The Issue Whether Respondent is subject to personnel action as specified in the Notice of Charges and if so, what action should be taken.
Findings Of Fact Respondent Casey Carlisle is a teacher at Santa Fe High School and is employed by the Alachua County School Board on a professional service contract. Respondent has taught at Santa Fe High School since 1990 and has taught in the Florida public school system for 32 years. The 2006-2007 school year for students began on Monday, August 14, 2006. Respondent teaches a business systems technology course during the sixth period in Room 11-011. The class has approximately 30 students. Respondent is hard of hearing. He advises both teachers and students of his hearing problem, and tends to speak louder than most. According to his wife, he does not need a microphone when he is talking. He had advised the sixth period class of his hearing problem and his tendency to speak loudly on the first day of school. Room 11-011 is a large classroom, although not the largest in the school. The noise from the air conditioner, lights, computers and monitors, and the normal activity of having a classroom full of students shuffling their feet and passing things out, combined with Respondent's hearing deficit, is such that Respondent finds it necessary to speak loudly in this room. Respondent also has a tendency to "talk with his hands," and did so often during his testimony at hearing. The computers in Respondent's classroom were not functioning properly on the first day of school, which caused frustration for students and teacher alike. As a result, Respondent changed his plans for the second day and gave the students an alternative lesson. In preparing for this lesson, it was necessary for him to hand out books and document holders at the beginning of class that were still in the storage cabinets in the classroom. On this same day, Principal Bill Herschleb was monitoring students in a common area on campus during the transition between fifth and sixth periods, which is his normal practice during the initial days of a school year. A student came up to him and asked for help retrieving a backpack that had been left in Room 11-011. Herschleb escorted the student to the classroom to retrieve the backpack so that the student would not be considered tardy going to his next class. Herschleb entered Respondent's classroom with the student while Respondent was giving instruction and handing out books and document holders. According to Herschleb, he remained in the room only 15-30 seconds, and Respondent's back was to him. Herschleb testified that Respondent was yelling down the second row of students in the direction of a particular student, leaning toward that student and saying very loudly, "Come on, buddy, come on," in what the principal perceived as a threatening challenge. The principal believed that he would have to intervene because a physical confrontation was eminent. The principal testified that Respondent was speaking much louder than normal; that he was gesturing and motioning; that the veins of his temples were sticking out and that in Herschleb's judgment, the volume of Respondent's voice was not appropriate for a classroom setting. During this brief exchange, Respondent also allegedly stated, "I'll show you what we're going to do," and turned to his left. At that point, he saw the principal standing near the door and asked what he needed. Herschleb explained that the student wanted to get his backpack. However, the backpack was not located and both Herschleb and the student left the classroom. Herschleb acknowledged that while he felt the incident to be totally inappropriate, Respondent used no name calling and no profanity, and no physical altercation actually occurred. Herschleb did not testify how close Respondent was to the student in question and did not explain how he could see veins at Respondent's temples when Respondent had his back to him. Several students, as well as Respondent, testified regarding their recollection of the incident. Their testimony varied greatly, in terms of whether anything out of the ordinary happened; whether Respondent was speaking louder than normal; which student, if any, was the subject of Respondent's anger; and the reason for any action taken by Respondent. Their testimony was uniform, however, that there was no physical threat to any student. Further, the incident, to the extent there was one, had not made a lasting impression on any student in the classroom. Based on the evidence presented, it is found that Respondent admonished Garrett Holton for speaking in class when he asked questions of Sarah Sapp, a student sitting next to him, after Respondent had instructed the class not to talk without being recognized first. He pointed at Garrett while speaking to him, but there were no threatening gestures. Respondent did raise his voice, but was not much louder than usual, especially when it is taken into account that he was in the process of passing out document holders and at times had his back to the class. While Respondent did not feel well and may have been irritated, he was not angry. Respondent told the student he would get a referral if he continued to talk. Both the student to whom the comments were directed and the girl to whom he was speaking ultimately viewed the incident as not being a "big deal." Garrett Holt testified that while he was embarrassed initially and did not want to get into trouble, he did not take it too seriously and did not indicate any reluctance to return to the class the next day. Sarah thought it was just a normal day, and teachers yelling in class is "nothing new." She did not think the incident was a big deal and felt she and Garrett were treated appropriately and should have waited to discuss the lesson after Respondent finished talking. The students did not feel threatened and the incident was not the subject of conversation around the school. No student or parent complained about the incident. Indeed, one student testified that the matter had been "blown up into something that it wasn't," and it wasn't "necessary to go to court over." Several students considered the day just an ordinary day. Respondent certainly thought so, and was actually pleased with the overall progress of his class that day, given the challenges the computers had presented. After class ended, Respondent saw the backpack that the student with Herschleb had not been able to find, and loaded it onto his cart to take it to Herschleb or to the student via the lost and found. The next morning Respondent saw Herschleb and told him he had found the backpack. He asked what Herschleb wanted him to do with it and apologized for not helping more to find the backpack during class time, making a comment to the effect that "it shouldn't have happened that way." Herschleb understood his apology to mean that Respondent recognized that his behavior the day before as inappropriate. On Wednesday afternoon, August 16, 2006, Herschleb gave Respondent a letter notifying him of a meeting with the principal to be held on Friday, August 18, 2006. Respondent did not know that Herschleb had any concern about his conduct during the August 15, 2006, sixth period class until Herschleb made the allegation on Friday, August 18, 2006. During this meeting, Herschleb explained what he had observed on Tuesday afternoon in Respondent's classroom and why he was concerned. Respondent denied any wrongdoing. Respondent was placed on administrative leave with pay so that the matter could be investigated. The matter was also reported to Joan Longstreth, Assistant Superintendent for Human Resources for the Alachua County School Board. An investigator was assigned who obtained random statements from members of the sixth period class. After receipt of the administrative investigative report, a committee was convened to review the report and make a recommendation. While the committee members discussed the student statements, the most significant factor in recommending disciplinary action to the superintendent was the fact that the school principal had observed the incident.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing all charges against Respondent. DONE AND ENTERED this 5th day of February, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th of February, 2005.
The Issue The issue in this case is whether a convicted felon should be dismissed from her position as a public school teacher for having committed a criminal act.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. When this proceeding began, Respondent Shaneen Singleton ("Singleton") was a fifth-year teacher in Miami, where she taught second grade. From 2002 until she was suspended in January 2007, Singleton was assigned to Edison Park Elementary, which is a public school within the School Board's jurisdiction. Singleton was born in 1974, the second oldest of ten siblings. She grew up near downtown Miami in Overtown, a dangerous inner-city neighborhood plagued by poverty and crime. In Singleton's words: "Of course . . . you have the fighting, the shootings, a lot of things going on [in Overtown]." As a child, Singleton met Tashimba Andrews, who has been a lifelong friend. When they were teenagers, Ms. Andrews and Singleton participated in a government program for children whose parents were receiving public assistance. Through this program, Ms. Andrews and Singleton were employed, for several summers, as day care providers, giving them an opportunity to do "teacher like things" with children. From this experience, the two developed a love for teaching. After high school graduation, Singleton and Ms. Andrews went to college together. Soon, however, their paths diverged. Singleton became pregnant, dropped out of college, and had a baby. Ms. Andrews continued with her education, eventually earning a bachelor's degree in elementary education, a master's degree in exceptional student education, and a specialist's degree in educational leadership. She would become, in time, a teacher in the Miami-Dade County Public School System. As of the final hearing, Ms. Andrew was in her second year as an assistant principal at Miami Edison Senior High School. After quitting college, Singleton returned to Overtown and landed a part-time job. Needing a place of her own, Singleton applied for public housing assistance. She was accepted to receive aid under the "Section 8" program, which subsidizes the costs of housing for low-income families. And so, as of 1995, Singleton, age 19, was a single mother living in Section 8 housing in Overtown, having no formal education beyond high school. During the next several years, Ms. Andrews (Singleton's childhood friend) goaded Singleton into pursuing a college degree. At some point, Ms. Andrews even assumed substantial responsibility for rearing Singleton's son, whom she took into her own home, so that Singleton could concentrate on her studies. Singleton eventually earned a two-year degree from the local community college. With that, she was able to work as a paraprofessional and substitute teacher. Ms. Andrews continued to push Singleton, urging her to get a bachelor's degree. Singleton rose to the challenge, attending, first, Florida International University and, later, Nova Southeastern University, which latter institution awarded her a bachelor's degree in 2002. Thereafter, she attended graduate school and received a master's degree in reading education. At the time of the hearing, Singleton expected to graduate in July 2007 with a specialist's degree in math. Sometime before graduating from Nova and taking her first full-time teaching position in the Miami-Dade County Public Schools, which events took place in 2002, Singleton gave birth to her second child, got married, and moved out of her subsidized apartment, to live with her husband. Before vacating her apartment, however, Singleton allowed her unemployed younger sister——who had no place else to go——to move in with her. When Singleton left, the sister stayed. The sister remained in the Section 8 apartment for at least the next couple of years, during which time Singleton signed the lease for "her" apartment——as if she were still a tenant——even though, in fact, she no longer lived there. As a result, the federal government paid a rental subsidy to Singleton's former landlord, which actually benefited Singleton's sister, rather than Singleton. Singleton testified at hearing that, in signing the lease which allowed her sister to benefit from the Section 8 rental subsidy meant for Singleton, she did not intend to commit a crime. Ms. Andrews corroborated this testimony, asserting her belief, as a confidant of Singleton's, that Singleton had not intended to defraud the government. Elaborating, Ms. Andrews testified: "[Singleton's] family depends on her a lot, and I think that many times she's put in circumstances that could —— that I just —— morally, she was asked to do something to help a family member, and it inadvertently affected her." The undersigned accepts the foregoing evidence——which was not rebutted——and finds that, more likely than not, Singleton's action(s) in furtherance of securing a Section 8 rental subsidy for her sister's benefit were not the product of a criminal or fraudulent intent. Rather, Singleton——who did not stand to gain personally——was motivated by the desire or need to provide her sister with someplace to live.1 That said, the undersigned does not find that Singleton had no idea that what she did was wrong. To the contrary, she must have known that obtaining a rental subsidy, in her own name, for an apartment that she no longer occupied—— even for the good purpose of providing shelter for her sister—— was improper. Singleton had no legal excuse or justification for her misdeed, which involved conduct that was contrary to societal expectations regarding socially acceptable behavior, as such are expressed through positive law. In June 2006, Singleton was arrested pursuant to a federal