The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (Respondent) wrongfully awarded a contract to provide juvenile alternative services in Polk, Hardee and Highlands Counties to Bay Area Youth Services, Inc. (Intervenor) rather than the existing Provider, Juvenile Services Program, Inc. (Petitioner). At the hearing the parties stipulated to the introduction of seven joint exhibits. Petitioner called six witnesses, aid Respondent called one witness. A transcript of the hearing was filed on September 28, 1987, and the parties were allowed ten days thereafter to file Proposed findings of fact, conclusions of law and memoranda. The Appendix to this Recommended Order contains a ruling on each timely filed Proposed finding of fact.
Findings Of Fact On or about April 24, 1987, Respondent issued a Request For Proposal (RFP) for the Juvenile Alternative Services Project (JASP) in Polk, Highlands and Hardee Counties. JASP is designed to serve delinquent children and status offenders, and is intended to reduce the incidents of their repeated contacts with the juvenile justice system through a program of meaningful sanctions and services. The program is available as a dispositional alternative by referral from Respondent's intake units, the State Attorney's Office and the Juvenile Division of the Circuit Court. Specific services to be Provided under this RFP include victim negotiation, community work programs, restitution, family counseling service and volunteer counseling services. The RFP calls for Providing services to 585 clients from July 1, 1987 through June 30, 1988. Petitioner and Intervenor each timely submitted proposals in response to the RFP. Petitioner is a social service agency with administrative offices in St. Petersburg, and Intervenor is a private service agency with offices in Tampa. Petitioner is the existing JASP provider in Polk, Hardee and Highlands Counties. The RFP designates $131,654.86 as the anticipated funding level for this program, and Petitioner's proposal identified $131,655 for the provision of the requested services to a minimum of 585 clients while Intervenor's proposal identified $126,631 to provide these services to a minimum of 636 clients. The proposals submitted by Petitioner and Intervenor were responsive to the RFP. Pursuant to the RFP, a seven-member selection team was designated to review and evaluate the responsive proposals. Representative of Respondent on the selection team included JoAnne Harvey, Kevin Roberts and Tom McFadyen; the courts were represented by Jim Vanderwalker, the State Attorney's Office by Steve Houchins, the Public Defender's Office by Jay B. Haviser, and the community by Fran Martin Shiver from the Polk County Sheriff's Office. RFP responses were opened at 4:30 p.m. on June 1, 1987, and the selection team met at 9:00 a.m. on June 3, 1987. Five of the selection team members attended the meeting and participated in the evaluation of these two proposals; Haviser and Shiver did not attend. The RFP specifies that the evaluation was to be completed on June 4, 1987, and that the selection team, upon completion of its review, would submit its "recommendation" to Respondent's contract signer for award "based upon the recommendation made by the selection team and taking into consideration which bidder's offer is most advantageous to the Department." Selection team members Houchins, Roberts and Harvey recommended that Intervenor be awarded the contract, and members Vanderwalker and McFadyen recommended Petitioner. Vanderwalker rated Petitioner one Point higher than Intervenor and McFadyen rated Petitioner three Points higher than Intervenor. Members recommending Intervenor all did so by a greater point spread than members selecting Petitioner. Intervenor received a total of 1325 Points to 1284 for Petitioner, of a total Possible Points of 1625. The selection team, through its chairperson JoAnne Harvey, submitted its report and recommendation on June 4, 1987 that the JASP contract be awarded to Intervenor, and on or about June 11, 1987 Petitioner received formal notification of Respondent's intent to award this contract to Intervenor. On the same day Petitioner filed its notice of intent to Protest, and thereafter Petitioner timely filed its request for hearing on or about June 19, 1987 alleging that the award Procedure was "deficient" and that the deficiency resulted in their not receiving the award. Specifically, it is alleged that the selection team based its recommendation upon erroneous facts and information Provided to it by Chairperson Harvey and Diane Morton, JASP contract manager with Respondent who selected the team members, coordinated, scheduled and attended the team meeting. Chairperson Harvey took notes of the selection team meeting and her report was based upon those notes. Neither a transcript or tape recording of the team meeting was required by the RFP, nor were they made. No opportunity for oral presentations by providers was allowed in the RFP, nor was any provided before the selection team. Although Chairperson Harvey had received and reviewed the proposals prior to the meeting, some of the selection team had not, and therefore time was allowed at the beginning of the meeting for each member to review the two proposals and to ask Diane Morton technical, non-substantive questions about each proposal. Based upon the testimony of McFadyen, Morton and Harvey, Morton functioned only as a facilitator or coordinator during the meeting, assisting members in finding certain items or subject matter in each proposal, and determining if the automatic disqualification items of Part A on the proposal rating sheet applied to either proposal. However, Morton made no qualitative judgments about either proposal, and responded only to members' questions. Her participation assisted, rather than impaired, the fairness and integrity of the process. Following the time allotted for review and asking technical questions, each member completed the rating sheet individually, and thereafter the scores were announced. A discussion period was then provided during which members explained the basis for their evaluation of each Proposal. Following this discussion, members could change their rating based upon new information and the comments of other members, but in this instance no member changed his rating. The final ratings and recommendations were then announced. There is no evidence that the selection team acted arbitrarily or capriciously, or in a manner which was inconsistent with the RFP or rules of Respondent. The sole basis for team member ratings of each Proposal was their own evaluation of each Proposal; there is no evidence of "erroneous" facts or information being supplied to the team by Harvey or Morton. No member of the team asked for additional time to review or rate the Proposals during the meeting on June 3, although the evaluation did not have to be completed until the next day, June 4. At hearing, Petitioner sought to establish that Intervenor did not include a required Civil Rights Statement. The RFP lists a series of appendices which "must" be attached to each Proposal. Appendix 9(g) references a "Civil Rights Statement (Attachment IV of the RFP)." However, Attachment IV to the RFP is a "Civil Rights Certificate" not a "Civil Rights Statement." Attachment X of the RFP is a Civil Rights Compliance Checklist, and Intervenor included Attachment X, rather than the required Attachment IV with its RFP. However, question 6 of the Checklist asks whether "an Assurance of Compliance (is already) on file with HRS?" Intervenor answered this question on the Checklist in the affirmative. The required Attachment IV, Civil Rights Certificate, is the Assurance of Compliance referred to in question 6. Therefore, the unrebutted record in this case establishes that Intervenor already had on file with Respondent the required Attachment IV, and Respondent reasonably accepted this previous filing, along with the additional civil rights information provided on the Checklist as compliance with the RFP Appendix 9(g) requirement. It is also apparent from Section VI, A, 3. of the RFP that the failure to include Appendix IV will "not be fatal to the consideration of the proposal and that only five points are to be given for this Attachment. The three committee members who recommended Intervenor each gave Intervenor the five points on this item; however, even if this five points is deducted from Intervenor's score, Houchins, Roberts and Harvey still would have rated Intervenor higher than Petitioner, and Intervenor's overall point total would still have exceeded Petitioner's. Petitioner produced the testimony of Peter Schatzel, Certified Public Accountant, to establish that Intervenor is not financially able to sustain and carry out the JASP proposal. However, Schatzel had not reviewed any audited or unaudited financial statements for Intervenor covering the period after June 30, 1986, and thus had no knowledge of Intervenor's current financial condition. Chairperson Harvey testified that a successful bidder can receive an advance of amounts due under a contract to support start-up costs. It was therefore not established, by competent substantial evidence, that Intervenor would not be financially able to carry out its obligations under this contract.