The Issue The issues are whether Respondent committed the act alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(c) and (i), Florida Statutes (2003), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and the entire record in this proceeding, the following Findings of Fact are made: At all times pertinent to this proceeding, Respondent held a Florida Educator's Certificate No. 891417. Respondent was first employed as a teacher at River Ridge Middle School ("River Ridge") in the Pasco County School District in August 2003, under a ten-month contract. During the 2003-2004 school year, Respondent taught sixth-grade geography at River Ridge. On April 15, 2004, during the five-minute period while classes were changing and before the fourth-period class started, Respondent left his classroom to go to the faculty bathroom. Prior to leaving the classroom, Respondent announced to the class that there would be a "pop quiz" that day and told them to sit down, study their notes, and/or read the book. Respondent was gone no longer than five minutes. When Respondent returned to the classroom, M.M. and one of his friends, another student, were standing up "play fighting." This "play fighting" involved the two students pushing each other. Upon observing the two students pushing each other, Respondent reasonably, but mistakenly, believed the two students were fighting and took immediate action consistent with that belief. Respondent approached M.M. and the other student and yelled at them, "Break it up!" Respondent then pushed or grabbed M.M.'s shoulder, pivoting him around Respondent, in an attempt to separate him from the other student. Immediately thereafter, while Respondent was turning toward the other student, he heard a commotion, which presumably was M.M. falling on the floor.2/ Immediately after Respondent grabbed or pushed M.M., he (M.M.) fell on the floor. Prior to landing on the floor, M.M.'s back hit the corner of a nearby table.3/ As a result of hitting the table, M.M. testified that he had a bruise on his back. However, there was no evidence to substantiate this claim, including evidence as to the severity of that alleged injury or whether it required medical attention. When M.M. got up from the floor, Respondent walked M.M. over to his seat. At first, M.M. sat in his assigned seat, but then he got up from his seat and "got in Respondent's face." During this confrontation, Respondent told M.M. that he was tired of dealing with him and to go to the principal's office. Initially, M.M. didn't move, but just stood there facing Respondent. Eventually, M.M. left the classroom and went to the principal's office. However, before he left the classroom, M.M. told Respondent, "I'll get you." M.M. was embarrassed by the incident. When M.M. arrived at the principal's office, he told John Joens, the school principal, that Respondent had pushed him down. In addition to M.M.'s verbal account of the incident, he also gave Principal Joens a written statement concerning the incident.4/ After Principal Joens listened to M.M.'s account of the incident, he also discussed the incident with Respondent. Respondent told Principal Joens that he was trying to break up a confrontation between M.M. and another student. To do so, Respondent explained that he grabbed M.M. by the shoulders, pivoted the student around behind him [Respondent] to move M.M. behind him, and then turned back to the other student. In discussing the incident with Principal Joens, Respondent also reported that after M.M. fell to the floor, he told M.M., "I know you're embarrassed but you have to go sit down." Finally, with regard to students who may have seen the incident, Respondent told Principal Joens that given the seating arrangement in the classroom, most of the students could not have had a clear vision of what happened. After listening to Respondent's explanation about the incident, Principal Joens' primary question to Respondent was how the student ended up on the floor. However, Respondent was unable to answer that question, because he was not sure how M.M. ended up on the floor. After listening to Respondent's explanation, Principal Joens could not understand or determine how M.M. had ended up on the floor. Therefore, in an effort to ascertain what had actually happened, Principal Joens decided to identify and interview as many students as possible who were eyewitnesses to the incident. As part of his investigation of the subject incident, Principal Joens interviewed 16 or 17 students who were in Respondent's fourth-period class on April 15, 2004. He also had the students to prepare and give him written statements about what, if anything, they observed relative to the incident. After Principal Joens completed his investigation, which consisted of input from M.M., information provided in student interviews, and Respondent's explanation and responses, he still could not determine how M.M. landed on the floor. On the day of the incident, except for two student desks and two tables, where a total of four students sat, the front of all of the student desks faced south; the backs of those desks faced north, which was the area of the classroom where the incident occurred. Therefore, in order to observe the incident, the students sitting at their desks would have had to get up from their seats or turn around in their seats. Two of the students who were in Respondent's fourth- period class on April 15, 2004, testified at this proceeding. Both students were credible witnesses. However, given the lapse of time since the incident (almost four years) and the proximity of their desks to the area where the incident occurred, it is understandable that there were details that they could not clearly recall, if they ever knew those details, or the sequence of the events. J.W., a student in Respondent's fourth-period class on April 15, 2004, recalled that when Respondent entered the classroom that day, he approached M.M. and two other students who were pushing each other around and told them, "Break it up!" J.W. also testified that "they [presumably Respondent and M.M.] were arguing and Respondent pushed M.M. down and M.M. fell on the floor." When J.W. observed the incident, he was sitting at his desk, which was three rows from the area of the classroom where the incident occurred. J.W. testified that in order to see the incident, he had to turn around in his seat or look over his left shoulder, since the back of his desk faced the area where the incident occurred. D.L., a student in Respondent's fourth-period class on April 15, 2004, testified that she recalled that Respondent pushed M.M. on the shoulder area and then M.M. hit the table and then fell to the chair. She did not recall M.M. falling or ending up on the floor. Furthermore, D.L. did not know the reason Respondent pushed M.M. or even if there was a reason for pushing him. When D.L. observed the incident, she was sitting at her desk, which was in the last of five rows of desks in Respondent's classroom and the row farthest from the area in the classroom where the incident occurred. The back of D.L.'s desk faced the area where the incident occurred, and in order to see the incident, she had to turn around. According to Principal Joens, the only reason an adult "gets between two students is to provide . . . [for] the safety of that student or the other student's [safety]." In this case, Principal Joens testified that he does not believe that any student's safety was in danger and, thus, there was no need for Respondent to touch M.M. and "use that force." Two days after the incident, Respondent resigned from his teaching position at River Ridge. During the eight months that Respondent was teaching at River Ridge, Principal Joens observed Respondent while he was teaching and interacting with the students. Principal Joens described Respondent's interactions with students during those observations as positive. Moreover, two former students who were in Respondent's fourth-period class on April 15, 2004, testified that Respondent was a good teacher.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2008.
