The Issue The issue in this case is whether the evaluators of the subject request for proposals (RFP) were qualified under the applicable law and RFP criteria to evaluate the proposals.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. On November 23, 2009, the Department issued RFP #P2062 (the RFP), requesting proposals from prospective providers to operate 16 IDDS programs in 16 different judicial circuits in Florida: Circuits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 17, 18, and 20. The RFP's Statement of Services provided that proposers would be responsible for designing, implementing, and operating an IDDS program in each of the 16 listed judicial circuits. The RFP described an IDDS program as a diversion program targeting a specific population of juvenile offenders determined to be at risk of becoming serious and chronic offenders. The goal of IDDS is to facilitate a positive change in youth behavior and criminal thinking and provide the youth with the tools necessary to avoid recidivism or future criminal involvement. Prospective providers were instructed to propose services that included specified minimum components, including scheduling, supervision, and monitoring of compliance with court-ordered sanctions, such as community service, curfew, and restitution; random urinalysis monitoring; provision of counseling, anger management education, educational training, and vocation services to age-appropriate youth; and substance abuse prevention and treatment services. The RFP provided that proposers were to submit a single response to address one or more circuits in which they intended to propose operating an IDDS program. However, if a prospective provider proposed to operate IDDS programs in more than one circuit, its response had to include separate sections on staffing, prices, and budgets for each circuit/program proposed. The deadline to file challenges to the specifications of the RFP was within 72 hours of its posting. No challenges to the RFP's specifications were filed within the required 72-hour window. Petitioner, Intervenor, and two other proposers' timely submitted proposals to operate an IDDS program in Circuit 17, in response to the RFP. Following its evaluation of proposals, on March 2, 2009, Respondent posted its notice of agency action, indicating its intent to award the contract in Circuit 17 to Intervenor, whose proposal received the highest score of 1549.78 points. Juvenile Services Program, Inc., was ranked second, with 1454.01 points. Petitioner was ranked third, with 1327.57 points. Lutheran Services of Florida, Inc., was ranked fourth, with 986.43 points. Petitioner's timely challenge to Respondent's intended agency action in Circuit 17 is limited to the issue of whether the evaluators were qualified under the applicable law and RFP criteria to evaluate the proposals. The standard established by "the applicable law," section 287.057(17), Florida Statutes, is that the agency must appoint "[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought." The RFP criteria contain the following in the RFP Addendum, in the form of a question from a prospective provider and Respondent's answer: Q: Who will be evaluating the proposals[?] Will they be fully knowledgeable about IDDS programs and how they are run[?] A: The proposal will be evaluated by a team of DJJ staff who are fully knowledgeable about IDDS programs and how they are run. These people are chosen for their particular skills, knowledge and experience. They have also been chosen because of the Department's confidence in their ability to score proposals both independently and fairly. Amy Johnson, Respondent's chief of contracts, has the responsibility for supervising the Department's contracting and procurement process and ensuring compliance with section 287.057. The Department goes beyond the statutory requirements by specifically training potential evaluators in the competitive procurement process with a focus on the process itself, including evaluation and scoring of proposals. Ms. Johnson has in the past conducted this training and remains responsible for ensuring that evaluators are trained. A number of years ago, Ms. Johnson developed an internal means of identifying potential evaluators who were considered qualified to evaluate specific program areas and services that might be the subject of competitive procurements. This process involved identification by persons in charge of the various program areas of individuals they believed had sufficient experience and knowledge to evaluate certain types of programs and services. The program area representatives would submit names of individuals considered qualified to evaluate the various programs and services within their program area, along with a brief biographical statement describing the individuals' background and experience. Added to this substantive or programmatic categorization of potential evaluators was the qualification of having been trained in the competitive procurement process. Ms. Johnson developed a spreadsheet to maintain the results of the two-step qualification process. The spreadsheet lists individuals with a summary of the information obtained from the program area representatives, including the categorization of the types of programs and services the individuals are considered qualified to evaluate based on their background and experience. The spreadsheet also identifies the most recent date on which each individual completed training in the competitive procurement process. The spreadsheet document has been maintained over time to keep the running results of the pool of evaluators identified through the two-step qualification process. Elaine Atwood is the Department's contract administrator. She has assumed responsibility for conducting the training sessions for potential evaluators in the competitive procurement process, as well as the responsibility for maintaining the spreadsheet of the evaluator pool. Ms. Atwood served as the procurement officer for RFP #P2062. Her duties included working with the program area to put the RFP together, posting the RFP on the Department's website, receiving the proposals, and conducting all other activities that were part of the procurement process. The "program area" for RFP #P2062 is the Office of Probation and Community Intervention, and Paul Hatcher was the designated program area representative. IDDSs are one category of services within the Probation and Community Intervention program area. Ms. Atwood worked with Mr. Hatcher to address programmatic issues for this RFP. Mr. Hatcher identifies individuals who are considered qualified to conduct evaluations for RFPs involving programs or services falling under the