Findings Of Fact Introduction At all times relevant hereto, respondent, Jack E. Ferrell, was a teacher at Parkway Junior High School (PJHS) in Miami, Florida. He holds Florida Teacher's certificate Number 107694 issued by petitioner, Department of Education, Education Practices Commission (Commission). The certificate was reissued in 1987 and covers the areas of health education, physical education and mathematics. With the exception of a short break in the 1960s, respondent has been a teacher in Dade County, Florida since 1959. He taught at PJHS from school year 1967-68 until January 10, 1986 when he was reassigned to administrative duties at a Dade County School Board area office. The school has a racial composition of at least ninety percent black students. On February 18, 1986, Ferrell retired rather than face disciplinary action by the Dade County School Board which might have culminated in his dismissal and loss of retirement benefits. As a condition of accepting his resignation, the School Board stipulated that Ferrell would not be rehired by that school district. At the same time, the charges which prompted his retirement were referred to the Commission. On November 10, 1987, or some twenty-one months later, an administrative complaint was issued against Ferrell charging him with various violations of general law and agency rules. As amended on March 8, 1988, the complaint alleges that Ferrell, who is white, (a) used excessive corporal punishment on a black student and called that student a "nigger" on December 20, 1985, (b) called a black student a "dummy, gorilla and nigger" on December 18, 1985, (c) showed unprofessional conduct at a parent-teacher conference on December 19, 1985, (d) failed to follow school policies and procedures, used unprofessional conduct and defied school personnel, all of which resulted in a letter of reprimand on April 15, 1985, (e) argued with a fellow teacher on June 5, 1984, (f) was guilty of direct insubordination by refusing to accept a student into his classroom on December 14, 1984, and (g) committed battery upon another teacher on April 23, 1982. 1/ These charges will be discussed separately hereinafter. The December 20 Incident On December 20, 1985 Ferrell was teaching a mathematics class when J.W., then a fourteen year old black student, was brought to his classroom by Mr. Robertson, a school security guard. The student had been caught skipping class earlier and was sent to Roy Scott, an administrative assistant, who gave a "shot" (paddling) to J.W. and several other students. When J.W. entered Ferrell's class, Ferrell asked him "What happened to you?" J.W., who was upset and teary eyed from his paddling, responded "I just got a shot." Ferrell replied "You should have been suspended." J.W. then said words to the effect "Don't worry about me," and went to his desk which was in the back corner of the classroom. Ferrell, who did not hear J.W.'s last remark, asked "What did you say?" When J.W. did not respond Ferrell went to the student's desk and lifted it slightly once or twice and again asked him to repeat his comment. J.W. would not respond and told Ferrell to leave him alone. Using both hands, Ferrell picked up J.W. by his shirt and asked him to repeat his comment. During the process of picking up J.W., Ferrell's hands ended up around the upper chest area or lower part of J.W.'s neck. J.W., who by now was angry and even more upset, tried to break loose but Ferrell pushed him against the wall resulting in J.W. accidentally bumping his head. After Ferrell asked J.W. what he intended to do, J.W. threatened to tell his mother but Ferrell replied that he didn't care. When J.W. again attempted to break away, Ferrell pushed him against the wall a second time. At that point, Ferrell thought he heard J.W.'s shirt tear and released the student. He told a security guard to take J.W. to the principal's office. He later gave J.W. a detention for coming to class without a book. Although at hearing J.W. claimed that Ferrell had called him a "nigger" and "boy," this contention is rejected since J.W. did not allege this in his initial statements and interviews, and nearby students who witnessed the event did not hear Ferrell use those words. 2/ After J.W. related the event to the school administrators, the administrators concluded that J.W. was "okay," and he was sent to his next class, a physical education class. During the interview, one of the school officials noted a small bump on the back of J.W.'s head where it had struck the wall and accordingly reported Ferrell to the Department of Health and Rehabilitative Services for child abuse (excessive corporal punishment) However there is no evidence that formal charges were ever filed against Ferrell by the agency or state attorney. According to J.W., the bump "hurt" and stayed on his head for "about a week." However, he did not ask for nor was he given medical assistance for his injury. In a meeting later that day, Ferrell admitted to the assistant principal in charge of administration, Kenneth Jaworski, that he had pushed J.W. against the wall, that the child may have bumped