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the bid protest filed by Petitioner. DONE AND ENTERED this 14th day of October, 1987, at Tallahassee, Florida. DONALD D. CONN 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 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2800BID Petitioner filed Closing Argument on October 7, 1987 which has been considered in the preparation of this Recommended Order. However, no specific ruling thereon can be made since this is not a proposed finding of fact as provided in Rule 22I- 6.031, F.A.C. COPIES FURNISHED: Dominic Amadio, Esquire 100 34th Street North Suite 305 St. Petersburg, Florida 33713 Frederick P. Wilk, Esquire 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 William F. Bowman 2410 East Busch Boulevard Suite 303 Tampa, Florida 33612 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by Respondent due to Petitioner's race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Mildred M. Moultrie (Petitioner) is a member of a protected class. She is a black female who applied for employment in the position of Deputy Court Administrator for Juvenile Services with the First Judicial Circuit of Florida (Respondent). The primary duties of the position sought by Petitioner required service as the liaison between the Judiciary and the Department of Juvenile Justice, Department of Children and Family Services, local law enforcement agencies, schools and other community organizations serving the juvenile justice system. Petitioner had no experience in working with juveniles, and was unaware that dependent children were a part of the juvenile system. All applications and/or resumes submitted were reviewed and scored on a point system that assigned points to the following areas: education, related education, juvenile experience, and management experience. The points allocated were totaled and applicants with a score of seven or higher were submitted to the selection committee for oral interview. Petitioner did not score the minimum seven points and was initially informed that she would not be granted an interview. Petitioner contacted J. Wayne Peacock, Court Administrator for the First Judicial Circuit to inquire why she was not given an interview. Peacock advised Petitioner that she did not score the required number of points. Nevertheless, Peacock agreed to grant Petitioner an interview anyway. Petitioner was added to the group of applicants to be presented for oral interview with the Selection Committee. The Selection Committee was composed of J. Wayne Peacock, Court Administrator (white male); John Parnham, Circuit Court Judge, Juvenile Division (white male); and Eugene Brown, Director, Pensacola/Escambia County Human Relations Commission (black male). The committee selected Pauline Ryan (white female), for the position based upon, including but not limited to, her prior work experience as a Case Coordinator II assigned to the Escambia County Family Focused Juvenile Drug Court and the strength of her oral interview with the Selection Committee. Ryan's work experience from 1993 to the time of her selection has been directly related to juvenile services and exceeds the juvenile work experience of Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 17th day of October, 2003. COPIES FURNISHED: John Lewis Allbritton, Esquire Allbritton & Gant 322 West Cervantes Street Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mildred M. Moultrie Post Office Box 17705 Pensacola, Florida 3252 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent, a child care facility operating under a probation-status license, violated the terms of probation by committing three Class II Violations, as Petitioner alleges, and if so, whether the license should be suspended or revoked; and, alternatively, whether, if Respondent committed the alleged Class II Violations (or any of them), Petitioner should deny Respondent's application for renewal of license.
Findings Of Fact Respondent Wiz Kidz Learning 2, Inc. ("Wiz Kidz"), holds a probation-status Certificate of License, numbered C11MD1914, which authorizes the company to operate a child care facility in Palmetto Bay, Florida, for six months, from September 2, 2017, through March 1, 2018. The licensee does business under the name Wiz Kidz Learning 2. As the operator of a licensed child care facility, Wiz Kidz falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). At the time of the final hearing, Wiz Kidz had been a probation-status licensee for more than six months. DCF had converted Wiz Kidz' license to probation status effective June 29, 2017, after finding Wiz Kidz guilty of violating the staff-to-child ratio rules four times in a two-year period, as charged in an Amended Administrative Complaint dated May 25, 2017, which Wiz Kidz had not contested. The conditions of probation were that Wiz Kidz would pay all outstanding fines, not violate the staff-to-child ratio rules again, not commit any other Class I or Class II Violations while on probation, and submit to biweekly inspections. Wiz Kidz' initial probation-status license had been due to expire on September 1, 2017. Shortly before that date, however, Wiz Kidz had submitted a renewal application, which meant that, by operation of law, the probation-status license would not expire until DCF had finally acted upon Wiz Kidz' application for renewal.2/ Instead of simply allowing Wiz Kidz to operate on the "unexpired" license, however, DCF issued a new probationary license to Wiz Kidz effective from September 2, 2017, to March 1, 2018, which essentially renewed the initial probation-status license for another six-month period of probation.3/ On August 17, 2017, DCF employees Claudia Alvarado Campagnola and Quendra Gomez conducted an inspection of the Wiz Kidz facility between the hours of 9:00 a.m. and 2:00 p.m., during which they observed three alleged incidents of noncompliance with "Class II" (mid-level) licensing standards, namely: (1) storing a toxic substance in a place accessible to children; (2) failing to provide adequate direct supervision; and (3) failing to possess a current attendance record during a fire drill. On September 26, 2017, DCF issued to Wiz Kidz a Notice of Intent to Deny Child Care Facility Licensure, which gave notice that DCF planned to deny Wiz Kidz' pending application for renewal of license because, on August 17, 2017, Wiz Kidz had been "cited for 3 class II violations and 7 class III violations in direct violation of [its] probationary license terms." The "toxic substance" seen on August 17, 2017, was an alcoholic beverage. Upon entering the facility, Ms. Gomez noticed two unopened bottles of champagne at the back of a shelf, behind (and partially obscured by) a large plastic toy and other items. There is no photograph of the shelf in evidence, and the descriptive testimony lacked precision; as near as the undersigned can tell, this shelf was several feet long, about one foot deep, and mounted about five feet high on one of the classroom walls. One detail is not disputed: the shelf was above the heads of even the oldest children in care (between the ages of six and seven years). Thus, even if a child could have seen the bottles, he would not have been able to take possession of them without deliberate effort; because the bottles were well out of reach, the child would have needed to stand on a stepladder or its equivalent (e.g., a suitable chair) to get his hands on them. There is no evidence that a stepladder was available. Ms. Gomez testified that a child could have pulled over a chair and climbed on it to reach the champagne bottles. Perhaps so. On the other hand, while the undersigned can reasonably infer that there were chairs in the classroom, he cannot reasonably infer that any of them would have been fit to enable a child to access the bottles. To establish the element of "accessibility" based on the theory that a chair could be used as a stepladder, DCF needed to prove that a suitable chair was actually there for a child present in the classroom to use. This it failed to do. There is no evidence regarding the dimensions of the available chairs, nor any evidence concerning the heights of the children. The witnesses provided only a rough idea of the height of the shelf; their reasonably consistent accounts constitute clear and convincing evidence of the general fact that the shelf was higher than the kids' heads, but not of the actual measurement. Absent proof of these material facts, Ms. Gomez's testimony regarding the way a child could have gotten hold of the champagne bottles is too speculative to support a finding that these items were, in fact, physically accessible to the children. In addition, there is no evidence suggesting that a child could have dragged a chair over to the shelf and clambered up without attracting the attention of an adult. Given that the shelf was located in the classroom, the undersigned infers that no child reasonably could have pulled this off, unless the adult in the room were asleep at the switch. Finally, it is worth mentioning that if a child were able to stand on a chair and grab a champagne bottle without being caught, he still would not have access to the "toxic substance" in the bottle unless he could somehow pour it out. There is no evidence in the record concerning how one opens a champagne bottle, but common experience teaches the undersigned that a young child (the children in care were less than eight years old) likely would have difficulty twisting out the cork. In any event, DCF failed to prove that any of the children at Wiz Kidz reasonably could have popped the cork on the champagne, and therefore it failed to prove that the champagne was accessible to a child. The other two alleged violations occurred during a fire drill, which the inspectors required Wiz Kidz to conduct, in their presence, during the children's nap time. Three children exited the facility in their bare feet. The area where the children were assembled after evacuating the "burning building" was near a dumpster; some litter and tree branches were on the ground. From these facts, which were not seriously disputed, DCF infers that the children were not adequately supervised. The undersigned rejects this inference, which does not reasonably and logically follow from the basic facts. To begin, there is no rule that requires children always to wear shoes. Thus, that some of the children had removed their footwear before taking a nap is of no concern. When the alarm went off, staff evidently did not make these children pause to put their shoes back on, which would have protected their feet——but delayed their exit. To be sure, it is probably a good practice, generally speaking, to prevent young children from going outside barefoot. Clearly, however, it is best not to let them perish in a fire; in an emergency, getting to safety is the highest priority. Because the purpose of a fire drill is to simulate an actual emergency, the fact of the barefoot children prompts undersigned to infer, not that staff failed to provide adequate supervision, but that staff facilitated the speediest escape under the circumstances. During the fire drill, one of the teachers failed to take along a current attendance record when leaving the building, which (unlike the wearing of shoes) is mandated by rule. Ultimate Factual Determinations Wiz Kidz is not guilty of storing a toxic substance in a place accessible to children because the evidence failed to establish an incident of noncompliance with Florida Administrative Code Rule 65C-22.002(1)(f). Wiz Kidz is not guilty of failing to provide adequate direct supervision because the evidence failed to establish an incident of noncompliance with rule 65C-22.001(5)(a). The undersigned determines, based upon clear and convincing evidence, that a staff member failed to possess a current attendance record during a fire drill, which constitutes an incident of noncompliance with licensing standard No. 33-12, which implements rule 65C-22.002(7)(e). This was Wiz Kidz' first occasion of noncompliance with licensing standard No. 33-12.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Wiz Kidz not in violation of the terms of probation. It is further RECOMMENDED that Wiz Kidz' application for renewal of license not be denied based on the commission of a Technical Support Violation. DONE AND ENTERED this 20th day of March, 2018, 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 20th day of March, 2018.