umbrella of his program area. For the current pool of potential evaluators, Mr. Hatcher submitted names of individuals who were substantively qualified for programs and services falling under his program area and who could be placed on the evaluator pool spreadsheet for those categories of programs and services. However, Mr. Hatcher does not select the individual evaluators for a particular RFP. That is because selection of evaluators for a particular RFP is, by design, a random process, using the information about evaluator qualifications that is maintained on the spreadsheet.4/ Responses to RFP #P2062 were submitted in three volumes: Volume One was the "technical" proposal setting forth the prospective provider's organizational structure and management capability, the proposed program services, and proposed staffing; Volume Two was the "financial" proposal, including the proposed price sheet and budget and the provider's Supplier Qualifier Report prepared by Dun & Bradstreet; and Volume Three was the "past performance" section to demonstrate the provider's knowledge and experience in operating similar programs. Ms. Atwood conducted the review and scoring of the financial proposals in a fairly mechanical process of pulling out numbers from each cost proposal and, also, pulling Dun & Bradstreet numbers for the prospective providers and putting them on a spreadsheet. No evidence was presented that Ms. Atwood was not sufficiently qualified to conduct this review. Mr. Hatcher conducted the evaluation of prospective providers' past performance. No evidence was presented that Mr. Hatcher was not sufficiently qualified to conduct this review. Three evaluators were randomly selected from the pool of potential evaluators designated for IDDS reviews to evaluate and score the "technical" component of responses to RFP #P2062: Karen McNeal, Jeffrey Balliet, and Cheryl Surls. Of these three evaluators, Petitioner presented the testimony of only the first two, and Petitioner directed its qualification challenge to only one, Ms. McNeal. Ms. McNeal is employed in the Department's Probation program area. She is responsible for the oversight of the Duval Assessment Center that screens youth to determine their detention or release. She has held that position since July 1, 2009. Before that position, she was detention superintendent for the St. John's Juvenile Detention Center. She has been with the Department since October 2001. Before joining the Department, Ms. McNeal was a program analyst for ten years with the Department of Health and Rehabilitative Services. Ms. McNeal went through a four-week juvenile probation officer certification course before assuming her current position in Probation. That Probation training course included a review of the various prevention programs falling under the probation program area umbrella, including IDDS. However, Ms. McNeal does not have specific programmatic experience with IDDS. Ms. McNeal had not previously served as an evaluator on an RFP, before this experience. In accordance with the Department's internal procedure, Ms. McNeal underwent training by Ms. Atwood in the competitive procurement process on November 17, 2009. Mr. Balliet, the other member of the technical component evaluation team who testified, has held the position of contract manager for the Department since 2006. Before that time, he supervised a contract management unit at the district level and, also, served as assistant chief probation officer for Circuit 5, where he monitored compliance of IDDS programs in that circuit. Mr. Balliet has undergone training in the competitive procurement process multiple times. Although Mr. Balliet has had specific experience with IDDS programs, he did not think that such specific experience was necessary to evaluate an RFP dealing with IDDS programs, if one had a background that would otherwise allow for an understanding of the process. As noted above, the third evaluator on the three-person evaluation team for the technical component was Ms. Surls, who did not testify. Petitioner did not present any evidence to establish that Ms. Surls was not qualified to serve as an evaluator. Beyond the sheer difference in name of the particular services addressed by this RFP--IDDS versus other programs and services falling under the umbrella of the Probation and Community Intervention program area, Petitioner failed to establish that the experience and training Ms. McNeal has obtained over the years and, particularly, since assuming the oversight position for Duval Assessment Center, is not appropriate or sufficient to qualify her to evaluate proposals for IDDS. Petitioner presented no evidence that the components of an IDDS program are substantively dissimilar from the components of the services and programs in which Ms. McNeal has attained direct experience and training or that staffing considerations are dissimilar. Petitioner's case began and ended with the fact that Ms. McNeal has no direct experience, specifically with IDDS programs, and that Ms. McNeal had not previously evaluated proposals submitted in response to an RFP. The record does not reveal whether there would be any other Department employees, besides Mr. Balliet, who had direct experience specifically with IDDS programs and who, also, had evaluated proposals for an RFP before. Imposing either or both of these requirements for potential evaluators could serve as an impossibly restrictive hindrance to an agency trying to follow the competitive procurement process while also carrying out the agency's functions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered by Respondent, Department of Juvenile Justice, dismissing the Petition filed by Petitioner, Psychotherapeutic Services of Florida, Inc. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of March, 2011.
The Issue The issue for determination is whether Petitioner reimbursed Respondent beyond the amount of Petitioner's salary overpayment and is, therefore, due a refund.