indictment that charged her with 46 counts of violating Title 18, U.S. Code, Section 641.2 This crime, which entails theft or conversion of public property, is defined as follows: Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted— Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both. The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater. 18 U.S.C. § 641 (emphasis added)(hereafter, "Criminal Conversion").3 Singleton immediately informed her principal, Veronica Swindell-Wesley, that she had been arrested, although she did not provide Ms. Swindell-Wesley with details regarding the nature of the charges. In July 2006, Singleton entered into a Plea Agreement with the United States whereby she agreed to plead guilty to a single count of the indictment in exchange for the government's promise to seek dismissal of the remaining 45 counts. In August 2006, Singleton returned to the classroom after the summer break. Ms. Swindell-Wesley allowed Singleton to continue teaching, despite the pendency of the criminal case, and even assigned her new duties, naming her the reading instructor. On September 15, 2006, the federal court accepted the Singleton's plea, adjudicated her guilty of one act of Criminal Conversion, and dismissed all of the remaining charges. (Parenthetically, none of the allegations made against Singleton in the 45 counts that were dismissed was ever proved——and mere allegations, which could not support a criminal conviction, obviously cannot support an adverse employment decision based on a criminal conviction. It is a point worth emphasizing, therefore, that Singleton was convicted only for one isolated bad act, not the continuing series of bad acts which the government originally charged Singleton with perpetrating but ultimately never proved. Indeed, for the purposes of this case, Singleton is presumed innocent of the crimes alleged in the dismissed counts, just as any person accused of a crime would be deemed innocent unless and until guilt were established by proof beyond a reasonable doubt.) Singleton was sentenced to one year of probation, ordered to make restitution to the government in the amount of $1,036, and fined $15,000.4 Singleton paid the restitution immediately, and the court terminated her probation. As of the hearing, she was paying the fine at the rate of $50 per month. Following Singleton's conviction, the school district's investigative and disciplinary personnel took immediate action. In short order, a conference-for-the-record ("CFR") was scheduled to discuss Singleton's future as a teacher. The CFR was held on October 26, 2006. Before the meeting, Ms. Swindell-Wesley wrote a letter of support for Singleton. Dated October 26, 2006, the letter provides as follows: To Whom it May Concern: This is a letter of support for Shaneen Singleton, Teacher at Edison Park Elementary School. I have supervised Ms. Singleton for the past two and [a] half years, and I must admit that I am impressed with her commitment, professionalism, and abilities to do her job. Ms. Singleton is currently working as a Reading Teacher at Edison Park Elementary. She is an enthusiastic employee who is always encouraging, nurturing of all students and supportive of staff here at our school. Ms. Singleton is also very astute where students are concerned and demonstrates sharp leadership skills. She is also proactive and takes responsibility for the work of the school. She has always demonstrated high morals and character while at work. Ms. Singleton regularly confers with the Leadership Team about the curriculum in our school to assist the Administration with compliance of district trends and initiatives. Ms. Singleton consistently exhibits her dedication to the Edison Park family by participating on several school-wide committees. These committees include, Honor Roll, Black History, Spanish Heritage, Safety Patrol, Haitian Flag, Leadership Team, Teacher of the Year, Grade Level Chair and Literacy Team. She is an excellent employee and is an asset to the enhancement of student achievement in Miami-Dade County Schools. Singleton submitted Ms. Swindell-Wesley's letter, together with four other such letters of recommendation, into the record at the CFR (according to the summary of the meeting, which is in evidence).5 After the CFR, it was Ms. Swindell-Wesley's duty to make a recommendation concerning the disciplinary action to be taken, if any, against Singleton. In a memorandum dated October 26, 2006, Ms. Swindell-Wesley urged that Singleton be fired, writing: Based on Records Check #L-26145, Ms. Shaneen Singleton confirmed that she was arrested and pleaded guilty for Theft of Public Monies. Although Ms. Singleton has exhibited excellent teaching qualities, this does not excuse the commission and conviction of a crime involving moral turpitude. Based on the information presented at the Conference for the Record, a review of the record, and the United States District Court Southern District of Florida Indictment, it is my recommendation that Ms. Singleton be dismissed from employment with Miami-Dade County Public Schools. At the time she prepared this memorandum, Ms. Swindell-Wesley believed she had no choice but to recommend Singleton's dismissal, based on the nature of the crime she had committed.6 In due course, the recommendation was made to the School Board that Singleton's employment be terminated. At its regular meeting on January 17, 2007, the School Board voted in favor of suspending Singleton without pay pending termination of employment. The facts and circumstances surrounding Singleton's arrest and conviction were not publicized in the media nor discussed by the staff or students at Edison Park Elementary. Indeed, there is no evidence that the facts concerning her offense were known beyond the small circle of people directly and immediately involved. There is likewise no evidence of any parental complaints stemming from Singleton's conviction. Nor is there any evidence, one way or the other, as to whether the knowing conversion of a housing voucher is considered a very serious and morally wrong offense in the community where Singleton was teaching. There is, however, persuasive, credible evidence——and it is found——that Singleton's job performance did not suffer at all, either after her arrest or subsequent conviction. Singleton, in fact, retained her effectiveness as a teacher, despite the criminal act that caused her to be prosecuted and punished.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (1) finding Singleton not guilty of the charges brought against her and (2) imposing an appropriate punishment, besides dismissal, consistent with the principle of progressive discipline, in consequence of her criminal conviction. DONE AND ENTERED this 21st day of June, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 June, 2007.
The Issue The issue for resolution in this proceeding is whether Petitioner, Marcus A. Patrick, should be granted an exemption from employment disqualification which would allow him to work in a position of special trust or responsibility with Respondent, Department of Juvenile Justice.
Findings Of Fact Petitioner, Marcus Patrick, resides in Orlando, Florida, and is attending college in the field of criminal justice/criminology. He anticipates that he will receive his Bachelor of Science degree from Florida A&M University in August 2000. In December 1998, during the process of applying for a position with a Department of Juvenile Justice (DJJ) facility in Longwood, Florida, Mr. Patrick filed the necessary forms for background screening. These included an affidavit of good moral character which he signed and had notarized on December 18, 1998. The affidavit states that Mr. Patrick has not been found guilty nor pled guilty or no contest, regardless of whether adjudication was imposed or withheld, of any of a series of offenses listed on the affidavit. The listed offenses included violations of Chapter 812, Florida Statutes, relating to theft, robbery, and related crimes. The statement on the affidavit form immediately above Mr. Patrick's signature provides: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. Contrary to his affidavit, the background screening revealed certain offenses by Mr. Patrick. In 1990, while employed as a cashier at Wal-Mart, he passed store merchandise through the counter without scanning it, thus allowing his friends to obtain items without paying for them. Mr. Patrick and co-defendants entered a pre-trial intervention program and the case was dismissed with a nolle prosequi by the State Attorney on May 5, 1992. On February 3, 1997, Mr. Patrick pled nolo contendere to two counts of grand theft, a felony described in Section 812.014, Florida Statutes. He was placed on probation, was fined, and was ordered to make restitution. Adjudication was withheld. The date of the actual charge was October 6, 1996. When DJJ learned of the disqualifying offenses it offered Mr. Patrick an opportunity to explain them and to explain why he lied on the affidavit. In response, Mr. Patrick submitted documents explaining his criminal history and other documents relevant to his fitness for employment. He also submitted a revised affidavit. DJJ Inspector General Perry Turner denied Mr. Patrick's request for an exemption from disqualification on February 1, 1999. At that time Mr. Patrick was still on probation. Mr. Turner denied a second request in June 1999, when Mr. Patrick submitted evidence of his early termination from probation, but his felony (dating back to October 1996) was still within the three-year prohibition period. Mr. Turner denied Mr. Patrick's third request on December 14, 1999. It is this most recent denial that is the subject of this proceeding. Mr. Turner's final denial was based on the pattern of theft, the falsification of an affidavit, and the mere lapse of four years since the most recent offense. At the hearing Mr. Patrick admitted he falsified his affidavit but said that he was misled by his lawyer who he admits did not read the affidavit. Apparently the lawyer told him that he could answer "no" if the question asked whether he was convicted. That was not the question, and the affidavit form is quite clear that the questions also included pleas of guilty or no contest and circumstances where adjudication was withheld. Perhaps more troubling is the discrepancy between Mr. Patrick's explanation at hearing and his written explanation submitted to DJJ on January 22, 1999, regarding his 1996 grand theft offense. In 1996, Mr. Patrick was working at the Courtyard by Marriott in Tallahassee, Florida. In his 1999 version of the events, an acquaintance of his from Florida A&M University came to the hotel on several occasions allegedly to escape from his many girlfriends. The acquaintance would check in with a credit card and Mr. Patrick would check him in. The hotel policy was not to question why the name on the card did not match the reservation as long as the card cleared. The acquaintance was caught using bad cards and when it was discovered that Mr. Patrick had checked him in they both were in trouble. Mr. Patrick's version at the hearing in this case involved the use of a credit card that belonged to someone else, but Mr. Patrick would not charge the card. Instead, he took cash from the acquaintance in an amount less than the full hotel rate. The testimony is not clear whether Mr. Patrick pocketed all or just part of the cash. In his testimony on cross-examination Mr. Patrick said he thought he had given the whole story to DJJ earlier. Mr. Patrick is working again for Marriott, now in Orlando, Florida. He acknowledges that he made some bad decisions and he believes that his experience and commitment to avoid crime now would enable him to be an effective role model for the troubled youth with whom he so anxiously wants to work. Mr. Patrick worked in a juvenile residential program in Tallahassee, Florida, from April 1997 until December 1998, with promotions from counselor to treatment director to assistant program director. His letters of recommendation from staff at the program are highly laudatory of his character and his work. The record does not reveal how he eluded the screening process when he was hired or whether he was screened for that job, as he would have been on probation for his 1996 felony during that period. Mr. Patrick also has an excellent letter of recommendation from his pastor who has known him since 1996. This letter and those from his co-workers and supervisors do not acknowledge any criminal history, but the individuals may be ignorant of the history. The crimes themselves are of less consequence than Mr. Patrick's unwillingness to be fully candid. His training in criminal justice certainly has informed him of the solemnity of an affidavit. He should have known what a no contest plea is and should have been able to understand what he was required to disclose. He is 31 years old, and served in the Marine Corps for approximately 8 years, including Gulf War combat. He is very articulate and appears well-motivated in his pursuit of a career of working with problem youth, a career which does not promise great financial reward. Such a talented, earnest young man should not be forever precluded from working in the field in which he could succeed in helping others avoid the mistakes he has made. For now, however, it is impossible to find sufficient evidence of rehabilitation to assure those mistakes are truly behind him.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency enter its final order denying Marcus A. Patrick's request for exemption. DONE AND ENTERED this 26th day of May, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 26th day of May, 2000. COPIES FURNISHED: Marcus A. Patrick 2734 Fireside Court Orlando, Florida 32839 Lynne T. Winston, Esquire Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Petitioner's Petition for Relief should be dismissed pursuant to Section 120.57(1)(i), Florida Statutes.