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
The Issue Whether Respondent, a teacher, committed the violations alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent has held Florida Teaching Certificate 720034 at all times material to this proceeding. His certificate covers the area of sociology and is valid through June 30, 2002. The Broward County School Board (School Board) employed Respondent as a classroom teacher pursuant to a professional service contract at all times material to this proceeding. Respondent began his employment with the School Board on February 14, 1992. On March 8, 1999, Respondent was placed on administrative leave. On July 20, 1999, the School Board suspended Respondent's employment without pay. On August 17, 1999, Respondent requested a formal administrative hearing, and the matter was referred to DOAH. Petitioner offered no evidence as to the outcome of the DOAH proceeding or as to Respondent's current employment status with the School Board. 1/ Respondent's first teaching assignment was at Apollo Middle School, a public school in Broward County, where he taught for three years. His performance was evaluated several times during his tenure at Apollo. Each evaluator found Respondent to need improvement in the area of classroom management. Respondent was transferred to Attucks Middle School, a public school in Broward County, where he was working during the 1998-99 school year. Respondent's assignment for that school year was to teach a class of seventh-grade students who had behavioral problems in other settings. Respondent, a former college and professional basketball player who is approximately 6'7" tall, believed he was given that assignment, in part, because his stature would intimidate the students in that class. On or about November 25, 1998, D. S., a male student in Respondent's class, was misbehaving. Respondent chased D. S. around the classroom, shoved him into a wall, and physically threw him out of the classroom. During the 1998-99 school year, Respondent encouraged the students in his class to settle their differences by fighting, using the expression "fight till you die, death row." He also permitted the students in his class to gamble by flipping coins and playing cards. On or about March 8, 1999, Respondent was placed on administrative leave by the School Board. While on administrative leave, Respondent worked as a counselor for an after-school program located at the Whiddon-Rogers Education Center (Whiddon-Rogers). The City of Fort Lauderdale administered that after-school program and employed the staff for the program. The City of Fort Lauderdale employed Respondent while he worked for the after-school program. K. F. J. is a married female. At all times material to this proceeding, K. F. J. was dually employed as a counselor at Whiddon-Rogers and as a teacher's assistant. The School Board employed K. F. J. during the part of the day that she worked as a teacher's assistant. The City of Fort Lauderdale employed K. F. J. during the part of the day that she worked at the after-school program. K. F. J. testified that her duties as a counselor at Whiddon-Rogers were ". . . to play with the kids with different recreations [sic], ping pong, volleyball, basketball, different games, stuff like that." The after-school program at Whiddon- Rogers was a child care program. Petitioner failed to establish that the after-school program was an educational activity. While he was employed at Whiddon-Rogers, Respondent repeatedly sexually harassed K. F. J. This behavior regularly consisted of unsolicited sexual advances and offensive behavior implying Respondent's sexual desires. K. F. J. emphatically rebuffed Respondent's advances. Respondent created a hostile, intimidating, abusive, offensive, or oppressive environment for K. F. J., who was justifiably afraid of Respondent. On April 28, 1999, Respondent made sexually inappropriate comments to K. F. J., asking her to give her a hug and to let him grab her "ass." K. F. J. became very angry and an argument ensued. Respondent made vague threats against K. F. J. and her husband. C. C., a seventeen-year-old male student, interceded between Respondent and K. F. J., telling Respondent to leave her alone. James Parrish was the head custodian at Whiddon-Rogers in April 1999. Mr. Parrish heard the verbal exchanges between Respondent and K. F. J., and he saw C. C. intercede between the two of them. Later that afternoon, Respondent came to believe that C. C. had punctured a tire on Respondent's automobile. Respondent saw C. C. leaving Whiddon-Rogers and ran after him. Mr. Parrish and a male counselor named Dennis ran after Respondent. Respondent caught C. C., grabbed him by the neck, and was about to strike C. C. when Mr. Parrish and Dennis physically restrained Respondent. Petitioner filed the Administrative Complaint that underpins this proceeding on July 20, 2000. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law set forth herein. The final order should revoke Respondent's teaching certificate. DONE AND ENTERED this 6th day of September, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of September, 2001.
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within St. Lucie County, Florida. At all times material hereto, Respondent was employed by the School Board as a music teacher at Manatee Academy K-8 School (“Manatee”), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. Respondent’s employment with the School Board as a teacher began in 2006. At all times material hereto, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. Prior to the incidents giving rise to this proceeding, Respondent was not the subject of any discipline. She had received overall ratings of “Exceptional” or “Above Expectation” on her teaching evaluation forms. The incidents giving rise to this proceeding occurred on October 18 and 19, 2012, during the 2012-2013 school year. October 18 and 19 Respondent awoke around 6:00 a.m. on Thursday, October 18, 2012, and reported to work at Manatee. That afternoon, Respondent finished her work day at Manatee and left the school sometime after 3:15 p.m. After running some errands, Respondent arrived at her single-family residential home in Fort Pierce, sometime after 5:00 p.m. Respondent shared the home with her long-time boyfriend and fiancé, Dominic Madison (“Madison”). Madison was also a teacher employed by the School Board. At that time, Madison was a band director at a local high school. By the time Respondent got home, Madison had not yet returned home from his work day at the high school. Shortly after arriving home, Respondent sat down at her personal laptop computer to check e-mails and do some work. The computer was connected to the home’s wi-fi network. While working on the computer, Respondent discovered an unfamiliar icon and link to a file on the home network. The icon peaked Respondent’s interest. Upon clicking on the icon, a video opened with Madison’s face. Respondent then observed Madison and a white female engaged in sexual activity in a room inside their home.1/ While Respondent was unsure, it appeared that the female might be a former student of Madison’s who might also be a minor. As she continued watching the video, Respondent recognized the female as one of Madison’s 17-year-old students, K.M. After watching the video, Respondent was devastated, upset, angry, and unable to process what she saw. She called Madison at 6:36 p.m., to confront him about the video and confirm her suspicions that he, in fact, engaged in sexual activity with a minor student. They spoke for approximately 36 minutes. During the call, they argued, and Madison neither admitted nor denied engaging in sexual activity with K.M. By this point, Respondent was in tears and so upset and completely devastated that she experienced chest pains. After getting off the phone with Madison and while still at home, Respondent called her pastor, Theodore Sanders, for guidance. They spoke around 7:13 p.m., for approximately 14 minutes. Pastor Sanders knew Madison because his children had been members of the band at Madison’s high school. Pastor Sanders was shocked by Respondent’s allegation that Madison had engaged in sexual activity with a minor student. Due to the ramifications of such a “huge allegation,” Pastor Sanders was cautious and wanted to make sure that Respondent was certain about what she saw on the video. It is understandable that Respondent needed some period of time in which to process the situation, given that Madison was her fiancé; they had a long relationship together; and she observed Madison on her personal computer engaging in sexual activity with a minor student in their home. Sometime after 7:30 p.m., Respondent left the home. At 7:26 p.m., Respondent and Madison spoke again on the phone for approximately 38 minutes. Respondent and Pastor Sanders spoke again on the phone at 8:03 p.m. and 8:45 p.m., with such calls lasting one minute and 10 minutes, respectively. In the interim, Respondent spoke again on the phone with Madison for 43 minutes starting at 8:03 p.m. As a teacher, Respondent is a mandatory reporter of child abuse under sections 39.201(2)(a) and 1006.061(1), Florida Statutes. Respondent clearly understood that she had a mandatory obligation to report the sexual activity she saw on the video between Madison and K.M.2/ Respondent and Pastor Sanders discussed the need to report what Respondent saw. There was never any doubt that the abuse needed to be reported. Because of Respondent’s distraught emotional state at the time, they agreed that Pastor Sanders would make the call. Pastor Sanders told Respondent to get off the road and go home. Pastor Sanders then called “911” at some point after they got off the phone at 8:55 p.m., to report the abuse. At the hearing, Respondent acknowledged that there was almost a four-hour gap from when she first saw the video until the time that Pastor Sanders stated he was going to report the abuse. Respondent further acknowledged that prior to 8:55 p.m., she had never made a phone call to report the abuse to 911, DCF, or her principal. However, given that Respondent had just recently seen a video