Findings Of Fact The Department made a claim that Mr. Serrano had received a salary overpayment and had not repaid the overpayment. Mr. Serrano claimed that he had repaid the overpayment. Furthermore, he claimed that he had paid too much on the overpayment and was due a refund of monies. No dispute now exists that Mr. Serrano had repaid the overpayment to the Department. However, the Department denies that Mr. Serrano had repaid too much and was due a refund. Mr. Serrano is the Petitioner in this matter. He failed to appear at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing the claim for a refund by David Serrano. DONE AND ENTERED this 18th day of November 2004, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 18th day of November, 2004. COPIES FURNISHED: David Serrano 107-D Weybridge Circle Royal Palm Beach, Florida 33411 Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300 Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact During the 1988-1989 school year, Respondent was a student in the eighth grade at Southwood Middle School a/k/a Southwood Junior High School. Respondent was a student in the Industrial Arts class of Richard C. Altman during the 1987-1988 school year. While in that class Respondent repeatedly engaged in conduct which defied the authority of Mr. Altman, interfered with other students learning, and compromised the safety of the other students in the class. On several occasions he turned on dangerous machinery without authorization, without wearing goggles as required, and in defiance of Mr. Altman's instructions. Frequently he engaged in conduct that would call attention to himself and distract other students from their work. Some of Respondent's conduct included throwing objects in class, thereby posing a danger to other students. On many occasions Mr. Altman discussed Respondent's behavior with him; however, Respondent would continue demonstrating a "nasty" temper, defiance, and lack of respect. In addition, Respondent was often late to class and simply refused to participate in productive class work. Consequently, he was unable to derive any benefit from the learning experience available to him in Mr. Altman's class. Because of his frequent disruptions, he also precluded other students from learning. Mrs. Isabelle Norton had Respondent as a student in her history class during the 1988/1989 school year. In that class he did not turn in any of his homework assignments, never brought material to class, and was never prepared when he came to class which was infrequent. He did very little class work and usually engaged in talking and distracting the class from the normal class work. When his talking became a problem, Mrs. Norton moved Respondent to the back of the class where he then would place his head on a table and sleep. In one instance when Mrs. Norton confronted Respondent about his disruptive behavior, he indicated that he was going to "punch her." As a result of Respondent's defiance, poor performance, and disruptive conduct, he received an "F3F," which constitutes a failing academic and conduct grade and the lowest rating for effort. Ultimately, Respondent was removed from Mrs. Norton's class with the result that the educational process in her class improved. It is the practice at Southwood Junior High School for teachers and school administrators to submit reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms and are generally reserved for serious behavior problems. Mr. Altman and Mrs. Norton each issued Student Case Management Referral Forms on Respondent regarding his disruptive behavior in the classroom, tardiness, excessive talking, safety violations and teacher defiance. Respondent also received Student Case Management Referral Forms from other teachers relating similar disruptive conduct. In one of these incidents Respondent and another student were throwing rocks at a school bus. As a result of this activity, a female student passenger was struck on the head, causing a laceration and requiring her to receive surgical stitches. Respondent faced expulsion from school for that conduct. In an attempt to focus Respondent's attention on his need to improve his behavior, Kenneth S. Cooper, the assistant principal, together with other teachers and counselors, tried numerous techniques to help Respondent. One technique tried with Respondent was to get him to enroll in a crime prevention program at the Optimist School. Notwithstanding all these efforts, including many student and parent conferences, warnings and suspensions, a positive change in Respondent's behavior was not achieved. At Southwood Junior High School, like other schools within the regular school program, the average number of students in a classroom is about thirty- five. Such schools are not geared to address peculiar student needs nor provide individual students with continuous special attention. On the other hand, opportunity schools have a ratio of teachers to students of about 9 to 1. At opportunity schools, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The opinion of the teachers and administrators who dealt with and had conferences regarding Respondent is that the more structured environment of an opportunity school would be better for him and that permitting Respondent to remain in a regular school program would be of no benefit to him inasmuch as he is not making any progress. Due to Respondent's poor grades and unacceptable conduct, a child study team conference between teachers and an administrator was held to discuss Respondent's lack of progress. At that conference it was decided to administratively assign Respondent to an opportunity school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Erik Wilson to the Youth Opportunity School-South until such time as his performance reveals that he can be returned to the regular school program. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Frank A. Howard, Jr., Esquire Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Jamie C. Bovell, Esquire 370 Minorca Avenue Coral Gables, FL 33134 Mrs. Willie Mae Wilson 17520 Homestead Avenue Perrine, FL 33157
The Issue The issues for determination in this proceeding are whether Respondent should be terminated from his employment with the Broward County School Board and whether Respondent's teaching certificate should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Background Respondent holds Florida Teaching Certificate 595579 in science and elementary education. Respondent's teaching certificate is valid through June 30, 1992. Respondent has filed an application for renewal. Respondent has held a professional service contract with the Broward County School Board (the "School Board") since September 11, 1987. Respondent began teaching in the Broward County school system in 1987. He taught at Seminole Elementary School. His mid-year evaluation indicated he needed some improvement in the preparation of lesson plans. His final evaluation indicated that Respondent had improved his lesson plans and had good control of his class. For the 1988-1989 school year, Respondent was employed as a fourth grade teacher at Banyan Elementary School. His mid-year evaluation indicated a need for improvement in lesson plans. His final evaluation, however, was satisfactory. Respondent continued teaching at Banyan Elementary School until December, 1989. From December, 1989, until he was suspended on January 16, 1992, Respondent taught at