The Issue Whether cause exists for the Petitioner's proposed termination of the Respondent's employment as a bus driver for alleged inappropriate conduct with a student.
Findings Of Fact At all times material to this case, Respondent Howard Jessie (Respondent) was employed as a bus driver by the Pinellas County School Board. On an unidentified day during the first semester of the 1993-1994 school year, the Respondent was observed fraternizing on campus with several Pinellas Park High School students. The Respondent was tossing a football with students in an area which was "off-limits" to students. A female student identified herein as T.C. was present. A school resource officer approached the Respondent, and informed him that the area was off-limits to the students and that it was not appropriate for him to socialize with students at that time. The Respondent informed the officer that he was a bus driver and his association with students was not inappropriate. On a later unidentified day during the first semester of the 1993-1994 school year, the school's assistant principal observed the Respondent walking with T.C. in the "mall" area of the high school campus. The assistant principal instructed the Respondent to cease fraternizing with students. On a third day during the first semester of the 1993-1994 school year, the assistant principal observed the Respondent standing near the school bus area and speaking with several students including T.C. The assistant principal contacted a supervisor at the school board's transportation department and informed him of the Respondent's behavior. Upon receiving the phone call from the assistant principal, the supervisor summoned the Respondent to his office and directed the Respondent to cease his association with the students. The Respondent agreed to refrain from having further contact with the students. On or about January 10, 1994, the school resource officer observed the Respondent and T.C. standing on campus next to a parked school bus, and watched as the Respondent kissed T.C. on her cheek. The student did not appear to resist the kiss. The officer reported his observations to the assistant principal who contacted another transportation supervisor and requested that the Respondent be removed from his employment as a bus driver at Pinellas Park High School. The Respondent was called to a meeting with the administrator of the School Board's Office of Professional Standards. During the discussion of the matter, the Respondent admitted that he had hugged and kissed T.C. on campus. During the discussion, the Respondent also admitted that he and the student had engaged in oral sex in January, 1994. By letter of March 3, 1994, the Respondent was notified that he was suspended with pay and that the superintendent would recommend dismissal to the school board at the meeting of March 23, 1994. A number of stories related to this matter have appeared in the local press, including the March 18, 1994 issues of the St. Petersburg Times and the Tampa Tribune. Engaging in sexual activity with a student is conduct serious enough to impair the Respondent's effectiveness in the school district and to bring the service of the School Board of Pinellas County into disrepute.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Howard Jessie. DONE and RECOMMENDED this 21st day of November, 1994, 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 21st day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1876 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County P. O. Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board P.O. Box 2942 Largo, Florida 34649 Mr. Howard Jessie 15695 Waverly Street, Apartment 2 Clearwater, Florida 34620
The Issue Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Cheryl McDonough (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent was initially employed as a teacher by the Petitioner in 1987. On December 11, 1989, the Respondent received a written reprimand from the Assistant Principal at Northeast High School for using poor judgement by displaying anger when dealing with inappropriate student behavior. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Northeast High School until budgetary considerations led to her transfer to Osceola High School. On January 13, 1992, the Respondent received a written reprimand for using poor judgement by displaying anger and using vulgar language when dealing with inappropriate student behavior at Osceola High School. The reprimand was issued by the School District Director of Personnel Services. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Osceola High School until her position was eliminated for fiscal reasons. On February 14, 1994, the Respondent received a written conference summary from Joann Andrews, Principal at Azalea Middle School, where she had become employed. The summary notes that alcohol had been detected on the Respondent's breath during school hours. The Respondent denied the allegation. On April 20, 1994, the Respondent received a written school memorandum from the Assistant Principal at Azalea Middle School for smoking in an inappropriate area on school property. In the summer of 1994, the Respondent was transferred to the district service center where she worked until gaining employment at Lakewood High School in the fall of 1994. By letter from the Superintendent of Pinellas County Schools dated July 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be suspended without pay for ten days. The basis for the recommendation were allegations that the Respondent made disparaging remarks to a student and his mother in front of other students, that the Respondent had the odor of alcohol on her breath, and that the Respondent made derogatory remarks about another teacher to other students and had attempted to disrupt the other teacher's class. On September 13, 1994, the School Board issued a Final Order suspending the Respondent without pay for five days based on the allegations set forth in the July 7 letter. The Final Order was issued pursuant to a settlement agreement reached by the parties. During the 1994-1995 school term, the Respondent was employed as a teacher at Lakewood High School. During a Lakewood faculty meeting on August 23, 1994, the smell of alcohol was detected on the Respondent's breath. During a Lakewood "open house" in September, 1994, the smell of alcohol was detected on the Respondent's breath. During the first semester of the 1994-1995 school term, several students smelled the odor of alcohol on the Respondent's breath. During the first semester of the 1994-1995 school term, the Respondent used vulgar language including "damn," "hell," "shit," "bitch," and "fuck" in the classroom and within the hearing range of students. During the first semester of the 1994-1995 school term, the Respondent used demeaning language towards students in her classroom, calling them "brats" and "dumb," and stating "you are the worst class" and "you will never amount to anything." The Respondent told her sixth period class that she would kill them if she thought she could "get away with it." On more than one occasion, the Respondent became frustrated by the class behavior. She would give the class a "work assignment" and would refuse to teach. There is no credible evidence that the "work assignments" were part of any prepared teaching plan or were otherwise utilized as instructional resources. During the first semester of the 1994-1995 school term, the Respondent physically separated her fourth period class into two groups which she identified as "learners" and "non-learners." A row of empty