his head, and that his hands may have slid up around J.W.'s throat area. At that time, Ferrell blamed the incident on a "wise" statement made by the student. In early January, 1986, or some two to three weeks later, school officials contacted J.W.'s mother and told her of the incident. According to school policy, a teacher should never place his hands on a student unless he is in fear of bodily harm from a student or unless a student is about to inflict bodily harm on another student. Since neither situation was present, Ferrell violated school policy. Had Ferrell considered J.W.'s conduct to be disruptive or defiant, Ferrell should have either referred him to the principal's office or contacted a security guard who would escort J.W. to the principal's office. These procedures are outlined in the faculty handbook, and Ferrell was aware of such policies. Finally, under School Board Rule 6Gx13-5D- 1.08 appropriate corporal punishment was considered to be paddling. If corporal punishment was justified, only two persons designated by the principal at PJHS were authorized to administer such punishment and then only under certain conditions prescribed within the rule. Ferrell was not one of the two designated hitters. At hearing, Ferrell contended that he was simply "restraining" J.W. when the student attempted to leave the room and that he did not physically pull the student up with his hands or deliberately shove his head against the wall. He did concede it was possible that J.W.'s head could have accidentally hit the wall during the confrontation. Ferrell strongly disagreed with the contention that his actions equated to excessive corporal punishment and characterized it instead as an effort on his part to restrain the student from leaving class. It was his contention that the definition of corporal punishment was vague but was generally interpreted only to be paddling. He also said his actions were necessary in order to maintain control and discipline in his classroom. The December 18 Incident During the first semester of school year 1985-86, N.W. was a twelve year old black student at PJHS enrolled in Ferrell's sixth period mathematics class. Around 7:00 a.m. on the morning of December 18, N.W. was standing with two other black female students outside the school building when Ferrell walked by on the way into his classroom. There may have been as many as ten or twenty other black students who were within hearing distance of Ferrell but the exact number, if any, is unknown. One of the students, S.W., called out to Ferrell "Do you have a brother named Fred?" Ferrell replied "No, do you have a brother named Dummy?" He also asked S.W. if she was in his class. The student then retorted "No, but you remind me of Fred Flintstone." Ferrell replied "You remind me of a nigger." The evidence is conflicting as to whether Ferrell used the word "gorilla" during the incident, but it is found he did not. N.W. told her mother of the incident that day. Even though she was extremely upset with Ferrell, the mother chose not to bring the matter up until after the Christmas holidays. On January 9, 1986 N.W.'s mother met with Ferrell and a counselor, who was also black, to discuss her daughter's poor grades and the name-calling incident that occurred on December 18, and to request that her daughter be transferred out of Ferrell's classroom. At the conference, Ferrell acknowledged to both N.W. and the counselor that he had used the word "nigger." However, he explained that he was from North Carolina, that the word was always used to describe blacks and that the term was not used in a derogatory sense. In a conference with the principal, Fred Damianos, Ferrell freely admitted he had used the word "nigger" in his exchange with the three black students but, as he had told the mother, stated the word was a common one in North Carolina and was not meant to be derogatory. The principal did not consider this to be justification for his conduct and had a letter of reprimand placed in Ferrell's file. At hearing, Ferrell agreed his use of the word showed a lack of good judgment and could have offended the students in question. Direct Insubordination On December 14, 1984 Ferrell sent N.C., a female student, to Jaworski's office for using profanity in class. She had already been sent out of class on several prior occasions for disciplinary reasons. Ferrell did not want her back in class until after a parent-teacher conference had been held. However, Jaworski was "extremely busy" at the time and sent her back to the classroom with a note requesting that Ferrell take her, and they would talk about the student's situation later on. When N.C. returned to his class, Ferrell refused to accept her and sent her back to Jaworski's office with a note saying he would not admit her. Jaworski considered Ferrell's refusal to accept N.C. to be in defiance of his authority and therefore direct insubordination. Jaworski explained that, under then-existing school procedures, if the student continued to be a disciplinary problem, Ferrell should have prepared another referral slip rather than simply refusing to accept