Rogers Middle School. Respondent's initial evaluation at Rogers Middle School indicated the need for some improvement, but his final evaluation for the 1989-1990 school year was satisfactory. At the end of the 1989-1990 school year, Mr. Sterling Dupont replaced Mr. Greg Clark as the principal of Rogers Middle School. Ms. Ellen Etling and Mr. Mike Newman, two of the three assistant principals, were also new members of the administration at Rogers Middle School. Mr. Dupont assigned Respondent to a self-contained drop out prevention class during the Summer of 1990. A class is self-contained when its students remain with the same teacher for the entire day. The drop out prevention class required a teacher certified in elementary education so that the students' academic needs could be individualized. Mr. Dupont wanted a male teacher in the class because of the students' inability to perform in a school setting and behavioral problems. Respondent is approximately 5 feet 7 inches tall and weighs approximately 112 pounds. Mr. Dupont did not consider other factors in applicable School Board guidelines for assignment of teachers to a disciplinary drop out prevention class. Mr. Dupont did not consider Respondent's: desire and ability to work with problem students; expertise in behavior management techniques; desire and ability to identify and solve underlying causes of student behavior rather than merely modify behavior; ability and expertise in diagnosing difficulties opposed to motivational achievement; ability to utilize school and community resources to benefit students; and ability to utilize a variety of instructional approaches to meet individual needs and learning styles of students. Mr. Dupont did not ask Respondent if he wanted to teach the drop out prevention class and did not otherwise confer with Respondent prior to making the assignment. Respondent was informed of his assignment in August, 1990, in accordance with customary practice for all class assignments. Criteria for placement in the drop out prevention class included excessive absences, being held back a grade or being older than other students, failing to perform at the appropriate grade level, and behavior difficulties. While a majority of the students were not placed in the class due to disruptive behavior, most of the students demonstrated disruptive behavior. The class was officially categorized as a drop out prevention class but was also a very disruptive class. Many students in the class came from single parent homes, disadvantaged socio-economic environments, and exhibited low self-esteem. One of the objectives of the class was to raise the students' self-esteem and grade level performance. The class was also intended to ensure that the students made a successful transition to the middle school setting. The Broward County school system has eliminated corporal punishment as a form of discipline. Teachers are not to become physically involved with students in order to discipline or control them. The use of force is appropriate only to prevent harm or injury to a teacher or student. Teachers may not use physical means to control students, punish their behavior, or maintain order in the classroom. Respondent violated the policy against corporal punishment. During the 1990-1991 school year and the 1991-1992 school year, Respondent engaged in inappropriate physical contact with students as a means of discipline or control. Respondent used excessive force to control students, yelled at students, faculty, and administrative staff, violated rules of the State Board of Education, and engaged in misconduct. Respondent's misconduct was so serious that it impaired his effectiveness in the school system. See paragraphs 21-44, infra. In most instances, the students involved in the events at issue in this proceeding were engaged in inappropriate behavior which warranted correction, discipline, and punishment. In addition, the relationship between Respondent and the administrative staff at Rogers Middle School was strained by Respondent's dissatisfaction with administrative support and his lack of success in obtaining a transfer. However, the underlying problems between Respondent and the administration and the disruptive behavior of Respondent's students did not justify Respondent's misconduct and violation of applicable rules. The School Board complied with the requirements in Florida Administrative Code Rule 6B-4.008 for fair dismissal procedures. Respondent received an unsatisfactory evaluation for the 1990-1991 school year. On January 9, 1991, Ms. Etling issued an evaluation that Respondent needed improvement in behavior management, lesson design, and oral speech. Ms. Etling advised Respondent verbally and in writing that he would be given the opportunity to improve his performance by observing other teachers and attending workshops. On April 22, 1991, Mr. Dupont issued an evaluation that Respondent needed to improve in behavior management, classroom atmosphere, and lesson design. Mr. Dupont advised Respondent to observe other drop out prevention teachers, attend workshops, and review articles and tapes on positive attitudes. The administration arranged for Respondent to visit drop out prevention classes at other middle schools and offered Respondent the opportunity to attend workshops. Respondent attended some drop out prevention classes at other middle schools. Mr. Dupont made every reasonable effort to assist Respondent in obtaining a transfer to another school, but Respondent was unable to obtain a transfer. The School Board investigated a complaint regarding Respondent's conduct at school. On March 13, 1991, the Professional Standards Committee found probable cause to support the complaint. The Committee recommended that Respondent receive a letter of reprimand, be referred to Professional Practices Services, and be suspended for a period of time. In lieu of suspension, the School Board and Respondent entered into a Memorandum of Understanding. Pursuant to the agreement of the parties, Respondent received a letter of reprimand on May 3, 1991, sanctioning him for verbal abuse and battery against his students. The letter of reprimand was issued by Mr. Ronald Wright, Director of Professional Standards for the School Board. Respondent was referred to Professional Practices Services, required to attend in-service programs, required to implement those programs in his classroom, and required to participate in an employee assistance program. Respondent was assigned to teach seventh grade science for the 1991- 1992 school year. Many of the students in his seventh grade class also demonstrated behavior problems. Some of the students had been in the drop out prevention class