his behavior. Based upon student and parent complaints about a high failure rate, Ferrara was instructed by Thornton in October, 1983 to furnish each student with a mid-marking report (progress reports) advising them they were not performing to expectations. This report would alert students and parents that a student was in danger of failing. Although such reports are required by school board policy, Ferrara frequently did not prepare these reports. In fact, he advised Thornton he felt they were unnecessary and would not prepare them unless Thornton allowed teachers to complete them during class time. There were thirty-six weeks during school year 1983-84. All teachers were required to prepare lesson plans for each of those weeks, and to turn them in prior to the beginning of each school week. The plans were then filed, and in the event a teacher was absent, the substitute teacher would use the plans and instruct the class without a break in continuity. Ferrara was absent for three weeks in the spring of 1984. However, he left no regular or emergency lesson plans for his substitute. During his absence, the substitute had no disciplinary problems. When he unexpectedly returned to class after this absence, the students booed him, and then, according to the substitute, the "entire class went out of control." Ferrara thereafter required his students to repeat the work previously done for the substitute. Ferrara continued to ignore repeated requests by the department chairman to make lesson plans available. These requests were in the form of memoranda to all department personnel on August 25, October 5, November 17 and December 7, 1983 and January 17, 1984. As of February, 1984 he had turned in only three weeks' plans for the preceding twenty-week period. The department chairman wrote him a memorandum on February 10 requesting that such plans be filed. Even so, in June, 1984 the department chairman reviewed the lesson plans filed by department staff for the prior year. She found that Ferrara had completed plans for only five of the thirty-six weeks during the just completed school year. Of those completed most were generally unsatisfactory. Ferrara did not deny this, but pointed to the fact that two or three other department teachers were also continually tardy in filing their plans. This was confirmed by the department chairman. Ferrara began to come to work late and leave early during the school year although he was warned several times to adhere to the defined duty days. He also had the second highest rate of textbook losses for the social studies department. Because of Ferrara's continuing performance problems, Thornton placed Ferrara on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure effective April 25, 1984. This procedure is designed to provide assistance to teachers having performance problems. Basically, it provides the teacher with an explanation of any deficiencies, assistance and guidance in the cited areas, and an "adequate" period of time in which to correct them. Its main purpose is to salvage an employee's career. In his letter, Thornton told Ferrara he was being placed on the NEAT procedure because of deficiencies in the following areas: inability to use acceptable teaching techniques; inability to maintain a positive classroom environment; inability to establish and maintain a professional and effective working relationship with parents, students and colleagues; and failure to submit proper records, including, but not limited to, progress reports and lesson plans, as required by the school center, the School Board and state law. Ferrara was given until October 16, 1984 to "fully correct these deficiencies." The two met in a conference May 4, 1984 to discuss the procedure and Ferrara's responsibility to correct the deficiencies by the established date. It was pointed out to Ferrara that he would be given time off to visit other personnel while seeking assistance, and that three individuals on the county staff were available for consultation on his noted deficiencies. Ferrara viewed the NEAT procedure as a "charade" and a way for the School Board to fire him. Although he admitted he resented being placed on NEAT, Ferrara stated he respected the system and did not intend to ignore it because he knew that to do so would give grounds to the Board to dismiss him. On May 30, 1984, Thornton prepared an annual evaluation reflecting the same deficiencies as were used to place Ferrara on the NEAT procedure. It also noted that Ferrara's areas of strength were his educational qualifications and his use of good oral and written language. Ferrara was given a copy of the evaluation and, although he disagreed with its contents, signed it on May 30, 1984. School Year 1984-85 On August 21, 1984, Ferrara met with Thornton and the assistant principal and discussed various types of assistance that were available to him which had not yet been provided. Ferrara told Thornton he was not interested in any assistance and walked out of Thornton's office. On October 22, 1984, Thornton advised Ferrara by letter that the following deficiencies required corrective action: continued failure to submit timely lesson plans; continued inability to establish positive rapport with staff, parents and students; continued failure to maintain a positive classroom atmosphere; and a continued deficiency in his teaching techniques. Ferrara was also told that there had been "some improvement in (his) performance," and that Thornton believed he was "making an effort to improve (his) performance, and because of this, the time for correcting his deficiencies under the NEAT procedure was being extended until the end of the school year. During the school year Ferrara's classroom management problems continued. For example, one guidance counselor observed that most of the students visiting her were students in Ferrara's classes. In fact, over half of the students she gave counseling to desired to transfer out of Ferrara's class and sought her assistance in doing so. The dean of students observed that some 35 percent to 40 percent of total disciplinary referrals by all teachers came from Ferrara, including six students at one time. This dean found most of the referrals unnecessary, and ones that could have been handled by Ferrara. In addition, she was called to Ferrara's classroom about four times each semester to calm down the class. It was established that the students deliberately "egged" Ferrara on, particularly when he made personal comments about them. Other credible testimony established that Ferrara's class was out of control on many occasions, and that this disruption affected the amount of learning that took place in the classroom. One dean suggested to Ferrara that he observe other teachers so that he might improve his classroom performance. In teacher-parent conferences, Ferrara preferred to discuss his personal problems with the school board administration rather than the problems that the student was experiencing. In other instances, Ferrara would not respond to requests by parents to contact them. On September 19, 1984, at Thornton's request, the area administrator, H. W. Berryman, visited Ferrara's classroom to observe and monitor Ferrara. This was the only teacher observation that Berryman had performed as an area administrator. On that particular day Ferrara needed some ten minutes to get the class started. Berryman noted that during Ferrara's lecture, only a few students were attentive, and that most were note-passing, carrying on conversations and creating mild disruptions which Ferrara failed to stop. However, Berryman complemented Ferrara on his knowledge of the subject matter and said his overall delivery was reasonably good. He suggested Ferrara take less time to "start-up the class, and to take steps to insure that his class was more attentive during the lecture. On October 4, 1984, Ferrara was observed by another administrator, Dr. Mona Jensen, for the purpose of assessing his teacher performance. This was also done at Thornton's request. Jensen is a consultant certified by the Florida Performance Measurement System (FPMS) and a trainer of other administrators in the use of FPMS. The FPMS utilizes a form for evaluating teacher performance by recording the types of effective and ineffective behaviors observed in four areas: management of student conduct, instructional organization, presentation of subject matter and communication skills. Dr. Jensen monitored Ferrara in these four areas and provided Thornton and Ferrara with a copy of her written report. Among other things, she observed a negative interaction between Ferrara and his students, and that there was a lack of positive reinforcement on the part of Ferrara. Some of his comments were caustic in nature, and he never smiled in class. Like Berryman, she observed students talking to one another and not participating in the activity. She recommended that improvements be made in all areas which her report addressed. On October 29, 1984, Ferrara was observed by Lois Biddix, who is also a FPMS certified state trainer. Biddix used the same type of form as did Jensen in evaluating Ferrara. On her visit, Biddix observed students talking to one another, and participating in activities unrelated to the lesson. She described the class as sedentary and lethargic, with students suffering from boredom and frustration. She attributed this to Ferrara's lack of enthusiasm and failure to introduce new content into the lesson. These observations were consistent with those made by Berryman and Jensen, and her recommendations for improvement were in the same areas as those of Jensen. Dr. Jensen returned to Ferrara's class for a second observation on January 31, 1985. While Ferrara spoke clearly and directly on that day, and had good communicative skills, Dr. Jensen found most students did not participate in the discussion. She also found a lack of positive reinforcement on the part of Ferrara. During the lecture, Ferrara demonstrated anger at a remark made by a student, and told the student that if she wanted a confrontation, he would gladly accept her challenge. Dr. Jensen's evaluation and notes were given to Ferrara after the visit. The recommendations for improvement were basically the same as those proposed by her in October, 1984. A number of Ferrara's 1984-85 students testified at final hearing. Their testimony painted a picture of continued class management problems. For example, it was confirmed that groups of students would collectively begin coughing at one time or squeaking their chairs in harmony to antagonize Ferrara or test his mettle. It was also confirmed that he continued to call freshmen "stupid" and "immature," that he told his students he hated teaching ninth graders and that the school administration was wrong in making him teach that level of students. He also discussed his pending lawsuit during class hours and referred to the school administration in a negative manner. On at least one occasion he discussed the qualifications or lack thereof of another department teacher. It was further pointed out that Ferrara refused to give credit for assignments given by his substitute teacher. There were complaints that Ferrara punished the students for talking by making them sit in a hot classroom without opening the windows or running the air-conditioning. There was also a "lot" of cheating during class even though Ferrara was present in the room. The general consensus of most students was that the class was boring, and that they did not learn a great deal in this type of environment. Ferrara was required to spend 7 1/2 hours each day on campus. 2/ During the year, he did not always arrive at school on a punctual basis or spend the required number of duty hours at school. On April 11, 1985, the department head wrote Thornton a memorandum criticizing Ferrara for his repeated tardiness, and leaving before 2:15 p.m. After Thornton notified Ferrara about this complaint, there was an improvement on his part. During the second semester of the school year, a guidance counselor, Elizabeth Konen, approached Ferrara and told him that the parents of one of his students desired a parent-teacher conference to discuss their child. Ferrara told Konen he did not have time to meet with parents. Konen found this to be the usual response of Ferrara whenever such a request was made. On another occasion, he wrote a note to Konen stating he had no time to meet with parents, but after Thornton intervened and ordered a conference, Ferrara attended. In December 1984, Thornton requested that Ferrara produce proof that he gave his students progress reports as required by Board policy. Ferrara could produce only two such reports, although he claimed four others had also been given reports. This was after Ferrara had been previously criticized on October 21, 1984 for the same deficiency. On January 8, 1985, Thornton again gave written notice to Ferrara that he give timely progress reports to all students who were failing or working below expectation. Even after this second warning, a student, S. Z., complained to Konen in February, 1985 that she had not been given a progress report by Ferrara. This was brought to Thornton's attention in a letter written by S. Z.'s mother. On March 25, 1985, Thornton wrote respondent a letter outlining his continued areas of "serious deficiencies," and his lack of improvement in those areas since being placed on the NEAT procedure. He was warned that unless there was "significant improvement," Thornton would have no choice except to recommend he be terminated. Ferrara was urged to implement the suggestions outlined in the letter, and was told that "any reasonable assistance" requested by him would be given. Despite receiving numerous criticisms for failing to turn in lesson plans, respondent did not turn in any lesson plans during the entire school year 1984-85. However, he did turn in a complete set of plans at the end of the year, but they did not indicate what part of the unified curriculum objectives had been met. On June 10, 1985, Ferrara was given his annual evaluation for the school year. It noted numerous continued deficiencies in three broad areas: classroom environment, teacher attitudes and professional standards and work habits. The only noted areas of strength were knowledge of the subject matter and use of proper grammar and written language. In his meeting with Thornton, Ferrara was told, among other things, that he should not make unprofessional remarks to his students, that he must adhere to defined duty days, that he must file lesson plans and progress reports on a timely basis, and his attitude with peers should improve. School Year 1985-86 Despite Ferrara's failure to correct