her. Jaworski discussed the incident with Ferrell that afternoon and later placed a memorandum describing the matter in Ferrell's file. However, the memorandum did not constitute disciplinary action since Jaworski had no authority to discipline Ferrell. Ferrell considered N.C. to be a persistently disruptive student who had to be removed from the classroom. He also felt his conduct in the matter was consistent with the school's Code of Student Conduct which authorized a teacher to temporarily remove that type of student from the classroom, request a parent-teacher conference, and to send the student to a predesignated area determined by the school principal. In Ferrell's view, Jaworski overreacted to the situation and had failed to give consideration to all the facts before the memorandum was written. Angry Parent-Teacher Conference On December 19, 1985, Ferrell held a parent-teacher conference with a Mr. and Mrs. Sterling and a school counselor. The conference concerned the Sterlings' son, R.S., who had been a disciplinary problem in one of Ferrell's classes. The mother carried a small baby with her to the conference. The four (plus baby) met in the counselor's 8'x 10' office which was approximately twenty feet from Jaworski's office. After the meeting had been underway for some time, another administrator asked Jaworski to check out the loud voices emanating from the counselor's office. When Jaworski went over to see what was happening, he found what he considered to be a "heated" meeting taking place. He described Ferrell's tone of voice as being loud and aggressive. After a few minutes had passed, Ferrell stood up and, in an irritated manner, said words to the effect "I can't add anything else, I don't know what else to say" and departed the meeting. As Ferrell left, Mr. Sterling said he had heard that Ferrell was "prejudiced." Upon hearing this comment, Ferrell returned to the doorway and said "If you believe that, you're as immature as that baby." At that point Jaworski, who was still standing near the office, felt that there was going to be a physical confrontation between Ferrell and Mr. Sterling and placed his arm across the doorway to prevent Ferrell from entering the room. Ferrell then left the area. However, Ferrell did not "physically push" Jaworski as alleged in the complaint. At hearing Ferrell admitted the conference "did not go well" and that, at one point, he and Mr. Sterling may have been "trying to out talk the other." Ferrell's contention that he did not use "threatening" words at any time was corroborated by Jaworski. Ferrell also pointed out that between September 5, 1985 and January 10, 1986, he had twenty-six parent-teacher conferences and only this conference drew a complaint from administrators. Even so, Ferrell was cited for unprofessional conduct in a memorandum prepared by Damianos on January 9, 1986. Battery on a Teacher On April 23, 1982 Ferrell was involved in an altercation with another teacher named Bellis. The incident occurred around 9:00 a.m. that day when some students left Bellis' classroom and congregated in the hallway outside of Ferrell's classroom. Because this disturbed his class, Ferrell first complained to Bellis, who did nothing about the matter. Ferrell then complained to the principal (Mr. Hanna) A short time later, the three men met in the hallway in front of Ferrell's classroom and, when Bellis turned and began walking away, Ferrell grabbed his upper bicep and told Bellis to turn around and tell Hanna the truth about the situation. Because Ferrell had touched him, Bellis filed criminal battery charges against Ferrell. However, there is no evidence that Ferrell was ever prosecuted for this crime. Even so, Ferrell was administratively charged with battery by school administrators and was suspended from school without pay for ten days. Ferrell contends he accepted the punishment only because he was promised a reassignment to another school. The promised reassignment did not materialize. Failure to Follow School Policy, Etc. The complaint alleges that Ferrell was guilty of "tearing up three discipline referrals in front of (Damianos) during a fit of anger." In the spring of 1985, a new countywide school policy was implemented requiring teachers to contact the student's parents before referring the student to the principal's office for "minor infractions." This policy was explained to all PJHS teachers, including Ferrell, at a faculty meeting on March 26, 1983. However, Ferrell had referred three students to the principal's office during the week preceding the meeting without first making such parent contact. By March 27, Ferrell had contacted the three sets of parents, albeit after the referrals had already been sent to the principal's office. On March 27, Ferrell and Damianos met in the school cafeteria to discuss the three referrals and the need to follow the new procedure. When the meeting ended, Ferrell was "upset," but not in "a fit of anger," and as he walked out of the cafeteria, he tore up the referrals and threw them in the wastebasket. Damianos considered this to be "unprofessional conduct" and "immature" and Ferrell's way of showing the administration that he was "upset." Ferrell justified his tearing up the forms on the ground the forms were no longer necessary since they failed to comply with the new school directive. He added that he meant no disrespect towards Damianos. Ferrell admitted being late to his classroom a few times in the spring of 1985 due to heavy traffic and parent- teacher conferences that lasted beyond the school starting hour. He also acknowledged that he had told another teacher (Scott) that Jaworski was "fat and lazy." In hindsight, Ferrell realizes he may have been "a little off base" for doing so. Unfortunately for Ferrell, his comments were relayed to Jaworski. Ferrell was charged with having received a letter of reprimand dated April 15, 1985 for various matters, including those discussed in findings of fact 17-19. He was also placed on two weeks' prescription in May, 1985 and satisfactorily completed all conditions by the prescribed time. Other than Ferrell's admission of being late, calling Jaworski certain names, and tearing up the three referral forms, there was insufficient evidence to support findings concerning any other incidents which form the basis for the reprimand and prescription. Incident on May 4, 1984 The complaint charges that Ferrell and Bellis supposedly had another altercation on June 4, 1984 albeit one of a purely verbal nature. No specifics are of record, and Ferrell's contention that he was completely exonerated was not contradicted. Indeed, the assistant principal did not dispute this contention and admitted that Bellis was an "unusual" person who had a tendency to lie. Loss of Teacher Effectiveness According to the testimony of various administrators, Ferrell's conduct in its totality, if shown to be true, has resulted in the loss of his effectiveness as a teacher in the public school system. Ferrell's Case Ferrell contended that all allegations were either untrue or exaggerated. He suggested the School Board of Dade County began compiling a paper trail in 1984 in an effort to dismiss him. According to Ferrell, this began when Ferrell met with the area superintendent in July, 1984 after the second Bellis incident. The superintendent told him that if one more incident occurred, Ferrell was "through as a teacher in Dade County." Ferrell also attributed many of his problems to a personality conflict with Jaworski and Damianos. Ferrell admits that he is a strict disciplinarian in class and assigns a great deal of homework. As a result, he is unpopular with many students. Ferrell's reputation as a strict disciplinarian was corroborated by one administrator who described Ferrell's class discipline as "extremely good." Ferrell also describes himself as "blunt," "frank," "to the point," and "very firm" in dealing with students, parents and teachers. However, these characteristics have tended to cause strained relations with his counterparts. Except for the December 18, 1985 incident, Ferrell denies ever using derogatory terms during his lengthy school tenure. This was corroborated by Jaworski and Damianos to the extent that they had contact with Ferrell while they were at PJHS. Indeed, they stated that Ferrell never gave any prior hint of racial bias. Ferrell was also described as an adequate teacher in terms of teaching skills as evidenced by his continuous receipt of satisfactory annual evaluations during his tenure with the school system. Further attributes included his never being absent and a willingness to stay after regular school hours to tutor students. Finally, Ferrell was offered the opportunity by Damianos in both 1984 and 1985 to teach extra classes because of the principal's confidence in his capabilities. Ferrell has not taught since his retirement in February, 1986 but wishes to retain his teacher's certificate. He thinks revocation of his certificate is too harsh a penalty given his otherwise satisfactory twenty-five year tenure as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Jack E. Ferrell be found guilty of violating Subsections 231.28(1)(c), (f) and (h), Florida Statutes (1987), as more specifically discussed in the conclusions of law, and that his teaching certificate be suspended for three years retroactive to his date of retirement in February 1, 1986. DONE AND ORDERED this 4th day of May, 1988, in Tallahassee, Leon County, 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 4th day of May, 1988.
Findings Of Fact Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991. This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action. Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him. In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy. Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa. One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint. At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons. Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint. During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him $125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa. As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements. The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way. Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan. While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington. The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class. Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man. Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B- 1.06(3)(a) and (e), and Subsection 231.28(1)(c), as set out more specifically in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee. DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985.