Findings Of Fact Petitioner's First Case. In 1985, Petitioner filed an administrative complaint with the Florida Commission on Human Relations (hereinafter referred to as the "Commission") alleging that Respondent had discriminated against him on the basis of his race and his gender. In 1987, as a result of the 1985 complaint, a Recommended Order was entering recommending that the Commission enter a final order finding discrimination on the basis of race. The 1987 recommendation was ultimately adopted in a Final Order issued by the Commission in 1988. In January 1990, the First District Court of Appeal affirmed the Commission's decision. School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). As a result of the foregoing, Respondent hired Petitioner as a full-time social studies teacher for the 1990- 1991 school year. Petitioner's Second Case. At the end of the 1990-1991 school year, Respondent determined that Petitioner's contract would not be renewed. Petitioner subsequently filed a second complaint with the Commission alleging, among other things, retaliation. Petitioner simultaneously filed a complaint with the EEOC alleging violations of Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. ss 1981 and 1988. In March 1992, the Commission issued a No Cause Determination finding that Petitioner had not shown a prima facie violation of Chapter 760, Florida Statutes, and that Respondent had "articulated and substantiated" a legitimate nondiscriminatory reason for its decision not to renew Petitioner's contract. In October 1992, the EEOC issued a similar determination. In January 1993 Petitioner filed a Complaint in the Circuit Court of the Second Judicial Circuit, Leon County, Florida. This Complaint was designated Case No. 93-200 (hereinafter referred to as the "State Court Case"). The State Court Case was brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. ss 1981 and 1988. In particular, Petitioner alleged that Respondent had discriminated against him when it failed to renew his teaching contract following the 1990-1991 school year and that it had subsequently discriminated against him by failing to hire him for positions for which he had applied between 1991 and the filing of the Complaint in the State Court Case. Petitioner alleged that the Respondent had discriminated against him on the basis of his race and gender. The State Court Case was initially assigned to Judge E. Steinmeyer, III. Judge Steinmeyer initially ruled that the trial would be limited to a consideration of whether Respondent discriminated against Petitioner between August 1990 and January 19, 1993. Judge Steinmeyer entered this order on or about September 27, 1996. The State Court Case was subsequently transferred to Judge Charles D. McClure. While hearing pre-trial motions, Judge McClure amended Judge Steinmeyer's ruling concerning the limit of the scope of the trial. Judge McClure ruled that Petitioner would also be allowed to introduce evidence concerning alleged discrimination by Respondent for the period beginning January 1993 and ending at the date of the trial of State Court Case. Although Judge McClure did not enter a written order to this effect, he did nonetheless enter a valid order of the court. Transcript of Pre-Trial Hearing of January 6, 1997, Page 28. The State Court Case was transferred five times before being assigned to Judge Terry P. Lewis. Judge Lewis issued a Pretrial Order on October 8, 1998, in which he explained some of the history of the case and reaffirmed Judge McClure's earlier order: Judge Charles McClure was next assigned to this case. In pretrial motions, the parties sought to revisit issues with him. He amended Judge Steinmeyer's Order and indicated the [Petitioner] would be allowed to introduce evidence of the failure to rehire subsequent to January of 1993, up to the date of trial. . . . . There is a value in consistency and, all things being equal, my preference is to abide by the prior rulings of the predecessor judges and to make my rulings as consistent as possible with theirs. . . . Pursuant to Judge Lewis's Pretrial Order, Petitioner was allowed to present evidence in the State Court Case concerning alleged discrimination by Respondent against Petitioner on the basis of his race and gender during the period 1990 through October 1998. The State Court Case trial commenced October 12, 1998, and ended in a jury verdict on or about October 15, 1998. The jury ruled in favor of Respondent on all counts, finding no retaliation and no discrimination on the basis of race or gender, and judgment was entered for Respondent. The judgment was subsequently affirmed per curiam. Weaver v. School Board of Leon County, 757 So. 2d 504 (Fla. 1st DCA 2000). Petitioner's Third Case. While the State Court Case was pending, Petitioner filed a complaint against Respondent in the United States District Court for the Northern District of Florida. The complaint was designated case number 4:97cv272-RH (hereinafter referred to as the "First Federal Court Case"). Petitioner alleged that Respondent, in refusing to hire him for 32 positions which he had applied for from 1994 to 1995, had discriminated against him on the basis of his race and gender. Summary Judgment was granted in March 1999 in the First Federal Court Case. In granting Summary Judgment, the court accepted two Reports and Recommendation issued by Magistrate William C. Sherrill, Jr. In one of those Reports Magistrate Sherrill concluded, among other things, that a non- discriminatory reason had been proven by Respondent for its refusal to hire Petitioner: that Petitioner's job performance during the 1990-1991 school year had been inadequate. The decision to grant Summary Judgment in the First Federal Court Case was affirmed on appeal by the United States Court of Appeals for the Eleventh Circuit in an unpublished opinion. Weaver v. School Board of Leon County, (Case No. 99- 11045, March 29, 2000). In its decision, the Eleventh Circuit stated: The district court correctly concluded that there were no genuine issues of material fact precluding summary judgment for the Board because Weaver failed to show that the Board's articulated reason for not hiring him was a pretext for race or gender discrimination. The Board stated that it did not hire Weaver during the 1994-1995 school year because of prior unsatisfactory and inadequate performance during the 1991- 1992 [sic] school year in which he was a full-time seventh grade Social Studies teacher at Leon County's Deerlake and Nims Schools. Weaver has wholly failed to bring forward sufficient evidence to demonstrate that these reasons for failing to hire him were a pretext for discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987). Petitioner's Fourth Case. In 2000, Petitioner filed a second complaint against Respondent in the United States District Court for the Northern District of Florida. The complaint was designated case number 4:00cv91-WS (hereinafter referred to as the "Second Federal Court Case"). Petitioner alleged that Respondent, in refusing to hire him for positions which he had applied from 1995 to 2000, had discriminated against him on the basis of his race, age, and gender, and in retaliation for previous filed complaints. Respondent moved to dismiss the complaint in the Second Federal Court Case arguing, among other things, that two previous cases, the State Court Case and the First Federal Court Case, had determined that Respondent had not discriminated against Petitioner in refusing to hire him after the 1990-1991 school year and, therefore, Petitioner should not be allowed to continually apply for jobs with Respondent and then file a suit if he is not hired. In a Report and Recommendation issued in the Second Federal Court Case, Magistrate Sherrill wrote: [Petitioner's] pleading demonstrates that there are no new facts, no significant changes, but simply that [Respondent] continues to refuse to hire [Petitioner]. This conduct was deemed nondiscriminatory in the prior litigation between the parties. Four courts have now held that [Respondent's] actions were lawful and, thus, the issue may not be raised again in subsequent actions. See Kremer, 456 U.S. at 467 n. 6, 102 S.Ct. at 1890, n. 6. Unless there are material and significant changes in the facts underlying the dispute between these two parties, [Petitioner] may not continue to bring discrimination claims against [Respondent] every time he is denied employment. Judge William Stafford adopted the Report and Recommendation and ordered that Petitioner was enjoined from filing any lawsuit in Federal court alleging discrimination against him by Respondent unless Petitioner pays attorney's fees of Respondent incurred in the Second Federal Court Case and attaches affidavits from persons other than Petitioner setting forth competent evidence of discrimination in any future complaint. Petitioner's Current Complaint and Request for Hearing; Petitioner's Fifth Case. Petitioner is an African-American male. On September 25, 1995, Petitioner filed a Charge of Discrimination (hereinafter referred to as the "FCHR Complaint") with the Commission. Petitioner alleged that Respondent had discriminated against him on the basis of race, gender, and retaliation. In particular, Petitioner alleged that Respondent had discriminated against him "[i]n February of 1991 and continuing through September 19, 1995 " Some of the allegations of the FCHR Complaint relate to alleged acts of discrimination which occurred more than 365 days before the FCHR Complaint was filed. By filing the FCHR Complaint on September 25, 1995, the allegations contained therein should have been limited to alleged acts of discrimination which occurred between September 26, 1994, and September 25, 1995. On November 24, 1999, more than three years after Petitioner filed the FCHR Complaint, the Commission issued a "Notice of Determination: No Jurisdiction," and a "Determination: No Jurisdiction." The Commission gave the following explanation, in relevant part, of why it had concluded it had no jurisdiction over the FCHR Complaint: In his Complaint of Discrimination, Complainant asserted that between February, 1991, and September, 1995, he was not considered by Respondent for teaching positions for which he made application. Counsel for Respondent argues that Complainant's charges must be dismissed as a matter of law. Counsel states, "[M]r. Weaver's claims of discrimination against the School Board of Leon County, including but not limited to the 1994- 95 school year, and continuing to October 1988 [sic] have been litigated in both state and federal courts in favor of the school board." Information provided to the Commission indicates that in January, 1993, Complainant filed a civil suit in the Circuit Court of the Second Judicial Circuit. Case number "93-200" was assigned to the case. The complaint states, inter alia, that following the 1990-91 school year, Complainant applied for positions with Respondent and was not considered. Judge McClure of the Second Judicial Circuit held that Complainant would be permitted to introduce evidence of Respondent's failure to rehire subsequent to January, 1993, up to the date of the trial. Case number 93-200 was litigated before a jury of the Second Judicial Circuit. A Verdict Form provided to the Commission and dated October 15, 1998, indicates that Complainant was not retaliated against and that Complainant was not discriminated against because of his race or sex in Respondent's 'decisions not to hire him (Complainant) following the 1990-91 school year.' Therefore, the Commission's jurisdiction over the Complaint of Discrimination was terminated as a result of the issues being litigated in the Second Judicial Circuit. Inasmuch as