all deficiencies by the end of school year 1984-85, Thornton made a decision to give Ferrara one last chance to rehabilitate himself under the NEAT procedure. On August 19, 1985 Thornton advised Ferrara by letter that the NEAT procedure was being extended until November 1, 1985 and that he must correct all deficiencies by that date. This gave, Ferrara a total of sixteen academic months under the remedial program. The letter also stated that if the deficiencies were not corrected by November 1, Thornton would make a recommendation to the Superintendent of Schools concerning Ferrara's employment status. Respondent had been criticized for giving an unusually high rate of failing grades to his students during prior years. It was established that his failure rate was substantially higher than for other teachers in school years 1981-82 and 1982-83. For example, his failure rates in 1981-82 and 1982-83 were 24 percent and 33 percent, respectively. In 1983-84, it was a little more in line (18 percent) with that of the other teachers to whom he was compared. After the first semester of school year 1985-86 had ended, Thornton reviewed Ferrara's grades and found the failure rate had been substantially reduced. Indeed, it was then slightly over 10 percent, thereby supporting Ferrara's contention that he had improved in this cited area of deficiency. On November 18, 1985, a thirty minute evaluation of Ferrara's class was conducted by Sandra Cowne, an assistant principal at JIL. Among other things, Cowne found that Ferrara still had no up-to-date lesson plan book. She noted that Ferrara was in need of improvement in four areas of performance. All other areas indicated satisfactory performance. On December 2, 1985, D:. Jensen visited Ferrara's classroom to monitor and evaluate his performance. The purpose of the visit was to determine if Ferrara had implemented the recommendations for improving instruction previously made after her earlier visits. Dr. Jensen asked to meet with Ferrara just prior to the hour of observation but he refused saying he didn't want to discuss anything. She then asked for his lesson plan and was given a plan that was too brief and had insufficient detail. During the actual observation, she found that Ferrara had not added any positive teaching behaviors to his technique although she had suggested this to him after her earlier observations. According to Dr. Jensen, Ferrara's main deficiency was that he failed to provide motivational or positive reinforcement to his students. She concluded that Ferrara was an ineffective teacher, ranking below average due to his lack of positive behaviors. A copy of her evaluation and notes was given to respondent. H. W. Berryman made a second visit to Ferrara's classroom on December 10, 1985 for a repeat evaluation. Berryman initially noted that Ferrara had heeded his prior advice from September, 1984, and had speeded up the start-up time for beginning his instruction. However, Berryman continued to be concerned with the lack of involvement by a large majority of the students in the classroom. Although he found that Ferrara had "in-depth content knowledge" of the subject matter, he concluded that Ferrara had "serious negative attitudinal problems in reacting to all of the students assigned to his classes." Several of Ferrara's students testified about their experiences in Ferrara's classroom during the first semester. They confirmed that respondent's teaching techniques had not changed from prior years. For example, it was established that the usual disruptions occurred during his class, such as students sleeping, passing notes, talking and generally being inattentive. Ferrara again called his freshmen students "immature" and "childish," and told them that he had been demoted to the freshman class because the school board could not fire him. It was pointed out that once he told the students that they were immature, Ferrara would lose control over the class. There were continuing complaints that the classroom was too hot, and that Ferrara told the students if they were unhappy about the room temperature to complain to the administration. On one occasion, he refused to move his classroom to an adjacent empty room even though a student had vomited on the floor and the stench remained after the area was cleaned. It was also established that Ferrara continued to talk in class about his pending lawsuit and the problems he was having with the school administration. During the first semester, Ferrara continued to send large numbers of students to the dean for minor infractions. He also sent as many as six at a time. Ferrara was now disciplining his students before referral by making them write repetitious sentences. However, this is considered to be an inappropriate form of discipline. This form of discipline prompted complaints from both students and parents to the administration. It was confirmed through testimony of an assistant principal that respondent's classroom control had not improved over a three- year period. This observation was concurred in by various guidance counselors who received visits from Ferrara's students. During the first semester of the school year, there was no improvement in respondent's professional relationship with his peers. He refused to speak to most colleagues, and openly expressed his disdain for the department chairman. When respondent was in the department workroom, the atmosphere was hostile and uncomfortable. Similarly, like in other years Ferrara did not attend open house. He also failed to provide adequate lesson plans as previously ordered on a number of occasions. At the end of the first semester, Thornton concluded that sixteen academic months was a sufficient time to allow Ferrara to correct his deficiencies. Finding that respondent was "damaging" his students, that no improvement in Ferrara's performance or attitude had occurred, that he was making no contribution to the school program, and that he was still besieged with student and parent complaints, Thornton concluded that disciplinary action was justified. Thornton did acknowledge that Ferrara had improved in the areas of adhering to duty hours, issuing progress reports, taking roll call and reducing the number of failures. Even so, he concluded that this was insufficient to satisfy his overall teaching performance deficiencies. Moreover, he found that Ferrara's effectiveness as a teacher had been impaired. Thornton accordingly recommended that Ferrara be terminated. Ferrara's suspension without pay became effective on February 19, 1986 and he has remained in that status since that time. Respondent's Case Ferrara traced all of his problems to what he perceived to be an uncalled for demotion to the ninth grade classroom in school year 1981-82. He felt it to be unjust, and an action which ignored the seniority he had attained over the years. He acknowledged that once the reassignment occurred he became demoralized and bitter and was never the same teacher again. Ferrara did not deny that he called students names. He also conceded that he had problems maintaining classroom discipline, but suggested he was being paid to teach, not to discipline. Ferrara further admitted he yelled at students, and sent a great many to the dean's office, but blamed much of this on a small group of students who always instigated trouble in his classroom. Ferrara asserted his classroom discipline would actually improve at times during this period, but that each time Thornton sent a note criticizing him, he became demoralized and would again lapse into his prior ways. Although Ferrara considered the NEAT procedure a means by which petitioner could fire him, he contended he attempted to correct his deficiencies. However, it was Ferrara's contention that only through reassignment to the eleventh grade could he actually improve and correct his deficiencies. He believes Thornton to be biased since Thornton is a defendant in Ferrara's lawsuit. However, independent administrators confirmed that the deficiencies cited in Thornton's memoranda were real, and that Ferrara had made no visible effort to correct most of them. Moreover, contrary to his assertions, Ferrara was accorded adequate notice, sufficient means and ample time to correct his cited deficiencies. In this regard, the School Board satisfied all regulations pertaining to the rehabilitation and dismissal of an employee. Ferrara also pointed out that Thornton prepared a special file called the "Larry Ferrara Drawer" in November, 1982 so that Ferrara's actions and performance could be documented. However, Ferrara's teaching performance was in issue by this time, and Thornton was simply conforming with various state, local and union requirements that potential disciplinary action have a well-defined paper trail. Ferrara did not deny he missed all graduations and open houses from 1981 through 1985. He justified his absence from graduation ceremonies on the ground they were too "sentimental," and stated he was always ill whenever open houses were scheduled. Ferrara denied that students were punished by keeping the room hot. He blamed the heat on an often inoperative and inadequate window air- conditioning unit in his classroom, and windows that were difficult to open. This was denied by the school maintenance chief. Various students corroborated Ferrara's claim that the air-conditioner did not always work, but it is found that Ferrara sometimes punished his students in this manner. Ferrara attempted to repudiate the testimony of former students who testified for petitioner at final hearing by offering favorable testimony of other former students. However, the latter testimony either pertained to time periods too remote to be relevant to this proceeding, or was discredited by more persuasive and credible testimony from petitioner's witnesses. Ferrara contended he prepared all required lesson plans but waited until the end of the school year to turn them in. However, even it this were true, this was contrary to school policy since such plans were required to be turned in the week before they were to be used. Ferrara suggested that most of his difficulties were caused by his creating "waves" at JIL. As noted above, he believed Thornton and the administration were biased against him because he had sued them, and because he had publicly criticized various school policies and individuals in the news media. But it was never established that such animosity existed, or if it did, that it played a role in the dismissal process. Finally, Ferrara professed a sincere desire to continue in the teaching profession, albeit at a more mature grade level. He does not wish to be terminated after a twenty-one year career. He desires to be reinstated at JIL and allowed to teach the eleventh grade as he did during the years 1970- 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of incompetency (inefficiency), misconduct in office, gross insubordination and willful neglect of duties as set forth in the Conclusions of Law, and that he be dismissed as-an employee of the Palm Beach County School Board. DONE and 0RDERED this 11th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1986.
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 31th day of July, 2003.
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Charles Willis (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a drama teacher employed by the Petitioner to work at BRHS pursuant to a professional services contract. During 2010, the Respondent had an account on Facebook, a social networking internet website. Facebook allows an individual user to create and maintain a personal "page" including text and photographs, which can be viewed by other users. Users can also provide links to content posted elsewhere on the internet, and viewers can access the linked information. Facebook allows users to establish privacy settings that restrict access to various types of content. Such privacy options include the identification of other Facebook users as "friends." Privacy settings can be established that prevent users from posting comments to content posted by a user, or from viewing comments posted by other users. Social networking websites are used by some teachers to communicate classroom assignments or other educational information to students. Social networking websites are widely used by students and, at least based on the testimony presented at the hearing, by parents and other adults as well. Prior to the allegations underlying this dispute, the Respondent's privacy settings permitted his Facebook "friends" to view all content posted by the Respondent. The Respondent had in excess of 100 BRHS students identified as friends on his Facebook account. At all times material to this case, the Petitioner had no policy, written or otherwise, that restricted an employee from having an account on a social networking website, or regulated the use of any social networking website by an employee. At various times during 2010, the Respondent posted remarks on his Facebook page that included certain acronyms. Such acronyms, and their commonly understood meaning, included the following: WTF (What the Fuck) OMFG (Oh My Fucking God) F'n (Fucking) LMAO (Laughing My Ass Off) ROTFLMFAO (Rolling On The Floor Laughing My Fucking Ass Off) At the hearing, the Respondent asserted that he intended the "F" in the above acronyms to be understood as "fricking." There was no credible evidence that any student or parent who read the Respondent's Facebook remarks understood the "F" to mean anything other than "fucking." On his Facebook page dated July 31, 2010, the Respondent posted a remark that stated "[I]t's not who you know, it's who you blow," in an apparently derogatory reference to the judging of a student competition. On his Facebook page dated March 30, 2010, the Respondent posted a photograph of a bumper sticker that read "[F]uck the man, become the man" that was taken by a student on a trip to New York. The Respondent explained his posting of the photo by claiming that the people on the trip had agreed that all photos taken on the trip would be posted without censorship and that he had posted several hundred trip photos onto Facebook. On his Facebook page dated August 7, 2010, the Respondent posted a photograph (titled "Accidental Porn") that he obtained from another Facebook user's page. The photograph displayed a television weatherman standing in front of a map showing an elongated weather system. Based on the location of the weatherman and the weather system, the image was perceived by some viewers as depicting the broadcaster holding his penis in a sexually-suggestive position. Comments on the Respondent's Facebook page made it apparent that his viewers were