during the previous school year. Respondent was placed on administrative leave effective January 17, 1992. He was suspended with pay on March 11, 1992, and suspended without pay on April 7, 1992. Reduced Effectiveness And Rule Violations In December, 1990, Respondent used excessive force to restrain a female student who was involved in a fight with a smaller male student. Quanika Murray was beating Ladarian Griffin with her fist. After Quanika failed to respond to Respondent's verbal commands, Respondent put both of his arms around Quanika in a "bear hug." Quanika hit Respondent in the ribs with her elbow. Respondent threw Quanika to the ground and pinned her there by holding both of her arms behind her back. When an administrator came to the scene in approximately 60 seconds, Respondent released Quanika Murray. She lunged at Ladarian Griffin again, and Respondent threw Quanika against the wall and pinned her there until the administrator took her away. On December 12, 1990, Respondent used excessive physical force to break up a verbal confrontation between two students and precipitated a physical confrontation between one of the students and Respondent. William Boyd and Tanika Boyd were arguing in the hall. Respondent told the students to go to class. William left but Tanika became verbally abusive and confrontational toward Respondent. Respondent pushed Tanika toward her class. Tanika hit Respondent. When another teacher approached, Respondent and Tanika backed away from each other. Tanika backed into the teacher and fell to the ground. The teacher pinned Tanika to the ground by holding both of her arms behind her. Respondent approached the two and inadvertently kicked sand in Tanika's face. On February 25, 1991, Respondent used unnecessary and excessive physical force to control and discipline a student. School policy prohibited students from being in designated areas without a pass. The policy was intended to give teachers time to prepare for class before school started each morning. Respondent was monitoring a gate to one of the designated areas. Quincy Wilkins attempted to enter the designated area without a pass. When Respondent told Quincy not to proceed without a pass, Quincy became loud, verbally abusive, and pushed Respondent. Respondent grabbed Quincy's arm, put it behind the student's back, and pushed Quincy against the wall. The hold was painful, and Quincy broke free. Respondent took the student to the front office, and charged Quincy with attempting to fight Respondent. On March 20, 1991, Respondent was verbally abusive toward a student, used unnecessary physical force to control and discipline the student, and engaged in unprofessional conduct during an IOWA testing procedure in the school cafeteria. Respondent was acting as one of the monitors for the test. He reprimanded a student for failing to follow instructions by yelling at the student, throwing the student's books on the floor, grabbing the student by the arm, and seating the student at a table closer to the front of the room. The incident created a major disturbance and caused some of the students to miss directions for taking the test. On April 15, 1991, Respondent used excessive physical force to control a student who was not threatening another teacher. Alex Hernandez had been involved in an altercation with another student. Another teacher broke up the fight and reprimanded Alex. Alex was a good student, and the teacher felt that a verbal warning was sufficient under the circumstances. While the teacher was speaking with Alex, Respondent approached Alex from behind, grabbed him by the arms, and threw him against the lockers. Respondent led Alex to the front office with both arms behind the student's back. Respondent charged Alex with trying to hit another teacher. The teacher informed the front office at a later time that Alex had not threatened him or tried to hit him. Respondent yelled at students over minuscule matters. On September 6, 1991, Respondent yelled at a student for chewing gum. Respondent's conduct prompted a complaint by the student's parents and required a conference with the parents to resolve a matter that would have been trivial in the absence of Respondent's conduct. On September 13, 1991, Respondent yelled at students over minuscule matters and called them stupid, arrogant, and rude. An administrator was required to intervene in Respondent's class. On September 16, 1991, Respondent denied a female student's request to use the bathroom. About 15 minutes after class started, a student with menstrual problems requested permission to use the bathroom. The student returned to her seat and approximately five minutes later began leaking blood onto her clothing. The student left the room and sought the assistance of an administrator. On September 20, 1991, Respondent engaged in a confrontation with the assistant principal in the presence of approximately 200 students. Respondent's anger, over the behavior of another student, was misdirected at the assistant principal. Respondent screamed and pointed his finger in the assistant principal's face. On September 30, 1991, Respondent used unnecessary and excessive physical force on a student and filed criminal charges against the student. Ladarian Griffin refused to comply with Respondent's request to behave in class. Respondent properly disciplined Ladarian by placing Ladarian in a separate chair at the front of the class. Ladarian persisted in his disruptive behavior. Respondent called the front office to have someone cover Respondent's class while Respondent ushered Ladarian to the front office. No coverage was provided. When the class was over, Respondent let all of his students leave except Ladarian and blocked Ladarian's exit through the classroom door. Ladarian attempted to run through Respondent. Respondent physically subdued Ladarian and took him to the front office. Respondent requested that the principal file charges against Ladarian with the public resource officer. When the principal refused, Respondent filed charges against Ladarian with the Fort Lauderdale Police Department. Respondent later requested that the charges be dropped. On October 4, 1991, the parents of two students telephoned the school administration to complain about Respondent yelling at their children during a class. The yelling interfered with the students' school work. On October 10, 1991, Respondent improperly accused a student of committing a felony against him. When the bell rang to end the sixth hour class, Respondent refused to allow his students to leave until the students returned their books. Respondent stood at the door to the classroom until each student placed a book on his or her desk. When Respondent