the Commission lacks jurisdiction over the Complaint, the Determination will not address the merits of the allegations of discrimination contained in the Complaint. On December 25, 1999, Petitioner filed a Petition for Relief with the Commission. The Petition for Relief was filed three years and three months after Petitioner filed the FCHR Complaint. In the Petition for Relief, Petitioner relates a long history between himself and Respondent. That history for purposes of this proceeding goes back to at least 1979 when Petitioner was employed as a substitute and temporary teacher by Respondent. Petitioner goes on to contend that Respondent has discriminated against him from at least 1985 through the date of the Petition for Relief. The relevant allegations which may be considered, however, are limited by the dates alleged in the FCHR Complaint, February 1991 to September 19, 1995, since those were the only dates the Commission had an opportunity to consider before referring the matter to the Division of Administrative Hearings. On February 1, 2000, the Commission filed the Petition for Relief with the Division of Administrative Hearings and requested that an administrative law judge be assigned to conduct all necessary proceedings. On February 4, 2000, Respondent filed Respondent's Motion to Dismiss Petitioner's Petition for Relief. Respondent argued that the Petition for Relief should be dismissed for two reasons: (a) the Petition for Relief is barred by the statute of limitations of Section 760.11, Florida Statutes; and (b) the allegations of the Petition for Relief are barred by the doctrine of res judicata. An Order on Motions was entered on June 20, 2000, disposing of numerous motions filed in this matter, and disposing of Respondent's Motion to Dismiss Petitioner's Petition for Relief as follows: Respondent has filed a Motion to Dismiss Petitioner's Petition for Relief in which two grounds have been raised for the dismissal of the Petition for Relief in this case. Petitioner has filed a response to the Motion. Both grounds for the dismissal of this case have merit. Therefore, a recommended order of dismissal will be entered in this case within thirty-five days of the entry of this Order: July 24, 2000. The parties will be given an opportunity to file proposed recommended orders within fifteen days of the date of this Order: July 5, 2000. On July 25, 2000, a Recommended Order of Dismissal was entered recommending that this case be dismissed. The Recommended Order recommended dismissal of: Those portions of the Petition for Relief dealing with events that occurred more than 365 days before Petitioner filed the FCHR Complaint; The entire Petition for Relief due to the failure to comply with Section 760.11, Florida Statutes; and 3. The entire Petition for Relief based upon the doctrine of res judicata. On November 1, 2001, an Order Remanding Petition for Relief from an Unlawful Employment Practice (hereinafter referred to as the "Order of Remand") was entered by the Commission. In entering the Order of Remand, the Commission rejected the second and third reasons for recommending that the Petition for Relief be dismissed and returned the matter to the Division of Administrative Hearings. The Commission failed to address the first reason. The Order of Remand was filed with the Division of Administrative Hearings on November 30, 2001. On December 24, 2001, Respondent filed Respondent's Second Motion to Dismiss Petitioner's Petition for Relief. At the time the Motion was filed, the Division of Administrative Hearings did not have jurisdiction over this matter, because the Order of Remand had not yet been accepted. The Order of Remand was subsequently accepted and the file of the Division of Administrative Hearings was reopened by an Order Reopening File entered on February 13, 2002. The Respondent's Second Motion to Dismiss Petitioner's Petition for Relief was filed more than 20 days after the Commission's Order of Remand was entered. It was filed, however, before jurisdiction over this matter was accepted by the Division of Administrative Hearings. The Second Motion to Dismiss was, therefore, filed within less than 20 days after the file in this case was reopened. A motion hearing was scheduled for July 23, 2002, to consider the Second Motion to Dismiss. During the hearing, Petitioner was asked on more than one occasion to explain any differences in the allegations of this matter and the State Court Case. Other than suggesting that this case involves allegations of gender discrimination and the State Court Case did not, a suggestion refuted by the jury verdict in the State Court Case, Petitioner was unable to state any difference. Indeed, the material allegations of this matter and the State Court Case, the First Federal Court Case, and the Second Court Case are no different. At the conclusion of the July 23, 2002, motion hearing, it was announced that Respondent's Second Motion to Dismiss Petitioner's Petition for Relief was granted, that a recommended order would be entered recommending dismissal of this matter, and that the parties could file proposed recommended orders within 20 days of the motion hearing. On August 14, 2002, an Order was entered memorializing the rulings entered at the July 23, 2002, motion hearing. Petitioner has alleged in three previous court proceedings that Respondent's failure to hire him since 1991, was based upon race and gender. In one of those cases the issue was tried before a jury, and it was determined that Respondent had articulated a reasonable reason for refusing to hire Respondent-his unsatisfactory and inadequate performance as a teacher during the 1990-1991 school year-and that Petitioner had failed to prove that the reason for Respondent's refusal was a pretext. Two subsequent cases recognized this verdict. Petitioner continues to disagree with those judicial determinations and is attempting for a fourth time to litigate the same issue. Should he fail here, no doubt he will continue to file future proceedings. There is, however, no new issue to be tried. The doctrine of collateral estoppel should be applied to dismiss this matter. This case involves the same Petitioner bringing the same action against the Respondent that has been fully litigated and determined through a final decision of a court of competent jurisdiction in the State Court Case, the First Federal Case, and the Second Federal Case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed in this case by James J. Weaver. DONE AND ENTERED this 21st day of August, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 August, 2002. COPIES FURNISHED: James J. Weaver 1424 Jake Street Tallahassee, Florida 32310 William R. Mabile, III, Esquire William D. Horgan, Esquire Fuller, Johnson & Farrell, P.A. 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302-1739 C. Graham Carothers, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 11, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on an annual contract that is subject to a professional service contract and collective bargaining agreement between Miami-Dade County Public Schools (hereinafter "M-DCPS") and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Santa Clara Petitioner first employed Respondent as a classroom teacher beginning in 2004 and assigned him to teach fourth-grade math at Santa Clara Elementary School (Santa Clara). In May 2007, Petitioner's Civilian Investigative Unit (CIU) investigated an allegation that Respondent made verbal threats, using profane language, towards the principal at Santa Clara. Respondent was placed on alternate assignment at the Region 3 Office on May 3, 2007, pending the outcome of the case. The allegation was substantiated for violation of School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties). During a Conference for the Record, written directives were issued to Respondent. On November 1, 2007, Respondent was issued a written reprimand which contained the following directives: Please abide by Miami-Dade County Schools (M-DCPS) School Board Rules at all times, specifically, School Board Rule, 6Gx13-4A- 1.21 Responsibilities and Duties; School Board Rule, 6Gx13-4-1.08, Violence in the Workplace; and School Board Rule 6Gx13-4A- 1.23, Code of Ethics. Conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and M-DCPS. The Education Practices Commission filed a complaint against Respondent based on the incident at Santa Clara. That complaint was settled with Respondent receiving an administrative fine in the amount of $500.00. As part of the settlement agreement, Respondent did not admit or deny the alleged facts of the Santa Clara incident. Turner Tech 2007-08 School Year Petitioner transferred Respondent to Turner Technical Senior High School (Turner Tech) in November 2007, where he taught math. There were no adverse incidents during the balance of the 2007-08 school year. Turner Tech 2008-09 School Year Valmarie Rhoden was the principal of Turner Tech during the 2008-09 school year and part of the 2009-10 school year. Phillipe Napoleon was an assistant principal at Turner Tech during the 2008-09 and 2009-10 school years.1 On November 18, 2008, one of Respondent's students told Respondent not to touch him and threatened to harm Respondent if he did so. Dr. Napoleon and Ms. Rhoden handled the situation for Respondent by giving the student two days of indoor suspension. Respondent became irate when he learned that the student was not to be more severely punished. After he learned of the student's punishment, Respondent yelled at Dr. Napoleon in the earshot of students and other school personnel. Respondent attempted to undermine Dr. Napoleon's authority. After that incident, Respondent and Dr. Napoleon had a very contentious relationship. On February 19, 2009, Ms. Rhoden issued Respondent a memorandum entitled "Responsibilities and Duties" along with the Board Rule for his review regarding his unprofessional behavior because he had made an unprofessional outburst during a faculty meeting that Ms. Rhoden conducted and because Respondent had made unprofessional comments to other administrators. That memorandum provided, in part, as follows: Please be reminded that it is your professional responsibility to conduct yourself in a manner that reflects credit upon yourself and the teaching profession. During the faculty meeting on Tuesday, February 17, 2009, you made an inappropriate comment and noise while I was addressing the faculty on the respect shown teachers at the North Central Regional Center Teacher of the Year Breakfast. On December 18, 2008, I met with you; Mr. Hoffman (Lead Steward); Ms. Meyers (Steward); Mr. Mantilla, Vice Principal; and Mr. Napoleon, Assistant Principal, to discuss a series of verbal altercations you had with these administrators. We discussed the importance of being professional and respectful when addressing administrators and students. Please be advised that your conduct is a violation of School Board Rule 6Gx13-4A-1.21 and is unacceptable. Please refrain from addressing others in a manner that may be deemed unprofessional. A copy of the Board Rule is attached for your review. If you need further clarification, please see me. Your cooperation is expected and appreciated. On April 27, 2009, Ms. Rhoden convened an Emergency Conference for the Record with Respondent to discuss reports of misconduct by Respondent during a UTD meeting that had occurred on April 23, 2009, and reports of inappropriate comments attributed to Respondent during a parent-teacher conference that occurred on April 24, 2009. Participants at the UTD meeting reported that Respondent became uncontrollable and made disparaging remarks against the union representative who conducted the meeting. Teachers