aware of the perception. On his Facebook page dated August 20, 2010, the Respondent posted a link to content titled "[I]t's a great day to whoop somebody's ass." On his Facebook page dated June 26, 2010, the Respondent, apparently intoxicated, posted remarks indicating that he'd consumed excessive alcohol one evening and then posted remarks on the next day indicating that he had a headache related to the consumption. Although the Respondent asserted that some of the posts referenced herein occurred during summer months when he was not "on contract" as a teacher, his students, past and future, were able to freely access the Respondent's Facebook pages during the summer. The Respondent also had an account on Formspring, another social networking internet website. Formspring presents user content in a "questions and answer" format. In an undated post to the Respondent's Formspring page, a student commented "[T]hanks for letting me skip your class today." The Respondent wrote in response, "[Y]ou're welcome, but now you owe me....LOL....just do an amazing job at the encore show." The Respondent acknowledged that he allowed the student to miss his class in order to attend a rehearsal. While the Respondent may have failed to comply with school attendance policy by permitting the student to miss class, the Petitioner's assertion that the posting created the impression of an inappropriate arrangement between a teacher and a student was not supported by credible evidence. In another undated post to the Respondent's Formspring page, an unidentified Formspring user asked "what happened with the whole UP dvd thing," apparently in reference to an incident wherein the Respondent played a movie in class. The Respondent replied, "I got areprimand [sic] for showing an unauthorized video and not following the counties [sic] video policy." The Petitioner's assertion that the Respondent's response was an inappropriate discussion of an employer/employee disciplinary matter with a student was not supported by credible evidence. The reprimand was public record. The identity of the person posting the question was unknown. Upon the initiation of this disciplinary action, the Respondent altered his privacy settings on the social networking sites to limit access of personal content to adults. There was no evidence that social networking internet websites cannot be used for appropriate educational purposes. On more than a few occasions, the Respondent was known in the classroom to use "spoonerisms" in speech, wherein letters in various words were deliberately switched to alter a verbalization of a phrase. While in class and in the presence of students, the Respondent used phrases such as "nucking futs" or "doggammit." The school received a complaint about the practice. On one occasion in the classroom, the Respondent referred to his former wife as a "bitch." On at least one occasion, the Respondent used a hand gesture in the presence of students to signify the word "bullshit." On April 30, 2010, the BRHS principal directed the Respondent to refrain from making such statements and gestures. There was no credible evidence that the Respondent continued to engage in such verbal or physical communication after the April 30, 2010, directive. At the start of the 2009-2010 school year, the Respondent approached the BRHS principal to inquire about organizing a theatre trip to New York for some of his drama students. The principal declined to authorize the travel as a school-sponsored event. The Respondent thereafter organized the trip on a private basis. Eight students expressed interest in going on the trip, and the trip ultimately occurred with a number of parents traveling as chaperones. At times, the Respondent discussed the proposed trip in his classes. The announcement of an organizational meeting occurred during class. The meeting was conducted on the school grounds at a time and place where play rehearsals were occurring, which had been previously arranged by the Respondent. There was no evidence that the Respondent mislead any participant to incorrectly presume that the trip was sponsored by the school. The participants in the trip were aware that the travel was not a school-sponsored event. There was no credible evidence that any participant or parent believed that the trip was a school-sanctioned event. The Respondent failed to comply with the school procedure for private use of the facility, which requires application and approval by school administration. Although execution of a facility lease may be required for larger groups, there was no evidence that such a lease would have been required for this meeting. There was no evidence that there was any adverse consequence to the Respondent's failure to seek permission to hold the organizational meeting in the previously-approved play rehearsal space. The time and location of the organizational meeting was not unreasonable, given the nature of the trip and the expected participants. Teachers who need to leave BRHS grounds during the workday are directed to obtain permission from a school administrator and then document the early departure in a log book maintained in the school office. The school administrators are the principal and the assistant principals, who are identified as such during formal meetings at the beginning of the school year. On September 2, 2010, the Respondent needed to go home on his lunch break and switch cars with his wife. The Respondent testified that he could not locate an administrator and that he thereafter went to the office of Bob McCabe, the BHRS "administrative parent liaison" and advised Mr. McCabe that the Respondent was leaving campus early. Mr. McCabe is not a school administrator and has no authority to approve a request to leave school grounds. Mr. McCabe works with parents and on student disciplinary matters. Mr. McCabe told the Respondent that he would tell the administrators, and the Respondent left the school. Mr. McCabe testified that shortly after the Respondent left, an assistant principal inquired as to whether the Respondent had left the grounds. Mr. McCabe also testified that the assistant principal had told him that she was present in her office at the time the Respondent claimed to be unable to find her, but the hearsay testimony was not otherwise corroborated. The evidence establishes that, had the Respondent requested to leave campus, the request would have most likely been granted, as such authorization, absent use of leave, was routinely granted by school administrators. There was no credible evidence that other teachers who have left school grounds without prior administrative approval have been subjected to discipline for the infraction. The Petitioner presented the expert testimony of Terry Osborn, dean of the University of South Florida College of Education, Sarasota-Manatee campus, who opined that some of the Respondent's social networking interactions could have had negative effects on the learning environment, could cause anxiety for some students, and potentially result in a loss of credibility by the educator. Mr. Osborne essentially based his opinion on very limited literature. There was no credible evidence that any of the adverse impacts identified by the witness has occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, dismissing the Administrative Complaint filed against Charles E. Willis. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of March, 2011. COPIES FURNISHED: Scott A. Martin, Esquire Manatee County School Board 215 Manatee Avenue West, Second Floor Bradenton, Florida 34205 Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Tim McGonegal, Superintendent Manatee County School Board 215 Manatee Avenue, West Bradenton, Florida 34206-9069
The Issue The issue presented for decision in this case is whether Petitioner, St. Petersburg College, should dismiss Respondent from his employment and terminate his continuing contract.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is an instructor in humanities at the College's Clearwater campus. Respondent has been an instructor at the College since 1996. He began as an adjunct professor and has been a full-time instructor since 1998. Respondent works under a continuing contract of employment, which is tantamount to a tenured position, entitling the instructor to maintain his position from year-to-year unless terminated by mutual consent, by the instructor’s resignation, or by the suspension or removal of the instructor for cause pursuant to the statutes and rules of the State Board of Education. Prior to the incidents giving rise to this proceeding, Respondent had never been subject to disciplinary proceedings during his employment with the College. At Respondent's July 2004 annual evaluation meeting, Provost Stan Vittetoe and Program Director Anne Cooper expressed concerns about Respondent's failure to keep office hours and the fact that he did not show up for a class he was scheduled to teach. Respondent attributed these problems to his ongoing divorce proceedings. Dr. Vittetoe lectured Respondent on the importance of not allowing "life issues" to affect his work, but did not otherwise discipline Respondent. In the fall semester of 2003, Respondent taught three humanities courses: Humanities I, Humanities II, and East/West Synthesis. Humanities I and II consist of a chronological study of Western civilization. East/West Synthesis focuses on non- Western cultures, such as those of India, China, Japan, Africa, and the Middle East. Pamela Socorro has been a student at the College since 2002. She enrolled in Respondent's East/West Synthesis class in August 2003. The class was scheduled to meet twice a week, on Monday and Wednesday evenings, for the length of the fall semester. Each class period lasted one hour and 45 minutes. Respondent also played keyboards for a local jazz and rhythm and blues band called Bus Stop. Respondent was not a regular member of the band, but sat in for the band when its regular keyboardist was unavailable. Bus Stop played at nightclubs and bars in the Tampa Bay area. In his humanities classes, Respondent would announce the dates of his engagements with Bus Stop and invite the students to come out and hear the band. In response to one such general invitation in late October 2003, Ms. Socorro and a group of friends went to a bar called the Rare Olive in Ybor City to see Respondent perform with Bus Stop. The Rare Olive did not admit persons under 21 years of age. Ms. Socorro was 19 years old at the time, and her friends were also under 21. Respondent intervened with management, asking if Ms. Socorro could come into the bar provided she did not drink alcoholic beverages. Ms. Socorro was allowed to come into the bar, though at least one of her friends, Rian Salmun, was not admitted. During a break from playing, Respondent spoke with Ms. Socorro for five-to-ten minutes. This was their first one- to-one conversation. During this conversation, Respondent asked Ms. Socorro her age. She told Respondent that she was 19 years old, and he told her that he was 33 years old. In November 2003, Ms. Socorro and Respondent had a conversation on the College campus during which Respondent mentioned that Bus Stop would be playing at the Rare Olive in St. Petersburg on November 21, 2003. Because Respondent was sitting in with the band on short notice, he did not have an opportunity to announce this performance to his humanities classes. On November 21, 2003, Ms. Socorro went to the Rare Olive in St. Petersburg with her mother, her aunt, and a group of friends. Ms. Socorro used a friend's identification card to obtain admittance to the bar. Respondent joined Ms. Socorro and her party during a break. Respondent asked Ms. Socorro if she wanted a drink, and she told him that she liked "fruity drinks" and shots. Respondent walked to the bar and came back with two shots. They downed the shots together.2 After about an hour at the Rare Olive, Ms. Socorro's mother wanted to leave. Respondent did not want Ms. Socorro to leave and asked what she would be doing later, after she took her mother home. Respondent gave Ms. Socorro his cellular telephone number, and she said she would call him later. She entered the number into her mother's cellular telephone directory. Ms. Socorro and her group left the bar. Once outside, Ms. Socorro realized that she had neglected to save Respondent's phone number into her mother's cell phone directory. Maria Albornoz, one of Ms. Socorro's friends, went back into the bar and obtained Respondent's cell phone number again for Ms. Socorro. Ms. Socorro did not call Respondent later on the night of November 21, 2003. She did call him on the afternoon of November 22, 2003, and left a message on his cellular telephone. Respondent returned the call that evening. From this point forward, Respondent's and Ms. Socorro's versions of that evening's events differ in several particulars. According to Ms. Socorro, Respondent asked her if she would like to attend the Fall Dance Concert at the College with him that evening. Respondent testified that he had mentioned the concert in class that week, and asked Ms. Socorro whether she was planning to attend, but did not ask her to go with him. Ms. Socorro testified that they arranged on the telephone to meet outside the theater, met as planned, went in together, and sat together in the back row of the theater. Respondent testified that they happened to arrive at the same time and that they sat together in the back of the theater because the recital had already started when they entered. Ms. Socorro testified that, after the recital, she and Respondent arranged to meet at the Marble Slab, a local ice cream shop. Respondent testified that he mentioned that he was going for ice cream but that he did not ask Ms. Socorro to join him. Before proceeding to the ice cream shop, Respondent spoke to several performers of his acquaintance, while Ms. Socorro went across the street from the College to the residence of her friend, Mr. Salmun, and spoke with him for a few minutes. At the hearing, Mr. Salmun testified that Ms. Socorro told him she was meeting Respondent for ice cream at the Marble Slab. Ms. Socorro recalled walking past Respondent's car in the Marble Slab's parking lot and seeing two child car seats in the back. At the time, she was unaware that Respondent was involved in divorce proceedings or that he was the father of twin three-year-old daughters. Respondent was already seated at a table in the Marble Slab when Ms. Socorro entered. Neither Respondent nor Ms. Socorro ordered ice cream. They sat at the table and talked about their families, their astrological signs, Pilates and dance teachers they had in common, yoga, and Latin dance. They