Findings Of Fact The Respondent, Lawrence Brennan, holds Florida teaching certificate number 250648, issued by the State Department of Education. The Respondent is certified in the area of English and his certificate is valid through June 30, 1988. The Respondent is a tenured teacher in the Duval County School System in which he has taught since September 8, 1969. The Respondent has taught at Paxon Junior High School since 1984-84, and has taught compensatory education in Paxon Junior High School during school years 1984-85 and 1985-86. Compensatory education is a special program for children with low test scores. Many of the students also have disciplinary problems. The Respondent received satisfactory evaluations for the last three full years of his employment, to include his years at Paxon. The Respondent was removed from the classroom and Paxon Junior High School following the altercation with a student on February 27, 1986, which gave rise to these charges. The Respondent is currently assigned to one of the media centers of the Department of Education in Duval County. The Respondent was informed in writing of the various requirements and responsibilities of teachers in the Duval County School System. Bresha Woods was a student of the Respondent's in November 1985. Ms. Woods had received six to eight referrals to the Principal's office through November 1985 for disrupting class and for not performing assigned duties. Subsequent to the incident described here, Woods was suspended and transferred to the Darnell Cookman Alternative School in March of the 1985-86 school year. On November 7, 1985, the Respondent told Woods to take her things and to go to the Principal's office for not doing her work and disrupting class. Woods delayed, slowly gathering her books, purse and other belongings. The Respondent approached Woods from the rear as she was at her desk, grasped her by the shoulders, pulled her to her feet alongside the desk, turned her toward the door of the classroom and told her to go to the school office. Woods' statement that she was "marked up" is not credible and the fact that she visited a physician on March 29, 1987, is not relevant because of the passage of time. No report of the physician's findings was offered. Woods' report to Atkinson that Respondent had choked her was contrary to Woods' sworn testimony. Atkinson accepted Woods' version of events as opposed to the explanation of Respondent. See T 179, 180. In January 1986, Delilah Elliott, a new student at Paxon, was late for class and cut across a grassy area between the wings of the classroom building which was closed to walking students. Between classes the Respondent was performing monitoring duties outside the classroom as do many of the teachers and staff and observed Ms. Elliott crossing the prohibited area. The Respondent called for Elliott to stop. Although Elliott heard the Respondent call for her to stop, she ignored him, attempting to go to her next class. The Respondent approached her, grabbed her by the shoulders to restrain her, and pushed her toward the sidewalk. She attempted to walk around him and continue on to her class. Elliott refused to tell the Respondent her name. The Respondent herded Elliott to the Principal's office, sometimes pushing her in the back when she stopped walking. Ms. Atkinson, the Assistant Principal in charge of disciplining girls, having seen the incident, followed the Respondent to the office. Atkinson told the Respondent not to be so physical with the children. The Respondent advised Atkinson that he knew what the rules were. Atkinson advised the Respondent that she would take care of the problem, and that he should return to class. Atkinson took no action against Elliott because, according to Atkinson, walking on the grass was not a referral offense. As the Respondent exited the office, Atkinson heard the Respondent say to Elliott, "You little tramp." The Respondent was frequently in physical contact with students in his class. Craig Monasco and Frank Lane were students in the Respondent's class. The Respondent grabbed their buttocks on several occasions when they were leaning over getting books. This practice, called "scooping" by the students, was a form of horse play engaged in by the students. The students were embarrassed by this. On other occasions, the Respondent pulled students out of their seats in the process of disciplining them within the classroom. Leopolean Spikes was a 13 year old black student in the Respondent's 7th grade comp. ed. English class. Spikes had a history of disruptive behavior in class and had