The Issue Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(b), Florida Statutes, in that Respondent knowingly failed to report actual or suspected child abuse as alleged in Petitioner's Amended Administrative Complaint. Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(j), in that Respondent violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules as alleged in Petitioner's Amended Administrative Complaint.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant facts: Parties' Statement of Agreed Facts Respondent holds Florida Educator's Certificate 632878, covering the area of elementary education, which is valid through June 30, 2017. At all times pertinent hereto, Respondent was employed as a part-time interventionist teacher at Brownsville Middle School ("BMS"), Miami-Dade County School District. Respondent has been a certified teacher for 25 years. On March 9, 2015, Respondent was informed by Y.H., a sixth-grade female student, that her stepfather comes into her room and lays on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present. On March 9, 2015, Y.H. also informed Respondent that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. Respondent went to Counselor Sonya Durden's office on March 9, 2015, to discuss what she had heard from Y.H. and the other two students. Respondent did not immediately report the student's accusation on March 9, 2015, to the Department of Children and Families or the Child Abuse Hotline. Facts Adduced at the Hearing The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates under section 231.2615, Florida Statutes. During Castella's 25 years of teaching, she testified that she had never received training concerning suspected child abuse or related reporting requirements. This testimony is rejected. The more persuasive and credible evidence revealed that all school employees at BMS, with no exceptions, received regular training at the beginning of each school year, which includes their reporting duties when child abuse is suspected. The more persuasive evidence also demonstrated that various posters on child abuse reporting were posted around the school to remind teachers at BMS of their reporting requirements in cases of suspected child abuse. Respondent's Exhibits B and C are examples of those posters. Respondent's Exhibit B is a colorful poster with the title Child Abuse Look for the Signs. The poster gives information on various signs of physical and sexual abuse, as well as the procedure to follow when a child speaks of abuse. The evidence revealed that this poster was posted at the designated faculty sign-in area at BMS at all times relevant to this incident. Principal Ebony Dunn testified that "all of the employees have to sign-in whether they're hourly, whether they're full-time, non-instructional." Thus, Castella would have been required to sign in at this designated area at the beginning of each day where the poster was prominently displayed. The undersigned finds that based on the more persuasive evidence, Respondent was aware of the poster's content. Respondent's Exhibit C is another poster with the title Reporting Child Abuse is Everyone's Responsibility. This poster details various signs of child abuse and how someone can report an instance of child abuse. The undisputed evidence indicated that this poster was also displayed at the student services building/main learning center at all times relevant to the incident. The more persuasive evidence and reasonable inferences drawn from the evidence indicate that Respondent was aware of both of these posters and knew of her duty to report suspected child abuse. March 9, 2015, Incident On March 9, 2015, Castella was approached by three girls at lunch, one of whom was Y.H., a sixth-grade female student. Castella observed that the other two girls were prodding Y.H. to speak to Castella. During this encounter, Castella was informed by Y.H. that her stepfather comes into her room and lies on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present.2/ Y.H. also informed Castella at lunch that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. After lunch, Castella went to another teacher, Philogene, to report the incident because "she wasn't sure what to do," and she wanted to know the other teacher's thoughts on Y.H.'s statement.3/ Castella contends that she was not aware that what Y.H. told her amounted to child abuse. However, when asked why she told Philogene about the incident, Castella responded, "I wanted to ask Ms. Philogene what she thought because what Y.H. told me was odd, weird." The record indicates that after hearing about the incident, Philogene told Castella to report the incident to Counselor Durden.4/ Castella testified that on March 9, 2015, she went to Counselor Durden's office to discuss what she had heard from Y.H. and the other two female students. However, Castella asserted that despite her efforts, she was not able to report the incident to Counselor Durden because she was not in her office. Significantly, Castella left the school that day without reporting the incident to any administrator on campus.5/ Inexplicably, Castella did not immediately report the female student's information on March 9, 2015, to the Department of Children and Families or to the Child Abuse Hotline. Respondent claims that she did not know the protocol for reporting child abuse. The undersigned rejects this claim as incredible and spurious. Rather, the credible and more persuasive evidence shows that it was common knowledge among the school staff, based on training and posted notices, that an incident of child abuse should be reported immediately. March 10, 2015, Incident The next day, Castella went to Counselor Durden's office immediately upon arriving at the school to report what Y.H. had told her the day before. According to school policy, Castella was mandated to report the incident to a school administrator. Counselor Durden was not an administrator, nor was she Castella's supervisor. After disclosing the nature of her visit, Counselor Durden questioned Castella about the incident and why Castella did not report the incident when she became aware of it the day before. Counselor Durden testified that, "[Ms. Castella] said a young lady, a sixth-grader, had told her during lunch that the stepfather comes into the room every night drunk and holds her down and climbs on her. So I said, 'She told you when?' And she said, 'Yesterday during lunch.' And I said, 'You didn't call it in?' And she said, 'No I didn't.' And I think she was talking about like, you know she's friendly with the kids, and she didn't want to lose her confidence, they trusted her." Castella testified that she was reluctant to immediately report the incident because she did not want to violate the female students' trust. Counselor Durden proceeded to call the Department of Children and Families while Castella was still in her office. Both joined in reporting to the Department of Children and Families what had occurred. Later that afternoon, the Department of Children and Families held a meeting at the school with Y.H., the other two girls who were with Y.H., and Castella to gather details of the suspected child abuse and to determine how to proceed with the incident. Contact With News or Media Outlets Castella contacted and voluntarily appeared on a number of local news broadcasts. She detailed the suspected child abuse incident and proceeded to give the name of the school. Petitioner's Exhibit 8, which is a Notice of Investigation signed by Castella and delivered to her, states that a faculty member may be terminated if they speak to a number of subjects about a pending investigation. The document specifies, "You are not to discuss this matter with any witnesses, parents, staff, students, or the complaining party to avoid interference with the investigation." Castella asserts that she did not violate the notice because it did not specify she could not speak to news stations. However, Principal Dunn testified that anyone, including the listed parties, had the ability to watch the news broadcast. Therefore, the undersigned finds that her appearance on the news stations violated the spirit and intent of the notice because it could have had an indirect, adverse impact on witnesses and interfered with the internal investigation by the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Diana Castella in violation of Counts 1, 2, and 3 of the Amended Administrative Complaint and placing her license on a one-year probationary status, during which time she be ordered to attend and successfully complete, at her expense, training related to her reporting obligations under section 1012.795(1)(b), Florida Statutes. DONE AND ENTERED this 17th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2017.