desks was used to divide the students. During this episode, the Respondent refused to teach the group she called "non-learners." After receiving complaints from students about the division, an official at the school visited the Respondent's class and directed her to reunite the class. By letter from the Superintendent of Pinellas County Schools dated November 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be dismissed. The basis for the recommendation were allegations as follows: the Respondent used profanity and demeaning language towards students on numerous occasions; the Respondent had alcohol on her breath while at school on two occasions; the Respondent stated to her sixth period class that she would kill them all if she could get away with it; and that the Respondent separated students into two groups within the classroom setting and taught only half the class. The Respondent requested a formal administrative hearing which is the basis for this Recommended Order. At the hearing, the Petitioner's expert witnesses opined that the allegations, if established to be true, were of sufficient seriousness to impair her effectiveness as a teacher.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Cheryl McDonough. DONE and RECOMMENDED this 20th day of June, 1995, 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6983 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, correct year is 1994. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to use of medication. The greater weight of credible and persuasive evidence fails to establish that the Respondent took the medication at the times when the odor of alcohol was detected on her breath. Immaterial. The evidence fails to establish that the students in the classes taught by the Respondent are responsible for her behavior therein. 6-11. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 14. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 15-16. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. Rejected. The Respondent does not recall making the statement so her explanation of her intent is speculative. As to the cited testimony of Ms. Hanes, it is immaterial because the statement is not "in and of itself" the sole event warranting termination. 19-21. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, immaterial, no related allegation. Rejected, immaterial Rejected, immaterial. Classroom management "techniques" are not the sole cause warranting termination. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
Findings Of Fact I. Respondent has worked as a custodian at Lake Worth High School since January, 1980. During the 1983-84 school year, he was assigned to work the 3:00 p.m. 11:30 p.m. shift. His duties included cleaning the top floors of the administration building, the old gymnasium, and the fieldhouse. His immediate supervisor was Edward Jerkins, Head Custodian at Lake Worth High School. Sometime in April, 1983, Mr. Jerkins received information that respondent and another custodian, Sam Kelly, were allegedly using marijuana while at work. Mr. Jerkins decided to investigate. On May 26, 1983, at approximately 9:45 p.m. -from the upper level of the administration building which overlooks the old gym area -Mr. Jerkins saw Sam Kelly enter the gym. Mr. Kelly was not assigned to work in this area, and it was not yet break time. Mr. Jerkins then saw respondent, who was sweeping the sidewalk outside of the old gym, enter the gym several minutes later. Mr. Jerkins waited for approximately one half hour, then proceeded to the old gym. On his way to the gym, he noticed that no one else was in the area. The doors to the gym were locked. He unlocked the doors with his key and entered the gym. He observed respondent and Sam Kelly sitting in the bleachers, and detected a strong odor of marijuana. Smoke was visible. Mr. Jerkins accused both men of smoking marijuana. The next day, he reported the incident to David D. Cant1ey, Principal of Lake Worth High School. After receiving Mr. Jerkins' report, Mr. Cantley warned both men that if they were found using marijuana on the school campus he would recommend to the Superintendent that their employment be terminated. II. On August 10, 1983, Kurt W. Auwaerter, Detective for the Lake Worth Police Department, was assigned to road patrol duties on the midnight 8:00 a.m. shift. He patrolled the southwest section of Lake Worth which includes the Lake Worth High School campus. On this date, Detective Auwaerter made his first routine check at Lake Worth High School at approximately 12:30 a.m. He dr9ve his police car to the rear of the school where the cafeteria was located. At that point he observed an unidentified man standing by a car. Since no one else was in the area and it was late at night, Detective Auwaerter became suspicious. He approached the man and asked for identification. The man produced a Florida drivers license, which indicated that he was the respondent. During this exchange, respondent was standing next to the door on the driver's side of the car. The detective, while speaking to respondent, looked into respondent's car with his flashlight. In plain view on the front seat of the car was a tray which held a cigarette "rolling" paper containing a brownish-green vegetable material. The detective recognized this material as marijuana. In addition, when the detective reached into the front seat of the car, he found a small manila envelope containing more of the same substance. He then arrested respondent for possession f marijuana, and transported him to the Lake Worth Police Station. The detective weighed the substance believed to be marijuana and determined that it weighed less than 20 grams. The substance was field tested and the test showed that it was, in fact, marijuana. 1/ On August 29, 1983, W. Paul LaChance, a schools board investigator, met with respondent and Principal Cantley. Because respondent spoke and understood little English, Carmen Chereza, an Hispanic native and substitute teacher at Lake Worth High School, was asked to interpret. Ms. Chereza translated Mr. LaChance's questions into Spanish and directed them to respondent. When he answered the questions, she repeated his answer in Spanish. If he agreed that it was correct, she translated it into English for Mr. LaChance and Principal Cantley. Respondent indicated that, sometime after midnight on August 10, 1983, he left work at Lake Worth High School. He approached his vehicle in the school parking lot and saw a small bag on the ground containing what he thought was marijuana. He picked it up and hid it in his car -intending to use it later. A few minutes later, Detective Auwaerter arrested him for possession of marijuana and took him to the Lake Worth Police Department. Respondent is familiar with marijuana and testified, at hearing, that he believed the substance in the bag to be marijuana. If a student is caught in possession of illicit drugs on school grounds, disciplinary action is taken. This rule should apply, with equal firmness, to employees of the school system. Due to the prior warning he received in May, 1983, respondent understood that if he was caught with marijuana on the school campus he would be recommended for termination.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be terminated from his employment for misconduct in office. DONE and ENTERED this percent percentay of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 day of May, 1984.
The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Ms. Lindstrand violated section 1012.67, Florida Statutes (2012), or whether there is just cause to terminate Ms. Lindstrand.