eventually felt self- conscious about sitting at the table in the ice cream shop without making a purchase, and they continued their conversation outside the Marble Slab. Ms. Socorro testified that Respondent told her that she was a good student and was doing very well in his class. He asked Ms. Socorro not to "announce" that she had seen him play at the Rare Olive or had gone with him to the dance recital, "because he could get in trouble." He told her that he should not see her again while she was in his class, but he did not tell her that he was forbidden to see her. Respondent urged Ms. Socorro to complete her class assignments and exams as quickly as possible, the implication being that they could begin dating once she had completed the class and received a final grade. Despite his cautionary statements, Respondent also discussed going out to a Latin club with Ms. Socorro so that she could help him with his dance technique. Respondent testified that he was surprised to see Ms. Socorro arrive at the Marble Slab, especially given that she did not order ice cream. He stated that this was the first clear signal that Ms. Socorro might have a romantic interest in him. Respondent recalled that Ms. Socorro asked him to go out with her to a dance club, but that he told her that was "out of bounds." However, he also told Ms. Socorro that he was interested in pursuing a relationship once she was out of his class. To the extent that Respondent's and Ms. Socorro's versions of events on November 22, 2003, differ, Ms. Socorro's version is credited. Even in his own version of events, Respondent agreed that he returned Ms. Socorro's telephone call. He denied asking Ms. Socorro to go with him to the dance recital. However, Respondent admitted telling Ms. Socorro that he was going to the recital and asking Ms. Socorro if she was going. Similarly, Respondent denied asking Ms. Socorro to go with him to the Marble Slab, but there could be little other reason for him to tell her that he was going there. Finally, Respondent admits that he made it clear to Ms. Socorro that he was very much interested in pursuing a relationship with her, as soon as the formality of having her as a student in his class could be dispensed with. On the evening of November 29, 2003, Ms. Socorro attended a performance of the play "Miss Saigon" at Ruth Eckerd Hall in Clearwater. When she came home after the play, she learned that Respondent had telephoned her. She returned the call the next day, while shopping in Orlando with her mother. Ms. Socorro talked to Respondent about "Miss Saigon," because the play was related to the East/West Synthesis course Respondent was teaching. They discussed the Thanksgiving break, then made plans to see the movie "Gothika" that evening at the AMC Woodlands 20 theater complex in Oldsmar. Respondent and Ms. Socorro attended a late showing of "Gothika," then sat and talked in the theater's parking lot until approximately 5:30 a.m. Respondent testified that this was his first "real talk" with Ms. Socorro and that they began to get to know each other at this time. They also shared their first kiss, described by both principals as a "French kiss." Ms. Socorro was scheduled to report to her job as a nanny at 5:45 a.m. on December 1, 2003. She went straight to work from the movie theater parking lot, but arrived late to her job. Because she was unable to change clothes before work, she ended up reporting to Respondent's class that evening wearing the same clothes she had worn on their date the night before. When she arrived at class, Ms. Socorro noted that Respondent was also wearing the same clothes he had worn the previous evening. While Respondent agreed that he went with Ms. Socorro to see the movie "Gothika," and accepted her version of what happened that night after the movie, Respondent contended that this date occurred on December 9, 2003, the day after he gave out the final grades for Ms. Socorro's East/West Synthesis class. Respondent contended that he did not speak with or see Ms. Socorro on November 30, 2003. He denied any recollection of seeing Ms. Socorro in his class wearing the same clothes she had worn on their date. Ms. Socorro testified that she did go to the movies again with Respondent on December 10, 2003, but that they saw "The Last Samurai." Respondent denied ever having seen "The Last Samurai." Ms. Socorro's version of the chronology of these events is more credible and is accepted. Ms. Socorro's recollection of the events of November 30, 2003, was precise in its detail, belying Respondent's contention that she was somehow confused or mistaken as to when they saw "Gothika" together. On December 8, 2003, Ms. Socorro took her last exam in Respondent's class. The exam was a multiple choice "fill in the bubble" test that Respondent machine graded that evening while the students waited. Respondent was able to tell Ms. Socorro that she had made an "A" in his class before she left his classroom on December 8th. However, Respondent did not officially post the grades for his class until December 16, 2003. The semester officially ended on December 19, 2003. Prior to the end of the fall semester, Ms. Socorro told Respondent that her friends Ms. Albornoz and Mr. Salmun knew that she and Respondent were dating. Ms. Socorro testified that Respondent told her that she should tell Ms. Albornoz and Mr. Salmun not to speak to anyone about their relationship. Ms. Socorro and Mr. Salmun were best friends. They saw or spoke to each other every day, and they prepared their schedules for spring semester together before the end of fall semester. Mr. Salmun told Ms. Socorro that he intended to take a class from Respondent, because he needed one more humanities course and Respondent's class fit into his schedule. Ms. Socorro explained to Mr. Salmun that she had discussed this matter with Respondent, who had told her that they could not socialize with any friends of Ms. Socorro's who were taking classes from Respondent. Mr. Salmun nonetheless signed up for the class, though he dropped it for a humanities class taught by another instructor prior to the close of the fall semester. Ms. Socorro told another friend, Teona Gogoladze, that she should not enroll in Respondent's class for the spring semester, due to Respondent's concerns about his relationship with Ms. Socorro becoming widely known. Ms. Gogoladze registered for Respondent's class anyway, because it fit her schedule better than any other humanities class, and she had done well in a previous class taught by Respondent. Ms. Gogoladze told Ms. Socorro that it would not be "the end of the world" if she had to avoid seeing Ms. Socorro with Respondent for one semester. As it happened, Respondent and Ms. Socorro did socialize with Ms. Gogoladze once during the spring semester, attending a party at her house for the airing of the last episode of the television show "Friends." During the Christmas break between fall and spring semesters, Respondent and Ms. Socorro went out to clubs at least twice. On December 19, 2003, they went with a group of College students to an "end of semester" party at Terra, a Latin club in Ybor City. The next weekend, they went to 10 Beach Drive, a piano bar in St. Petersburg. The couple spoke on the telephone on Christmas Day, exchanged Christmas gifts, and spent New Year's Eve together. Respondent introduced Ms. Socorro to his sister and his father. Respondent and Ms. Socorro continued to see each other during the spring semester of 2004. Ms. Socorro had registered for classes, but withdrew from the College for the semester in order to visit her sick father in Venezuela. Ms. Socorro testified that, although Respondent did not press her to withdraw from the College, their relationship improved when she was not in school because Respondent felt less stress about students seeing him on his dates with Ms. Socorro. Ms. Socorro testified that Respondent "constantly" bought her alcoholic beverages during their relationship, though he knew she had not reached the legal drinking age. Ms. Socorro went to the bars at which Respondent was playing with Bus Stop. Respondent would "hang out" with Ms. Socorro during breaks and buy her drinks. At a bar called J.B.'s in Sarasota, Respondent used his credit card to open a tab for a group of people, including Ms. Socorro. At the end of the evening, Respondent was startled at the amount of the bill. Everyone in the group except Ms. Socorro reimbursed Respondent for their drinks. Ms. Socorro did not register for classes at the College for the 2004 summer semester. She cited her relationship with Respondent as her main reason for staying out of school: I knew that when I went back to school, I knew it was going to be a little difficult, because when we would go out to anywhere around town, restaurants, Gary knew everyone. His students were everywhere. He felt uncomfortable. He always asked if the person knew me. So, I knew it was going to be difficult. * * * At that point, by the summer, we were a couple and we had been together for months. I knew it was going to be stressful again and I was working at-- I believe I was beginning to work at a bank and the bank, if I was there long enough, was going to pay for school. And I decided that, putting all these things together, that I would not go in the summer, either. Respondent taught classes during the 2004 summer semester. Margaret Gunn was a student enrolled in one of his classes. Once while Ms. Gunn was in his office, Respondent asked her to come out to a bar to hear his band play. Ms. Gunn declined the offer. Respondent asked her again in September 2004, and Ms. Gunn again declined. Ms. Gunn testified that Respondent's requests made her somewhat uncomfortable, but that she nonetheless maintained a cordial relationship with him. During the annual fall semester orientation in 2004, College president Dr. Carl Kuttler spoke about sexual harassment during a faculty and staff meeting attended by Respondent. Dr. Kuttler stressed that relationships between instructors and students were not allowed if the instructor could in any way affect the student's grade, academic progress, or academic environment. Ms. Socorro described Respondent's reaction to Dr. Kuttler's presentation: He was upset and that was the first time I heard the name "Dr. Kuttler." I remember him saying that they had emphasized the subject of teacher and student relationships. And it was kind of like, "you see, I told you" kind of thing. He said that now he needed to be very, very careful. He was actually concerned, because me and Rian [Salmun] were having problems in our friendship and he was concerned that now Rian was going to be upset and he might say something to people out of spite. He was just-- he was scared. He was paranoid. He told me about a teacher that was fired. And he said, you know, they don't even know if he did it, they just think he did it and he was fired or he left or something happened and he was just scared. Ms. Socorro, who was planning to return to the College in fall 2004, offered to take her classes at a different campus, or at Hillsborough Community College in Tampa, to assuage Respondent's fears. Despite the offer, she eventually registered to take classes at the College's Clearwater campus. Ms. Socorro also asked Respondent why their being seen together remained a concern, given that she was no longer his student. Ms. Socorro stated, "And he kept saying that it just looked bad, it just looked bad that I was his student at the school, because people would wonder how we met. It would be too much of a coincidence that we met, where we met or how." Respondent and Ms. Socorro agreed to give a false story to anyone curious about how they met. Ms. Socorro testified: He would ask me, please, just tell people that you met me at the bar or we would come up with kind of like a script of what I was going to say to [Respondent's] friends. It was usually I met Gary while he was playing out [with the band]. That's what I told everybody. * * * I was protecting him from anyone at all finding out. I don't know if-- I don't know. I don't know if he felt bad himself about it and he just didn't want people to know. He said people don’t-- he would say people don't know our relationship, they don't know us, they don't know how we are, and it doesn't look good that you're so young, it doesn't look good that I was your teacher and people perceive things differently, so let's not let them do that. Throughout their relationship, Respondent stressed to Ms. Socorro that she should not befriend students enrolled in his classes. Respondent testified that he did so not out of fear for his job but because he wanted to keep his professional and personal life as separate as possible. More credibly, Ms. Socorro testified that Respondent told her that he was "risking everything" to continue his relationship with Ms. Socorro. During the 2004 fall semester, Ms. Socorro met and befriended Ms. Gunn, who had taken a class from Respondent during the summer semester and was taking a second class from Respondent in the fall. When they discussed their classes and teachers, Ms. Socorro pretended she did not know Respondent. Respondent became concerned that Ms. Socorro was seeing too much of Ms. Gunn, because he was afraid Ms. Gunn might "put things together." Respondent asked Ms. Socorro to stay away from Ms. Gunn. Ms. Gunn testified that it took only a few weeks for her to determine that Respondent was the "boyfriend" that Ms. Socorro described in their conversations. Respondent told Ms. Socorro that she should just go to her classes, sit through the lectures, then get in her car and leave the campus. Respondent demanded that Ms. Socorro decide between her relationship with him and the life of a "typical student," because he was "risking too much" to have Ms. Socorro jeopardize it by "hanging out" at school. Ms. Socorro testified that "things got really bad" between Respondent and her during the 2004 fall semester, due to their conflicts concerning Ms. Gunn and the pressure of hiding their relationship. They had "a lot of fights," some so bad that they would decide to "take breaks from each other" for as long as one week. Ms. Socorro recalled three such "breaks" before their final breakup in late November and early December 2004. On November 30, 2004, Respondent and Ms. Socorro went to the AMC Woodlands 20 movie complex to see a movie, but never made it past the parking lot because an argument commenced. Ms. Gunn had told Ms. Socorro that Respondent had quizzed her regarding her whereabouts on certain evenings, with the idea of ascertaining whether Ms. Socorro had lied to him when she promised to stop seeing Ms. Gunn. Ms. Socorro confronted Respondent