been sent to the Principal's office several times during the school year. On February 26, 1986, Spikes was disruptive in class and the Respondent escorted him to the Principal's office. On this occasion, Spikes had refused to accept the referral, and Spikes said he was going to have his father come out and talk with the Respondent. The Respondent added Spikes' additional comments to the referral regarding Spikes' behavior and escorted Spikes to the Principal's office. Upon re-entering the class, the Respondent stated to the class that had Spikes hit him, the Respondent would have knocked him through the wall. The Principal gave Spikes an in-school suspension for his conduct of February 26, 1986. However, based upon the general school policy, a child with the number of referrals that Spikes had had would have been subject to general suspension. On February 27, 1986, Spikes reported to the Respondent's first period comp. ed. class. Spikes exhibited additional disruptive behavior during the class period of approximately 50 minutes in length. During this time, the Respondent warned Spikes on several occasions that he was going to refer him again if his behavior did not change. Shortly before the class was over, Spikes' continued disruptive conduct caused the Respondent to write a referral of Spikes to the Principal. The Respondent told Spikes to go to the Principal's office. Spikes delayed in getting his personal effects together to go to the Principal's office, and the Respondent went over to Spikes and told him to hurry up and leave the class. Spikes told the Respondent that he would not go to the Principal's office. At this point, a conflict exists in testimony regarding what occurred next. The one non-involved adult observer, Ms. Morkin, the co-teacher, stated that she observed six "acts" to the incident: (1) Spikes stood around reading the referral and not doing anything; (2) Respondent guided Spikes to the door by the shoulder; (3) Spikes ran around her desk to his own desk by the windows and wall; (4) Books were thrown in the direction of her desk from the vicinity of Spikes' desk; and (5) A struggle ensued between Spikes and Respondent, which came to an end with the Respondent kneeling next to Spikes and restraining Spikes on the floor. The various student witnesses had more dramatic versions of the incident, but one can trace the activity by its location. Their versions began with: (1) Spikes refused to go and told Respondent that he was not going to the office at or around Spikes' desk; (2) Spikes or Respondent threw books; (3) Spikes and Respondent fought in the area of the desk; (4) Spikes threatened Respondent with a desk; (5) Spikes and Respondent fought in the area of the wall and Spikes' head hit against the wall; and (6) The fight ended with Respondent pinning Spikes to the floor. The following findings are based upon a most credible evidence and testimony presented: The Respondent was standing in the aisle alongside Spikes' desk and between Spikes' desk and the front of the room where Ms. Morkin's desk was located. Spikes, when confronted by the Respondent and told to hurry, told Respondent he refused to go, and threw his books at Respondent, who was standing between Spikes and Morkin. Spikes adopted a combative stance and the Respondent grabbed Spikes' arms, fearing that Spikes was going to strike him. Spikes began to struggle and both Spikes and the Respondent fell to the floor. Respondent let go of Spikes and regained his feet and Spikes pulled himself to his feet using the back of a school desk which he raised in front of him and advanced toward the Respondent saying, "I'm going to hit you with this desk. See T-70. The Respondent pushed the desk out of the way, grabbed the writing portion of the desk, then grabbed Spikes and a second struggle ensued, during which Spikes hit the Respondent, who grabbed Spikes in a bear hug. Spikes and the Respondent were by the windowed wall of the classroom, and the Respondent attempted to pin Spikes against the windowed wall to stop his struggling and prevent Spikes from hitting him. In doing so, Spikes' head was banged against the window once. Spikes continued to hit the Respondent all this time. The Respondent and Spikes again fell to the floor where Spikes ceased fighting after Respondent pinned him down. After the struggle ceased, Ms. Morkin left to seek assistance as the Respondent requested. After he was at the office, a knot came up on Spikes' head. Spikes parents were called and they took Spikes to the emergency room where he underwent a complete examination, to include X-rays of his head. This examination revealed no abnormal findings except tenderness and swelling in the left occipital area of the head. Subsequent medical problems which Spikes has suffered were related to an injury to the right occipital area. No evidence of such an injury was revealed in the examination or reported by Spikes. See Petitioner's Exhibit The Respondent is approximately 6' tall and weighs approximately 200 pounds. Spikes is approximately 4'6" tall and weighs 72 pounds. Mr. Randolph and Ms. Atkinson, the persons in