Findings Of Fact The School Board is charged with the duty to operate, control and supervise all free public schools within Broward County, Florida. At all times relevant to this matter, the School Board employed Ms. Lindstrand as a math teacher at Cypress Bay High School. Ms. Lindstrand had started her employment with the School Board in 1996. In June 2011, Ms. Lindstrand was arrested for driving under the influence (DUI). She hired an attorney and contested the charge. Her trial was scheduled for February 27 and 28, 2013. Ms. Lindstrand requested and had been approved for leave from February 26 through March 1. She requested the leave for February 26 through the 28th due to the trial, and the leave on March 1st was for the intended purpose of attending her grandfather’s 90th birthday party. She never informed the school or her parents that she had a trial; rather, she requested the leave for “personal reasons.” Ms. Lindstrand did not anticipate that she would be found guilty of the DUI charge, or that she would, upon being found guilty, be sentenced immediately to a period of incarceration. She had made no plans for that possibility. On February 28th, in the evening, Ms. Lindstrand called her father, Thomas Lindstrand, notifying him that she had been through the DUI trial, had been found guilty, and had been immediately incarcerated. Mr. Lindstrand informed his wife, and told her to call the school the next morning. Ms. Lindstrand’s mother called the school the morning of March 1st, and spoke with Ms. Estripeaut, an assistant principal at Cypress Bay High School. She informed Ms. Estripeaut that Ms. Lindstrand was in jail, and would remain in jail for a period of six weeks. Because Ms. Lindstrand was responsible for teaching seven math classes, which included classes where students are required to pass end-of-year tests in order to graduate, Ms. Estripeaut was tasked with the responsibility of finding a certified substitute teacher, with a math background, who could serve for a lengthy period of time. Once a qualified substitute teacher was selected, Ms. Estripeaut and the substitute teacher met with parents and students in order to reconcile grades in the grade books. Students reported that they had turned in assignments that were missing from the grade books, and parents were concerned about the students’ preparation for the end-of-year tests. On March 5th, Mr. Lindstrand called the school and spoke with Rebecca Johnson, who works as a Leave Specialist for the School Board. Ms. Johnson sent Mr. Lindstrand a leave request form, which he properly completed and filed on March 6, 2013. On approximately March 7th, Ms. Estripeaut contacted Mr. Lorenzo Calhoun, an Employee Relations Specialist for the School Board, and informed him that Ms. Lindstrand had been absent from work for three days without approved leave. Mr. Calhoun recommended that Ms. Lindstrand’s name be sent to the School Board for termination, because being absent from work for more than three days without approved leave constitutes abandonment under School Board policy. Prior to making his recommendation to Ms. Estripeaut, Mr. Calhoun confirmed with the Leave Department that Ms. Lindstrand had not been approved for leave for the three or more days that she had already been absent from work. When he called the Leave Department, she had not been approved for any leave. On March 7, 2013, a letter from the school, signed by the principal but prepared by Ms. Estripeaut, informed Ms. Lindstrand that her name was being forwarded to the School Board with the recommendation that she be terminated. It also informed her that her name would be placed on the meeting agenda for the School Board’s meeting on March 18, 2013. The letter was sent to the following address: “1408 NE 5 Ct. #4, Fort Lauderdale, Florida, 33301.” Ms. Lindstrand had lived at this address until August of 2012, at which point she moved to a different address, but never informed the school. Although Ms. Lindstrand had asked the post office to forward her mail to her new address, she never received this letter. On March 8, 2013, an almost identical letter was sent to Ms. Lindstrand from the Staffing Department, letting her know that her name was being forwarded to the School Board for termination, and that the School Board would meet on March 18, 2013. This letter was also sent to the only address on record for Ms. Lindstrand--an address where she no longer resided. According to Ms. Lindstrand, she never received this letter either. The Chief Human Resources Officer, Gracie Diaz, supervises the staffing department, leaves department, and employee relations department. On approximately March 7th, Ms. Diaz was informed that Ms. Lindstrand was incarcerated, and that the Cypress Bay High School principal and the staffing department were moving forward with the termination process. She was also informed that Ms. Lindstrand had requested personal leave. Ms. Diaz spoke with the School Board’s general counsel, and together they reviewed the collective bargaining agreement between the Broward Teachers Union and the School Board, which contained the following provision: Length of Leave: An employee who has been employed for more than three (3) years in Broward County may be granted upon request, personal leave without pay for a period not to exceed two (2) years for reasons not provided elsewhere in this Agreement. The employee shall be returned to duty at the beginning of the next school year following the leave. Such leave shall require the approval of the Superintendent. Ms. Diaz took the leave request form, as well as the letters from the principal and the staffing department regarding the termination process to the Superintendent. Given that the collective bargaining agreement leave provision is permissive in nature, Ms. Diaz recommended to the Superintendent that he deny the leave request, because she felt it was inappropriate to grant personal leave due to incarceration. She also recommended that the School Board go forward with termination. The School Board met on March 18, 2013, and voted to terminate Ms. Lindstrand’s employment. By letter dated March 22, 2013, the Leaves Department notified Ms. Lindstrand that her request for personal leave had been denied by the Superintendent. By letter dated April 9, 2013, Ms. Lindstrand was notified that the School Board had met and had approved the recommendation for her termination. Ms. Lindstrand was released from jail on April 6, 2013. She received these final two letters at the post office, a few days after being released.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order terminating Ms. Lindstrand’s employment. DONE AND ENTERED this 17th day of October, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 17th day of October, 2013. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 Adrian Alvarez, Esquire Deborah Klauber, Esquire Haliczer, Pettis, and Schwamm, P. A. Seventh Floor One Financial Plaza 100 Southeast Third Avenue Fort Lauderdale, Florida 33394 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0442 Robert Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0442
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Lyle Kehn's, employment as a custodian based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. Since August 28, 1995, Respondent has been employed by the School Board as a custodian. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (the "SPALC Agreement"). During the 2002-2003 and 2003-2004 school years, Respondent worked an evening shift at Cypress Lake High School. His job assignments included work at the Center for the Arts (the "Center"), which is a part of the Cypress Lake High School campus. During the 2003-2004 school year, S. B. was a junior at Cypress Lake High School. She studied theater at the Center. During the 2002-2003 school year, when she was a sophomore, B. had dated R. P., a junior at Cypress Lake High School. P. would stay late after school for band practice and met Respondent and began talking to him. R. P. told S. B. that Respondent was "cool" and had looked at pornographic magazines with him. R. P. introduced S. B. to Respondent, though S. B. never said more than "hi" to Respondent during the 2002-2003 school year. In December 2003, S. B. was cast in "All The World's A Stage," a play to be performed at the "Black Box," which was the theater contained within the Center. S. B. could not recall the precise dates of the performances, but she recalled that the play was performed from Thursday through Saturday on a week just before the winter break. On opening night of the play, the cast members were to report to the Black Box at 6:00 p.m. S. B. had planned to go home after classes ended at 2:00 p.m., but her mother was unable to pick her up that afternoon. Instead, S. B. chatted with friends for a few minutes after classes ended, then walked over to the Black Box. She went into the control booth, which contained the lighting and audio controls for the theater, to use the telephone there to call a friend. Respondent entered the control booth while S. B. was talking on the phone. He remarked on how dirty the booth was. B. responded that she was an actress, and it was not her job to clean the booth. Respondent replied that she should, nonetheless, clean up the mess in the control booth. Respondent then asked S. B. whether she had heard the song, "Stacy's Mom." This song, popular at the time, was about a boy dating a girl named Stacy, but preferring "Stacy's mom," who's "got it goin' on." The boy happily recalls mowing the lawn for Stacy's mom, who came out with just a towel on to show him a spot he'd missed. S. B. stated that Respondent smiled and nodded when he asked her about the song. S. B. found Respondent's question unsettling and ignored it, resuming her telephone conversation. After ending her telephone call, S. B. left the control booth and went to the dressing room where she happened upon a female friend. S. B. and her friend walked out to the theater lobby. Respondent entered the lobby from the outside. Respondent asked S. B. if she had talked to R. P. recently. S. B. and R. P. had ended their relationship in an acrimonious fashion the previous school year, as Respondent knew. S. B. answered, "Why would I talk to that asshole?" Respondent stated, "It's not his fault you're a slut," then laughed and began walking away. S. B. asked, "What did you say?" Respondent said, "You heard me" and walked away. S. B.'s friend shook her head and said, "Well, that was blunt." By this time, other cast members began arriving for the show that evening. S. B.'s friend went to the dressing room with the others, while S. B. remained in the lobby looking at cast photos from previous shows. Respondent walked back into the lobby. S. B. asked Respondent what R. P. had told him about her, but he would not say. S. B. dropped a pencil and bent to pick it up. Respondent said, "I've heard you like to bend over." S. B. walked into the theater, ending her interactions with Respondent. She testified that she never spoke to Respondent again. She did not believe the matter was a "big deal" at the time because she was more focused on the opening night of her play. S. B. did not report the incident to the school administration. On January 6, 2004, S. B. and a friend were looking for a three-ring binder that her friend had lost before the winter break. They asked John Hein, another custodian at Cypress Lake High School, whether he had found the binder. Mr. Hein told them that he had not seen a binder, but suggested that they ask Respondent, the evening custodian. S. B. said, "You mean the pervert?" In response to Mr. Hein's obvious confusion, S. B. stated that "everyone" knew that Respondent was a pervert and that he was "always making remarks to students." On the same date they were made, Mr. Hein reported S. B.'s comments to Rochelle Thimlar, an assistant principal at Cypress Lake High School. On January 9, 2004, Ms. Thimlar called S. B. to her office to discuss the situation. Ms. Thimlar had S. B. make a written statement. In her statement, S. B. briefly recounted the remarks that Respondent made to her and stated that Respondent looked at pornographic magazines with R. P., her former boyfriend. Ms. Thimlar forwarded S. B.'s statement to the school's principal, Tracy Perkins, who proceeded to call R. P. to her office. R. P. made a statement in which he admitted to bringing "inappropriate literature" to school and to sharing that literature with Respondent. R. P. stated that he and Respondent would joke around about "sexual humor." At his July 2004 deposition and again at the hearing, R. P. clarified that the "inappropriate literature" consisted of three magazines containing photographs of people engaged in sex acts. R. P. testified that Respondent looked at the magazines with him and that Respondent in no way voiced an objection or attempted to confiscate the magazines. To the contrary, Respondent asked R. P. whether he and S. B. engaged in the sex acts depicted in the magazines. R. P. testified that he would not have shown these magazines to any other adult. Finally, P. testified that he was not aware of S. B.'s statement to Ms. Thimlar at the time he made his statement to Ms. Perkins. On February 2, 2004, Ms. Thimlar asked S. B. to write a more detailed statement, preparatory to initiating a formal investigation of Respondent. This statement was consistent with the testimony recounted above. Ms. Thimlar then commenced efforts to contact S. B.'s mother to determine whether the student and her parents would cooperate with an investigation. On February 23, 2004, Ms. Thimlar finally spoke with S. B.'s mother, who stated that she wanted action taken immediately to remove Respondent from the campus. A formal complaint regarding Respondent's conduct was sent to Denise Phillips-Luster, the director of Equity and Recruitment for the School Board, on February 24, 2004. On the same date, the School Board suspended Respondent, with pay and benefits, pending the outcome of the formal investigation. In accordance with School Board policy and the SPALC Agreement, Ms. Phillips-Luster conducted the investigation and prepared an investigative summary of her findings. On March 18, 2004, a predetermination conference was held to allow Respondent to respond to the allegations. Prior to the predetermination conference, Respondent was provided a copy of the investigative summary. Respondent and his mother attended the predetermination conference and were each given an opportunity to speak and set forth Respondent's side of the story. Respondent denied knowing S. B. and denied every particular of her story. At the hearing in this matter, Respondent reiterated his denial. He testified that he cleans the Black Box at the end of his shift and would never have been there as early as S. B. alleged. As to the incident with R. P., Respondent testified that R. P. tended to hang around after school, trying to sneak into the band rooms to practice while he waited for his ride home. Respondent's job was to lock down the area to clean it. One afternoon, Respondent found R. P. in one of the band rooms eating and reading a magazine at the podium in the front of the room. Respondent told R. P. to leave the room. R. P. obeyed Respondent, but left his magazines on the podium. Respondent saw that they were pornographic magazines and took them to his supervisor. By letter dated April 28, 2004, from Georgianna McDaniel, the School Board's personnel director, Respondent was notified that probable cause had been found to believe the allegations were true and that a recommendation would be forwarded to the School Board that Respondent's employment be terminated. The Petition was served on Respondent on May 1, 2004. As initially served, the Petition alleged only the facts concerning the incident with S. B. At the time, the incident with R. P. was considered collateral to the main investigation because the investigators knew only that R. P. had shown Respondent "inappropriate literature" of some nature. The investigators believed that R. P.'s role, if any, would be to corroborate S. B.'s statements. It was only at R. P.'s deposition, taken July 26, 2004, that the School Board learned that the "inappropriate" material consisted of pornographic magazines containing photographic depictions of sex acts. This deposition caused the School Board to file a motion on July 27, 2004, to amend the Petition to include the charges related to Respondent's actions with R. P. Respondent has been reprimanded, warned, or cautioned for his behavior on at least eight previous occasions. On April 27, 1998, he received a letter of caution regarding comments and actions toward a female co-worker that could be interpreted as "suggestive," if not "sexual harassment," as alleged by the co-worker. On January 8, 2001, Respondent received a letter of reprimand for inappropriate, suggestive remarks to a female night school student. On four other occasions, Respondent has been reprimanded for inappropriate remarks and/or behavior toward co-workers, including a June 7, 2000, reprimand for discriminatory remarks he made to and about Spanish-speaking co-workers. Respondent denied making the remarks, despite the contrary statements of multiple witnesses. In the instant case, given Respondent's denial that he looked at pornography with R. P. or that he had ever even met B., the main question is the credibility of the witnesses. The story related by S. B. was credible, and no reason was presented at the hearing as to any motive she would have to invent her story. She barely knew Respondent, had no desire to press the case against him, and had nothing personal to gain by testifying against him. She did not think the incident was a "big deal" at the time and said little or nothing about it to her friends or parents. She did not complain to school officials. Rather, her off-the-cuff statement to another custodian that Respondent was a "pervert" caused the assistant principal to call her in for a conference. S. B.'s testimony concerning the incident with Respondent on opening night of "All The World's A Stage" is credited. Respondent's contrary testimony is not credible. Likewise, R. P. had no motive to invent a story about Respondent. In fact, given R. P.'s rancorous break-up with S. B. and the continuing animosity between them, his natural motive would more likely be to support Respondent and, thereby, put the lie to his former girlfriend's story. Further, R. P. appeared genuinely to like Respondent and was reluctant to testify against him at the hearing. Nevertheless, R. P. admitted looking at pornographic magazines with Respondent, as detailed above. R. P.'s testimony is credited. Respondent's contrary testimony is not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order that terminates Respondent, Lyle Kehn's, employment. DONE AND ENTERED this 21st day of February, 2005, 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 21st day of February, 2005.