turned to answer a knock at the door, Anthony Maclemore ran into Respondent with his head, shoved Respondent to the side, and ran out the door. Respondent mistakenly thought the student was Lashaun Johnson. Respondent wrote a referral for Lashaun and asked the principal to have Lashaun arrested. Mr. Dupont refused. Respondent filed a report and a complaint for prosecution against Lashaun with the local police department. Respondent told Lashaun's guardian that the police were going to arrest Lashaun that evening. The following day Lashaun and Lashaun's guardian participated in a conference with Ms. Etling and Respondent. Respondent realized his mistake and apologized. The mistaken identity caused substantial distress to Lashaun and Lashaun's guardian. Anthony Maclemore was suspended for three days. On October 15, 1991, Respondent yelled at Ms. Etling during a discussion on an educational matter. This incident occurred in the presence of numerous students. On November 13, 1991, Respondent issued a semester grade of "F" to 72 of his 160 students. During a conference with the parents of one of the students who received an "F", Respondent engaged in a tirade against the students' behavior and the failure of the administration to assist him in correcting that behavior. During a conference with the parent of another student, Respondent alluded to the student's bad behavior as a basis for the poor grade but was unable to present one disciplinary referral for that student. Between November 14 and November 21, 1991, several students or their parents complained to the administration of Respondent's verbal abuse and mistreatment of students. Respondent repeatedly yelled at students and disparaged them for their lack of academic effort. On November 21, 1991, Respondent took a folder away from Alex Holmes and told Alex he could get the folder back from Ms. Etling at the end of the day. Alex was disrupting the fifth period class by banging the folder on his desk. The folder contained materials Alex needed for another class. At the end of the class, Alex attempted to retrieve the folder himself, and Respondent attempted to prevent Alex from retrieving his folder before the end of the day. Alex hit Respondent. Respondent attempted to restrain Alex by placing his arms around Alex and pulling Alex's shirt over his head. Before Alex was restrained by other students, Alex hit Respondent in the head, forehead, face, and chest. Alex also used a bone from a skeleton that had been knocked over during the fight to hit Respondent on his leg and leave puncture wounds. Respondent filed criminal charges against Alex. Alex was arrested, prosecuted, and sentenced to one day house arrest. Respondent was absent from work until December 20, 1991, due to injuries sustained from the incident with Alex Holmes. From December 20, 1991, through January 13, 1992, Respondent was involved in several confrontations with students and administrative staff in which Respondent yelled at students and staff. On January 16, 1992, Mr. Dupont informed Respondent that Respondent was being placed on administrative leave. Mr. Dupont instructed Respondent to return to his classroom and remove his personal belongings. Respondent was escorted to the classroom by the school's resource officer. Respondent threw his personal belongings on the floor of the classroom. Documents were discarded and tossed about the classroom leaving it in complete disarray. The school resource officer was instructed by Mr. Dupont not to arrest Respondent. A police officer was called in to escort Respondent from the school campus. Respondent used a school cart to transport his personal belongings to his automobile. Respondent pushed the cart over prior to leaving the school campus. Respondent left his classroom in disarray. The classroom was cleaned by the cleaning service that night and used the next day for another class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the School Board enter a Final Order finding Respondent guilty of misconduct in office and terminating Respondent from his employment with the School Board. It is recommended that The Educational Practices Commission enter a Final Order finding Respondent guilty of engaging in conduct which seriously reduced Respondent's effectiveness as an employee of the School Board and otherwise violated applicable rules of the State Board of Education. It is further recommended that the Final Order of the Educational Practices Commission suspend Respondent's teaching certificate for one year from the date Respondent was first suspended without pay and place Respondent on probation for two years after the expiration of his suspension. Respondent's probation should be subject to such terms and conditions as may be determined by the Educational Practices Commission to be reasonable and necessary. DONE AND ENTERED this 9th day of August, 1993, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2388 and 92-3425 Proposed findings of Petitioner, Virgil L. Morgan. 1.-2. Accepted in substance 4.-5. Accepted in substance 7.-8. Accepted in substance 10.-13. Accepted in substance 18. Accepted in substance 3.,6.9. Rejected as not supported by the weight of evidence 14.-17. Rejected as not supported by the weight of evidence 19.-21. Rejected as not supported by the weight of evidence Proposed findings of Petitioner, Betty Castor. 1.-16. Accepted in substance 17.-21. Rejected as not supported by the weight of evidence Accepted in substance Rejected as not alleged in the administrative complaint 24.-25. Accepted in substance 26.-27. Rejected as not alleged in the administrative complaint Accepted in substance Rejected as not supported by the weight of evidence 30.-32. Rejected as not alleged in the administrative complaint Rejected as not supported by the weight of evidence Rejected as not alleged in the administrative complaint 35.-36. Accepted in substance 37.-40. Rejected as not alleged in the administrative complaint 41.-46. Accepted in substance 47.-50. Accepted in substance 51.-52. Rejected as not supported by the weight of evidence 53.-68. Accepted in substance Respondent's Proposed Findings of Fact Accepted in substance Rejected in part as irrelevant and immaterial 2.-13. Accepted in substance 14. Accepted in part and rejected in part as not supported by the weight of evidence 15.-16. Accepted in substance Accepted in part and rejected in part as not supported by the weight of evidence Accepted in substance Accepted in specifics but rejected as to the generalization for the reasons stated in findings 21-44 Accepted in substance Rejected as contrary to the weight of evidence 22.-25. Accepted in substance 26. Accepted in part and rejected in part as contrary to the weight of evidence 27.-33. Accepted in substance 34. Accepted in part and rejected in part as contrary to the weight of evidence 35.-38. Accepted in substance 39. Rejected as contrary to the weight of evidence 40.-55. Accepted in substance COPIES FURNISHED: Charles T. Whitelock, Esquire 1512 East Broward Boulevard Suite 300 Ft. Lauderdale, Florida 33301 Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sally C. Gertz, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest 4th Street Ft. Lauderdale, Florida 33312