on her personal computer of her fiancé engaged in sexual activity with a minor female student in their home, it was understandable that Respondent needed time to process the situation. A less than four-hour delay from when Respondent first saw the video to Pastor Sanders’ call to 911 was immediate, and not an unreasonable delay given the unique facts of this case. Sometime before 10:00 p.m., Respondent returned to her residence. She saw Madison’s vehicle and assumed he was inside the home. According to Respondent, she knew the police were on their way. Respondent nevertheless entered the home, but she did not approach Madison in any manner. At approximately 10:00 p.m., two St. Lucie County Sheriff’s deputies arrived at the home and rang the doorbell at the front door. Madison answered the door, and was told by one of the deputies that they were there to talk to Respondent. The officer asked Respondent to step outside to speak with them and Madison was directed to step back. Madison then went back inside the home and closed the door behind him. One of the deputies remained at the front porch area while Respondent and the other deputy began to discuss what Respondent had seen on the video. At this point, one of the deputies requested to see the video so Respondent and the deputies proceeded to attempt to go back inside the front door. However, they discovered that Madison had locked the door behind him when he re-entered the home. By this point, no law enforcement officer had explored the perimeter of the home to determine whether there were any other entrances or exists from the home. Nor was Respondent asked by either deputy if there were any other entrances or exits from the home. Respondent began ringing the doorbell and knocking on the front door. In the midst of Respondent ringing the doorbell, knocking on the door, and receiving no response from Madison, the deputies asked Respondent, for the first time, if there were any guns in the home and any other entrances and exits. Respondent advised the deputies that there was a back door. Ultimately, it was determined that Madison had snuck out the back door of the home to elude law enforcement. Respondent gave the deputies permission to enter and search the home. They entered through the open back door. Once the house was cleared by the officers, Respondent and the officers went inside the home. Respondent was cooperative during the search of the home and she consented to allowing the officers to look at the computer. Respondent attempted to show one of the deputies what she saw on the computer, but nothing would come up. Ultimately, it was determined that Madison took the evidence with him when he fled the home. When officers went into the front office and wanted to collect some items belonging to Madison, Respondent told the officers that she would prefer if they got a search warrant. The officers obtained a search warrant and stayed all night searching the home until approximately 5:00 a.m. Respondent did not sleep or eat while the officers were at the home and she was visibly “shaken-up” and crying at times during the evening and early morning hours of October 19. Detective Wentz was at the home and spoke with Respondent throughout the night and early morning of October 19. At some point, Detective Wentz “flat out asked” Respondent if she knew where Madison was located. Respondent responded, indicating she did not know where he fled to. Detective Wentz made it clear to Respondent on multiple occasions during the evening of October 18 and early morning of October 19 that if she knew Madison’s whereabouts, she should let him know. Before he left the home on the morning of October 19, Detective Wentz reiterated to Respondent that she needed to contact law enforcement immediately if she had any information about Madison’s whereabouts. Respondent clearly understood this directive. At no time during the evening of October 18 and early morning of October 19 did Respondent ever volunteer information as to where she thought Madison might be. On the other hand, the persuasive and credible evidence adduced at hearing establishes that Respondent did not know of Madison’s whereabouts at any time during the evening of October 18 and early hours of October 19 after he fled the home. However, by 11:45 a.m., on October 19, Respondent discovered that Madison might be staying at the local Holiday Inn Express, based on information she received from Madison’s father. Respondent called the front desk of the hotel at 11:47 a.m. and 12:01 p.m., in an effort to confirm that Madison was indeed at the Holiday Inn. Respondent and Madison spoke at 12:09 p.m., at which time Respondent knew Madison was still at the hotel, about to check-out of the hotel. At no time between 11:47 a.m. and 1:39 p.m., did Respondent make any calls to law enforcement to let them know that Madison might be at the Holiday Inn. Master Deputy Horowitz was at Respondent’s home before 1:39 p.m. However, Respondent failed to inform Master Deputy Horowitz that Madison was at the Holiday Inn. Master Deputy Horowitz specifically asked Respondent if she knew where Madison was. Respondent responded, stating that she “did not know where his whereabouts were at the time.” Respondent spoke with Master Deputy Horowitz by telephone on two or three occasions later that afternoon. Respondent’s testimony that she told Master Deputy during one of these telephone conversations that Madison had been at the Holiday Inn is not credited and is rejected as unpersuasive. Later that afternoon, Respondent was transported to the Sheriff’s Office for an interview. During the interview, Respondent admitted she failed to inform law enforcement that Respondent had been staying at the Holiday Inn: DETECTIVE NORMAN: I know you’ve talked to several detectives throughout yesterday evening, last night, this morning, this afternoon. Probably seen more faces that you want to see. Here’s--here’s what we’re trying to figure out, where your fiancé is. Do you know where he is? MISS THOMAS: And I understand that. And like I told the officers that came to the home, it was information that was left out. And it truly was not intentional. I know the way it looked, intentionally, it made me look bad, but I honestly do not know where he is. At the time when I did speak to him, he told me that’s where he was, that he was leaving that location so I haven’t a clue. He hasn’t contacted me since the last time I spoke with him today. * * * And I mean, I’m disappointed because I made a mistake. I did. I omitted something that I didn’t realize at the time and I don’t know if it was, you know, just, you know, just did it just because I guess deep down I was maybe trying--you know, I don’t know why I didn’t say, “Oh yea, by the way this.” I don’t know why. That was so stupid. Petitioner’s Exhibit 12, pp. 5-7. Following the interview, Respondent was placed under arrest and charged with one felony count of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, Florida Statutes, and one felony count of being an accessory after the fact, in violation of section 777.03(1)(c), Florida Statutes. After Respondent was arrested, she was placed on temporary duty assignment at home with pay. On Monday, October 22, Respondent self-reported her arrest and the abuse of K.M. by Madison to her principal and the District. Subsequently, the State Attorney charged Respondent in the Nineteenth Judicial Circuit for the felony charges of failing to report child abuse in violation of sections 39.201(1)(b) and 39.205, and for the felony charge of being an accessory after the fact in violation of section 777.03(1)(c). The persuasive and credible evidence adduced at hearing establishes that Respondent did not call Madison while he was at the Holiday Inn Express to warn him so that he could elude arrest. Nevertheless, Respondent knew Madison was at the Holiday Inn at least by 12:09 p.m. on October 19, when she spoke to Madison on the telephone. Respondent failed to inform law enforcement that he was at the Holiday Inn, or that he had been at the Holiday Inn, until her interview at the Sheriff’s office later that afternoon just prior to her arrest. After a 23-hour manhunt, law enforcement officers found and arrested Madison at the Holiday Inn Express around 7:00 p.m. Respondent’s delay in informing law enforcement of Madison’s whereabouts or that he had been at the Holiday Inn Express delayed his arrest by at most, approximately seven hours. Notably, the video was discovered by Respondent, reported by Respondent to law enforcement, and Madison was arrested, within the span of approximately 25 or 26 hours. Ultimately, it was Respondent who identified the victims of Madison’s crimes. It was Respondent’s discovery of the video, her immediate reporting of the abuse, and her later identification of the victims, which led to Madison’s arrest and his conviction on all charges. The State Attorney charged Madison in the Nineteenth Judicial Circuit with 40 counts of criminal activity: 34 felony charges of sexual activity with a minor; five felony charges of sexual battery on a child in custodial relationship; and one felony charge of using a child in a sexual performance. On April 1, 2016, Madison was adjudicated guilty on five counts of sexual activity with a minor. Madison was sentenced to 15 years, consecutive, for each count. On August 7, 2013, Respondent pled no contest to both charges. On the plea form, Respondent checked section 25, which states: “I specifically believe the plea is in my best interest even though I am innocent of the charge, charges, or violations, or may have defenses to them.” After Madison was adjudicated guilty, all criminal charges against Respondent were Nolle Prossed. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A- 5.056(2)(d) or (e). The evidence does not establish that Respondent engaged in behavior that disrupted a student’s learning environment or reduced her ability or his or her colleagues’ ability to effectively perform duties. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a). The evidence does not establish that Respondent failed to make reasonable efforts to protect a student from conditions harmful to learning and/or to the student’s mental and/or physical health. Indeed, Respondent protected students from any further abuse by Madison. Respondent is responsible for Madison’s abuse of K.M. being brought to the attention of law enforcement immediately after she observed the video on her personal computer. Within about four hours after observing her fiancé engaging in sexual activity with a minor on her personal computer and processing the situation and speaking with her pastor, the matter was reported to 911, and law enforcement arrived at Respondent’s home. Madison was at the home when the deputies arrived. Notably, the deputies who arrived at Respondent’s home did not ask to speak with Madison first. Instead, they asked to speak with Respondent, and Respondent was asked to step outside the home. Madison, the alleged perpetrator of the sexual abuse, was ordered by one of the deputies to go back inside the home. Knowing full well that the suspect, Madison, went back inside the home through the front door, neither deputy undertook any efforts to determine whether Madison might have an escape route through another door. A perimeter was not established until after law enforcement officers discovered that Madison had fled the home. Respondent cooperated with law enforcement while they were at her home. She cooperated fully in the prosecution of Madison and she was instrumental in securing Madison’s criminal conviction for the abuse. Given the totality of the circumstances, Respondent’s failure to inform law enforcement during the afternoon of October 19 of Madison’s whereabouts at the Holiday Inn, which delayed the arrest of Madison by seven hours, at most, does not rise to the level of conduct sufficient to support a finding of guilt in violation of rule 6B-1.006(3)(a). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated rule 6B-1.006(3)(n). Respondent reported the abuse to appropriate authorities when Pastor Sanders called 911. She also reported the abuse to appropriate authorities when deputies arrived at her home. Respondent also self-reported the incident to her principal and the District on the following Monday, October 22. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of immorality in violation of rule 6A-5.056(1). Insufficient credible and persuasive evidence was adduced at hearing to establish that Respondent engaged in conduct inconsistent with the standards of public conscience and good morals, and that the conduct was sufficiently notorious so as to disgrace or bring disrespect to Respondent or the teaching profession and impair Respondent’s service in the community. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 5.37(8)(a). Respondent “directly” reported her knowledge of Madison’s abuse of K.M. as required by the policy when Pastor Sanders called 911 within four hours of Respondent’s view of the video. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.301(3)(b). As to Policy 6.301(3)(b)(viii), Respondent did not engage in immoral conduct, nor was it shown that Respondent’s conduct was “indecent.” As to Policy 6.301(3)(b)(xxx), the School Board failed to prove that Respondent engaged in off-duty conduct that does not promote the good will and favorable attitude of the public toward the School District, its programs, and policies. In reaching this conclusion, it is notable that the School Board did not call any members of the public or any administrators, teachers, or other personnel as witnesses to support this claim. Moreover, the School Board does not argue in its proposed recommended order that it proved that Respondent violated Policy 6.301(3)(b)(xxx). Paragraphs 71 through 73 refer to another specific subdivision within Policy 6.301(3)(b), 6.301(3)(b)(viii). However, there is no specific argument that Respondent violated Policy 6.301(3)(b)(xxx). The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated Policy 6.94(2)(a). As detailed above, Respondent reported the abuse when Pastor Sanders called 911. Respondent also reported the incident to the deputies when they arrived at her home shortly after Pastor Sanders called 911, and when she self-reported the abuse to her principal and the District on the following Monday, October 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order rescinding Respondent’s suspension without pay and termination, and reinstate her with back pay and benefits. DONE AND ENTERED this 23rd day of May, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 23rd day of May, 2017.
Findings Of Fact Fischer is a child under commitment to the Department of Health and Rehabilitative Service who on May 24, 1978, was granted the privilege of transferring to a community placement under the direct supervision and authority of the Bureau of Fields Services, Division of Youth Services. The transfer was the subject of a furlough agreement entered into by Fischer with HRS on the same date. On May 31, 1978, Fischer was furloughed from the Alyce D. McPherson School, Ocala, Florida, and released to the custody of Mr. Rolf Fischer, the brother of Fischer's natural father who had raised her since she was sixteen (16) months old. On June 6, 1978, Fischer was placed on a contract with her counselor, Francine Nelms, for the week of June 6, 1978, to June 13, 1978. The contract provided that Fischer could not leave her residence without her stepfather being with her, that she was to do all her chores and that she was to maintain an attitude of respect toward her stepfather. Fischer did not sign the contract although she read it and indicated that she understood it. On June 7, 1978, Fischer left her stepfather's place of residence without permission and travelled around the State of Florida by hitchhiking and riding the bus. She was apprehended in Venice, Florida, by the Venice Police Department. Pursuant to a hearing conducted by Mr. Arrie Owens, Youth Services Program Specialist of HRS, on June 21, 1978, Fischer had her furlough revoked because she failed to abide by her furlough agreement by virtue of her leaving her place of residence without permission. Fischer subsequently commenced this appeal.
The Issue The issue in this case is whether a district school board is entitled to suspend a teacher without pay for just cause based principally upon the allegation that he slapped a student.
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. As of the final hearing, Respondent Larry J. Williams ("Williams") had been employed as a teacher in the Miami-Dade County Public School System for approximately 16 years. At all times relevant to this case, Williams was assigned to Parkway Middle School, where he taught students with disabilities. The events giving rise to this case occurred on January 30, 2004. About 20 minutes into one of Williams' sixth grade classes that day, the assistant principal brought a student named J. L. into the room. (J. L. had been roaming the hallways without authorization.) Upon his late arrival, J. L. took a seat, put his head down, and promptly fell asleep. Williams walked over to J. L.'s desk and shook it, asking J. L. if he were all right. Evidently startled, J. L. jumped up and shouted at Williams: "What the fuck are you doing? You ain't my daddy, you black ass nigger," or words to that effect.1 Williams, who is a black man, was taken aback. "What did you say?" he replied. "What the fuck are you bothering me for, you black ass nigger?" answered the student, who was now standing close to Williams. At that point, Williams quickly pushed J. L. away. Williams made physical contact with J. L. and probably touched his face or head. This contact was, it is found, more of a shove than a blow.2 J. L. then left the classroom and went to the office, to report that Williams had hit him.3 After J. L. had left, a student remarked, "Oh Mr. Williams, you [sic] in trouble now." Not wanting to lose control of his classroom, Williams tried to downplay the incident, telling the student that nothing had happened. The undersigned rejects as unfounded the School Board's allegation that Williams told his class to lie about the matter. Before the period was over, the school administration, acting on the word of J. L, a student who less than an hour earlier had been wondering about the halls and hence needed to be hauled into class by an assistant principal, pulled Williams out of his room and sent him home.4 Williams was not allowed to return to work until September 23, 2004. He therefore missed about seven months of school, namely the remainder of the 2003- 04 school year plus the beginning of the 2004-05 school year. For using vulgar language and brazenly insulting Williams with a hateful racial epithet, J. L. was suspended for five days. At its regular meeting on June 16, 2004, the School Board voted to accept the recommendation of Williams' principal that the teacher be suspended without pay for 30 workdays. (This means docking six weeks' worth of Williams' wages, or 12 percent of his annual salary.) Ultimate Factual Determinations Williams did not fail to make a reasonable protective effort to guard J. L. against a harmful condition, in violation of Florida Administrative Code Rule 6B-1.006(3)(a). Williams did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Williams' conduct on January 30, 2004, did not entail threats, threatening behavior, or acts of violence. Therefore, he did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. Williams committed a technical violation of School Board Rule 6Gx13-5D-1.07, pursuant to which the administration of corporal punishment is strictly prohibited. This violation was not so serious, however, as to impair Williams' effectiveness in the school system. Accordingly, it is determined that Williams is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order rescinding its previous decision to suspend Williams without pay; awarding Williams back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate; and directing that a written reprimand for violating the corporal punishment rule be placed in Williams' personnel file. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S 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 2nd day of December, 2004.