reported to Ms. Rhoden that they left the meeting because they had become afraid of Respondent. The parent in the parent-teacher meeting reported that, in the presence of students, Respondent referred to Ms. Rhoden as a "bitch" and to administrators as "three blind mice." The parent reported that Respondent had said "screw" administrators. When Ms. Rhoden confronted Respondent about his behavior, he became enraged and engaged in an uncontrolled tirade. A Conference for the Record was conducted at the school on Monday, April 27, 2009, and Ms. Rhoden issued the following directives to Respondent: Adhere to all School Board rules, especially those related to Responsibilities and Duties. Adhere to the Code of Ethics. Conduct yourself in a professional manner at all times with all school personnel, parents and other stakeholders. Do not use profanity in the presence of students, faculty, staff and other stakeholders. Do not disrespect your administrators in your manner of speech or physical approach. Do not use provocative language towards administrators, students, staff, or other stakeholders. Respondent was the subject of a separate investigation based on an incident of misconduct that occurred on April 13, 2009, first in the hallway outside of Respondent's classroom and later in or near Dr. Napoleon's office. The incident that triggered Respondent the confrontations on April 13, 2009, occurred when Dr. Napoleon, while conducting routine observations of classrooms, noticed that a student in Respondent's classroom was wearing headphones. Dr. Napoleon entered Respondent's classroom and removed the headphones from the student. Respondent confronted Dr. Napoleon outside his classroom and said "how dare you come into my classroom and disrupt my classroom" in a "profoundly loud" manner in the hallway within earshot of school personnel and students. Later in the day, Respondent confronted Dr. Napoleon in the office area. Respondent was upset and became aggressive towards Dr. Napoleon when he demanded an explanation of a memorandum relating to the earlier confrontation that Dr. Napoleon had issued to him. Ernesto Mantilla, a vice-principal at Turner Tech, stepped between Respondent and Dr. Napoleon because of Respondent's aggressive, threatening behavior. Mr. Mantilla, who has military training, put himself in what he referred to as "harm's way" because he felt it necessary to de- escalate the situation. During that incident, Respondent told Dr. Napoleon that he was a "joke" and that he should leave the administration's efforts to Ms. Rhoden and Mr. Mantilla. Respondent threatened to tear up Dr. Napoleon's memorandum in front of Dr. Napoleon. Respondent asserted that his contract did not mandate him to be professional. He taunted Dr. Napoleon by telling him that if Dr. Napoleon was going to fire him, to just go ahead and do it so he can collect a check and stay home. Respondent refused to provide a statement during the course of that investigation stating that "it will take a year and a half to go through the process", and he would be resigning anyway at the end of the year. On May 14, 2009, Ms. Rhoden issued Respondent a letter of reprimand for his behavior on April 13, 2009, which directed him to immediately refrain from displaying unprofessional, confrontational behavior. The letter of reprimand also directed Respondent to stop using abusive and profane language in the performance of his assigned duties. Ms. Rhoden testified, credibly, that she and many of the staff members were afraid at times when Respondent "would go into his rage." His conduct "disrupted the environment" and impeded the workings of the school. Turner Tech 2009-10 School Year In September 2009, Dr. Napoleon conducted a training session for faculty at Turner Tech referred to as IPEGS training. Respondent was required to complete that training to maintain his teaching certification. Respondent left the room in which the training occurred and was absent for over half of the training session. Dr. Napoleon refused to award Respondent credit for the IPEGS training. Respondent became irate when told he would not be given credit and believed that Dr. Napoleon was harassing him. Ms. Rhoden retired in October 2009, and Lavette Hunter became the principal of Turner Tech. On or about October 19, 2009, Respondent replied to a co-worker's email and sent it to all employees sarcastically commenting on the teacher's updating of the school on his involvement with a student internship program. Respondent stated, "please, no more e-mails about your presence. You're wonderful. Feel better?" The teacher complained to Ms. Vidal, and when she discussed the concern with Respondent, he was very irate and said that he was "tired of this bullshit" and was leaving for the day. Respondent told her to find coverage for his class and left school. On October 26, 2009, Respondent went into Dr. Napoleon's office "ranting and raving" because he said that Dr. Napoleon was talking about him. During that meeting, Respondent asked Dr. Napoleon whether he had gotten to be an assistant principal as a result of affirmative action. When Dr. Napoleon asked him to leave his office, Respondent refused, stating that he was going to leave when he got ready to leave. He thereafter left. Dr. Napoleon believed that Respondent's comment was a racial slur and, on October 27, 2009, filed a complaint with the M-DCPS Office of Civil Rights, which triggered an investigation (the civil rights investigation). Dr. Napoleon is African- American, and Respondent is Caucasian. Respondent disrupted a faculty meeting conducted by Dr. Napoleon on October 27, 2009, and stormed out of the meeting causing his co-workers to feel uneasy and unsafe. Respondent got upset when Dr. Napoleon declined to interrupt his presentation to answer Respondent's question. Respondent was loud and disruptive (Dr. Napoleon described it as "ranting and raving"). Respondent made a threatening gesture towards Dr. Napoleon as he left the room. Dr. Napoleon testified, credibly, that Respondent's conduct undermined his authority to lead and to provide a safe learning environment for students and for teachers. On October 28, 2009, Ms. Vidal (an assistant principal at Turner Tech) met with Respondent. During the course of the meeting, Respondent expressed that he thought he was being harassed and that he viewed himself as a disgruntled employee. He then made an implied threat that students would suffer on the FCAT because of the manner in which he was being treated. Ms. Vidal was so disturbed by Respondent's comments that she felt that she immediately contacted her principal and put the incident in writing. Respondent was removed from the school effective November 5, 2009 and placed on alternate assignment during the course of the civil rights investigation. On his last day at his worksite, Ms. Vidal and a security guard escorted Respondent to his classroom so he could collect his belongings before he was escorted out of the building. While in the classroom, in the presence of students, Respondent made demeaning comments to Ms. Vidal and told her that she and Ms. Hunter were responsible because they had not protected him from Dr. Napoleon. Respondent's demeanor and his outbursts caused Ms. Vidal to fear for her safety. Based on Respondent's conduct in October and November 2009, Ms. Hunter made a finding that "Probable Cause" existed that Respondent had violation of School Board Rule, 6Gx13- 4A- 1.21, Responsibilities and Duties. A Conference for the Record was conducted by Ms. Hunter on January 5, 2010, and Respondent was directed to "refrain from using inappropriate actions [sic] during the work day" and was issued copies of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, State Board of Education Rule 6B-1.001, FAC, and State Board of Education Rule 6B-1.006, FAC, The Code of Ethics and the Principles of Professional Conduct of the Education Profession. He was also issued a letter of reprimand. Respondent was warned that "noncompliance with this directive will necessitate further review for the imposition of additional disciplinary measures" and "any recurrences of the above infraction will result in further disciplinary action." The matter was referred to the Regional Office to for further review (the conduct investigation). Administrative Placement Respondent remained out on Administrative Placement pending the disposition of the conduct investigation and the civil rights investigation. On March 16, 2010, the School Board's Office of Civil Rights Compliance closed its civil rights investigation, concluding that "No Probable Cause" existed that a violation had occurred. During his administrative placement for the civil rights investigation, Respondent was assigned to his residence and was not working. As part of his administrative placement, Respondent was instructed to call the Region Office twice each day at specific times, once in the morning and once in the afternoon. If he failed to call-in as instructed, he would not be entitled to payment for that day. Respondent did not call either morning or afternoon on seven days on which he was assigned to his residence and not working. On four days he called in the morning, but not in the afternoon. Petitioner initially withheld pay from Respondent for 11 days, but later issued him pay for the four days on which he called in the morning, but not the afternoon. During his administrative placement, Respondent again began to exhibit abusive behavior by making numerous and repeated harassing telephone calls to administrative offices. On March 17, 2010, at 1:00 p.m., M-DCPS Region I Secretary Maria Rosemond received a phone call from Respondent. Respondent asked to speak to Mr. Richard Vidal, who is the administrative director of Region I. Ms. Rosemond told Respondent that Mr. Vidal was not in. Mr. Cohen again asked to speak to Mr. Vidal, and Ms. Rosemond told him he was not there. Respondent then said, "I know Vidal is there. Tell him I will be there in half an hour to get his fucking ass out." Respondent then hung up the phone. Ms. Rosemond was afraid that he was going to actually come to region and harm Mr. Vidal or others at the Region I office. An hour later, Respondent called again and asked to speak to Mr. Vidal. Ms. Rosemond transferred the call to Jennifer Andreu, Administrative Director, and Respondent explained that he was upset about a situation at Turner Tech. Ms. Andreu told Respondent that she would speak to the principal and rectify the problem. Respondent cursed at her and called her incompetent. On March 4, 2010, Respondent called Turner Tech demanding to speak to Ms. Hunter. When the phone call was transferred to Dr. Napoleon, Respondent yelled out, "Why the fuck did they transfer the call to you. I want to speak with Ms. Hunter, not you." When he spoke to Ms. Hunter, Respondent became irate and very loud. Ms. Hunter disconnected the line and never spoke to Respondent again (until the formal hearing). During the call, Respondent referred to Dr. Napoleon as an idiot and demanded that personnel at Turner Tech inform any caller asking about Respondent to respond by informing the caller that that he works at the Region I office. He further threatened that his lawyer would be calling and that the calls would be recorded. Respondent does not dispute his confrontations on the phone with numerous secretaries with whom he spoke. Respondent admitted to the admissibility and the accuracy of the written statements from those secretaries taken during the course of the investigation(s). Respondent believed that he should have been reinstated to the classroom at the conclusion of the civil rights investigation. Because the conduct investigation was still pending, it