charge of disciplining children at the school, gave their opinions concerning the appropriateness of the Respondent's actions. In their opinion, the Respondent's actions were inappropriate. The record reflects that both Atkinson and Randolph had failed to apply the requisite disciplinary standards to students by taking action to remove them from the school system permanently, based upon continued disciplinary problems. Atkinson, who observed the Elliott incident, described the Respondent as "striking the student" and was of the opinion that a person who touches another person with their hand is striking the person. Mr. Larry Paulk, Assistant Superintendent for Administrative Affairs for the Duval County Schools, interviewed the Respondent after the altercation. To Paulk, the Respondent appeared hostile and was sarcastic in his dealings and approach to students. Paulk offered his opinion that the Respondent's conduct regarding discipline and leadership was inappropriate. The Respondent has attended psychiatric counseling for the past year to deal with his hostility and to improve his effectiveness as a teacher. There is no evidence of the Respondent receiving progressive discipline for prior acts involving physical contact with students, although he received several written reprimands for inappropriate conduct towards students to include physical conduct, language, and attitude. Mr. Randolph, the principal in charge of boys, advised that the school's solution for the removal of an unwilling child from class was to call the Principal. The Principal would come to the room and ask the student to come out of the classroom and, if the student refused, the Principal would then call a uniformed policeman who would arrest the child for trespassing. In Randolph's experience they had never had to take the final step of calling for a uniformed policeman.
The Issue The issues to be determined are whether Respondent, Mr. Alain Sanon, violated section 1012.795(1)(j), Florida Statutes (2013), and implementing administrative rules,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Sanon holds Florida Educator's Certificate 1010405, covering the area of mathematics, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Sanon was employed as an intensive math teacher at John F. Kennedy Middle School in the Miami-Dade County School District. Mr. Sanon was born in Haiti and lived there most of his life. He came to the United States in 2003. His native language is French. He also speaks Creole and is fluent in English. In August 2017, Mr. Sanon taught a seventh-grade intensive math class during fifth period. About 50 percent of this class was Haitian-American, and some students in the class spoke French and Creole. Student A.R. testified at hearing that, on August 27, 2013, Student N.R. was laughing and talking with some other students who did not quiet down after Mr. Sanon asked them to. Student A.R. testified that Mr. Sanon asked them if they were gay. At this question, many of the students in the class started laughing. Student A.R. testified that Mr. Sanon then said, "This is a no homo zone." Student A.R. testified that Mr. Sanon said these things in a playful, not hostile manner, as a joke. Student A.R. testified that Student N.R. looked embarrassed. Mr. Sanon, in his deposition and later at hearing, admitted that he used the word "gay," but denied that he used it to refer to anyone as a homosexual, even jokingly, but rather used it in the sense of "happy." He testified that it was all a misunderstanding stemming from his question in French to Student N.R. and his companions: "Why are you so happy today?" Mr. Sanon explained that the French word for happy is "gaie" and that, when other students in the class heard that word, they began to say that Mr. Sanon had made an allusion to the boys' sexual preferences. Mr. Sanon testified that students were becoming excited and things were beginning to get out of hand, so he then said, "You know what? This is no homo calling. Nobody is calling anybody names in this classroom." He denies ever saying, "This is a no homo zone." The testimony of Student A.R., as supplemented by the written statements of other students, is more credible than that of Mr. Sanon, and Student A.R.'s testimony is credited. Student N.R. was removed from Mr. Sanon's class. The other fifth-period students remained with Mr. Sanon for the rest of the school year. It can be reasonably inferred, from Student A.R.'s testimony and the fact that Student N.R. was subsequently removed from Mr. Sanon's class, that Student N.R. was embarrassed by the incident. This is corroborated by Student N.R.'s written hearsay statement. Mr. Sanon has been employed at the Miami-Dade County School District for about 12 years. He has never before had any discipline imposed against his license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Alain Sanon in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6A-10.081(3)(a) and 6A- 10.081(3)(e), and issuing him a letter of reprimand. DONE AND ENTERED this 8th day of March, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of March, 2017.