The Issue The issue in this case is whether Respondent committed misconduct in office and violated Petitioner's policies such that just cause exists to suspend her without pay and dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material, Respondent was a first grade teacher at Van E. Blanton Elementary School ("Blanton"), an elementary school within the Miami-Dade County Public Schools. Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background of this Proceeding This matter had its genesis in November 2011, when Tangela Goa, the principal at Blanton, was contacted by D.M., the mother of S.K., who was a student in Respondent's first grade class. D.M. told Ms. Goa that S.K. did not want to go school because Respondent hit her and other students in the class. The school police investigated the complaint. The investigation resulted in allegations that Respondent hit students in her class with a stick, disciplined students by putting them in the bathroom with the door closed and lights off, and called students "stupid" and "dumb." As a result of the investigation, on February 15, 2012, Petitioner suspended Respondent without pay and took action to dismiss her from her employment with Miami-Dade County Public Schools. The Notice of Specific Charges alleges four grounds for Respondent's suspension and dismissal: misconduct in office; violation of School Board Policy 3210 – Standards of Ethical Conduct; violation of School Board Policy 3210.01 – Code of Ethics; and violation of School Board Policy 5630 – Corporal Punishment and Use of Reasonable Force. Alleged Incidents Giving Rise to Charges S.K., J.F., and P.H. are students who were assigned to Respondent's first grade class for the 2011-2012 school year.1/ At the time, they were six and seven years old. S.K., J.F., and P.H. each testified that Respondent hit students in her class with a green stick.2/ There were some differences in the students' testimony regarding details, such as whether Respondent tapped students or struck them hard with the stick, whether Respondent struck them on the head or other parts of their body, and how many and which students were struck.3/ S.K., J.F., and P.H. also testified that Respondent put students in the bathroom with the door closed and lights off for misbehaving or not doing their work, and for wetting their pants. Again, there was some difference in testimony regarding certain details, such as whether the restroom door locked from the inside or the outside. J.F. testified that Respondent called students in her class "stupid" when they got answers incorrect, while S.K. testified that Respondent told the students to "stop acting" stupid or dumb. P.H. testified that Respondent once used a curse word but did not call students "stupid" or "dumb." Principal Goa testified that the behavior in which Respondent is alleged to have engaged is not conducive to learning and that there are alternative strategies that may be employed, as appropriate, to manage student behavior. Ms. Goa testified that, assuming the allegations were shown to be true, her confidence in Respondent's judgment in managing her classroom has been significantly undermined. D.M. testified that she did not want S.K. attending school in an environment where she was afraid of being called names and hit. Respondent's Defenses Respondent denies that she struck students in her class with the green stick. She testified that she used the stick to point to words on the whiteboard. She testified that early in the school year, she used the stick to tap students as she called on them because she did not yet know all of their names. Respondent also denies that she disciplined students by locking them in the bathroom with the lights off and door closed. She testified that she would put them in the bathroom when they soiled themselves or wet their pants, to await receiving clean clothing. She further testified that the bathroom door locked from the inside, rather than the outside, so that she could not lock anyone in the bathroom. Respondent denies that she called students in her classroom "stupid" or "dumb." She acknowledges that when they would misbehave in class, she would tell them to "stop acting" stupid or "stop acting" dumb. Findings of Ultimate Fact Having fully considered all of the evidence in the record, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent struck students in her class with a stick and placed them in the bathroom with the lights off and door closed to discipline them. Petitioner did not prove, by a preponderance of the evidence, that Respondent called students "stupid" or "dumb." Although there were some differences in the students' testimony, they consistently testified that Respondent struck students in her class with a stick. The differences in testimony regarding certain details likely reflect the students' individual experiences and perceptions of the incidents, rather than being inconsistencies that call their credibility into question. Moreover, given the students' young ages and that the matters about which they testified took place over a year ago, it is reasonable to expect some differences regarding minor details. On balance, it is determined that the evidence Petitioner presented on this issue was more credible and persuasive than that presented by Respondent. The students also consistently testified that Respondent put students in the restroom with the door closed and lights out as a disciplinary measure. Respondent testified that she would put students in the bathroom when they soiled themselves or wet their pants, and S.K.'s testimony corroborated that explanation; however, this is not inconsistent with the testimony that Respondent also placed students in the bathroom with the lights out and door closed for other things such as misbehaving, crying, or not doing their work. Petitioner presented more credible and persuasive evidence on this issue than did Respondent. The students' testimony on the issue of whether Respondent called students "stupid" and "dumb" was not consistent; as noted above, the three students who testified each gave substantially different and contradictory accounts. Petitioner did not establish, by the greater weight of the evidence, that Respondent verbally abused students by calling them "stupid" or "dumb" as charged in the Notice of Specific Charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order upholding the suspension without pay of Respondent, Claudia Hye, and dismissing her from her employment as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 13th day of December, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 13th day of December, 2012.
The Issue The issue to be resolved in this proceeding concerns whether just cause exists within the meaning of Section 231.36(1), Florida Statutes (2000), to discipline the Respondent for alleged sexual harassment as a result of inappropriate touching.