Findings Of Fact A. Introduction Briefly this case concerns itself with the measures taken by Respondent to effectuate its suspension of petitioner without pay during July 29, 1975, 2/ through August 22. The suspension letter dated August 8, advises the Petitioner that the disciplinary action taken against him was based on information furnished him in a letter dated July 29, 1975. (See joint exhibit #1 received and made a part hereof by reference). In essence the July 29th letter indicated that based on the results of a meeting held in Hanni's office numerous incidents involving alleged willful violations of agency rules, regulations and policies were reviewed and that while Petitioner was aware of such rules, regulations and policies, because of philosophical differences, he circumvented them. Present at that meeting on Respondent's behalf were William Clark, Pat DeNoyer, Joe Davis, Grace Scarberry and Petitioner. The Letter advised that although he received a satisfactory performance evaluation effective February 23, 1975, during that evaluation period he engaged in numerous violations of agency rules, regulations and policies. Specifically, the letter referred to an incident wherein he altered a form, DYS143, which changed the recommendation for issuance of a petition to a recommendation of no petition. That alteration, as the letter reads, was made after the supervisor had initially approved the original recommendation for issuance of a petition. This, as the letter alleges, was without the supervisor's attention and/or recommendation. The July 29th letter also indicates other instances in which pre-dispositional reports were not completed prior to court hearings on approximately three occasions and that he was issued an oral reprimand for using profanity in speaking to a neighbor who was known to Petitioner as a former DYS client on July 14; that he violated DYS rules by authorizing the release of a child from detention in violation of a judge's "hold-in-custody" order and against the judge's express wishes and instructions; that he did not notify a court psychologist of the change of a hearing date from July 16 to July 10 even though he had full knowledge that the psychologist had done a court ordered evaluation which was standard procedure which resulted in violation of State Department of Health and Rehabilitative Services, Division of Youth Services Employee Rules of Conduct and Guidelines for disciplinary action, offense no. 24, in willful violation of rules and regulations of policy. For engaging in the conduct as alleged, Petitioner was dismissed from his employment effective 5:00 P.M., July 28, 1975. During a telephone conversation on August 8, Petitioner was advised by Hanni that his supervisors had reviewed the circumstances surrounding his termination on July 28, and based on further review, it was felt that the disciplinary action taken against him resulting in termination should be reduced to a suspension without pay. Thus the initial termination was reduced to a suspension effective July 29. The Petitioner, Warren F. Shaw, holds a B.S. Degree from Florida Atlantic University and was initially employed by Respondent in June, 1973. He received permanent status in August, 1974, and was placed in the intake unit. He was initially hired by T. Waldren and was placed in Grace Scarberry's unit after she (Scarberry) had been a supervisor for approximately five months. During the time that he was employed in Mrs. Scarberry's unit, he submitted two transfer requests. When Petitioner returned to work on August 22, he was evaluated by Mrs. Scarberry on August 26 and at that time he was placed on conditional status. On that date, Mrs. Scarberry explained to Mr. Shaw the reasons why his performance was rated conditional (allegedly due to his inclination to circumvent established procedures and policies in critical areas). The letter of explanation indicated that during the early portion of his rating, he performed within satisfactory limits, however, during the latter period there was a general decline in his overall performance. It went on to state that he (Shaw) found it difficult to meet acceptable standards of performance in the areas of dependability, relationships with people, quality of work and adequate utilization of his job knowledge. It cited one occasion when he failed to place vital social information in a PDR which was allegedly "known to him" and pointed out to his supervisor resulting in an unnecessary court continuance and detention for a child. Further it cited an incident wherein another child was released from detention in violation of a court order. Also mentioned were his critical attitude regarding his relationship with people including the clerical and professional staff and clients which had been the subject of an earlier oral reprimand. See Appellant's Exhibit #2, received and made a part hereof by reference. Grace Scarberry, a camp specialist of District 10, HRS, since June 30, 1976, was initially hired in September, 1972 as a youth counselor II. Sometime during late March, 1974,she was made supervisor for youth counselors and was assigned to supervise the Petitioner sometime during September, 1974. Essentially intake counselors receive referral applications from policemen by juvenile offenders. During June 1975, the Division of Youth Services established a unit to handle juvenile matters at the Broward County Courthouse. A PDR is a summary of arrests records, impact forces, family background and generally data relative to how a child fits into his family. It is used to assist the presiding judge on the disposition of juvenile offenders. Mrs. Scarberry testified that standard rules and regulations require counselors to submit PDR's prior to the court hearing absent extraordinary circumstances. Mrs. Scarberry related the incident regarding the alleged alteration of an order by the Petitioner wherein he recommended that a petition be filed in a case which she approved and that Petitioner thereafter changed the recommendation. When the change was discovered, she counseled Petitioner. She expressed her knowledge and familiarity with the disciplinary procedures and testified that on July 22 she evaluated the Petitioner as being a satisfactory employee. She also related other instances wherein PDR's were not filed prior to the hearing and circumstances wherein social files contained inaccurate and incomplete material. She also indicated the problem regarding the lateness in which the Petitioner submitted files which normally should be completed approximately two to three days after a judge's order is entered and received. For this alleged infraction, Petitioner was asked to write a memo explaining his lateness in filing reports and in that memo he replied that such was occasioned by his heavy case load and other pressing matters. Scarberry also related the incident wherein Petitioner allegedly violated a judge's holding order by releasing a child who was ordered to be retained until he was transferred to a drug program. She testified that Petitioner explained that the judge had ordered the youth released on the date in which the release occurred. She requested that Petitioner file a memo explaining his actions regarding the release whereupon she explained to him that although he violated the rules, no disciplinary action would be taken. Frank William Schueler, a police information officer for Ft. Lauderdale, testified that his son is the subject of the Petitioner's alleged violation of the judge's "hole-in-custody" order. He was somewhat vague in his testimony but generally indicated that he was of the opinion that the Petitioner followed the judge's order in releasing his son. H. Squier Hanni, Regional Director for the Division of Youth Services during times material, testified that he terminated Petitioner on July 29, 1975. He testified that on or about July 16, he along with Petitioner, Mrs. Scarberry, DeNoyer and others, during a meeting determined the basis for the charges. At that meeting, Mrs. Scarberry stated that the Petitioner circumvented rules, policies and procedures whereupon he reviewed the reports of his work in certain cases. A further meeting was held on July 28 and at that meeting, Petitioner, according to him, wanted the matter ended. Accordingly, the allegations were read to him and he responded that they were ridiculous. When the allegations were read to him, Petitioner indicated that he followed the rules and regulations and in certain instances wherein there was a departure, he should be compared to Kennedy and other employees who had not consistently followed procedures as they were "standardized". Thereafter, Petitioner was excused from the room and the parties jointly agreed that he was guilty as alleged and various options were discussed among them. One option discussed was to have Petitioner placed in the conditional status for approximately 30 to 45 days. That option was not utilized and they decided to terminate him. On or about August 8 the dismissal was substituted for a suspension based on consultation with Art Adams, Personnel Director for the Division of Youth Services, who persisted that the action warranted suspension rather than termination. He explained to Hanni that attitude should not be an operative factor in a disciplinary action. On cross examination, he testified that he was aware of no other employee who had been reprimanded for the conduct allegedly engaged in by the Petitioner and that he did not point out to Petitioner when specifically requested by him, the rules and regulations which he allegedly violated. He admitted that philosophical differences without question played a factor in his reasons for dismissing the Petitioner. He further admitted that Petitioner requested to be