The Issue The issue in this case is whether Respondent is guilty of absence without leave from her teaching duties, willful neglect of duties, and misconduct in office, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a teacher certified by the State of Florida to teach French and German. Her teaching certificate is endorsed with Gifted education. Gifted education is a special category within Exceptional Student Education (ESE) in which students with superior aptitudes receive academic enrichment. Respondent has taught for several years in the Highlands County School District. For the 1992-93 school year, she was on continuing contract. She was paid $33,630 annually at a rate of $24.50 hourly during the 1992-93 school year. On or about April 8, 1993, Petitioner terminated Respondent after determining that she had been absent without leave from her teaching duties and had willfully neglected her duty to teach a physical education class beginning at 3:45 pm daily. Prior to the 1992-93 school year, Respondent had been an itinerant teacher for several years. For the most part, she had traveled among various elementary and middle schools teaching in the gifted program. Now a gifted education teacher at an elementary school, Diane Lethbridge was, at all material times, the Program Staffing Specialist for Exceptional Student Development. At the end of the 1991-92 school year, Ms. Lethbridge informed Respondent that her current position as a gifted teacher would not be available for the following school year. Ms. Lethbridge offered Respondent two alternatives. She could exercise her seniority rights to displace another teacher at three elementary and middle schools or she could teach older students at Trout Lake. Trout Lake is a residential ESE facility operated by Tri-County Addictions, Inc. Consisting of 43 acres, the facility includes residential and school buildings, which are not within sight of each other. It takes about 10 minutes to walk between the residences and school building. Trout Lake serves an average of 18-24 students ranging in age from 13 to 18 years. The students have all been classified as Severely Emotionally Disturbed (SED) and often suffer from drug addiction. In general, the students present difficult management problems. Petitioner is contractually responsible for educating the Trout Lake students. Toward that end, Petitioner has routinely assigned one or two teachers to teach the students at the school building located on the Trout Lake campus. Immediate responsibility for the teachers rests with the principal at Avon Park High School, which is about five miles from Trout Lake. During the 1991-93 school years, the principal was Barbara Dean. Given the nature of the students, however, considerable responsibility for the success of Petitioner's involvement with the Trout Lake program rests with Petitioner's District ESE staff. After Respondent agreed to take the Trout Lake position, and shortly before the end of the 1991-92 school year, Ms. Dean contacted Respondent and told her that she would need to teach summer school at Trout Lake. Respondent reported to the facility and team-taught a vocational course with another teacher, Harold Graves, who is the respondent in DOAH Case No. 93-2867. During the same summer, Respondent commenced coursework to become certified in SED. Respondent's schedule at the beginning of the 1992-93 school year required her services from 8:15 am to 3:45 pm. Her duties on Monday, Tuesday, Thursday, and Friday were different from those on Wednesday. Each weekday morning, the students began the day around 7:15 or 7:30 am with about an hour of peer counselling. Respondent was not involved in this activity, which took place at the residence. On weekdays except Wednesdays, the students were divided into two groups. One group went to school in the morning while the other group remained at the residence for counselling from the counsellors employed by Trout Lake. In the afternoon, the group that had gone to school went to the residence for counselling, and the group that had remained at the residence went to school. The students who went to school in the morning typically left the residence for school at about 8:30 am. At about 11:30, after four periods of about 45 minutes each of social studies, science and health, mathematics, and English, the morning students rejoined the others at the residence for lunch. At around 12:30 pm, the afternoon students arrived at the school building and attended the same four courses until about 3:30 pm. The Wednesday schedule was different. The Trout Lake counsellors needed one weekday during which they could counsel all of the students together. Thus, on Wednesdays, all of the students went to school in the morning and were taught in classes twice as large as normal. From 11:00 am to about 11:30 am, the counsellors met with various groups. Then, lunch took place at the residence from about 11:30 am to about 12:30 pm. Beginning at about 12:30 pm, the counsellors conducted a staff meeting at which they discussed the students and any problems that they were facing. Respondent typically attended the lunch at the residence each weekday, but she did not attend the Wednesday afternoon staff meeting. Instead, she had the remainder of the afternoon on Wednesdays to plan. This was the only time that she had available all week for planning. Sometime in late September, 1992, the Bartow Adolescent Facility closed. As a result, Trout Lake received another 10 students for whom it had not planned. During the first week of October, 1992, Petitioner conducted its district-wide Full Time Equivalency (FTE) count of students. The FTE count has two effects. If a district is not yet at its funding cap in a certain program, a greater FTE count than projected the preceding year may result in the receipt of increased revenues from the State Department of Education. Petitioner was at or near the cap at the time. The second effect is that an increased FTE count results in increased funding for the following year. The FTE count of non- Gifted ESE students, such as the SED students at Trout Lake, is particularly important because the allocated revenues are higher for non-Gifted ESE students than for non-ESE students. Sometime during the first week of October, Ms. Dean, Ms. Lethbridge, and Ms. Furnville, who was the director of Trout Lake, met and discussed the FTE count. They discovered that at least some of the students at Trout Lake were receiving only 1250 minutes weekly of SED classes, rather than the 1500 minutes that they thought that the students had been receiving. Ms. Dean approached Respondent about teaching a class from 3:45 pm to 4:45 pm, for which Respondent would be paid additional money. At the time, Ms. Dean thought that the additional class would be fine arts and so informed Respondent, who agreed to teach the class. Ms. Dean later discovered a problem preventing the offering of a fine arts class and informed Respondent that she would be teaching physical education during the same time period. Respondent is more artistically, than athletically, inclined and skilled. Respondent freely admitted her concerns about teaching physical education to Ms. Dean when Ms. Dean informed Respondent of the change in subject matter. Ms. Dean assured Respondent that she would not have to teach anything. Ms. Dean said that Respondent would merely supervise the activities of Trout Lake counsellors as they continued to conduct what had been a recreation period during the same time period. Ms. Dean told Respondent that she would not be required to have lesson plans for the class, but would only have to watch while the students played games. Respondent agreed to supervise the class for which her duties were essentially taking attendance and assigning grades. The 3:45 pm physical education class was in no way adapted to the special needs of the SED students, nor was Respondent