Findings Of Fact The Nassau County School Board (Petitioner) employed the Respondent as a fifth-grade teacher. The Petitioner took the action giving rise to this dispute and formal proceeding, that is, it suspended and then terminated the Respondent from his teaching position. The Petitioner referred this matter to the Division of Administrative Hearings to conduct a formal proceeding and hearing. The Respondent Bernice Lamar Miles is an annual contract teacher, employed as such by the Petitioner at times pertinent hereto. He was employed at Emma Love Hardee Elementary School and had been employed there for approximately four years. A.P., C.B., J.P., and S.A., at all times pertinent hereto were students in the fifth grade, with Ms. Helen Edenfield as their primary teacher, at Emma Love Hardee Elementary School. During the fall semester of 2000 the Respondent taught approximately 540 students including those four, teaching them art and physical education. During the fall semester of 2000 the Respondent was scheduled to be the cafeteria monitor between 11:50 a.m., to 12:20 p.m. His duties, as cafeteria monitor, were to ensure the smooth transition of classes of students to and from the cafeteria. In doing so he attempted to maintain order, but typically permitted a more relaxed atmosphere than was the case in the typical classroom situation. There were at least ten other teachers and/or teacher's aides in the cafeteria eating with their classes or picking up or leaving their classes at the cafeteria on that date, between the times of 12:15 p.m. and 12:30 p.m. Between the times of 12:20 p.m. and 12:25 p.m., there were at least six teachers and/or teacher's aides in the cafeteria. There would also typically be some parents, food servers and/or custodians present during these time periods in the cafeteria. Also, on November 20, 2000, between the times of 12:20 p.m. and 12:25 p.m., there were approximately 200 students present in the cafeteria with classes entering or leaving the cafeteria about every five minutes. On November 20, 2000, there were no physical obstructions in the cafeteria that would interfere with any person's direct line of sight towards the stage where A.P., C.B., and the Respondent were standing at the relevant time. The Respondent's Exhibit A accurately depicts a general diagram of the cafeteria and was used for that demonstrative purpose at hearing. Ms. Edenfield's class was in the cafeteria on November 20, 2000, and she was scheduled to pick them up to return to the classroom at 12:25 p.m. The Respondent, therefore, called Ms. Edenfield's class to stand by the stage after they had finished eating lunch to await Ms. Edenfield coming to pick them up. While standing in front of the stage A.P., a fifth- grade student, called the Respondent over to ask him a question. On that date the Respondent did not know the first or last names of either A.P. or C.B. The Respondent, standing near both near A.P. and C.B., spoke to them about the cold weather that day and their decision to eat lunch outside without wearing warmer clothing. He typically speaks to students in the lunchroom and jokes with them, as it is a more relaxed atmosphere than in the classrooms. The Respondent typically is animated when he converses with people. It is quite common for him to touch an individual, either male or female while conversing with them. He speaks in this manner with both male and female and adults and children alike. This manner in which the Respondent makes physical contact with teachers or students while conversing with them is innocuous and has no inappropriate intent. The Respondent does not remember coming into physical contact with either A.P. or C.B. in the cafeteria on November 20, 2000. He did not touch either of them in an inappropriate manner on that date. He merely touched the students, if at all, in an effort to determine if they were cold from being outside without a jacket or sweater or possibly touched A.P. in an effort to fix her collar or neckline, which was askew. Although A.P. and C.B. were standing beside each other within arms length of each other on this occasion when they described the Respondent touching them, neither of these students witnessed the Respondent's alleged touching of the other. S.A. was also a student of the Respondent's in his art and physical education classes in the Fall semester of 2000. She was in the same class as A.P., C.B. and J.P. S.A. has never been touched inappropriately by the Respondent and has never witnessed the Respondent touch anyone in an inappropriate manner. S.A. was present in the cafeteria on November 20, 2000. At the time of the alleged inappropriate touching of A.P. and C.B., S.A. was standing in line next to A.P. and C.B. S.A. observed the Respondent come into physical contact with A.P. in the vicinity of her neckline and witnessed the Respondent fix A.P.'s collar which was askew. S.A. did not observe the Respondent touch C.B. at all. When Ms. Edenfield arrived to retrieve her class from the cafeteria at approximately 12:25 p.m., that day, the Respondent was standing at the microphone. The cafeteria, with approximately 200 students present, including Ms. Edenfield's class, appeared to her as it typically does. Just as the school day ended on November 20, 2000, A.P. reported to Ms. Edenfield that the Respondent had grasped the front of her shirt. A.P. demonstrated the touching with both hands to Ms. Edenfield, grasping the front neckline of her shirt and pulling outward. C.B. did not report any touching by the Respondent to Ms. Edenfield that day. Ms. Edenfield had A.P. go to the principal's office and report the alleged incident to Ms. Grondin, the principal. Ms. Edenfield later learned that C.B. must have accompanied A.P. to see Ms. Grondin. In any event, at least, she observed A.P. and C.B. later, back in the room, working together on a draft of a statement of what allegedly occurred between the Respondent and A.P. in the cafeteria. C.B., at some point later, apparently reported an alleged touching by the Respondent involving his putting his hand approximately half its length into the front of her shirt and purportedly incidentally touching the strap of her bra. S.A. who was standing at arm's length distance and who saw the Respondent straighten the collar of A.P., saw no touching at all of C.B. on the occasion in question in the cafeteria. J.P. was also a student in Ms. Edenfield's class, and in the Respondent's class, during the Fall semester of 2000. During that time prior to Thanksgiving, or prior to the November 20, 2000, alleged incident, J.P. contends that the Respondent touched her from four to six times on her back with his hand going inside her shirt. J.P. stated that when the Respondent patted her on the back he would occasionally remark that her art work was good and make other comments of that nature. J.P. testified, on cross-examination, that the alleged placing of the Respondent's hand inside her shirt did not occur on each of those occasions and then abruptly changed her testimony, upon re-direct, to state that the Respondent put his hand inside her shirt on every occasion. J.P. did not report the alleged inappropriate touching incidents immediately after they occurred. J.P. talked with A.P. on November 20, 2000, when A.P. contended that the Respondent had touched her. On the evening of November 20, 2000, A.P.'s mother called J.P.'s mother regarding A.P.'s allegations. Following that conversation, J.P.'s mother woke J.P. up to speak with her about the Respondent. The next morning, prompted by and accompanied by her parents, J.P. complained to Ms. Grondin, the school principal, about the Respondent's alleged inappropriate touching of her. The Respondent frequently patted students on the back for the purpose of consolation, encouragement or in a congratulatory manner. The Respondent pats the back of both male and female students many times a day. When the Respondent patted J.P. on the back, he would praise her regarding the quality of her art work and make other congratulatory comments to her. The Respondent has no memory of ever placing his hand on J.P.'s front or back in which any part of his hand protruded beneath her clothing. He never intentionally came into contact with the bare skin on J.P.'s back. It is determined that the Respondent did not touch J.P. in an inappropriate manner during the fall semester of 2000. If he did touch J.P. it was in an innocuous manner in which he touches all his students male and female. The testimony by J.P. that the Respondent put his hand beneath her cloths or inside her shirt is not persuasive and is not credible. None of the three complainants' academic performance appeared to have suffered during the time of and as a result of the alleged conduct of the Respondent. In fact, J.P. was a straight "A" student, while A.P. and C.B. were straight "A" students or "A/B" honor roll students. There is no evidence of any conduct or attitude on the part of the three complainants, before the proceeding, which would indicate that they were upset or nervous concerning any attitude or conduct on the part of the Respondent. The School Board maintains a policy prohibiting sexual harassment. Section 3.54 of the Nassau County School Board Rules contains that policy. The policy defines "Sexual Harassment" as: Consisting of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when . . . such conduct substantially interferes with . . . a student's work performance or creates an intimidating hostile or offensive . . . school environment. The Respondent was disciplined by the Board for violating its sexual harassment policy, Section 3.54. Specifically, the "inappropriate touching" alleged in the letter of suspension of November 22, 2000, referred to the prohibited "inappropriate touching" in the Board policy which is designated the prohibition of sexual harassment. Dr. Ruis, the superintendent, opined that the alleged touching by the Respondent was inappropriate based upon his interpretation of the sexual harassment policy of the School Board. His interpretation did not take into account any intent requirement which the Board policy itself does require. His opinion that the touching, if it occurred, was inappropriate and that the Respondent had lost effectiveness based upon the incident becoming public knowledge is wholly dependent upon the complete accuracy of the students' allegations and his interpretation of the School Board policy which will be treated in the Conclusions of Law below. It is determined that the testimony offered by J.P., A.P. and C.B., is not persuasive. It was not preponderantly demonstrated by their testimony that the touchings or all of them even occurred at all, aside from the one occasion when the Respondent straightened A.P.'s collar, which testimony was corroborated by the testimony of J.A. Moreover, even if some of the touchings occurred, it was not shown that they were inappropriate or had any sexual intent or motive because, for one thing, testimony concerning whether the Respondent's hand was beneath any of the complaining witnesses' clothing or not or the degree to which it purportedly was, was contradictory and, under the totality of the circumstances found above is simply not credible and persuasive. Consequently, to the extent that any touching occurred at all, it was not shown to be other than a mere innocent, innocuous pat on the back, or similar touching, with no sexual intent, motive or overtones associated with it. Given the totality of the circumstances established by the above Findings of Fact, as to where and under what conditions all of the touchings occurred, if at all, and particularly those described by J.P. and C.B. as purportedly having occurred on their persons at the dates, times and places described in their testimony, it is determined that, if any touching occurred at all, it was innocuous, innocent and of a non-sexual intent, and nature. Therefore, it was not inappropriate.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the School Board of Nassau County dismissing the complaint against the Respondent and reinstating the Respondent to his former position without diminution or loss in pay, benefits or other emoluments of his former position. DONE AND ENTERED this 4th day of October, 2001, in Tallahassee, Leon County, Florida. P. Michael Ruff 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 4th day of October, 2001. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301 Brian T. Hayes, Esquire Brian T. Hayes, P.A. 245 East Washington Street Monticello, Florida 32344 John L. Ruis, Ed.D Superintendent of Schools Nassau County School District 1201 Atlantic Avenue Fernandina Beach, Florida 32034 Honorable Charlie Crist Commission of Education The Capitol, Level 08 Tallahassee, Florida 32399-0400
The Issue Does Petitioner, Manatee County School Board (Board), have just cause to terminate the employment of Respondent, Gregg Faller, based upon the conduct involving Mr. Faller's alleged failure to respond appropriately to information he had about the conduct of his subordinate, Rod Frazier, toward females, including students, as alleged in the Administrative Complaint dated October 14, 2013?