was not appropriate to place Respondent back into a classroom while the additional issues concerning his conduct were being reviewed. As such, Respondent remained out on alternate assignment pending the disposition of this new investigation. On April 22, 2010, Dr. Marinelli, the Region I superintendent, met with Respondent to discuss his employment status. They reviewed the disposition of the civil rights complaint and formally informed Respondent that a CIU investigation was being conducted regarding his alleged violations of School Board Rules and misconduct. During the meeting, Respondent referred to Dr. Marinelli as "dear," told her to be careful when reading and if she was nervous to relax, and tried to speak over her as she read the allegations of misconduct to him. He further goaded her by telling her that the complaint should have been filed by Mr. Vidal and to get with his attorney because she was getting bad advice. When Dr. Marinelli read the allegation to him, he said "let me see that paper". She discussed the terms and conditions of his administrative placement and advised him that the conduct investigation was a separate proceeding than the civil rights case. Respondent became increasingly agitated as Dr. Marinelli read him his terms and conditions, and then yelled "just give me those papers". When she handed him the papers, he tore them in pieces and said in a loud voice "this is garbage, you are the queen of garbage". Respondent told Dr. Marinelli, "you may be able to click your fingers and your husband may do what you say, but I don't have to do what you say. I'm not afraid of you." Police came into the room due to his loud and disruptive behavior. During the course of the conduct investigation, Respondent was interviewed by CIU investigators. During his interview, he told one of the investigators to just fire him already, and he called the investigators liars. He took out his cell phone and represented that he was on the phone with an attorney and that he was recording their meeting. He even fabricated that one investigator was physically attacking him. Due to his belligerent and aggressive conduct and his verbal tirade, the meeting was terminated and a police officer was summoned to escort him out. On June 8, 2010, CIU issued a report that concluded that "Probable Cause" existed that Respondent had violated School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A1.212, code of Ethics, and School Board Rule 6Gx13-4- 1.08, Violence in the Workplace. Before Respondent was administered disciplinary action as a result of the conduct investigation, he again engaged in additional misconduct toward Dr. Marinelli that led to a final investigation conducted by the School Police. On July 29, 2010, Dr. Marinelli received a phone call from Respondent wherein he was agitated and uttered profanity, including the "F" word, at her. He further yelled, "Don't think I'm afraid of you. What I'm afraid is if you would sit on me." That call was disconnected. He called again, and Dr. Marinelli took the call. Prior to her taking the call, Respondent had told a secretary that Dr. Marinelli could not hide behind a secretary. During that call Respondent continued to yell at Dr. Marinelli, stating "I dare you to do anything. You can't do anything to me." Dr. Marinelli told him to not call again, and he proceeded to call numerous times. When an investigator questioned Respondent during his investigation of the calls on July 29, 2010, Respondent told the investigator that he had called Dr. Marinelli a "fucking fat cow." That investigation was concluded with a finding of probable cause that Respondent had violated the rules cited in the Notice of Specific Charges. A Conference for the Record was held with Respondent on August 5, 2010, at the Office of Professional Standards. Following that conference, the superintendent of schools recommended to Petitioner that Respondent's employment be terminated. Petitioner, at its regularly scheduled meeting of September 7, 2010, took action to suspend and initiate dismissal proceedings against Respondent for just cause, including but not limited to, misconduct in office, gross insubordination, violence in the workplace, and violation of the School Board Rules cited in the Notice of Specific Charges. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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, 2011.
The Issue The issue presented in this cause is whether Respondent should be suspended from her employment for twenty days for conduct unbecoming a school board employee, misconduct in office, and gross insubordination.
Findings Of Fact Respondent is a veteran teacher of approximately 34 years. She has been employed as a teacher by the School Board of Dade County, Florida, for 28 years pursuant to a continuing contract. In 1984, she was voted "Teacher of the Year" at the school where she then taught. In October, 1984, she was reassigned to teach at Coconut Grove Elementary School pursuant to a hardship transfer to facilitate her caring for her ill daughter. She continued to teach at Coconut Grove Elementary School through the time of the final hearing in this cause. She is a dedicated and competent teacher and has consistently received satisfactory ratings on her annual evaluations. She tutors children without charge in her home after school hours. She loves children and loves teaching them. She has a reputation for utilizing effective disciplinary techniques. Joe Carbia is the principal at Coconut Grove Elementary School and was the principal at the time that Respondent obtained her hardship transfer to that school. Since her transfer, Respondent and Carbia have disagreed with each other a number of times. It is apparent that they do not respect each other and have not been supportive of each other since shortly after her transfer to Coconut Grove Elementary School. Between October, 1984, and the 1988-89 school year, Respondent also had disagreements with other teachers and temporarily with one parent of a student. Each time someone complained, Carbia decided that Respondent was wrong. No competent evidence was offered by Petitioner as to what occurred on any of these occasions, and Carbia's testimony that he held conferences with Respondent and issued directives to her is not supported by documentary evidence. Rather, Respondent's acceptable evaluations each year, the lack of documentary evidence, and Petitioner's reliance on hearsay evidence indicate that none of the disagreements, whatever they were, were considered major. During December of 1988, several holiday activities were conducted involving students from Coconut Grove Elementary School. Respondent requested permission from Carbia for her class to put on a holiday play, and permission was given to her. Carbia did not attend the play that was put on by Respondent's students, and none of the other teachers at the school came to see their performance. By early February, 1989, Respondent had visited Carbia's supervisor and had requested him to write a letter of apology to her students for not attending their holiday play. Her students later wrote letters to several persons in the upper level of administration for the Dade County Public Schools, including the Superintendent, asking why no one had attended their play. In mid-February, Carbia visited Respondent's classroom, and one of the students asked him why he had not come to their play. He explained that he had another commitment that evening. Although Carbia concluded that Respondent had instigated her student's question and their letter writing, no evidence was presented to show that it was Respondent's idea and not the idea of her students. The overall evidence clearly shows that Respondent stood up for her students when she felt they had been treated unfairly. No one answered or acknowledged the letters from the children. No more letters were written after Respondent was ordered to stop them. By the end of the 1988-89 school year, Respondent had voiced her complaints about Carbia's methods and her perception of his mistreatment of her and of black teachers and students at Coconut Grove Elementary School to several other teachers and to the P.T.A. President. She had also voiced her complaints about Carbia at a union meeting, a forum believed to be confidential. On July 3, 1989, Carbia forwarded a collection of letters from people reporting to him the things that Respondent was saying about him to the Office of Professional Standards of the Dade County Public Schools along with his request that that office direct Respondent to submit to a medical fitness determination. The letters, submitted to him in June, were from the counselor at the school, one parent, the P.T.A. president, and the other sixth- grade teacher. None of those persons testified at the final hearing in this cause, and those documents remain hearsay. As a result of Carbia's request, Joyce Annunziata, supervisor in the Office of Professional Standards, conducted a conference for the record with Respondent on August 11, 1989, to address Respondent's fitness to return to classroom duties, interpersonal relations with site personnel and community members, and Respondent's future employment status with the Dade County Public Schools. In that conference, Respondent was advised that future incidents of unprofessional demeanor with staff or parents would be considered insubordination. Carbia's request that Respondent be directed to submit to a medical fitness determination was denied. During the 1989-90 school year, Respondent taught the sixth grade. In October, 1989, Carbia assigned the responsibility for the school's United Way Campaign to teacher Deborah Piha, a fifth-grade teacher. The prior year Respondent had been in charge of the United Way Campaign and believed that the United Way Campaign was a sixth-grade project. After Respondent learned that Piha would be in charge, she encountered Piha on her way to the cafeteria. Respondent complained to Piha that Carbia had taken the responsibility away from Respondent and her sixth- grade students and voiced her anger toward Carbia for doing so. Although Piha understood that Respondent was not angry at her, Piha does not like "confrontations" and did not like the fact that Respondent "invaded her space." Piha told Carbia what Respondent had said about him. Carbia requested Piha to write a report about Respondent's conduct, and she did so. Word that Piha had written a negative report regarding Respondent spread quickly. A few moments after Piha left Carbia's office, she encountered Respondent who already had heard about the letter. Piha told Respondent that she was very sorry that she had written the letter and had not meant to hurt Respondent. Piha was clearly upset and told Respondent and the teacher who was with Respondent, "It's my job." Piha asked Respondent for help with the United Way campaign, and Respondent agreed. She offered Piha her materials from the prior year and offered to assist her in any way that she could. Although Carbia asked Piha subsequently to write a second letter, Piha declined. She also later declined Respondent's offers of assistance on the United Way campaign and would not use the materials that Respondent gave her even though she had asked Respondent to assist her. Patricia Perez-Benitoa is a beginning teacher. The 1989-90 school year was her second year of teaching. As an art teacher, she was shared by Coconut Grove Elementary School and another school. She came to Respondent's class on Tuesdays. On Tuesday, November 7, 1989, she told Respondent that she was experiencing difficulty in maintaining discipline. Respondent was aware of that fact since Respondent's students had been complaining to Respondent