transferred to another unit and he refused. Joe Davis, Staff Developmental Trainer-Consultant since April 15 testified that he was aware of the Petitioner's alleged violation of a hold-in- custory order which was stated as one of the reasons for his separation. He spoke to the judge who indicated that the order was predated to prevent Petitioner from "getting into trouble". Pat DeNoyer, a Program Specialist, testified that she prepared a list of all employees who were to attend training meetings. Petitioner was not included on the list to attend training meetings in her opinion due to a clerical mistake. (See Exhibit A, received and made a part hereof by reference). She related the problems regarding social file discrepancies and admitted that no corrective action was taken to correct this problem and further that there were discrepancies in almost all of the files that were reviewed. She failed to recall having voiced this to Petitioner or indicating that he should institute some corrective action to see that the discrepancies did not continuously occur in social files. She admits to having received two transfer requests from Petitioner and was aware of his special evaluation in which he was rated above satisfactory on June 17, 1976. She expressed the opinion that Tom Waldren is an experienced supervisor. Jean Tillman, a District Intake Specialist, also related the problems regarding social file discrepancies. She recalled that verbal requests for corrective actions regarding the social file discrepancies were made by Mr. W. H. Clark. She indicated that the social files were considered late if they were not presented by 8:00 A.M. on the day prior to the court hearing. Several employees testified, including James Robinson, Kate Woodby, and Betty A. Conrad who was employed through January 31, 1976 as an employee in the VISTA program which was then connected with DYS. She testified that Petitioner went over and above his call of duty by assisting her and performing special counselling for the VISTA program. Tom Waldren, a youth counselor supervisor and the person who originally hired the Petitioner, testified that he rated Petitioner above satisfactory. He also indicated that it was not uncommon for interchanges to occur verbally at times when a social file was not timely presented. Ronald Nelson, a youth counselor since approximately April of 1972, testified that he has known Petitioner for approximately three years. He has worked along with Petitioner on numerous felony cases and indicated that he and Petitioner have been criticized for handling judicial cases. He worked very closely with the Petitioner since July of 1975 and would rate his work performance above satisfactory. Shaw testified that he submitted the two transfer requests because of the philosophical differences that he and Mrs. Scarberry had. He related his being placed on conditional status when he returned to work on August 26, 1975, and at that time he requested that he be transferred. He indicated that on or about July 28 the problem of PDR's was raised for the first time and he admits that he had been orally spoken to about the lateness in which he filed PDR's. In explaining his conduct surrounding the change in the recommendation, he indicated that he first made the recommendation to Scarberry that a recommendation be filed in the case. He testified that he was asked to go see the then assistant state attorney, John King, who was not in at the time. Upon reflection of the matter, he changed his recommendation and the matter was brought to King's attention who did not file a petition. He testified that this change in the recommendation centered around the fact that is was a sex case involving two neighbors who were, in his opinion, being vindictive. He spoke to Scarberry about the change sometime in January. He indicated that he was baffled by Scarberry's continuous indication that while he was being orally reprimanded, the reprimands continuously turned up in his personnel file. Regarding his alleged failure to have a court psychologist present, he explained that court psychologists were not needed in all cases and that he was unaware of any rule that required the presence of a court psychologist in the cases such as the particular case in question. As regards the alleged violation of the judge's "hold-in-custody" order, Petitioner testified that when he spoke to the judge, he concurred with his disposition of this matter. Specifically, he testified that he called the drug program to see if the subject juvenile could be expedited into the drug program. Upon learning that the juvenile could be expedited into the drug program, he released him to the father, and he was then placed in a "hold- release" situation. During his exit interview, Petitioner testified that Hanni related the problems which essentially were his dissatisfaction with the philosophical differences existing between he and Scarberry. He talked to Art Adams the day prior to his reinstatement and Adams indicated to him that he initially felt that Hanni was correct but upon reconsideration, determined that the action taken was a bit harsh for the alleged infractions of the various rules, regulations and policies. Petitioner was unaware of any rule which required that PDR's be in writing prior to submission of the case to court for hearing. He was requested to, and prepared a document explaining his actions surrounding the alleged violation of the judge's "hold-in-custody" order. In explaining his alleged withholding of cases, Petitioner indicated that for the majority of his cases, he submitted them to the supervisor within two or three days following the close of the hearing. He testified that his case files did not always include rules of probation due to other pressing reasons, for example other cases which were in court for final hearing. As regards the reprimand that he received for using profanity, he denied that he made any profane statements in the presence of a female. He testified that it was in his opinion, up to the counselor's discretion to see what manner or means a youth should be transported to a detention center. Finally he testified that the judge authorized the release to the juvenile's father. In resolving the issue posed here, the undersigned has examined the documentary and other evidence and viewed such in light of the Respondent's alleged reasons cited for prompting the Petitioner's suspension. In so doing, I am forced to conclude that the suspension was caused, at least in part, based on Petitioner's philosophical differences with his supervisor, Grace L. Scarberry. H. Squier Hanni, the Deputy District Administrator who ordered the suspension admitted as much in his testimony. In fact he testified that the philosophical differences existing between Petitioner and Scarberry played a major part in his decision to discharge Petitioner. Thereafter on the following day, Hanni consulted with HRS Personnel Director, Art Adams, who correctly pointed out that philosophical differences should not play any part in a decision to discharge an employee. When Hanni was persuaded to reduce the disciplinary action to a suspension, the undersigned is of the opinion that the appropriate corrective action was not taken for the following reasons. By his own admission, Hanni indicated that Petitioner's philosophical differences unquestionably played a factor in his decision to discharge Petitioner. The evidence also reveals that the alleged violations of rules, policies etc., which formed the basis of the decision to terminate Petitioner were the same type conduct which other employees engaged in without any disciplinary action being taken against them for such conduct. This is clearly disparate treatment and lends support for a conclusion that the cited reasons for the discharge were pretextual and the real reason was the philosophical differences. Even if it was less clear that other employees had engaged in the kind of conduct which led to Petitioner's suspension without any disciplinary steps taken, the suspension is still suspect in view of Hanni's forthright testimony that the philosophical differences played a major part in his decision which ultimately led to Petitioner's suspension. Further support for this conclusion rests in an examination of the remarks contained in Scarberry's letter to Petitioner indicating that while he had been performing satisfactorily, his critical remarks were part of the reasons that she evaluated his performance as conditional (See Appellant's Exhibit #2). This evaluation was made immediately following Petitioner's return to work and after the suspension. At that time, Petitioner again requested a transfer which was denied. He was finally permitted to transfer in mid- September, 1975, and he was evaluated above satisfactory in November 1975, by his supervisor, Tom V. Waldren. Based on the above and the entire record in this case, I find that Petitioner was suspended at least in part due to his philosophical differences with supervisor Grace L. Scarberry. Inasmuch as the suspension rested in part on this fact, I therefore conclude that the suspension was improper and should have been retracted. I shall so recommend. 3/
Recommendation Based on the above findings of fact and conclusions of law, I recommend that Respondent make whole its employee, Warren Frederick Shaw, for any loss in earnings plus reasonable attorney fees and costs as provided in Chapter 110.061(3), F.S., that he suffered during the above referenced period in which he was suspended. I further recommend that his personnel records be expunged of any material relative to the suspension. DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL 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 20th day of September, 1976.