about his questioning of Ms. Gunn. Respondent called her a "compulsive liar" and said that he was "torn" about their relationship and needed time to decide what to do. Ms. Socorro described this fight as "sad" and "horrible." Respondent testified that, despite her promise not to see Ms. Gunn during the fall semester, Ms. Socorro had surreptitiously gone over to Ms. Gunn's house on at least one occasion of which he was aware. He agreed that the confrontation over Ms. Gunn occurred on November 30, though he placed it at a Ruby Tuesday's restaurant.3 Respondent assured Ms. Socorro that they would talk things over the next day, but testified that he also made it clear to her that the romantic relationship was over. On December 1, 2004, Ms. Socorro repeatedly phoned Respondent, who did not answer her calls.4 She sent several e- mail messages to which Respondent did not respond. Respondent was staying at his father's house because relatives were visiting from out of town. That evening, Ms. Socorro went to Respondent's father's house. Respondent did not want a confrontation with Ms. Socorro because his children were with him. He promised to speak with her the next day. On the morning of December 2, 2004, Ms. Socorro drove over to Respondent's house. She had concluded that her relationship with Respondent was over, and she wanted to retrieve some possessions that she kept at his house. Respondent was not at home, but Ms. Socorro knew that the lock was broken on Respondent's sliding glass back door, and she let herself in the house.5 While looking for some of her jewelry on Respondent's bedroom dresser, Ms. Socorro found a letter from and photographs of one of Respondent's former girlfriends, a former College student named Marianna Csongova. She read the letter, and concluded that Respondent was having a relationship with Ms. Csongova at the same time he was dating Ms. Socorro. Ms. Socorro recalled having seen an e-mail exchange between Respondent and Ms. Csongova earlier in 2004. Respondent had explained away this e-mail, but Ms. Socorro now wondered if there were more e-mails between Respondent and Ms. Csongova. She went into Respondent's computer room and checked his e- mails. She found "tons and tons" of e-mails from Ms. Csongova, and responses from Respondent.6 Ms. Socorro continued searching Respondent's e-mail and found correspondence between Respondent and several other female students at the College. She printed "tons" of the e- mails. Respondent's printer ran out of paper before all of the e-mails printed. Ms. Socorro began forwarding the e-mails to her own e-mail account, but then got worried that Respondent would come home and catch her. She turned off Respondent's computer and left the house, taking a half-inch thick stack of printed e-mails with her. Respondent had spent the night at his father's house. He woke up on the morning of December 2, 2004, and drove to his own house to shower and dress for work. He noticed that the sliding glass door had been opened. He went to check his e-mail and noticed that the printer was out of paper. Respondent surmised that Ms. Socorro had been in his house and on his computer. As he had promised Ms. Socorro the previous evening, Respondent phoned Ms. Socorro and arranged for her to come over to his house early in the afternoon to discuss their relationship. Ms. Socorro had a doctor's appointment that afternoon to which Respondent had planned to accompany her. During their phone conversation, Respondent told Ms. Socorro that he would not accompany her to the appointment because he was driving to Orlando to see his brother, who was down from Atlanta on business. Ms. Socorro arrived at Respondent's house at approximately 12:30 p.m. She went in and they sat down to talk. They talked for nearly an hour about Ms. Gunn and the other issues between them. They did not discuss Ms. Socorro's having gone into Respondent's house that morning and printing his e- mails. Ms. Socorro testified that they both "pretended" not to know what she had done. At about 1:15 p.m., Respondent reminded Ms. Socorro of her doctor's appointment at 1:30 p.m. Respondent was also anxious to begin his trip to Orlando. Ms. Socorro again asked Respondent to accompany her to her doctor's appointment, but Respondent again declined. Ms. Socorro told Respondent that she still wanted things to work out. Respondent said that he did not think it would work, but agreed to talk with her again. Respondent walked Ms. Socorro out of his house and to her car. Respondent was the first to reach Ms. Socorro's car. He looked inside. Ms. Socorro then recalled that she had placed the stack of e-mails on the back seat of her car and that they were plainly visible from outside. Respondent asked Ms. Socorro to unlock the car so that he could retrieve a CD that he claimed to have left in her car. Ms. Socorro used her keyless entry device to open the front door. Before Ms. Socorro could get in the car, Respondent reached in and opened the back door. He grabbed the stack of e- mails. Ms. Socorro threw herself onto Respondent's back, and they struggled over the e-mails on the back seat of the car. The papers were falling to the ground outside the car.7 Ms. Socorro pressed the "panic" button on her keyless entry device, setting off the car's alarm system. Respondent took the keys from her, stopped the alarm, and threw the keys outside the car. They continued to struggle inside the car, until Respondent managed to get out of the car. Neighbors were beginning to notice the struggle. Respondent told Ms. Socorro to calm down, that they both needed to act normal. They stopped fighting and picked up the e-mails. Respondent asked Ms. Socorro to go back into the house and talk about matters.8 They walked to the front door. Respondent opened the door, slipped part way into the house, then tossed his stack of e-mails into the house, with the apparent attempt to deny entry to Ms. Socorro. She ran inside the house before Respondent could close the door. They began yelling at each other again. Respondent demanded to know what Ms. Socorro intended to do with the e- mails and threatened to kill her if she tried to "do anything to destroy everything I've worked for all of my life." Respondent tried to force Ms. Socorro out of the house. He pushed her against the wall near the front door and hurt her arm. As Ms. Socorro held on to the jamb of the open front door, Respondent hit her in the chest with his head and shoulder, shoving her off the front porch and into a bush below.9 Respondent took advantage of Ms. Socorro's fall to lock his front door from the outside. Ms. Socorro became hysterical. She began to laugh, unnerving Respondent, who tried to calm her down. As Ms. Socorro quieted, they discussed the e- mails. Respondent explained that he stayed in touch with Ms. Csongova because he needed to keep his options open. She asked him about the e-mails to the other girls. Respondent replied that the College would not care if he "flirted" with a couple of his students. Ms. Socorro asked Respondent why he went to such lengths to keep their relationship a secret, if the College didn't care. According to Ms. Socorro, the exchange proceeded as follows: He said, why do you want to do this? You're going to hurt my kids. . . . He said, you have to understand that I'm 34 years old. I'm not a child like you. You have your whole life ahead of you and I need to find a role model. I need to find a good woman for my kids to marry. And I knew that you and I were rocky and I had to do this and I was leading more than one life, more than one relationship and if I had to do it, I did it for my kids, that they need a mother. He said, I can't be alone when I'm 44. I remember telling him that he was sick. I said that you're just sick. That's sick. He said, do you want me to tell you the truth. He said, from the moment you told me that you had an eating disorder, I knew that you and I weren't going to work. And I kept yelling at him, if it was that long ago, why didn't you stop the relationship, because you have known that forever. He said, I thought you would change, but you never did. Ms. Socorro got into her car and started to drive away. Believing that Ms. Socorro was in no condition to drive, Respondent tried to talk her into waiting while he called her mother or some other person to come over and help her. Ms. Socorro declined any assistance from Respondent. She told him that she was hurt and needed to get to the hospital. She drove away. From her car, Ms. Socorro phoned her doctor's office, because she had missed her appointment. The doctor's receptionist was so alarmed that she stayed on the phone with Ms. Socorro until she reached her mother's office. Ms. Socorro's mother, Patricia Mills, drove Ms. Socorro to the emergency room of Morton Plant Hospital in Clearwater, where she was treated for scrapes, an injured wrist, and a slightly cracked rib. Due to the injured rib, Ms. Socorro had to take time off from her job as a waitress at Applebee's. She also wore a splint on her wrist for a time. The emergency room staff at Morton Plant Hospital notified the Pinellas County Sheriff's Office, which dispatched deputies to interview Ms. Socorro while she was still at the hospital. The Sheriff's deputies also interviewed Respondent. No arrests were made and no charges were filed in the matter. The Sheriff's Office reported the incident to the College. Ms. Mills phoned the College's security office to inform the College of the altercation between Respondent and Ms. Socorro. The security office passed the complaint to Clearwater campus Provost Dr. Stan Vittetoe. The College's standard procedure is to lock the computer of any instructor who is the subject of a complaint. Dr. Vittetoe locked Respondent's computer. On December 3, 2004, Dr. Vittetoe and Dr. Cooper met with Respondent to inform him that Ms. Socorro had lodged a complaint against him and to provide Respondent with an opportunity to give his side of the story. Respondent told them that during the physical confrontation with Ms. Socorro, he was merely trying to protect himself. He showed them a scratch on his cheek and stated that he had been trying to retrieve some papers that belonged to him. Respondent admitted that he had been involved in a romantic relationship with Ms. Socorro. This initial meeting with Dr. Vittetoe and Dr. Cooper lasted only about 15 minutes, because Respondent had a class to teach. Also on December 3, 2004, Dr. Vittetoe met with Ms. Socorro and her mother. Ms. Socorro told Dr. Vittetoe that she began dating Respondent during the fall semester of 2003, when she was a student in his class. She told Dr. Vittetoe that she and Respondent often discussed the need to hide their relationship, because of its impropriety. She told Dr. Vittetoe that Respondent often bought alcoholic drinks for her when they went out to bars. Ms. Socorro admitted that she had printed e- mails from Respondent's computer and that it was Respondent's seeing those e-mails that triggered their physical altercation. Dr. Vittetoe requested a formal written statement detailing the facts of her relationship with Respondent. Ms. Socorro furnished a written statement to the College on December 8, 2004. On December 7, 2004, Dr. Vittetoe and Dr. Cooper met with Respondent again. At the outset of the meeting, Dr. Vittetoe made clear the gravity of the situation, letting Respondent know that his job was in jeopardy. Dr. Vittetoe questioned Respondent about his involvement with female College students other than Ms. Socorro. Respondent admitted that he had been involved with Ms. Csongova. Dr. Cooper, as Respondent's immediate supervisor, expressed concern at what appeared to be a pattern of romantic involvement with students.10 Dr. Cooper noted that Respondent was not following college procedures and appeared to view the female student population as potential candidates for relationships. Dr. Cooper recounted the meeting as follows: I raised questions with him in regards to his ability to maintain his professional boundaries and expressed great concern over the fact that he didn't seem to recognize that, in his position as an instructor, he had a position of authority and power and could easily use that to influence students' decisions. I remember that he said that, well, they weren't students in my class at the time that he had become involved with them. My concern was that if you say to a young, impressionable individual, well, I don't date students if they're in my class, well, then what you're saying is, well, just get out of my class and then we can have a relationship. And I tried to express that concern over the fact that he was not maintaining his professional boundaries. And then he shared that, well, he didn't want students to dislike him and, you know, he didn't know how to respond when a student came on to him. Dr. Cooper attempted to explain that the student/teacher relationship should not be a matter of "liking" or "disliking," but a matter of respect based on the teacher's knowledge of his subject matter and ability to foster the student's quest for knowledge in the teacher's field of expertise. Dr. Cooper was extremely concerned that Respondent seemed unable to understand or respect basic professional boundaries established between students and teachers. Dr. Cooper was also concerned that Respondent issued invitations to students to come watch his band play in bars that served alcoholic beverages, when most of those students were underage. She did not agree with Respondent's contention that a band playing in an Ybor City bar constituted a "cultural event." She suggested that, if Respondent wanted to share his music with his classes, then he should have the band come to the class and play. During the meeting, Respondent attempted to defend his relationship with Ms. Socorro, first by denying that it commenced prior to the end of the 2003 fall semester, then by pointing out how careful he had been to instruct Ms. Socorro not to discuss their relationship with other students and not to make friends with students on the Clearwater campus. At the conclusion of this meeting, both Dr. Vittetoe and Dr. Cooper concluded that Respondent had breached College rules and could not be trusted with the safety of College students. Dr. Vittetoe gave Respondent the option of resigning before completion of the investigation and a possible recommendation for termination. Respondent declined the offer of resignation. On December 14, 2004, Ms. Socorro met with associate provost Maria Edmonds. Because she was also an Hispanic female, Ms. Edmonds believed that Ms. Socorro might be more comfortable discussing the issues with her than she had been with Dr. Vittetoe. After the