in any way qualified to adapt the course. In fact, Respondent was capable only of taking attendance; she could not reasonably have been expected to assign grades to the students under the circumstances. These obvious shortcomings in the course and teacher were well known by Ms. Dean, Ms. Lethbridge, Ms. Furnville, Trout Lake employees, Petitioner's District ESE employees, and probably Trout Lake students. Prior to the creation of the 3:45 pm class, Trout Lake had provided a recreation period at 3:45 pm, during which Trout Lake residents could play softball or other sports while being supervised by counsellors. Petitioner merely overlaid the 3:45 pm class upon the recreational activities already taking place at 3:45 pm. The decision to create the 3:45 pm course was driven exclusively by financial, not educational, reasons. The 3:45 pm physical education class was not started until October 20, 1992. Despite this fact, IEP's for the students assigned to the new physical education class indicated that the class had begun October 6, which was when the FTE count took place. Respondent signed these forms at the direction of Ms. Lethbridge, who had prepared them. On October 30, 1992, grades were due for the first grading period. Because she had only seen the 3:45 pm physical education class for about two weeks, Respondent did not turn in any grades to Avon Park High School for the class. She was promptly contacted by an Avon Park High School guidance counsellor, who informed her that she had to give the students grades. So, she tried as best she could to grade them, largely on the basis of having seen them play around the campus at various times. Neither the grades for the first grading period nor any subsequent grades for the 3:45 pm class fairly measured the performance of ESE students in a physical education class. Regardless of Respondent's efforts, the class was by design not a physical education class, Respondent was ill-equipped to teach and grade a real ESE physical education class, and Respondent's participation by design had been reduced to taking attendance and assigning grades. Understandably, the Trout Lake students and staff treated the 3:45 pm class like it was simply the recreational period; from their perspective, nothing had changed. Presumably as had been the case before Petitioner's paperwork created the 3:45 pm physical education class, the students, who had returned to their residence after the end of their regular classes, did not always reappear for the 3:45 pm class. Sometimes, counsellors would require the students to stay and clean their rooms rather than attend the 3:45 pm physical education class. When attendance problems first arose, Respondent would go to the residence to find the students and a counsellor. The students were required to be escorted from the residence to the school building by a counsellor. On occasion, Respondent could not find a counsellor. Other times, not finding the students at the residence, Respondent would look for them on the courts or fields where they played, but sometimes could not find them there either. In January, 1993, Respondent learned from the shop teacher, who taught a 3:45 pm shop class, that Trout Lake had hired an art teacher to offer a 3:45 pm art class. Consequently, attendance at the 3:45 pm physical education further declined, as the students decided each day where they would go--shop, art, or physical education. One time, Respondent, who had gone to the residence looking for the students, waited 30 minutes while they debated where to go; they ultimately decided to go to art. These developments merely confirmed the obvious--the creation of the physical education class in October was a change of form, not substance. Shortly after the attendance problem first arose, Respondent told Ms. Lethbridge that students were not coming to the 3:45 pm class and counsellors were not cooperating. Ms. Lethbridge merely told Respondent to check attendance and asked her how she would grade them. Ms. Lethbridge did not mention the matter to other ESE staff or Ms. Dean. Evidently feeling that Ms. Lethbridge would take care of the matter, Respondent did not again raise it with Ms. Lethbridge or anyone else apart from Mr. Graves and one or more school aides, except for one time--described below-- with Ms. Dean. One time, Mr. Graves told Ms. Furnville of the attendance problems. The students began to show up for the 3:45 pm class for the next few days, but then quit attending after that. Respondent understandably felt isolated at Trout Lake. She received no orientation from Ms. Dean or any of the ESE staff when first assigned to Trout Lake. She had to learn the customs from a paraprofessional and Mr. Graves, who himself had been assigned there only one year earlier and worked as the only teacher his first year. In addition, neither Respondent nor Mr. Graves was able or expected to attend faculty meetings at Avon Park High School. Ms. Lethbridge visited the facility once every week to three weeks. However, she visited Ms. Dean only once monthly. Ms. Lethbridge's supervisor, Connie Tzovarras, visited the Trout Lake only one time between September, 1992, and March, 1993. The Avon Park High School Assistant Principal responsible for Respondent's evaluations, Paul Gentz, visited Trout Lake only once in the same period--for Respondent's evaluation. From September, 1992, through mid-March, 1993, Ms. Dean visited Trout Lake twice. One time, she came when computers had been stolen. On this occasion, Respondent alluded to feelings of guilt over taking money to teach the 3:45 pm physical education class that the students were routinely not attending. Ms. Dean ignored Respondent's remark. The second visit of Ms. Dean was when she evaluated Mr. Graves. Respondent submitted her gradebook to Ms. Dean, who did not discuss with Respondent the grades for the first grading period of ten days. Petitioner's policy is that the attendance problems at the 3:45 pm class should have been addressed by Ms. Dean. Respondent could reasonably have expected Ms. Lethbridge to share Respondent's concerns with Ms. Dean. However, based on Ms. Dean's failure to respond to Respondent's single comment, Respondent may reasonably have assumed that Ms. Dean was not especially interested in the attendance problems. The other likely source of assistance for Respondent was Petitioner's ESE office, which demonstrated no interest in the matter. Ultimately, Ms. Dean received a letter of reprimand for her supervision of the Trout Lake teachers. The record is silent as to any discipline administered to Petitioner's District ESE staff. Petitioner's witnesses testified that Respondent should have contacted Ms. Dean before leaving the Trout Lake school. In general, these witnesses attributed the authority for this practice to courtesy or professionalism. However, no such practice had existed when Respondent traveled from school to school as an itinerant gifted teacher. In fact, Respondent was at first unsure of how she should handle signing in and out. She initially signed out at lunch. After awhile, she signed in once at 8:15 am and signed out once at 4:45 pm. The completed sign-in and sign-out sheets, which were kept at the school building at Trout Lake, were periodically submitted to the bookkeeper at Avon Park High School, who, as it turns out, was either not reading the sheets or ignoring all discrepancies. In any event, no one at Avon Park objected to the single sign-in and sign-out, and Respondent reasonably assumed that her practice was acceptable. Respondent began occasionally to leave the school early and sign out at 3:45 pm after it became clear to her around the end of November, 1992, that the 3:45 pm physical education class existed only as a meaningless entry in the students' IEP and Petitioner's FTE count. By this time, the students assigned to the class were no longer reporting to one of the places at which