Findings Of Fact Stipulated Facts The Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Manatee County (District). § 1001.32, Fla. Stat (2013). The District has employed Mr. Faller since December 8, 2009. Mr. Faller was an administrative parent liaison at Lakewood Ranch High School from December 2009 to May 2009.2/ He served as assistant principal at Manatee High School from July 2010 through July 2013. Mr. Faller served temporarily as an assistant principal at Palmetto High School from July 2013 until he was placed on paid administrative leave on August 1, 2013. At all times, Mr. Faller was required to abide by all Florida Statutes that pertain to teachers and educators, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (Code of Ethics), and the Policies and Procedures Manual of the Manatee County School District. On August 15, 2013, Respondent was charged with: (1) Failure to Report Child Abuse (sections 39.201(1) and 39.205(1), Florida Statutes (2011)(misdemeanor)); (2) Felony Failure to Report Child Abuse (section 39.201(1) and (2) and 39.205(1), Florida Statutes (2011)(third degree felony)); and (3) False Reports to Law Enforcement Authorities (section 837.05(1), Florida Statutes (2011)(misdemeanor)). The prosecutor dismissed the charge of providing false information to a law enforcement officer. On September 25, 2013, the superintendent notified Mr. Faller in writing of the District's intent to recommend his termination from employment. The superintendent issued an Administrative Complaint against Mr. Faller that same day. On October 14, 2013, during a Board meeting, Mr. Faller was suspended, without pay, pending the outcome of an administrative hearing that he requested. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee's Answer to Administrative Complaint. Additional Facts Florida law imposes a duty to report upon any person who has reasonable cause to suspect child abuse by a person responsible for a child's welfare.3/ The Board emphasized the importance of this obligation in Board Policy 5.2 of the Policies and Procedures Manual of the School District of Manatee County. That policy provides in part: All school employees have a serious affirmative duty to report suspected child abuse and neglect and shall do so pursuant to the guidelines developed. * * * Mandatory Duty to Report Suspected Child Abuse All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it . . . . * * * Complaints of Child Abuse Reported to an Employee An employee receiving a complaint or report of child abuse shall inquire of the reporting party as to the details of his/her concern but shall not investigate further. If the employee has reasonable cause to suspect that child abuse has occurred based upon the description by the reporting party, the employee must report . . . [to the Florida Child Abuse Registry]. * * * Employee Responsible for Reporting It is the responsibility of the first employee who has "reasonable cause" to suspect abuse to report it to the hotline and to do so immediately. It is unacceptable and violation of the law to simply report suspicions to any other individual (including law enforcement or your supervisor) and ask or expect them to make the report to the hotline. After making a report, the school board employee must inform the principal, supervisor, or other building administrator. If the suspected abuser is a district employee, the supervisor of the reporter will notify his/her director who will notify the Office of Professional Standards. * * * (6) Penalties for Failure to Report Any employee who is required to report and fails to do so may be found guilty of a misdemeanor . . . . Failure to report child abuse as required will also subject the employee to disciplinary action. Mr. Rod Frazier, a subordinate of Mr. Faller, was a person responsible for the welfare of female student, D.K. Mr. Faller was trained in the duty to report child abuse. He has been present with people who have called to report child abuse. He understood that if he learned of something that causes concern from another employee, he may be responsible for reporting the concern to his principal. At Manatee High School, Mr. Faller served as assistant principal. His duties included supervising four parent liaisons: Mr. Gulash, Ms. Torres, Rod Frazier, and Randy Smith. Parent liaisons handle everyday suspensions and the discipline of students. They also handle communication between parents, staff, and students and assist in the classroom. Parent liaisons also mentor some students. Mr. Faller summarized the parent liaison duties as: Their main job is to deal with referrals written by staff members that had issues with student behavior, deal with parents, phone call parents and let them know what their child was doing, basically be a mentor to some of the students if they saw students were struggling and had a relationship with them and could make an impact and try and make them get back on the right track. (Tr., pp. 319-320). The parent liaison job description identifies responsibilities that include: handling routine discipline referrals; referring serious offenses to the assistant principal; supervising students, including bus duty, parking lot, and school events; meeting and dealing effectively with staff members, students, and parents; and modeling and maintaining high ethical standards. During the 2011-2012 school year, Mr. Faller received several reports describing inappropriate conduct and improper relations with female students by Mr. Frazier. He also received a report of sexual harassment of a female parent liaison. Harassment of Adinah Torres Adinah Torres worked at Manatee High School as a parent liaison from November 2010 to July 2012. Mr. Faller was Ms. Torres' sole supervisor during that period of time. During that period, Mr. Frazier trained Ms. Torres on how to enter referrals into the District's data system. During one training session, she sat at his desk using his computer. Mr. Frazier sat on the desk with his feet and crotch toward Ms. Torres. Mr. Frazier rubbed his foot up the side of Ms. Torres' leg during the training session. She pulled away and looked at him. Mr. Frazier smirked at Ms. Torres. She left the room. Mr. Frazier's acts were inappropriate, unwelcome, and unwarranted. They made Ms. Torres uncomfortable. The acts were harassment of Ms. Torres. The following day, Ms. Torres told Mr. Faller about the incident. Mr. Faller agreed that the described conduct was inappropriate. He told Ms. Torres that he could not have these sorts of problems in the office because she might one day need someone to help her with a student disciplinary issue. "You got this?" he asked. Ms. Torres interpreted Mr. Faller's statements to mean that she should deal with the problem.4/ Mr. Faller's version of their conversation is that he told Ms. Torres he would take action if she wished to file a written complaint. Nothing in the policies and procedures of the Board requires an employee to make a written complaint of harassment. In fact, Board Policy 2.19, which establishes procedures for complaints about discrimination and harassment, requires a diametrically opposite approach. Board Policy 2.19(4) sets out an investigation, review, reporting, and appeal process that begins with a written complaint. However, the policy begins with a clear statement that imposes a specific duty upon an administrator, such as Mr. Faller, who learns of an alleged incident of discrimination or harassment. The policy states: The following complaint/grievance procedures are established to receive complaints. However, when any administrator learns of an alleged incident of discrimination/harassment, they are required to report complaints immediately to the Equity Coordinator and will not conduct an investigation. Nothing required a written complaint like Mr. Faller required of Ms. Torres. An immediate report by him is what was required. Ms. Torres spoke to Mr. Frazier and told him the behavior was unacceptable. He denied that it occurred and stormed away from her. Mr. Faller did not note the complaint in Mr. Frazier's file. He did not speak to Mr. Frazier about it or take any disciplinary action. Mr. Faller also did not report the incident that Ms. Torres alleged to anyone, including the school's equity coordinator. Ms. Peebles' Reports of Conduct of Mr. Frazier With Female Students, A.P. and D.K. In the 2011-2012 school year, Manatee High School teacher, Jacqueline Peebles, developed concerns about Mr. Frazier's conduct with two female students. One was A.P., who told Ms. Peebles about Mr. Frazier approaching her at a tiki bar one night and later texting her about the encounter. Another was D.K. and Mr. Frazier's frequent calls to the classroom asking Ms. Peebles to have D.K. report to his office. Ms. Peebles was also concerned about a text message to D.K. that appeared to be from Mr. Frazier telling D.K. to come to his office, that he had heard she was wearing short-shorts. Ms. Peebles