The Issue The issue in this proceeding is whether Respondent should be terminated from employment with Petitioner.
Findings Of Fact At all times relevant to this proceeding, Respondent Holly Bamonte was employed as a classroom teacher by the Escambia County School District. As such, Respondent was subject to the rules and certification requirements of the Florida Department of Education, including the Code of Ethics of the Education Profession in Florida and the Principles of Professional Conduct for the Education Profession in Florida, Florida Administrative Code Rules 6A-10.080 and 6A-10.081. Additionally, Respondent was subject to the Escambia County School District Employee Code of Ethics. The employee code provided that all school district employees were expected to acknowledge and accept responsibilities stated in the state code of ethics and must conduct themselves in a manner that promotes and supports ethical principles and values. All of these rules and codes were included in Petitioner's Federal/State Compliance Packet for school year 2013-2014. The compliance packet was provided and accessible to all certified instructional personnel of the Escambia County School District, including Ms. Bamonte. During the holiday break in 2013, J.T., C.G., and about 10 to 15 other high school students under the age of 21 attended a party at the Respondent's home. The home is approximately 1,500 square feet with a small kitchen and living area. During the party these students consumed alcohol. The students who drove were asked to put their keys on the counter or in a bucket, if they were going to drink. Respondent was present during the party and was aware that the students were drinking alcohol. C.G. and J.T. saw and spoke to Respondent in the area where student drinking was openly occurring. She did not stop or prohibit such alcohol consumption and was not concerned that such overt alcohol consumption was taking place. Ms. Teresa Bowden was the mother of C.G., then a high school student. C.G. also attended the party at the Respondent's house where he consumed alcohol. Ms. Bowden went to Respondent's house because her son, who had been drinking beer at the party, called her to be picked up. On arriving, she went into the living room and saw five to ten students in a circle. She could not determine if any had been drinking alcohol. Another pair of parents was present who were angry because of a concern that the students, and in particular their son, had been drinking alcohol. These parents were told that Respondent was in the bathroom at the back of the house. Ms. Bowden asked her son, C.G., if he had been drinking and he said that he had. Like the other parents, Ms. Bowden was upset and concerned that her son was allowed to drink at Respondent's home. At some point during the evening, law enforcement officers arrived at the house. As the officers arrived outside, J.T. was leaving and spoke with them. They asked if there were kids inside drinking and he stated there were. The police entered the house, but did not find Respondent. Law enforcement contacted the parents of the students who were present at the party to come pick them up. At hearing, Respondent claimed that she and her husband had a fight the night of the party and that she left the residence earlier in the evening before the police arrived. She claimed that she did not see any of the teens at her home drinking. However, given the testimony of the teenage party attendees, Respondent's testimony is not credible. On the other hand, the evidence clearly demonstrated Respondent allowed underage high school students to gather in her home, and consume alcohol with her knowledge and in her presence. Whether she purchased the alcohol is not relevant. By permitting underage drinking in an environment she controlled, Respondent failed to protect students from harm and permitted them to engage in conduct that was illegal. Clearly, Respondent's lack of judgment regarding student alcohol consumption at her home was significant and impaired her ability to function as a teacher with responsibility for protecting and supervising students. Such conduct was of sufficient severity as to justify termination of her instructional contract. Further, the party at Respondent's house, where students were knowingly permitted by her to consume alcohol, became known in the school community and resulted in upsetting parents in that community. Petitioner's lack of judgment demonstrated that parents could not have faith in her ability to protect their children. Such parental lack of confidence impaired her ability to serve as a teacher in the school system. As such, termination of her instructional contract with the School Board was warranted and should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Escambia County School Board enter a final order terminating the Respondent's employment effective September 17, 2014, as originally noticed and approved by the Board. DONE AND ENTERED this 2nd day of March, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 2nd day of March, 2015. COPIES FURNISHED: Holly A. Bamonte 1248 Plata Canada Drive Cantonment, Florida 32533 Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Mr. Malcolm Thomas, Superintendent Escambia County School Board 75 North Pace Boulevard Pensacola, Florida 32505 (eServed)
The Issue The issue to be resolved in this proceeding is whether Petitioner was terminated from his employment with Respondent because of his race in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Chester R. Cooper, is an African-American male. He was employed by Respondent, Gulf Coast Treatment Center, on May 19, 1998, as a youth care worker at its facility in Fort Walton Beach, Florida (assignment center). Petitioner was terminated on November 5, 1998. During his employment, Petitioner worked the "midnight shift" from 10:00 p.m. to 6:00 a.m. His supervisor was Ollie Rainwater. Respondent operated its facility under a contract with the Florida Department of Juvenile Justice (DJJ). The Fort Walton Beach facility performs behavioral, medical, educational, and psychological assessments and completes a 21-day report to DJJ prior to the assignment of a each youth to a residential commitment facility. The program director of the Center was Mikel Currie. In November 1998, four of the five shift supervisors were African-Americans, and approximately 50 percent of the youth care workers at the Center are African-Americans. Pursuant to the requirements of the DJJ, the Center promulgated and briefed all employees on a Use of Force Policy, which provided in relevant part, that mechanical restraints, such as handcuffs or leg cuffs, may be used upon the youths only to prevent injury or property damage. The policy prohibits the shackling of youths together and the practice of hog-tying. Hog-tying is securing a youth's legs and hands together behind the youth's back. The policy also required that any use of mechanical restraints be reported in writing by the staff member involved within two hours of the incident. All youth care workers are provided with some training in this area. The Employee Conduct Policy expressly prohibits the "shielding" of any employee from the consequences of misconduct and imposes a duty upon all employees to report any misconduct. The language of this policy does not limit these reporting obligations to one's immediate supervisor. Such reports may be made to the program director or any member of the administration. Petitioner was aware of the policy to report misconduct, but believed that he was supposed to report the misconduct to his immediate supervisor, who was the person who was actually perpetrating the misconduct involved in this case. On November 4, 1998, Petitioner was assigned to the Boys' Unit of the Assignment Center. His shift began at 10:00 p.m., on November 4, 1998, and ended at 6:30 a.m., on November 5, 1998. Ollie Rainwater (African-American), shift supervisor, and Jimmy Coleman (African-American), youth care worker, were the only other employees assigned to the Boys' Unit on Petitioner's shift. Jesse Mathews (Caucasian) worked on November 3 and 4, 1998, on the second shift, from 2:00 p.m. to 10:00 p.m. On November 3, 1998, Annette Whittlesay, a youth care worker on the female side of the facility observed Ollie Rainwater and Jesse Mathews, handcuff two youths together. However, she never reported this information to anyone in the administration. The Boys' Unit is comprised of two residential sides, each of which is approximately 75 to 80 feet long. The residential sides form a hallway divided by double doors. When Petitioner arrived at work on November 4, 1998, he observed Quentin Williams and Ricky Sheets handcuffed together. The handcuffing occurred when Petitioner was at the other end of the hall. The doors were closed and Petitioner did not see the actual handcuffing. The youths told Petitioner that Mr. Rainwater, along with Jimmy Coleman, handcuffed them. It took a while for Petitioner to obtain this information because the two youths were fighting each other while cuffed. During this time Petitioner sat