they had played before the creation of the physical education class and where, subsequent to its creation, Respondent was to take attendance and grade the students' "work." Respondent signed out early about nine times, which were all in December, 1992, and January, 1993. Again, no one at Avon Park said anything, probably because, unknown to Respondent, no one noticed the timesheet. However, there was not enough variation in the amounts of her paychecks to credit Respondent's testimony that she assumed that Petitioner might not be paying her for those days when she signed out early. Eventually, without signing out early, Respondent left school before 4:45 pm when the physical education class was scheduled. But she never failed to appear and perform her minimal duties on any occasion that the assigned students reported to the class. Respondent testified that she sometimes left the school early on Wednesday afternoons, during her planning time, to perform school-related duties, such as gathering supplies or meeting with school personnel at other locations. Undoubtedly, these are appropriate activities for which Respondent may leave the campus. Given the customs of Trout Lake, Respondent's past experience as an itinerant teacher, and the failure of Ms. Dean or any ESE staff to instruct Respondent differently, there was no requirement that Respondent advise anyone at Avon Park High School or the ESE District office of such departures for school business or that she sign out when leaving the campus on school- related business. The absence of a requirement of notice to someone at Avon Park High School or at least signing out before leaving campus on school-related business is crucial to Petitioner's case. There is considerable evidence that Respondent was not at the Trout Lake school building on Wednesday afternoons, as well as other weekdays between 3:45 pm and 4:45 pm. But, with one exception, there is no evidence that Respondent was not pursuing school-related matters during such times. Given the remoteness of Trout Lake and its relative lack of on-site resources, Respondent necessarily had to leave the campus to carry out normal planning activities. If Respondent's departures from campus had been accompanied by a violation of some clearly defined policy, it would be reasonable to infer that Respondent was pursuing personal business. However, Petitioner has proved that one of Respondent's absences had nothing to do with school business. On March 17, 1993, which was a Wednesday, Ms. Dean found no cars in the school parking lot at Trout Lake sometime between 2:00 and 2:30 pm. In fact, Respondent had left Trout Lake at 11:00 am to go volunteer at the annual Sebring Road Race. She appeared at the racetrack at about 1:30 pm where she relieved another volunteer, who was an ESE staffperson with approved leave. Although Respondent had obtained personal leave for the second and third days of the race--March 18 and 19--she had not done so for March 17, probably because she knew that she did not have enough leave left for three days. By letter dated March 26, 1993, Petitioner advised Respondent that she was charged with misconduct in office, willful neglect of duties, violation of School Board Policy 2.31, and violation of Section 231.45, Florida Statutes. The letter also cites a violation of Section 231.44, Florida Statutes, for absence without leave. The testimony of Dr. John Martin, Petitioner's Deputy Superintendent, explained that the allegation of willful neglect of duties, which is omitted in the case against Mr. Graves, is due to Respondent's failure to teach the 3:45 pm physical education class. The remaining allegations, which are the same as those asserted against Mr. Graves, involve Respondent's absences without leave. The March 26 letter further informs Respondent that the Highlands County School Board, at its next meeting on April 8, 1993, would consider the recommendation of the Superintendent that Respondent's employment be immediately terminated. In the meantime, the letter states that Respondent was suspended with pay. On April 8, 1993, Petitioner terminated Respondent. By letter dated April 14, 1993, Petitioner advised Respondent that it had determined that she owed the School District $3272.09 for monies paid for which duties were not performed and $343.14 in excessive sick leave taken. Petitioner recovered these sums from Respondent by withholding them from her final paycheck. By letter dated May 19, 1993, Respondent requested a formal hearing on her termination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Highlands County School Board enter a final order refunding to Respondent $3125.09 and reinstating Respondent, without back pay, to a continuing contract at her former rate of pay as of the first day of school after January 1, 1994. ENTERED on December 9, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on December 9, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2866 Treatment Accorded Proposed Findings of Petitioner 1-20: adopted or adopted in substance. 21: rejected as unsupported by the appropriate weight of the evidence. 22-29: adopted or adopted in substance. 30: rejected as unsupported by the appropriate weight of the evidence. 31-33: rejected as irrelevant. 34: rejected as unsupported by the appropriate weight of the evidence. 35: rejected as irrelevant. 36-39: adopted or adopted in substance. 40-41: rejected as recitation of evidence. 42: rejected as irrelevant. 43: rejected as unsupported by the appropriate weight of the evidence and irrelevant in the absence of proof that Respondent was not off-campus pursuing school-related duties. 44: adopted. 45-52: rejected as subordinate and incomplete insofar as Respondent may have been performing school-related duties. 53-57: rejected as subordinate. 58: adopted to a limited extent. 59: rejected as irrelevant. 60-64: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent 1-11: adopted or adopted in substance. 12-13: rejected as irrelevant. 14: adopted. 15, 18-19, and 22: adopted except for the occasions that Respondent was absent without leave. 16: adopted. 17: adopted as to oral instruction. Rejected as to the implication that no other sources of authority exist regarding absence without leave. 20: rejected as recitation of evidence and subordinate. 21: adopted. 23: rejected as recitation of evidence. 24: adopted. 25: adopted in substance. 26: adopted. 27: rejected as unsupported by the appropriate weight of the evidence. 28-31: adopted or adopted in substance. 32: adopted, although Respondent only indirectly alluded to the attendance problems with Ms. Dean when she mentioned that she felt guilty taking the money when she had no class to teach. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected that Respondent invariably signed out as unsupported by the appropriate weight of the evidence. 35-36: adopted. COPIES FURNISHED: Gavin W. O'Brien Gavin W. O'Brien, P.A. 1806 Manatee Avenue West Bradenton, Florida 34205 Mark S. Herdman Kelly, McKee Post Office Box 75638 Tampa, Florida 33675-0638 Superintendent Richard Farmer Highlands County School District 426 School Street Sebring, Florida 33870-4048 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner, Polk County School Board ("School Board"), had just cause to terminate Respondent, Blanca R. Ortiz' ("Respondent"), employment as a teacher.