told Mr. Faller about all these incidents in one conversation after A.P. told her about the tiki bar encounter. Ms. Peebles told Mr. Faller that she knew A.P. was a troubled student with some discipline issues, but she felt A.P. was being truthful. Ms. Peebles provided the following information to Mr. Faller. She told him that A.P. had reported that Mr. Frazier approached her at night at a tiki bar, where she was drinking illegally. Ms. Peebles told Mr. Faller that A.P. told her that a man approached her from behind and rubbed his erection against her buttocks. A.P. said she turned and saw that it was Mr. Frazier. A.P. questioned him and told him he knew she was a student. Mr. Frazier replied, according to A.P., that she had a "nice ass" and was fair game because she was in the bar and must, therefore, be legal. The record establishes that A.P. was a student. It does not, however, establish her age. No party has asserted she was 18 or older. It is reasonable to infer from A.P.'s student status, the fact that she returned to school the following year, and the absence of dispute that she was under 18. Ms. Peebles said that she told A.P. "that sounds odd." A.P. insisted it was true. Ms. Peebles also told Mr. Faller that A.P. said that she was leaving regular school for an alternative program because Mr. Frazier would not leave her alone. A.P.'s comments and her change of schools indicate that Mr. Frazier's conduct was harmful to A.P.'s mental and emotional health. Ms. Peebles went on to tell Mr. Faller that A.P. then showed Ms. Peebles text messages on her telephone that were marked as coming from Mr. Frazier. The messages referred to the bar encounter saying, "'Oh, you have a hot ass, I really wanted you.'" After reporting the above information to Mr. Faller, Ms. Peebles told him that she believed A.P. In order to help Mr. Faller understand why she thought A.P.'s reports were credible and significant, Ms. Peebles then told Mr. Faller about an incident with Mr. Frazier that occurred before Mr. Faller assumed the position supervising Mr. Frazier. Ms. Peebles had walked into Mr. Frazier's office looking for him. She found Mr. Frazier sitting at his desk with a female student, D.K., sitting in his lap feeding him cake. She told Mr. Faller that she had reported the incident to the acting principal, Mr. Kane, and thought it had been dealt with. Finally, Ms. Peebles told Mr. Faller about her experiences with Mr. Frazier frequently calling the same female student, D.K., from class. The frequency became so great that it was disruptive to D.K.'s education. Ms. Peebles began not answering the telephone or refusing to send D.K. to Mr. Frazier's office. Later, Ms. Peebles saw D.K. texting and took D.K.'s telephone from her and placed it on her desk. D.K.'s phone buzzed with an incoming text message. Ms. Peebles told Mr. Faller that the message said something "along the lines of 'come up to my office. I hear you're wearing short-shorts again.'" D.K. was wearing short-shorts. Ms. Peebles told Mr. Faller that the telephone indicated that the message was from Rod Frazier. This event preceded the conversation with A.P. that Ms. Peebles reported to Mr. Faller. Ms. Peebles told Mr. Faller that Mr. Frazier's texting students frequently was a problem. With D.K., it was especially troublesome because she was missing so much class time. Mr. Faller acknowledges texting is not the proper way for the parent liaisons to contact students during school hours. Mr. Faller said he would talk to Mr. Frazier about the texting. Mr. Faller denies that Ms. Peebles told him about the tiki bar incident. The undersigned finds the testimony of Ms. Peebles credible and persuasive on this issue. A day, or a day and a half, later, Mr. Faller passed Ms. Peebles in the hall. He said, "Hey, I took care of that." After that, Mr. Frazier was unfriendly to Ms. Peebles and rarely spoke to her or handled her referrals. But Mr. Frazier's personnel records contain no indications that Mr. Faller spoke to Mr. Frazier about these incidents or took any action. The credible persuasive evidence proves that Mr. Faller did not report these assertions to the child abuse registry to the administrators or law enforcement, investigate them, or act upon them. Ms. O'Dell's Reports of Mr. Frazier's Conduct With Female Students, D.K. and D.W. Another teacher, Keltie O'Dell, told Mr. Faller of similar problems with Mr. Frazier texting two female students, D.K. and D.W., asking them to leave her classroom. When she would not release them, he called to have the students sent to his office. Ms. O'Dell told Mr. Faller that D.K. and D.W. confirmed to her that they had texted Mr. Frazier asking him to get them out of class. Ms. O'Dell told Mr. Faller of a time when Mr. Frazier brought lunch to D.K. in her classroom so that Mr. Faller would not see her out of compliance with the dress code in the cafeteria. The conduct of Mr. Frazier that Ms. O'Dell reported to Mr. Faller was unprofessional, inappropriate, and improper. Mr. Faller did not report these concerns to any other administrators or to law enforcement authorities. He also did not speak directly to Mr. Frazier about the issues. Mr. Faller only spoke to all of the parent liaisons as a group, generally, about the inappropriateness of texting students to come from class. The file contains no information or notes indicating that Mr. Faller spoke to Mr. Frazier about the incidents, disciplined, or counseled Mr. Frazier. Concerns Reported by Steve Gulash Steve Gulash, an administrative parent liaison in Manatee High School's discipline office, brought similar, but much more general concerns about Mr. Frazier to Mr. Faller. He once told Mr. Faller that he should take note of the fact that Mr. Frazier only signed up as an administrator on duty for female games. He also told Mr. Faller that "this damn guy's probably done some stuff that could put him in jail." Mr. Gulash did not identify specific incidents. Mr. Faller did nothing to inquire into Mr. Gulash's concerns. Mr. Faller's Approach to the Multiple Reports of Mr. Frazier's Improper Behavior The following excerpt, with emphasis added, from the transcript of Detective Marines' interview of Mr. Faller, articulates Mr. Faller's view of responsibility and his method for avoiding responsibility for the supervision of Mr. Frazier and caring for the female students of Manatee High School. Q: Okay. Now is it, is it, uh, you said you were over discipline. A: Uh hum. Q: Is it common for the parent liaison's to text students to get them out of class when they have an issue, they, they A: Is it common? Q: Yeah. A: No. Q: No? A: No. Q: Okay. So what, what is the common uh, like if, if Mr. Frazier wants to see you soon, and talk to him about a referral, I'm assuming that's what you guys do, right? A: We call the classroom. Q: Call the classroom? A: Yeah. Q: Talk to the teacher? A: That would be the norm. Um, Q: How long would he have been? A: You know? Q: How long had he been doing that for? Like texting students out of class? A: I don't know. Q: You don't know? Okay. Uh, did you ever talk to him about it? A: Didn't know about it, except for through a teacher. Q: Through Ms. O'Dell? A: Never witnessed it myself, never had a kid come to me. Yeah, other than that one incident, um, that supposedly took place in her class, you know, she saw the kid using the phone, and then all of the sudden, you get up and say I have to go to Frazier. So she's putting two and two together, so I can't, I mean I can't say, you know, that it definitely happened. Q: Uh hum. A: Um, that's a, that's a teacher, um, believing that it may have occurred. Um, and I'm not in the business of, of, figuring those things out. You know? Q: No, I A: I mean the bottom line is Q: know. I completely. [sic] A: Um, Q: Did you ever talk to him about it or no? He just didn't bother. A: There's nothing to address. If I don't know for sure that he's doing it, then I'm not gonna address it. I mean, uh, Q: Okay. A: You know? But, I mean if it was happening, um, I had no direct knowledge. Nobody's ever told me directly that they know for a fact that this is going on. (emphasis added). (P. Ex. 18, 2/11/13, pp. 7 & 8). Mr. Faller chose to ignore the information. Eventually, through the efforts of people other than Mr. Faller, the reports of Mr. Frazier's activities with female students reached responsible authorities triggering an administrative and criminal investigation of Mr. Frazier. Those investigations subsequently expanded to examine the actions and inactions of Mr. Faller, Principal Gagnon, former Assistant Principal Matt Kane, and assistant superintendent for District Support, Scott Martin, when they received complaints about Mr. Frazier. Ultimately, Mr. Frazier resigned from Manatee High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Gregg Faller. DONE AND ENTERED this 29th day of August, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of August, 2014.