meeting, Ms. Edmonds drafted a memorandum summarizing her conversation with Ms. Socorro, the substance of which was consistent with the findings of fact above. Ms. Socorro executed a sworn affidavit attesting to the accuracy of Ms. Edmonds' memorandum, which was forwarded to Dr. Vittetoe. Dr. Vittetoe investigated Respondent's relationships with Socorro and other female College students. Associate Provost Jeff Davis interviewed students at the Clearwater campus to determine their knowledge of Respondent's relationships with various female College students. The investigation disclosed that Respondent had been involved with College students other than Ms. Socorro and Ms. Csongova. Respondent admitted to a relationship with Harmony Holt, who had been a student in his class during the 1999 fall semester. However, Respondent's romantic relationship with Ms. Holt did not commence until 2002, after she had graduated. Respondent admitted to a relationship with Kimberly Kimball. Ms. Kimball was in Respondent's class twice, first in the 2004 spring semester, then in the 2004 summer session. The summer session ended in July 2004, then Respondent dated her for a short time in September 2004, during one of his periodic breakups with Ms. Socorro. Respondent testified that he stopped dating Ms. Kimball because he was not over Ms. Socorro. Respondent admitted to a "friendly, casual" dating relationship with his former student Kelly McGill in 2003. Respondent testified that, although there was a mutual attraction, no sexual relationship occurred with Ms. McGill. On December 13, 2004, Respondent submitted to Dr. Vittetoe his written statement concerning his relationship with Ms. Socorro. This document is a remarkable mixture of rationalization, self-pitying emotional immaturity, and self- centered moral obtuseness.11 Respondent commences with an irrelevant narrative of his divorce proceedings. He next describes his first contacts with Ms. Socorro. Respondent states that there was a "decision to meet and get to know each other on a more personal level." Though he "can't remember exactly how or when it happened," he is absolutely certain that it occurred after the conclusion of the 2003 fall semester. Respondent notes that he stopped dating other women after he had sexual intercourse with Ms. Socorro, on "about the 5th date." Respondent writes that he was concerned about the age difference, but that such differences are the norm in Ms. Socorro's Latin American culture. Respondent states, "Ultimately I was able to handle it because she seemed mature for her age." Respondent devotes a long passage to a discussion of Ms. Socorro's bulimia, notable for its emphasis on the impact her disease was having on its real victim, Respondent: "She could tell the bulimia was putting a strain on me to know what she was doing to herself everyday and that it was hurting me." Respondent writes that he accompanied Ms. Socorro to a therapist whose name he could not recall. This therapist, whom Ms. Socorro never saw again, apparently introduced the concept of "borderline personality disorder" to Respondent. The therapist also commended Respondent on how well he was dealing with Ms. Socorro. Respondent now realized that the borderline personality disorder was responsible for Ms. Socorro's "pathological lying," the fact that she could not hold a job, and the fact that she spent all her money on "binge foods and/or shopping." Respondent described the impetus for the final breakup as follows: The relationship problems came to a head this past month when she continued to socialize in the student population instead of with friends outside the school which was a boundary we set in the relationship and it made it uncomfortable for us to go out. I was too worried someone would see the two of us together. Eventually she met someone in a class that was in one of my classes and I asked her not to pursue the friendship until after the class was over so that there would be no possible problems. She continued to pursue a close relationship with the woman and lied about it on at least a couple of occasions. I wanted to look beyond it and even began to question why I asked her to do it and felt guilty that I might be negatively affecting her college experience and knew it needed to end quickly. Once again I was being manipulated and didn't realize it. I also was having difficulty because although this would only be an issue until she graduated in May of '05, I still felt it was something she knew was important to me but she didn't see it and just ignored it and lied to me about it. I couldn't see being in a relationship where a set boundary was ignored. Respondent concludes by alleging that Ms. Socorro "is retaliating against me for ending our eleven month long relationship and this retaliation is a form of sexual harassment." From the beginning to the end of the relationship, Respondent claims he was victimized, manipulated, and finally smeared by Ms. Socorro. Respondent claimed his only failing was being too nice for his own good. On December 16, 2004, Dr. Vittetoe issued a memorandum to Dr. Kuttler, the College president, stating as follows, in relevant part: The evidence, which we have received to date, causes us to have great and immediate concerns for our female students' safety and freedom from sexual harassment and inappropriate relationships. We have evidence that he has been assisting under age students with unlawful drinking, which is a serious violation of the law. With the evidence presented thus far, I have no choice but to recommend his suspension, effective immediately. Because of the above matters, I further recommend he not be allowed to come on campus or have any contact or conversations with students. Any retaliation by Mr. Rodriguez should be a separate cause for disciplinary action. I further recommend his dismissal be presented to the Board of Trustees. On December 17, 2004, Dr. Kuttler issued a memorandum adopting Dr. Vittetoe's recommendations. Respondent was suspended with pay, effective immediately. Dr. Kuttler anticipated that he would petition the College's Board of Trustees for the suspension without pay and dismissal of Respondent at the Board's next meeting, on January 18, 2005. Dr. Kuttler filed the Petition for Dismissal on January 12, 2005. By Order dated January 18, 2005, the Board of Trustees voted to suspend Respondent without pay and to forward the matter to the Division of Administrative Hearings, should Respondent request a hearing. Through counsel, Respondent filed an Answer on January 20, 2005, asserting his right to a hearing. As noted above, the matter was forwarded to the Division of Administrative Hearings on January 24, 2005. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did aid and abet at least one student under the age of 21, Ms. Socorro, in the unlawful drinking of alcoholic beverages. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did improperly use his position and abuse his power to encourage and induce female students to come to a nightclub in an attempt to establish a personal relationship, by giving female students inappropriate attention, which Respondent knew could lead to romantic and/or sexual relationships. The evidence established that Respondent would make blanket invitations to his entire class, male and female. However, Respondent would also select individual females, such as Ms. Socorro and Ms. Gunn, for personal invitations. The evidence established that Respondent knew, or should have known, that he was using his position as an instructor to manipulate impressionable young female students into attending his performances, whereby he hoped to impress them sufficiently to make them susceptible to his romantic overtures. As Dr. Cooper said to Respondent at one of their meetings, "[I]t seems like what's more important is for you to organize a set of groupies to follow your band," than to maintain the proper professional relationship with students. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did cause a female student, Ms. Socorro, with whom he had a romantic and sexual relationship, to stop her academic progress by inducing her not to continue her schooling at this College, adversely affecting the student's academic progress for Respondent's sole benefit. The evidence did not establish that Respondent made a direct demand that Ms. Socorro quit school. By her own testimony, Ms. Socorro did not attend classes during the 2004 spring semester because she wanted to visit her father in Venezuela. However, she also testified that her relationship with Respondent was much improved when she was not in school, because Respondent felt less pressure about students seeing him on dates with her. Ms. Socorro also testified that her relationship with Respondent was her main reason for not enrolling during the 2004 summer session. Respondent testified that he encouraged Ms. Socorro to complete her education, but only on his terms: that she stay on the campus only long enough to attend classes and that she socialize with none of her classmates. The unreasonable pressure placed on her by Respondent was unquestionably the cause of Ms. Socorro's decision not to attend classes for at least one semester during their relationship. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did have a sexual and/or romantic relationship with a female student, Ms. Socorro, during a time when the student was enrolled in Respondent's class or when Respondent was in a position to determine the student's grade or otherwise affect the student's academic progress or environment. The weight of the evidence leads to the finding that the romantic relationship between Ms. Socorro and Respondent commenced prior to the end of the 2003 fall semester, when Ms. Socorro was a student in Respondent's class. By the time the semester ended, Respondent and Ms. Socorro had attended a dance recital and a movie together. Their romantic relationship was well underway while Ms. Socorro was still a student in Respondent's class. Even if Respondent's testimony were fully credited, the couple went on their first "date" (not counting the dance recital and the Rare Olive meeting) on the night after Ms. Socorro took her final exam in his class. This fact, coupled with Respondent's admission that on November 22, 2003, the night of the dance recital, he told Ms. Socorro that he was very interested in pursuing a relationship with her, indicates that the romantic relationship between Respondent and Ms. Socorro did not blossom suddenly after she completed Respondent's class. Respondent's rationalization appears to be that it was perfectly acceptable for him to use his classes as a dating service, planning romantic relationships with his female students while they were in his class, so long as the actual dating did not begin until the semester ended. The College naturally and reasonably disagreed with Respondent's reading of the applicable rule, discussed in the conclusions of law below. Based upon the findings of fact set forth above, the College has not demonstrated by a preponderance of the evidence that Respondent committed an assault and battery upon Ms. Socorro. While their testimony about the events of December 2, 2004, differed in many particulars, both Ms. Socorro and Respondent agreed that she initiated the physical confrontation by jumping on Respondent's back as he attempted to get the e-mails out of the back seat of her car. It could be reasonably contended that matters then cooled off and that the second physical altercation at the front door of the house was initiated by Respondent and did constitute assault and battery. In any event, the facts of the situation were ambiguous enough that the Pinellas County Sheriff's Office did not charge either party after completing its investigation. Though Respondent's conduct during the events of December 2, 2004, was an embarrassment to himself and the College, the specific allegation of assault and battery was not proven by a preponderance of the evidence. Based upon the findings of fact set forth above, the College has not demonstrated that Respondent made untruthful or deceitful statements to College representatives during the investigation. At worst, Respondent appeared to suffer convenient lapses during which his memory became "fuzzy" or "foggy" when the thrust of his testimony varied from that of other witnesses. The evidence established that Respondent was deceitful to the various women in his life, but failed to establish that he said anything to College officials that he did not believe was true. The College's allegation that Respondent was married while some of the alleged misconduct occurred was technically proven but should have no bearing on the discipline imposed. Respondent had been separated from his wife for well over a year at the time he met Ms. Socorro and was in the process of finalizing his divorce and custody arrangements. For all the good reasons Respondent had to avoid a romantic relationship with Ms. Socorro, remaining faithful to his wife was not one of them.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board enter a final order dismissing Respondent from any and all employment by the Board and/or the College and canceling his contract status retroactive to January 12, 2005. DONE AND ENTERED this 8th day of February, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of February, 2006.