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed by the School Board as a teacher at Lakeland High School, where she taught spanish. Respondent currently holds a professional services contract pursuant to Section 1012.33, Florida Statutes (2007).1 On February 6, 2008, Chelsey Etgen, a Lakeland High School student in Respondent's fourth-period class, left her packback in Respondent's classroom during the lunch period. The backpack contained Ms. Etgen's iPod Touch ("iPod"). When Ms. Etgen returned to the classroom from lunch, an unidentified male student, who was sitting near her, handed her (Etgen) a graph and a calculator and asked if those were her items. Ms. Etgen recognized both the graph and calculator as items that belonged to her and that had been in the same "pocket" of her backpack as her iPod. Ms. Etgen immediately checked her backpack and, upon doing so, discovered that her iPod was missing. Immediately after Ms. Etgen discovered that her iPod was missing, she notified Respondent. Respondent had the students in the class empty their pockets, but the iPod was not found. Respondent then instructed Ms. Etgen to notify appropriate school officials that the iPod had been taken from her backpack. On February 7, 2008, Ms. Etgen reported to the school resource officer ("resource officer" or "officer") that the iPod was missing from her backpack. Ms. Etgen's iPod was black with a silver face/screen. About a week after Ms. Etgen reported that her iPod was stolen, Respondent asked Ben Brown and another student in Respondent's third-period Spanish I class if they could unlock her iPod. Respondent told Mr. Brown and the other student that her daughter had taken the iPod to school and tried the password so many times that it (the iPod) had "locked up." Mr. Brown and several other students attempted to "unlock" the computer, but were unsuccessful in doing so. Almost two weeks after Ms. Etgen's iPod was reported as missing, Ms. Etgen told Mr. Brown that she thought Respondent had her (Etgen's) iPod. The two students then arranged for Mr. Brown to check the serial number on the iPod that Respondent stated was hers with the serial number of Ms. Etgen's stolen iPod. Mr. Brown agreed to get the serial number off the iPod. As a security measure, Mr. Brown told Ms. Etgen that after he obtained the serial number from the iPod, he would e-mail half of the serial number to her and indicated that she should provide the other half of the serial number to him. On or about February 20, 2008, and after the conversation described in paragraph 8, Mr. Brown went to Respondent's third-period class. The iPod, which Mr. Brown had been trying to "unlock" for Respondent, was still in Respondent's classroom. That day, Mr. Brown was able to hold and look at the iPod and to obtain the serial number of the iPod. Ms. Etgen obtained the serial number of her stolen iPod from the box in which the iPod had come. On February 20, 2008, Mr. Brown and Ms. Etgen exchanged a series of text messages in which each of them provided parts of the serial number of the iPod that was in Respondent's classroom. After doing so, Mr. Brown and Ms. Etgen confirmed that the serial number of the iPod that Respondent had said was hers matched the serial number of Ms. Etgen's stolen iPod. The iPod from which Mr. Brown obtained the serial number discussed above, looked identical to the one that he had been trying to "unlock" for Respondent. After confirming that the iPod in Respondent's classroom matched her iPod serial number, Ms. Etgen told school officials that she believed Respondent had her (Etgen's) iPod. Ms. Etgen also delivered to resource officers, Stacy Pough and Steve Sherman, the box for her iPod that had the serial number which Ms. Etgen believed matched the iPod in the possession of Respondent. On February 20, 2008, soon after receiving information from Ms. Etgen about the matching iPod serial numbers, Officers Pough and Sherman went to Respondent's classroom to ask her about the missing/stolen iPod. Upon entering the classroom, the officers approached Respondent and Officer Sherman asked Respondent about Ms. Etgen's missing iPod and asked if she had the iPod. In response, Respondent told the officers that she did not have the iPod. The resource officers then left the classroom and went into the hall and reported what they had been told to Lakeland High School administrators, Mr. Thomas, then principal, and Tracie Collins, then assistant principal of curriculum. When the resource officers made the initial contact with Respondent, Lakeland High School students, Tyler Qualls and Barbara Duckstein, were among the students in Respondent's classroom. Both Mr. Qualls and Ms. Duckstein overheard the conversation between the resource officers and Respondent described in paragraph 14. Although Respondent told the officers that her iPod was at home, both Mr. Qualls and Ms. Duckstein had seen Respondent with an iPod earlier that day. In fact, that same day and before the officers came to Respondent's classroom, Respondent had asked Ms. Duckstein to see if she could unlock Respondent's iPod. Ms. Duckstein then attempted to "unlock" what she believed to be Respondent's iPod,2 but was unsuccessful in doing so. Soon after the resource officers left Respondent's classroom, Ms. Duckstein left the classroom and told the officers that Respondent had an iPod in the classroom. After Officers Pough and Stewart completed their initial interview with Respondent and left her classroom, Mr. Quall observed Respondent remove the iPod from her desk drawer and put it in her black tote bag. After the resource officers' initial interview with Respondent, the students in Respondent's classroom were released early for lunch. Ms. Collins told Respondent that a student had "something" missing and asked her if the officers could come in and look around the classroom. Respondent agreed to allow the officers to search the classroom. Ms. Collins then authorized the resource officers to search Respondent's classroom. During the search, Ms. Collins observed Respondent move a stack of papers and folders from her desk into a bag. The manner in which Respondent moved the items made Ms. Collins suspicious, so she asked Officer Pough if he had looked in the bag. Officer Pough told Ms. Collins that he thought he had, but would look again. While looking through the bag, Officer Pough found the iPod that belonged to Ms. Etgen. At the hearing, Respondent testified that she did not take Ms. Etgen's iPod and that she did not know how the iPod got in her tote bag. Respondent also testified that she had received an iPod for Christmas and that she had asked the students to "unlock" the iPod that she believed was hers. Respondent's testimony implied that her iPod was identical to Ms. Etgen's iPod and that this may have been a source of confusion as to which iPod she had asked the students to "unlock." However, Respondent provided no evidence to support her claim that she had an iPod.3 In attempting to explain how Ms. Etgen's iPod came into her possession, Respondent then testified that on February 20, 2008, she confiscated several electronic devices, including an iPod, from students who were using them in class and placed the items on her desk. Respondent testified that at the end of the class, the students were allowed to come and retrieve the items, but apparently one unidentified student did not retrieve the iPod, but left it on Respondent's desk. Respondent suggested that perhaps it was that unidentified student who brought Ms. Etgen's iPod into Respondent's classroom on August 20, 2008.4 Respondent's testimony was confusing, vague, and unpersuasive. Ms. Collins, now principal of Lakeland High School, testified that the success of a teacher is tied to his or her credibility (character and integrity) with the students. The evidence supports the allegation that Respondent stole a student's iPod. Moreover, the evidence established that the incident occurred at school and that students at the school, as well as administrators, knew about the incident. Given the foregoing, Respondent is no longer an effective teacher. As a result of the subject incident on or about November 5, 2008, Respondent was convicted of petit theft in a criminal proceeding in Polk County, Florida.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing Respondent, Blanca Ortiz, from her position as a teacher. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 December, 2008.