down. Petitioner then went to find the key to the cuffs to uncuff the boys. Upon the program director's arrival at the Center, around 5:00 a.m., on November 5, 1998, one of the youths, Quentin Williams, reported to him that he had been handcuffed together with another youth, Ricky Sheets, by Ollie Rainwater and Jimmy Coleman. Quentin Williams reported that one of his wrists and one of his ankles had been shackled to the wrist and the ankle of Ricky Sheets, and that they had fought with each other while shackled together. During this struggle, Quentin Williams had been bitten on his finger by Sheets. Quentin Williams also told Mikel Currie that Petitioner had sat in a chair and laughed at them while they struggled. Mikel Currie sent Quentin Williams to the nurse for treatment of his finger and immediately commenced an investigation of the matter. Mikel Currie determined that no report of any use of mechanical restraints had been made by anyone from the night shift. Mikel Currie directed each of the youths who had been shackled or had witnessed the shackling or hog-tying to prepare a written statement in their own words. In order to avoid any collusion, the youths were separated from each other as they prepared their written statements. After the youths completed their written statements, each one was interviewed separately by Mikel Currie and Keith Williams (African-American), the first shift supervisor. Quentin Williams told Mikel Currie and Keith Williams that he had been shackled to Ricky Sheets by Ollie Rainwater and Jimmy Coleman on two consecutive nights. He also told them that "Mr. Cooper was sitting in a chair laughing" while he and Sheets were fighting. The youth did not state that any other employee was involved in the incident. Ricky Sheets' report was consistent with that of Quentin Williams. He identified Ollie Rainwater and Jimmy Coleman as the two staff members who had shackled him to Quentin Williams and did not state that any other employee was involved in the shackling. Youth, Frederick Alls, confirmed that Jimmy Coleman and Ollie Rainwater had shackled Quentin Williams and Ricky Sheets together on two nights and that Ollie Rainwater had hog- tied Alls with a set of leg cuffs earlier that morning. Alls did not state that any other employee was involved in the shackling or hog-tying. Youth, Brandon Mason, told Mikel Currie and Quentin Williams that two youths had been shackled together by Ollie Rainwater and Jimmy Coleman. He also told Mikel Currie and Keith Williams that Petitioner sat in a chair watching while Ollie Rainwater and Jimmy Coleman shackled Quentin Williams and Ricky Sheets together. Mason identified Ollie Rainwater, Jimmy Coleman, and Petitioner as the only employees involved in the shackling incidents. Two other youths, Edward Roberson and John Croshat, were interviewed and identified Ollie Rainwater and Jimmy Coleman as the staff members who shackled the two youths together. During the investigation, none of the six youths who were interviewed ever told Mikel Currie or Keith Williams that Jessie Mathews, a white youth care worker assigned to the evening shift (2:00 p.m. to 10:00 p.m.) had participated in any mechanical restraints or misconduct of any nature. From the youths, Mikel Currie determined that the shackling incidents occurred around 1:00 a.m., several hours after Jessie Mathews had left the Center. Neither Mikel Currie nor Keith Williams had any reason to suspect Jesse Mathews was involved. Mikel Currie and Keith Williams interviewed Ollie Rainwater on the afternoon of November 5, 1998. Ollie Rainwater admitted his involvement in the shackling and hog-tying incidents of November 4 and 5, 1998. He was terminated for violations of the Center's Use of Force and Employee Conduct policies. Ollie Rainwater never claimed that Jessie Mathews, or any other white employee, had been involved in misconduct. Mikel Currie and Keith Williams also interviewed Jimmy Coleman that same afternoon. Jimmy Coleman admitted that he was involved in the incidents on November 4 and 5, 1998. His role had been to bring the restraints to Ollie Rainwater when he ordered him to do so. Jimmy Coleman was terminated from employment. At hearing Jimmy Coleman testified he told Mikel Currie and Keith Williams that Jesse Mathews had participated in a similar incident the day before. However, the assertion is not credible because Mikel Currie and Keith Williams both testified unequivocally that Jimmy Coleman never mentioned that Jesse Mathews, or any other white employee, had been involved. This testimony is bolstered by the interviews given by the various youths. Mikel Currie attempted to reach Petitioner several times by telephone on November 5, 1998, but was unsuccessful. Keith Williams reached Petitioner by telephone around 1:00 p.m. on that date, as detailed in his contemporaneous memorandum of this conversation. Keith Williams asked Petitioner if he was aware of the shackling incidents and Petitioner denied any knowledge. Petitioner repeated several times that he knew nothing about the incidents. He made that statement because he did not directly see the handcuffing of the youths. He did not reveal his knowledge regarding events after the act of handcuffing. Mikel Currie and Keith Williams did not believe Petitioner's claims that he knew nothing about the incident because the Boys' Unit is a relatively small area (150 feet in length), Ollie Rainwater and Jimmy Coleman admitted their involvement and several of the youths had stated that Petitioner had observed the shackling incident. Accordingly, Mikel Currie and Keith Williams decided to terminate Petitioner for knowingly attempting to mislead Keith Williams during the course of the investigation, failure to report the improper restraint of the youths, and humiliating the youths by laughing at them while they were shackled. Petitioner was terminated on November 7, 1998. Contrary to his testimony, Petitioner never advised Mikel Currie, Keith Williams, or any other member of management that Jessie Mathews had any alleged involvement in the improper use of restraints. In his "Letter of Rebuttal" submitted to the Center four and one-half months after his termination, Petitioner never mentioned any involvement on the part of Jessie Mathews. He did, however, admit in this letter that he did observe the two youths shackled together while they fought. Since Respondent did not know of Jessie Mathews' similar behavior, Jessie Mathews was not terminated or otherwise disqualified. Later, however, Jessie Mathews, the white employee involved in the November 3, 1998, handcuffing was involved in an argument with another shift supervisor. Mr. Mathews used profanity and acted unprofessionally. He was suspended and demoted as a result of his misconduct. During the two months following the termination of Ollie Rainwater, Jeremy Coleman, and Petitioner, a majority of the individuals hired as youth care workers at the Center were minority group members (7 African-Americans and 1 Hispanic out of 15 hirees). Robert Cannon, a white youth care worker, was terminated by Mikel Currie on October 16, 1998, for suspicion of being under the influence of alcohol and refusing to take a drug/alcohol test. Neither Mikel Currie nor Keith Williams had any knowledge of any prior misconduct of this nature on the part of Robert Cannon. Tammy Curry, a white female youth care worker, was subject to an assault by a female youth on December 13, 1998. Mikel Currie placed Tammy Curry on leave while he investigated the incident. Based upon his investigation, Mikel Currie reinstated Tammy Curry because he determined that she had been punched in the face and pulled down the hallway by her hair by a youth in an unprovoked attack. Mikel Currie concluded that she had acted properly in self-defense. The youth was charged with battery and Tammy Curry was reinstated. Additionally, the Inspector General at the Department of Children and Family Services conducted its own investigation and cleared Tammy Curry of any wrongdoing. The Robert Canon and Tammy Curry incidents are not similar to Petitioner's circumstances. Respondent, including the unit presently known as the Okaloosa Youth Academy, actively pursues a policy of affirmative action designed to recruit minorities. As of the spring of 2000, the Center employed 138 individuals, the majority of whom (72 employees ) were African-American. After Petitioner's termination from the Center, Petitioner sought employment to replace the income he lost from this employment. On February 21, 2000, Petitioner began working for Correctional Services Corporation as an on-call youth worker. His earnings through the date of the hearing are $8,013.56. He earns $8.30 per hour. He averages approximately 24 hours per week.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety. DONE AND ENTERED this 28th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 28th day of February, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501-3308 Kevin L. O'Dea, Esquire McGlinchey Stafford 643 Magazine Street New Orleans, Louisiana 70130 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