Findings Of Fact The facts which resulted in the filing of these administrative charges are not in great dispute. The Respondent, Henry Gooch, taught the class of Marriage and the Family during the summer term of 1975 at Santa Fe Community College. The college class schedule listed this course and indicated that the course included the weekend of July 12 and 13. Classes began around July 2, 1975, and Respondent informed the students that class attendance was required for this course, any student who missed over three classes would receive a "W" (for which a student does not receive a course credit), that the weekend experience would count as five class sessions, and that the course would, because of this weekend, terminate two weeks earlier than normal. Respondent Gooch stated that the weekend experience was a requirement for the course and that any student that did not attend would receive a grade of "W." At no time were any students given an indication of what was to take place during this required weekend "experience." The weekend experience took place on Little Lake Santa Fe outside Gainesville, Florida. One student advised the Respondent that because of religious reasons, she could not attend. This student did not attend the weekend experience and received a "W" for the course. Failure to get credit for this course caused this student not to graduate after the summer term and required her continuing attendance and enrollment at Santa Fe Community College. Students were permitted to bring their spouses to the weekend experience and several of them did. After the students arrived, the Respondent began a group discussion on the topic of public nudity. This discussion became very heated and apparently some of the students got the impression that nudity was part of the program for this weekend. Several of them, in fact, asked Mr. Gooch whether he intended to require nudity as part of the weekend experiences. Mr. Gooch assured them it was not. After this discussion had ended Mr. Gooch began what has been called "the machine game." Basically what happened is that one student was asked to come into the center of the room and imitate a machine. After this had begun, the other students were advised to join in by forming a circle or a line and to imitate the machine in unison. Each student was then asked to exchange pants with the student in front of then. At this time, at least one student found this activity to be extremely objectionable. Several other students did not participate in the exchange of clothing. One student, Ron Griffith, who found the activities objectionable, left the room and shortly thereafter left the weekend with his wife. The student Griffith eventually filed a formal complaint with the School Administration outlining his version of the activities of the weekend and his feelings that the Respondent's conduct was extremely unprofessional. This statement was admitted into evidence as Petitioner's Exhibit No. 3. The Respondent stated that the factual allegations in that complaint are accurate. At least one other student left the weekend after the machine game had been completed and that student also received a "W." Shortly after student Griffith filed his formal complaint with the School Administration, the Respondent Gooch was suspended from teaching responsibilities at Santa Fe. This occurred on August 1, 1975. Another instructor took over the responsibilities for teaching Marriage and the Family and in that manner the course was completed. It is admitted that the school regulations regarding field trips was not complied with by the Respondent Gooch. A copy of the school regulations in the school policy manual had been assigned to Gooch as Department Coordinator. Mr. Gooch claims he was not aware of the field trip policy and would have complied with it had he known. For several students that did not attend the weekend trip or left before its completion and who received "W's" for their final grade, there was no real showing that an alternative requirement for course completion was made available to them. It is true that the Respondent Gooch testified he intended to give several of these students an opportunity to make up the missed time at this weekend, but whatever effort he put into this was certainly inadequate, particularly in light of the fact that his prior announcements would give any reasonable person the absolute impression that failure to participate and complete this weekend made the grade of "W" mandatory. There is certainly no question that the Respondent, Gooch, did violate provisions of the College Policy Manual. The pleadings filed in this case admit such did occur. The crucial issue is whether these were mere technical violations or whether the nature of the Respondent's conducts should be considered serious infractions. It is undisputed that the Respondent required the attendance of students in this course at this weekend experience. The charges filed on behalf of the college state that the students were coerced to attend this weekend. Perhaps coerced is not the most appropriate word to use, but it is certain attendance at this weekend was mandatory on a threat of receiving no credit for the course. It is also undisputed that the students were not given any indication of what to expect during this weekend. The Respondent should have known that his planned activities for this weekend would be objectionable or distasteful to at least some of the students in this class. Those students were given no choice or alternative course of study by which they could have received credit for this course as a substitute for this weekend experience. As a result, these students, as mentioned above, did not participate in the weekend experience and received a grade of "W" for the course of Marriage and the Family. The failure of these students to receive credit for this course was a direct result of the Respondent's not complying with school policy. Even though the Respondent advised the class the weekend experience was a mandatory requirement in time for the students to drop this course and add another one to receive required credit, that opportunity was not very meaningful without a better explanation of what was involved in the "weekend experience." The students could not be held responsible for having made a choice in this matter when they were uninformed as to what they were choosing. A student should not be subjected to requirements found to be personally distasteful without at least the sanction of the University and the informed consent of the student. In this case, neither occurred, as the school policy on field trips was not followed and the students were kept in total ignorance as to what the itinerary was for this weekend. The students who received a "W" grade cannot be said to have failed to meet the minimum requirements in this course when one of the announced requirements, the unapproved field trip, violated school policy. It must, therefore, be concluded the Respondent Henry Gooch did violate School Policy 1- 5.17 by causing several students to receive the grade of "W" for not participating in the weekend. Were it only that the weekend turned out to be less than completely successful, this matter might be dismissed as nothing more than exercise of poor judgement on the part of the Respondent that caused no real harm. However, the violation of school policy combined with this poor judgement caused several students to lose credit for the course and at least one not to graduate in time. The loss to the students cannot be replaced and the harm to them is real, not speculative. Therefore, it is recommended that the Respondent Gooch be found to have violated school policy, and suspended until the end of the Fall Quarter of 1975, thereupon to be returned to faculty Status on an annual contract status. Furthermore, he should not be considered for reinstatement on a continuing contract basis for one year and during this probationary period, not be eligible for pay adjustment. DONE and ORDERED this 10th day of November, 1975, in Tallahassee, Florida. KENNETH G. OERTEL Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1975. COPIES FURNISHED: Robert P. Cates, Esquire Attorney for Respondent 635 Northeast First Street Gainesville, Florida Robert V. Bookman, Esquire Attorney for Petitioner 222 Northeast First Street Gainesville, Florida
The Issue In Case No. 88-3425, Mr. Bradley Thomas challenges the termination of his employment at the Florida School for the Deaf and the Blind. The issue is Case No. 88-5675 is whether Mr. Thomas committed the acts alleged by the administrative complaint, and, if so, what penalty may be appropriate.
Findings Of Fact Bradley Thomas holds Florida Teaching Certificate #486268, valid through June 30, 1993. Mr. Thomas is certified to teach secondary levels, vocational education and printing, and was initially employed by the Florida School for the Deaf and the Blind (FSDB) in 1980. Mr. Thomas taught phototypesetting in the FSDB Vocational Department. Mr. Thomas was described by his immediate supervisor as highly-motivated and conscientious. He has received satisfactory and above-satisfactory performance evaluations. Mr. Thomas is 57 years old and has been deaf since the age of 12. He communicates through signing and speech. According to section 242.331(4), Florida Statutes, the Board of Trustees of the Florida School for the Deaf and the Blind is authorized to appoint and remove teachers "as in its judgement may be best". By Rule 6D- 4.002(2)(b), Florida Administrative Code, the Board of Trustees has delegated responsibilities related to employment and termination of academic personnel to the President of FSDB. By letter from FSDB President Robert Dawson, dated February 15, 1986, such authority has been delegated to Samuel R. Visconti, Director of Personnel for the FSDB. The Board of Trustees has entered into a collective bargaining agreement with the Florida School for the Deaf and the Blind Teachers United, an affiliate of the Florida Teaching Profession-NEA and the National Education Association. Article 13, section E, of the 1986-89 agreement between the Board of Trustees and the FSDB Teachers United, FTP-NEA, in relevant part, provides that Mr. Thomas may not be discharged from employment by the Board of Trustees except for "just cause", which is defined to mean job- related incompetence or misconduct. The professional competence of Mr. Thomas as a teacher is not at issue in this proceeding. During the second semester of the 1986-87 school year, Holly Middlebrooks was enrolled with five other students in Mr. Thomas' class. At the time of the hearing, Ms. Middlebrooks was 19 years old and a senior at FSDB. On more than one occasion, Mr. Thomas "rubbed" Ms. Middlebrooks' back and shoulders during class, in a massaging manner, which made her uncomfortable and confused. The contact occurred while Ms. Middlebrooks was seated at and using a computer terminal and while she entered and left the classroom. Although she attempted to convey her discomfort with Mr. Thomas' touching by repositioning herself in her chair as she worked at the computer, she did not instruct Mr. Thomas to stop. Ms. Middlebrooks saw Mr. Thomas touch other students in a similar manner. Although other students indicated to Ms. Middlebrooks that Mr. Thomas discussed sexual topics in class, she did not hear and could not recall specific incidents of sexually-oriented language on Mr. Thomas' part. Nadine Lents was enrolled with four or five other students in Mr. Thomas' class during the second semester of the 1986-87 term and for the full 1987-88 school year. At the time of the hearing, Ms. Lents was 18 years old. On occasion, Mr. Thomas would massage Ms. Lents' neck and shoulders while she worked at the computer terminal. At times she feared that he would touch her breasts but he did not. She did not instruct him to stop. On at least one occasion, Mr. Thomas rubbed her leg while she sat at the terminal and she instructed him to stop, to which he replied that there was no cause for her concern. Mr. Thomas "often" hugged Ms. Lents, sometimes pressing himself against her breasts or in a manner which she found to be "too hard", and she would push Mr. Thomas away. Ms. Lents sometimes would lightly hug Mr. Thomas as a means of greeting, but was careful to maintain distance. Mr. Thomas discussed sexual matters with Ms. Lents. He asked her if she "liked oral sex", talked about the size of her breasts, and discussed other sexual matters in vulgar terms. The sexual discussions sometimes made Ms. Lents uncomfortable and embarrassed. During both the 1986-87 and 1987-88 school terms, Karen Warfel was enrolled with "about six" other students in Mr. Thomas' class. At the time of her testimony at the administrative hearing, Ms. Warfel was 20 years old and had graduated from the FSDB. More than once, Mr. Thomas rubbed her back under blouses which she described as "loose". Once, Ms. Warfel instructed Mr. Thomas to stop, and he complied with her request, but Mr. Thomas subsequently resumed touching Ms. Warfel in a similar manner and she did not stop him. Mr. Thomas also occasionally rubbed Ms. Warfel on her leg, "above the knee", in an attempt "to calm me down when I get frustrated on the computer". The physical contact with Mr. Thomas made her feel uncomfortable. Ms. Warfel would, on occasion, request a piece of candy from a supply which Mr. Thomas kept in his desk drawer. Mr. Thomas would ask Ms. Warfel to kiss his cheek prior to giving her candy, and Ms. Warfel would comply with his request. Sometimes Mr. Thomas would tickle Ms. Warfel near her rib cage or below her belt and to the sides of her abdomen, in an area Ms. Warfel described as near her ovary. Mr. Thomas discussed sexual matters in the classroom in Ms. Warfel's presence, including discussing his sexual relationship with his wife. Ms. Warfel was embarrassed by Mr. Thomas' conduct. Marisol Eschevarria-Sola was enrolled in Mr. Thomas' class during the first semester of the 1986-87 school year and the first semester of the 1987-88 school year. There were approximately five students in the class. At the time of her deposition, Ms. Eschevarria-Sola was 20 years old. Mr. Thomas, at least once, touched or stroked Ms. Eschevarria-Sola's leg, around her knee and thigh, and also touched her back. The physical contact, which occurred while she was seated at the computer console, made her uncomfortable. She expressed her discomfort when such touches occurred. Mr. Thomas explained that he was attempting to warm his hands. She saw Mr. Thomas touch other students in her class in like manner. At least once, Mr. Thomas requested that Ms. Eschevarria-Sola kiss him in exchange for a pencil she wanted to borrow. Although she was uncomfortable with the situation, she complied with his request. On another occasion, Mr. Thomas requested that he be permitted to kiss her and she complied. Ms. Eschevarria-Sola recalled Mr. Thomas discussing sexual matters in class, including his relationship with his wife, but could not specifically recall the details of the discussion. Mr. Thomas also joked about the bodies of the students in his class. Ms. Eschevarria-Sola was embarrassed by the jokes or language. Students at the FSDB are required to attend a course entitled "Talking About Touching", which provides instruction related to self-protection from potential physical abuse. Students are taught to classify physical contact as "good", "bad" or "confusing". "Good" touches would include such positive contact as a pat on the back. "Bad" touches would include touches which are physically uncomfortable and negatively perceived by the recipient, such as slapping or inappropriate sexually-oriented contact. "Confusing" touches are those which may be positively intended but which are perceived by the recipient to be inappropriate or which make the recipient uncomfortable. Students are taught that "confusing" and "bad" touches should be reported to responsible authorities at the school. The record is unclear as to whether the students