The Issue Whether Petitioner, Department of Children and Families’ (the Department), intended action to cite Respondent, Kids Village Early Learning Center, with a Class I violation and impose a fine in the amount of $500, is appropriate.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Kids Village is a child care facility licensed by the Department. Kids Village is operated by Angela Mitchell and is located at 1000 West Tharpe Street, Suite 24, Tallahassee, Florida. Kids Village is located in a shopping area commonly referred to as a “strip mall,” a series of retail and office establishments located along a sidewalk with exterior entrances. A Dollar General store is located across the parking lot from the strip mall. On November 2, 2017, L.C., a two-year-old child enrolled at Kids Village, exited the facility unaccompanied and on his own volition. A stranger spotted the child in the parking lot near the Dollar General store and left her vehicle to pick up the child. A parent of a former student at Kids Village, who works in the strip mall, recognized L.C. and returned him to the facility. L.C. was absent from the facility for approximately four minutes. Teresa Walker, a teacher at Kids Village, who was working on the day of the incident, called and reported the incident to Ms. Mitchell, who was not working at the facility that day. Both Ms. Walker and Ms. Mitchell completed required incident reports and filed them with the Department. The incident was also the subject of an anonymous complaint received by the Department’s child abuse hotline the same day. Elizabeth Provost, a Department family services counselor, received both the incident reports and the complaint and began an investigation. As part of her investigation, Ms. Provost interviewed the child protective investigator who received the complaint from the abuse hotline, as well as Ms. Mitchell and Ms. Walker. Ms. Provost also viewed the facility’s security camera footage from the day of the incident. Based on her investigation, Ms. Provost determined that L.C.’s mother arrived at the facility on the morning of November 6, 2017, signed the child in at the reception desk, engaged in conversation with another employee of the facility, looked around the corner where a gate separates the reception area from a hallway leading to classrooms, then exited the facility. Afterward, security video shows L.C. exiting the facility without supervision. Based upon her investigation, Ms. Provost concluded that the facility was in violation of Florida Administrative Code Rule 65C-22.001(5), which reads, in pertinent part, as follows: Direct supervision means actively watching and directing children’s activities within the same room or designated outdoor play area, and responding to the needs of the child. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children at all times. Ms. Provost also determined the violation was a Class I violation of Department rules, which is described as “the most serious in nature, [which] pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child.” Fla. Admin. Code R. 65C-22.010(1)(d)1. At hearing, Ms. Mitchell admitted that, on November 2, 2016, L.C. was indeed faced with a serious or imminent threat to his safety which could have resulted in injury or death. As such, Ms. Mitchell admitted the Department properly determined the incident was a Class I violation of rule 65C-22.001(5). Ms. Mitchell’s contention was that Kids Village was not completely at fault, and that the penalty assessed should be reduced to account for the mother’s negligence. L.C. was known to the staff at Kids Village as a “runner.” He experienced separation anxiety and would frequently try to follow his mother when she left the facility after dropping him off for school. Ms. Mitchell testified that L.C.’s mother had been instructed to walk L.C. to his classroom and hand him over to his teacher before leaving the facility. Ms. Mitchell faults the mother for having signed the child in on the morning of the incident, but leaving the facility without walking the child all the way to his classroom. The evidence adduced at hearing did not support that version of the facts. Ms. Walker was the only witness who testified at the final hearing who was actually at the facility on the day in question. Her recollection of the events was clear and her testimony was credible. Ms. Walker works in the “baby room,” which is located to the left of the reception area past the reception desk. The gate separating the reception area from the hallway to the classrooms is to the right of the reception desk. Ms. Walker testified that after his mother signs L.C. and his older brother in on most mornings, L.C. comes to stay with her in the baby room. Ms. Walker gives him hugs and extra attention to help overcome his anxiety, then walks him to his classroom when he is calm. On the morning in question, L.C.’s mother came into the facility and signed the children in at the reception desk. Signing a child in requires both completing a physical sign-in sheet, and an electronic interface with a computer system. While his mother was signing in the children, L.C. went to the baby room where Ms. Walker greeted him and hugged him. L.C.’s mother finished signing in the children and talking to the staff, then she turned to find both children gone. The mother “hollered out” to Ms. Walker something to the effect of “Where did the children go?” Ms. Walker replied that they had gone “to the back.” L.C.’s mother walked over to the gate separating the reception area from the classroom hallway and peered around it down the hallway. She then exited the facility. Shortly thereafter, L.C. came back through the gate, into the reception area, and exited the facility through the front door unaccompanied. L.C. was alone outside the facility in a crowded parking lot of a retail strip mall for almost five minutes. He had crossed the parking lot during morning traffic to almost reach the Dollar General store. L.C. was spotted by a stranger who got out of their own vehicle to pick up the child. L.C. was recognized, and returned to the facility, by someone who worked at a nearby store. One does not need an overactive imagination to list the dangers that could have befallen the child during that brief time period. Kids Village has taken corrective action since the incident and installed a security system on the front door which requires a person to push a button on a panel next to the door in order to exit the facility. There was no testimony regarding any prior citations against Kids Village for violation of child care licensing standards. The investigative summary prepared by Ms. Provost states, “Kid’s Village has one prior with the Department earlier in 2016[;] there were no indicators of inadequate supervision.” Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In determining to impose a $500 penalty, Ms. Provost considered the subsequent remedial action taken by Kids Village to prevent future escapes by children in its care. She also considered the serious threat of harm or death posed to L.C. due to inadequate supervision by Kids Village. Imposition of the maximum fine for the Class I violation is supported by the record in this case. Neither the statute nor the rule direct the Department to consider the negligence of persons other than the licensee in determining the appropriate penalty to be imposed for a Class I violation.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Kids Village Early Learning Center committed a Class I violation of child care facility licensing standards and imposing a monetary sanction of $500. DONE AND ENTERED this 1st day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 1st day of August, 2017. COPIES FURNISHED: Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308 (eServed) Angela Mitchell Kids Village Early Learning Center Suite 24 1000 West Tharpe Street Tallahassee, Florida 32303 (eServed) Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Windwood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