about Perez- Benitoa. Respondent's students did not like Perez-Benitoa since she called them stupid, immature, dumb, foolish, and silly. Although she followed the school's assertive discipline program, they believed she was unfair in administering discipline and clearly favored certain students. On November 7 when Perez-Benitoa told Respondent she was having difficulty, Respondent agreed to help her. They both stood at the front of the class, and Respondent explained to the students that she was supporting Perez- Benitoa 100%. Perez- Benitoa, with Respondent's support, explained to the class that student misbehavior would be dealt with in a consistent manner. Specifically, she made an "agreement" with Respondent and with the class that if a student misbehaved, then the student would suffer the consequences. Further, all students would be treated equally when they were punished. Torrey and Joseph were students in Respondent's class. After Torrey's mother complained to Perez-Benitoa about calling her son "stupid" during art class, Perez-Benitoa told Torrey during class that he was stupid and so was his mother. During the 1989-90 school year, Torrey was sent to the office by Perez- Benitoa and suspended from school six different times, although he was not sent to the office to be suspended by any other teacher during that school year. On Tuesday, November 14, 1989, Perez-Benitoa came to Respondent's classroom to teach art, and Respondent left the classroom since that would be her planning period. When she returned to the classroom at the end of the art class, she saw that Perez-Benitoa had put Torrey's name and Joseph's name on the board. Torrey was not in the classroom, but Joseph was. Perez-Benitoa told Respondent that she had sent Torrey to the office, and Respondent asked her why she had not sent Joseph to the office since both names were on the board and both names had the same number next to them representing the level of offenses. The two teachers conferred with each other quietly in the front of the classroom. Perez-Benitoa explained that she had sent Torrey to the office for using profanity in class. Respondent asked Perez-Benitoa why she had not sent Joseph to the office since his name was also on the board. Respondent reminded Perez-Benitoa that they had made an agreement witch the class that all students would be treated equally; she also told her that sending one student to the office and not the other was unfair. Respondent also told Perez-Benitoa that she had personally had problems with Joseph using profanity in the class and told Perez-Benitoa that Joseph liked to use the "F-ing" and the "B-ing" words. The students did not hear Respondent's conversation with Perez-Benitoa and did not hear Respondent's description of the profanity used by Joseph on previous occasions. However, a few of the students in the very front of the room only heard Respondent tell Perez-Benitoa it was not fair sending Torrey to the office, the same thing the students were telling Perez- Benitoa. The impression of the students was that Respondent was speaking nicely to Perez- Benitoa. As the two teachers conferred, the students told Respondent that Torrey had not done anything wrong to justify being sent to the office to be suspended. They told her that Joseph had used the word "ass," that Perez- Benitoa mistakenly thought Torrey had used the word, and that Joseph had told Perez-Benitoa that he had used the prohibited word and not Torrey. Joseph also told Respondent that he had used the profanity and that he had told Perez- Benitoa that he did it and not Torrey. The students remained unaware of the content of the conversation between Respondent and Perez-Benitoa. When Perez-Benitoa left the classroom, she took Joseph with her. Despite learning that Torrey had not used profanity in the classroom, Perez-Benitoa wrote a Student Case Management Referral Form regarding Torrey which resulted in Torrey being suspended from school. She did not write a Student Case Management Referral form regarding Joseph. She never told the administration that she had made a mistake regarding Torrey's misbehavior or Joseph's. When Perez-Benitoa went to the office, she told Carbia that Respondent had confronted her and scolded her in front of the class. She also told Carbia that Respondent had used profanity in front of her students. Carbia told her to write a letter regarding Respondent's unprofessional behavior. Perez- Benitoa did so, even though the statements she had made to Carbia were false. At the formal hearing in this cause, Perez-Benitoa admitted that the students did not hear Respondent use profanity, but that they "could have." She admitted that the students were not within hearing range and that there was no reason for the children to think there was any conflict between her and Respondent. She also explained that she was shocked that another teacher would share with her an experience that she had had with a student since other teachers' experiences were simply of no concern to her. She also admitted she has never heard Respondent use profanity other than when Respondent told her of Joseph's propensity for profanity. Carbia did not ask Respondent whether she had scolded Perez-Benitoa or whether she had used profanity in the classroom. He simply directed Essie Pace, the intern principal, to schedule a conference for the record with Respondent. No investigation was done regarding Perez-Benitoa's allegations between November 14 and November 19, the day before the conference for the record. At the conference for the record on November 20, 1989, Pace told Respondent that Respondent had been directed in a July, 1989, conference for the record not to approach another teacher in a negative or derogatory way and not to make derogatory statements to employees or students, and that Respondent had violated those directives. At the final hearing, no evidence was offered as to any July conference for the record. Either on November 20 or on November 21, 1989, in response to their questions, Respondent told her students that Perez-Benitoa had told the principal that Respondent used profanity to get her in trouble but that Respondent had not done so. Perez-Benitoa came to Respondent's classroom on November 21 to teach art. Respondent left the classroom when she arrived. Respondent's students were angry at Perez-Benitoa for lying to the principal about their teacher. They got out of their seats, walked around the classroom, refused to listen to her and were defiant. Perez-Benitoa contacted the office to ask someone to come and get her class under control for her. Principal Carbia was out of town, and intern principal Pace was not in the office at the moment. Perez-Benitoa took no additional steps to obtain assistance to bring her classroom under control. She simply sat down and allowed the disorder and disruption to continue, while she cried. The students' open defiance of her upset Perez-Benitoa. The students even told her that they were angry with her for lying about their teacher. When Respondent returned to her classroom, Perez-Benitoa left. She went directly to the principal's office. By the time she arrived there she was in hysterics and totally out of control. Pace had to enlist the help of another teacher to sit with Perez-Benitoa to try to calm her down, and Perez-Benitoa went home because she was unable to carry out her teaching duties for the remainder of the day due to her lack of control. Pace did not ask Respondent what had happened. She accepted Perez- Benitoa's accusations that Respondent had instigated her children to misbehave. Perez-Benitoa's statements to Pace that the children were throwing paper and erasers at her were not supported by any of the students although the students did admit later to Pace, subsequently to the School Board's investigator, and at the final hearing in this cause that they refused to listen to Perez-Benitoa and were walking around the classroom refusing to remain in their seats. Further, Perez-Benitoa's statements that she heard one student say to another, "Mrs. Bethel will be proud of us" have not been supported by any of the students during Pace's investigation, the School Board investigation, or during the final hearing in this cause. Rather, the students take the position that Respondent would never approve of them misbehaving. After speaking to Perez-Benitoa on November 21 and after calling her own supervisors, Pace went to Respondent's class and removed her from her classroom. When Pace went to Respondent's classroom, the children were not misbehaving. After Pace removed Respondent from her classroom, she interviewed several of the students one at a time. The students told her that Respondent does not use profanity, that Perez-Benitoa calls them names, that they were angry with Perez- Benitoa for lying to the principal regarding Respondent, and that Respondent did not instigate their disruptive and defiant behavior. Pace never asked the students why Respondent had told them about Perez-Benitoa accusing her of using profanity in the classroom. On February 6, 1990, a conference for the record was conducted with Respondent by the Office of Professional Standards to address the investigative report concerning improper conduct, Respondent's insubordination by not complying with a site directive, her lack of professional responsibility in dealing with staff and students, and her future employment status with the Dade County Public Schools. On March 7, 1990, the School Board of Dade County, Florida, suspended Respondent from her employment for twenty work days. Respondent enjoys a great deal of support from the community, from the parents of her students, and from her students. She is outspoken, which appears to make some people feel uncomfortable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Amended Notice of Specific Charges and in the Amendment to the Amended Notice of Specific Charges, dismissing the charges filed against her, reversing the determination that Respondent be suspended for twenty days, and awarding to Respondent back pay for those twenty days for which she has already served the suspension. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of October, 1990. LINDA M. RIGOT 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 10th day of October, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1800 Petitioner's proposed findings of fact numbered 1 and 17-19 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 2, 9 and 10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3-5, 7, and 11-16 have been rejected as not being supported by competent evidence in this cause. Petitioner's proposed findings of fact numbered 6 and 8 have been rejected as being unnecessary for determination of the issues in this cause. Respondent's first, second, third, fifth, and eighth unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth, sixth, and seventh unnumbered paragraphs have been rejected as not being supported by the evidence in this cause. Respondent's ninth unnumbered paragraph has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Patricia Graham Williams, Esquire 1055 Northwest 183rd Street Miami, Florida 33169 Jaime Claudio Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Paul W. Bell, Superintendent The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Patrick D. Gray Executive Assistant Superintendent Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County, Florida Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Prior to May 9, 1979, the Respondent held a rank III teacher's certificate issued by the Respondent. The Respondent met, and continues to meet, all requirements for rank III certification. The Respondent was employed in an instructional capacity with the Pinellas County School System from 1970 through June, 1980. The Respondent consistently received excellent evaluations during his tenure with the Pinellas County School System. On February 5, 1979, the Respondent made application to the State Department of Education, Teachers Certification Section, for a rank II teacher's certificate. While it does not appear that the Respondent actually filed the application, it was filed on his behalf and with his knowledge, and he was responsible for its being filed. The application included a transcript of course work which reflected that the Respondent had received a Masters of Education Degree from Florida A&M University on December 15, 1978. The transcript was a forgery. The Respondent had completed some course work toward a Masters Degree, but not nearly sufficient hours of courses to entitle him to a Masters Degree. A friend of the Respondent who was employed at Florida A&M University prepared the false transcript for the Respondent. The Respondent paid this individual $300.00, loaned him $700.00, and provided him with seafood, free lodging and football tickets as compensation for the forged transcript. The Respondent's testimony that the money, loan, and other items were not related to the forged transcript ha been found not credible. The Respondent signed the application, which was supported by the forged transcript. The following statement is set out above his signature: I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means... I further certify that all information pertaining to this application is true and correct. The signature is notarized as having been sworn to and subscribed. On May 9, 1979, the Department of Education issued a rank II teacher's certificate to the Respondent. The Respondent was not eligible for rank II certification, and he obtained the certificate by fraudulent means. The Respondent filed the rank II certificate with his employer, the Pinellas County School Board, on or about June 13, 1979. As a result, the Respondent obtained an increase in pay retroactive to December 15, 1978. While the Respondent never held any position with the Pinellas County School Board that he would not have been eligible to hold under his rank III certification, he received a total of $1,606.85 in additional compensation based upon the rank II certification. The Respondent would not have received this additional income without submitting the rank II certificate to his employer. During July, 1980, state prosecuting authorities questioned employees of the Pinellas County School Board and the Respondent with respect to his rank II certificate. The Respondent confessed to having received the rank II certificate by fraudulent means. Following the confession the Respondent made full restitution of the $1,606.85 to the Pinellas County School Board. The Respondent was thereafter arrested and charged with grand theft in Pinellas County, Florida, and with forgery and bribery in Leon County, Florida. The charges in Leon County were dropped after the Respondent entered a plea of no contest to the Pinellas County charges. He was adjudicated guilty of the felony of grand theft on October 27, 1980, and placed on three years' probation. The Respondent had been suspended from his employment, and he resigned following his conviction. Several newspaper articles appeared relating to the charges filed against the Respondent and his conviction. The Respondent's effectiveness as an employee of the Pinellas County School System, and as a teacher, has been seriously reduced as a result of his misconduct. The Respondent was cooperative with authorities in connection with the criminal investigation. The Respondent is remorseful, realizes the gravity of his misconduct, and is susceptible of rehabilitation. The Respondent has not been subject to any disciplinary action as a teacher, or through any criminal prosecutions prior to this incident. It does not appear likely that the Respondent will engage in such conduct in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission enter a final order permanently revoking the rank II teaching certificate that had been issued to the Respondent, Particus B. Blackshear, Jr.; and that the Respondent's eligibility for any teaching certificate be revoked for a period of five years, subject to reinstatement only in accordance with the provisions of Section 231.28(4)(b), Florida Statutes. RECOMMENDED this 16th day of July, 1981 in Tallahassee, Florida. COPIES FURNISHED: J. David Holder, Esquire MacFarlane, Ferguson, Allison & Kelly 700 Lewis State Bank Building Post Office Box 1548 Tallahassee, Florida 32302 Howard P. Rives, Esquire Suite 1000 600 Cleveland Street Clearwater, Florida 33515 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 G. STEVEN PFEIFFER 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 16th day of July, 1981.
Findings Of Fact Florida law requires that persons employed to serve in instructional capacities in the public schools hold valid certificates to teach. The Respondent, Florida Department of Education, is charged by statute with the responsibility of issuing such teaching certificates, and with the concomitant responsibility to suspend or revoke teaching certificates under appropriate circumstances. Sections 231.14 - 231.28, Florida Statutes. Purporting to act under authority of this statutory framework, the Respondent has adopted Rules 6A-4.37, and 6B-2.01 through 6B-2.17, Florida Administrative Code, as its rules establishing practices to be followed in suspending or revoking teaching certificates. The Respondent's rules establish a procedure whereby a teacher charged with conduct that would justify suspension or revocation of a teaching certificate is presented with the options of taking no action, which results in informal procedures at which the appropriate penalty is the only issue; or of requesting a hearing. If a hearing is requested, the teacher is permitted to choose between a hearing conducted by a Hearing Officer of the Division of Administrative Hearings as provided in Section 120.57(1), Florida Statutes, or a hearing conducted by a panel of the Professional Practices Council ("PPC" hereafter). Rule 6A-4.37(2) provides in pertinent part as follows: When the commissioner of education finds that probable cause exists, he shall direct a filing of a formal petition against the certificate holder for the revocation or suspension of a teacher's certificate, together with a form permitting waiver of a hearing officer pursuant to section 120.57(1), Florida Statutes, as hereinafter provided. If section 120.57(1), Florida Statutes, shall be waived by both the respondent and the chairman of the professional practices council by executing and filing the waiver form with the commissioner of education within twenty (20) days from service of the petition upon the respondent, the commissioner of education shall direct the chairman of the professional practices council to prosecute the matter before a hearing panel of three members of the professional practices council each of whom has not participated in nor was an informed party in any preliminary investigation of the cause. If section 120.57(1) Florida Statutes, is not waived by the parties, the matter shall be prosecuted before a hearing officer of the division of administrative hearings. The professional practices council may retain an attorney to prosecute the cause. The professional practices council may retain a different attorney to advise the hearing committee and act as a law officer for said committee. On completion of the hearing as hereinafter set forth, the hearing panel or officer, shall transmit through the commissioner of education to the state board of education a transcript of the proceedings and a report, which shall contain specific findings of fact, conclusions of law, interpretations of rules and a recommended order. The state board of education shall review the transcript of testimony and the report. The waiver form utilized is as follows: WAIVER OF RIGHT TO A HEARING BEFORE A HEARING OFFICER OF THE DIVISION OF ADMINISTRATIVE HEARINGS IN PREFERENCE TO A HEARING BEFORE A PANEL OF THE PROFESSIONAL PRACTICES COUNCIL In the matter of the revocation of the teaching certificate of and pursuant to the provisions of 120.57, Florida Statutes, I hereby waive my right to a hearing before a hearing officer of the Division of Administrative Hearings. In the alternative I do hereby request that this matter be heard before a panel of professional educators from the membership of the Professional Practices Council as provided in 6A-4.37, Rules of the State Board of Education. DATE RESPONDENT The remaining paragraphs of 6A-4.37 delineate specific procedures to be followed whether the hearing is conducted by a Hearing Officer, or by a PPC panel. The rule was adopted at a May, 1977 meeting of the State Board of Education. Prior to its adoption, public hearings were conducted, and members of the public, including the Petitioner, were allowed an opportunity to comment. The Joint Administrative Procedures Committee of the Florida Legislature reviewed the rule. The rules set out at Chapter 6B-2.01 through 6B-2.16, Florida Administrative Code, establish additional procedures for public hearings conducted by the PPC. These rules pertain to teaching certificate suspension or revocation proceedings and to other matters. They are in large part inconsistent with the provisions of Rule 6A-4.37, and with the Administrative Procedure Act (Ch. 120, Florida Statutes). The rules are no longer followed by the PPC except those provisions which relate to the appointment of a law officer to aid a PPC panel in conducting hearings. The Respondent has been in the process of revising these rules for more than one year. Rule 6B-2.17 relates to probable cause hearings to be conducted by an executive committee. The rule is somewhat vague, but it appears to relate to proceedings under Section 231.57, Florida Statutes, rather than teaching certificate suspension or revocation proceedings. The rule does not relate to the issue of whether a final hearing will be conducted by a Hearing Officer of the Division of Administrative Hearings, or a panel of the PPC. During 1977, three-member PPC panels conducted thirteen hearings in teaching certificate suspension or revocation proceedings. Fourteen such hearings were conducted by Hearing Officers. During 1978, eighteen were conducted by PPC panels, and eleven by Hearing Officers. The Petitioner, Florida Education Association/United AFT-AFL-CIO, is a statewide organization composed of persons involved in the field of education. The members are primarily teachers. The Petitioner is a confederation of local affiliates. Its local affiliates serve as collective bargaining representatives for teachers in approximately half of the local school districts in Florida. Among the Petitioner's functions are to protect its members, and members of the teaching profession with respect to the terms and conditions of their employment as teachers. The Petitioner provides services which local affiliates are largely unable to perform, including legal assistance and lobbying assistance. In many instances the Petitioner provides legal counsel to its members in connection with teaching certificate suspension or revocation proceedings. At the Petitioner's October, 1978 convention, its members authorized Petitioner's executive council to examine the status of the PPC, and to take steps to clarify the role of the PPC. The instant rule challenge was authorized by the executive council in accordance with that mandate of the membership. There are approximately 90,000 teachers in Florida. The Petitioner represents approximately 30,000 of them.