alleging that Mr. Thomas' touches were "confusing" had taken the course prior to being in Mr. Thomas' classroom. Some students at the FSDB may have reached majority. Students may remain enrolled at the FSDB beyond the age of students enrolled in other high schools. A teacher is held to the same standards of classroom behavior regardless of the students ages. Mr. Thomas had been present during an FSDB staff meeting during which reference to appropriate and inappropriate classroom conduct was made by supervisory personnel, and consequences of improper conduct were discussed. Officials at the FSDB became aware of allegations related to the classroom conduct of Mr. Thomas, when, on May 24, 1988, the allegations were reported to Mr. Robert Dawson, President of the FSDB, by a female student, Marisol Eschevarria-Sola. Ms. Eschevarria-Sola had, on the previous evening, participated in a dormitory gathering with other female students during which Mr. Thomas' conduct was discussed. (Some students are enrolled at the FSDB on a residential basis and live in dorms at the school.) At the direction of the FSDB President Robert Dawson, the allegations were immediately investigated by Ms. Debra Boles, Assistant Principal for Academic Instruction. Ms. Boles initially interviewed five hearing-impaired female students, including Ms. Eschevarria-Sola and Ms. Warfel, who provided information substantially similar to their testimony at the administrative hearing. The initial interviews were solely between the individual students and Ms. Boles, who is skilled at signed communication. The student interviews indicated that some students were "confused" by Mr. Thomas' conduct. Ms. Boles immediately reported her findings to Mr. Dawson, who directed that Mr. Thomas be placed on administrative leave with pay pending further inquiry into the allegations. On May 24, 1988, Ms. Boles verbally informed Mr. Thomas and his immediate supervisor that Mr. Thomas was being placed on administrative leave with pay pending further investigation. Ms. Boles explained that there were allegations of inappropriate physical contact made by unidentified female students of Mr. Thomas. Ms. Boles informed Mr. Thomas that such inappropriate contact included touching female students "on the back, on the shirt or on the thighs. " By letter dated May 24, 1988, Mr. Dawson confirmed that Mr. Thomas was placed on administrative leave with pay, effective May 25 through June 8, 1988, while under investigation for "inappropriate Staff/Student Relationships" constituting violation of referenced sections of the Florida Administrative Code related to the Code of Ethics of the Education Profession in Florida. At Mr. Dawson's direction, Ms. Boles, on or about May 27, 1988, interviewed 29 students, all of whom are hearing-impaired, who had been students of Mr. Thomas at some time during their enrollment at the FSDB. The interviews were conducted individually. The interviews between Ms. Boles and the individuals were conducted through a registered interpreter. Of the 29 interviewed, 22 of the students expressed no concern related to Mr. Thomas' classroom conduct. Among the students interviewed were Ms. Middlebrooks and Ms. Lents, who provided information substantially similar to their testimony at the administrative hearing. Ms. Boles provided the information gained through the student interviews to Mr. Dawson. The matter was referred to the FSDB Personnel Director for further action. Pursuant to the aforementioned letter of delegation, Samuel R. Visconti, Director of Personnel for the FSDB, is responsible for employee disciplinary actions, including employment termination procedures. At the time Mr. Visconti was informed of the allegations, Mr. Thomas had been placed on administrative leave and the school was investigating the matter. Mr. Visconti was aware of the recommendations made by Dr. Randall, Mr. Dawson and Ms. Boles. Ms. Boles recommended that Mr. Thomas' employment at the FSDB be terminated for violation of professional standards. Dr. Randall recommended that Mr. Thomas' employment at the FSDB be terminated due to inappropriate conduct in the classroom. Dr. Randall has substantial experience with the deaf and observed that the physical contact which occurred in Mr. Thomas' classroom was not of the type which one hearing- impaired person would use to gain the attention of another. Mr. Dawson recommended that Mr. Thomas' employment at the FSDB be terminated. Mr. Dawson, who has extensive experience with the deaf, believed that the physical contact, sexual discussions, and attempted equalization of the teacher-student relationship had rendered Mr. Thomas ineffective as a teacher. According to Mr. Visconti, the termination procedure at FSDB requires notification to the employee of the intended action which is predicated on the allegations of either incompetence or misconduct. Prior to termination, the employee may or may not be placed on administrative leave during the school's inquiry into the allegations. Following the school's investigation, the employee is contacted and offered the opportunity for a predetermination hearing at which the employee may provide information relevant to the proposed disciplinary action. Within five days following the hearing, the employee is notified in writing, and perhaps verbally, of the school's decision. Mr. Visconti contacted Mr. Thomas either late in the afternoon of June 6 or early in the morning of June 7, 1988, to arrange a predetermination hearing. The communication between Mr. Visconti and Mr. Thomas was through telephone and TDD, a device that permits the transmission of apparently written communication through telephone lines. Mr. Visconti is not hearing-impaired. The record does not indicate whether Mr. Visconti understands signed communication. By agreement between Mr. Visconti and Mr. Thomas, the conference was scheduled for the afternoon of June 7, 1988. During the TDD communication, Mr. Visconti explained to Mr. Thomas that the school had completed the investigation of the allegations of improper classroom conduct, and restated the allegations. Mr. Visconti explained that Mr. Thomas was being offered the opportunity to meet with Mr. Visconti and present "his side of the story...." Mr. Thomas was informed that he could provide information orally or in writing, and was further informed that he could "bring anyone with him that he felt would help him in supporting anything that he wanted to present...." Mr. Thomas and Mr. Visconti agreed that Dr. Randall would serve at the meeting as interpreter. Mr. Visconti received from Ms. Boles, a package of materials, dated June 7, 1988. The package included Ms. Boles' notes taken during or subsequent to her interviews with the students. Present at the June 7 meeting were Mr. Visconti, Mr. Thomas, Dr. Randall, and Mr. Thomas' wife. Prior to the meeting, Mr. Visconti informed Mr. Thomas that the sexually-related allegations would be specifically addressed and inquired as to whether Mrs. Thomas would be embarrassed. Mr. Thomas indicated that the meeting could proceed. At that time, Mr. Visconti restated the incidents of inappropriate conduct upon which the school intended to base the disciplinary action and explained the authority under which the FSDB was acting. Mr. Thomas attempted to address the allegations at that time, but offered no witnesses. At the conclusion of the meeting, Mr. Visconti informed Mr. Thomas that a decision would be issued within several days. On the morning of June 8, 1988, Mr. Thomas contacted Mr. Visconti and requested an additional meeting to offer further explanation. The meeting, held that afternoon, was attended by Mr. Thomas, Mr. Visconti, and Dr. Randall. Mr. Thomas offered a typewritten statement, suggesting a rationale for the accusations made against him, which apparently reiterated information he had provided at the prior conference. Upon the conclusion of the June 8, 1988 meeting, Mr. Visconti terminated Mr. Thomas' employment, effective immediately. Mr. Thomas was officially dismissed by letter of June 10, 1988 from Mr. Visconti. The June 10 letter states that he was dismissed from employment for "doing the following to female students: rubbing backs, tickling backs under student's blouses, rubbing student's thighs, asking sexually related questions of students, discussing sexually related topics regarding your personal life, and asking for kisses in exchange for items such as pencils or pieces of candy." The letter informed Mr. Thomas of his right to appeal the determination through the administrative process and his union grievance procedure. Mr. Visconti determined that, based upon the information and recommendations presented to him by Dr. Randall, Mr. Dawson, Ms. Boles and Mr. Thomas, that just cause existed for the termination of Mr. Thomas' employment at the FSDB. Mr. Visconti determined that Mr. Thomas had violated the Code of Ethics as set forth in administrative rules and that the improper classroom conduct had rendered Mr. Thomas ineffective as a teacher and had placed students at risk. At the administrative hearing, Mr. Thomas sought to explain the physical contact as serving to gain the attention of, or to calm, hearing- impaired students. Mr. Thomas claims that he touched Ms. Middlebrooks' back as a means of addressing the frustration she supposedly felt at the difficult computer work required in the class and stated that he did not know she found it objectionable. Mr. Thomas testified that Ms. Lents instigated the hugging incidents, and that he told her to stop, but she continued. Mr. Thomas claimed that he once touched Ms. Warfel's back under her blouse on a day when Ms. Warfel wore a prohibited bare midriff blouse to class and that his hand accidently touched her bare skin while he was reminding her that such blouses were prohibited. Mr. Thomas denied that he requested a kiss from Ms. Warfel, but suggested that Ms. Warfel kissed him because he was her "favorite teacher". Mr. Thomas denied tickling Ms. Warfel. Mr. Thomas explained that he possibly touched Ms. Eschevarria-Sola's leg as a means of gaining her attention while she sat at the computer console, but claimed he never touched the inside of her thigh. Mr. Thomas denied that Ms. Eschevarria-Sola kissed him or that he kissed her. As to sexually-oriented conversations, Mr. Thomas denied having made such remarks. Mr. Thomas' testimony was less credible than that of the students who testified at the hearing. At the administrative hearing, Mr. Thomas offered no rationale to suggest the reason behind the student's allegations. The typewritten statement provided to Mr. Visconti on June 8 by Mr. Thomas suggests that the allegations were the work of Senior class students, supposedly disappointed with his decision not to invite them to his home for a social event, as he had apparently done on an occasional and irregular basis in previous years. However, those students testifying generally had favorable opinions of Mr. Thomas, other than as to his specific conduct to which they objected. There is no evidence to support the inference that the allegations were untruthful and that they were intended as retribution for the omitted social activity. Evidence was introduced indicating that hearing-impaired persons are more likely to touch each other than are non-hearing-impaired persons. Such touches are to gain another's attention or to express emotion. The evidence does not support the suggestion that Mr. Thomas' classroom conduct was designed to gain the attention of the students or express emotion. Ms. Boles testified that some of Mr. Thomas' classroom behavior indicated the potential for sexual abuse by Mr. Thomas, however, the testimony to this point was not persuasive. Ms. Boles' opinion was, at least in part, based upon her discussions with an independent psychologist who serves as a consultant to the school on matters related to sexual abuse prevention. According to Ms. Boles, the consultant stated that a "psychosexual evaluation" of Mr. Thomas was necessary to determine the potential for sexual abuse. The school did not follow the consultant's recommendation. Although Mr. Thomas' behavior was inappropriate, the evidence does not suggest that Mr. Thomas sexually abused students and the testimony related to Mr. Thomas' potential for sexual abuse is not credible.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees for the Florida school for the Deaf and the Blind enter a Final Order finding that just cause exists for terminating the employment of Bradley Thomas. It is further RECOMMENDED that the Education Practices commission enter a Final Order permanently revoking teaching certificate, #486268, held by Bradley Thomas. DONE and RECOMMENDED this 19th day of September, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of September, 1989. APPENDIX CASE NOS. 88-3425 and 88-5675 Proposed findings of fact were filed by the Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 and Betty Castor, as Commissioner of Education, Petitioner, Case No. 88-5675. The following constitute rulings on proposed findings of facts submitted by the parties. The proposed findings of fact are adopted as modified in the Recommended Order except as follows: Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 4. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 6. Reference to the Department of Health and Rehabilitative services rejected, immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Rejected, irrelevant. Last sentence rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. 20. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. 26. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, not supported by the weight of the evidence. The testimony cited does support the proposed finding. Reference to the Department of Health and Rehabilitative Services rejected, immaterial. Betty Castor, as commissioner of Education, Petitioner, Case No. 88-5675 7. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 9. Reference to the Department of Health and Rehabilitative Services rejected as immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, unnecessary. 29. Characterization of testimony as evasive and inconsistent is rejected, unnecessary. COPIES FURNISHED: William J. Sheppard, Esq. 215 Washington Street Jacksonville, FL 32202 Barbara J. Staros, Esq. State Board of Education Knott Building Tallahassee, FL 32399 Betty J. Steffens, Esq. 106 South Monroe Street Post Office Box 11008 Tallahassee, FL 32302 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, FL 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, FL 32399 Robert Dawson, President Florida School for the Deaf and the Blind 207 San Marco Avenue St. Augustine, FL 32084