The Issue In June 1989, Leon F. Stewart Treatment Center, Inc. ("Stewart"), advertised to the community that it had a job available as a counselor, for which Anthony R. Starnes ("Starnes") applied. Stewart declined to hire Starnes, who is wheelchair bound. Starnes filed a complaint alleging unlawful employment discrimination with the Florida Commission on Human Relations ("Commission"). On July 25, 1991, the Commission determined that there was no reasonable cause to believe than an unlawful employment practice occurred. Starnes has appealed the determination by the Commission of "no cause" to the Division of Administrative Hearings. The Respondent filed a proposed finding which was read, considered and adopted except for paragraphs 7 and 8. The Petition did not file proposed findings.
Findings Of Fact In June 1989, Stewart advertised an opening for an adolescent chemical dependency counselor ("counselor"). The counselor job description required the individual to work with adolescents, who were chemically dependent, with activities involving extensive physical interaction with the adolescents such as camping trips, weight lifting, playing various sports, and other outdoor activities. The counselor position was an entrance level position paying approximately $14,000.00 annually to individuals with either an associates degree or bachelors degree in mental health or human services. Anthony R. Starnes applied for the position as a counselor with Respondent. Starnes has an advance degree in Pastoral Counseling and experience as a counselor. He is wheelchair bound and disabled physically. John Mullins ("Mullins"), a supervisor with Stewart, was the individual in charge of hiring the counselor. As a matter of practice, Mullins utilized form letters to advise job applicants that they were not being hired; a certain form letter going to individuals who were not interviewed and a different form letter going to individuals who were interviewed, but not hired. Because of the nature of the work, Mullins required female counselors to work with female adolescents and male counselors to work with male adolescents. The counselors worked in shifts and remained with the patients overnight. Although the advertisement did not so state, the counselor to be hired was to work with female adolescents. Mullins never met and never saw Starnes prior to rejecting Starnes' application. Mullins never knew and was not advised Starnes was orthopedically handicapped or wheelchair bound prior to declining Starnes. Mullins testified that he did not hire Starnes because he felt he was over qualified and did not have inpatient counseling experience. This testimony lacks credibility; however, the policy restricting counselors to the same gender as the adolescents being counseled is reasonable. This was the actual basis upon which Mullins made his decision. Starnes' physical handicap was not a factor in Mullins' decision not to hire Starnes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations issue a final order denying Starnes' application seeking a determination of unlawful employment practice. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of January 1992. COPIES FURNISHED: Anthony R. Starnes 7610 Hellman Corona, California 91720 Charles D. Hood, Jr., Esquire Monaco, Smith, Hood, Perkins, Loucks & Stout Suite 900 444 Seabreeze Boulevard Daytona Beach, Florida 32118 STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January 1992. Margaret Jones Agency Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570 Dana Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue Whether Petitioner is disqualified from employment in positions requiring him to work with children or the developmentally disabled and, if so, whether he is entitled to an exemption from such disqualification.
Findings Of Fact Petitioner's employer, Youthland Academy Child Care Facility, is a day care facility that works with children. The employer submitted Petitioner's name to Respondent for a background screening pursuant to Section 402.305(2)(a), Florida Statutes. The background screening reflected that Petitioner had an extensive arrest record between June 1983 and January 1999. The screening also reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on April 25, 1994. The underlying offense was an act of domestic violence against the person of April Cox (the mother of a child by Petitioner) on November 17, 1994. The screening further reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on November 6, 1997. The underlying offense was an act of domestic violence against the person of Tanya Anne Austin (also the mother of a child by Petitioner) on June 15, 1997. A charge of violating an injunction against domestic violence was nolle prossed as part of a plea agreement. On April 21, 2000, Respondent attempted to notify Petitioner in writing that he may be ineligible for continued employment in a position of special trust working with children or the developmentally disabled because of the acts of domestic violence on November 17, 1994, and June 15, 1997. That certified mailing was not picked up by Petitioner. Thereafter, on June 5, 2000, Respondent re-mailed the notification letter to Petitioner at his place of employment. The notification letter advised Petitioner of his rights to an exemption hearing, but required that he request such hearing within 30 days from his receipt of the letter. The notification letter also advised Petitioner that he could request a formal or informal hearing to challenge the accuracy of his criminal record. As of August 10, 2000, Petitioner had not responded to Respondent's letter of June 5, 2000. On that date, Ms. Barton advised the director of Youthland Academy that Petitioner had been disqualified from working with children or the developmentally disabled. On August 16, 2000, Petitioner responded to Ms. Barton's letter stating that he had misunderstood the notification letter, that he wanted to explain the circumstances of the two incidents of domestic violence, and that he wanted a hearing. Petitioner did not dispute the accuracy of his criminal record at the final hearing. Although Petitioner presented testimony as to the circumstances involved in each conviction at issue in this proceeding, that evidence merely confirmed that each incident constituted domestic violence. Petitioner failed to establish that he should not be disqualified from working with children or the developmentally disabled, that he has been rehabilitated since his last criminal conviction, and that he would not present a danger if continued employment is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner is disqualified from working with children or the disabled. It is further RECOMMENDED that the final order find that Petitioner is not entitled to an exemption from that disqualification. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2001. COPIES FURNISHED: Kalvin T. Davis 2100 Northeast Third Court Boynton Beach, Florida 33435 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Virgina A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise discipline him based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties The School Board is the governing body of the local school district in and for Seminole County, Florida. Respondent is a 48-year-old male. He has been employed as an educational support employee of the School Board for approximately five years. During the 2001-02 school year, Respondent worked at Seminole High School (SHS) as a computer specialist. Collective Bargaining Agreement and SHS Handbook Respondent's employment with the School Board is governed by the collective bargaining agreement between the Seminole Educational Clerical Association, Inc., and the School Board (SECA Agreement). Article VII, Section 5 of the SECA Agreement provides in pertinent part: Regular employees who have been hired for a minimum of three (3) continuous years . . . shall not be disciplined (which shall include reprimands), suspended, or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: Violation of School Board Policy. Violation of work rules. * * * Article VIII, Section 1 of the SECA Agreement provides in relevant part that "[e]mployees may be immediately disciplined including termination for serious violation of the following: misconduct; " Respondent's employment is also governed by the SHS Faculty Handbook (SHS Handbook). The SHS Handbook is provided to SHS employees at an orientation session prior to the beginning of each school year. Respondent acknowledged receipt of the SHS Handbook prior to the 2001-02 school year. The SHS Handbook includes a sexual harassment policy which states that the School Board "will not tolerate sexual/racial harassment activity by any of its employees." As it relates to the circumstances of this case, the policy defines sexual harassment as follows: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate verbal, nonverbal, graphic, written or physical conduct of a sexual nature when: * * * (c) such conduct substantially interferes with . . . [a] student’s academic performance, or creates an intimidating, hostile, or offensive . . . school environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal, nonverbal, graphic, and written harassment or abuse; * * * (c) repeated remarks to a person with sexual or demeaning implications; * * * In determining whether alleged conduct constitutes sexual[] harassment, the totality of the circumstances, the nature of the conduct, and the context in which the alleged conduct occurred will be investigated. . . . . The sexual harassment policy in the SHS Handbook is virtually identical to the School Board's district-wide sexual harassment policy. Thus, a violation of the policy in the SHS Handbook is a violation of School Board policy. Alleged Inappropriate Comments/Conduct by Respondent During the 2001-02 School Year Respondent had four "peer counselors" assigned to him during the 2001-02 school year, including eleventh-grader Nichole Combee. A peer counselor is a student who assists a teacher or other school staff member with designated tasks, such as filing or running errands on campus. The student provides that assistance for one class period per day. Nichole had approached Respondent at some point during the first semester of the 2001-02 school year and asked whether she could be a peer counselor for him. The record does not reflect the process by which that request was processed or approved by the administration at SHS, or even whether such approval is required. Nichole started as a peer counselor for Respondent in January 2002, which is the beginning of the second semester of the 2001-02 school year. Nichole continued in that position through May 23, 2002, when the regular school year ended. Nichole was Respondent's peer counselor during seventh period, which is the last period of the school day. Nichole's primary duty as Respondent's peer counselor was filing computer permission slips. During the time that Nichole was Respondent's peer counselor, she discussed her family troubles and school attendance problems with Respondent and his assistant, Mark Williams. Respondent tried to help Nichole with those problems. On several occasions, he talked to Nichole's mother on the phone in an attempt to help work things out between Nichole and her mother with respect to the "trouble" created at home by Nichole's academic and attendance problems. Nichole also discussed problems that she was having with male students and some male teachers at SHS looking at her large breasts rather than her eyes when they were speaking to her. She told Respondent at the time that he and Mr. Williams always looked her in the eye, and she reaffirmed that statement in her testimony at the hearing. Nichole discussed matters related to her breasts with Respondent on other occasions as well. On at least one occasion, she told Respondent that her breasts caused her back to hurt because of their size. On subsequent occasions when Nichole complained about her back hurting, Respondent replied by saying, "Well, you know why." That comment was intended by Respondent and understood by Nichole to be a reference to Nichole's prior comments that her large breasts were the cause of her back pain. Respondent never told Nichole that she should not discuss her breasts or other personal matters with him. Respondent acknowledged at the hearing that it would have been inappropriate for him to initiate a conversation with Nichole about her breasts (as a source of her back pain or otherwise), but that he did not see anything wrong with the discussions that he had with Nichole on that subject because she brought it up and because there was nothing sexual being implied. After classes had ended on the last day of the 2001-02 school year, a number of students engaged in a "water fight" using water balloons and "water bazookas." This conduct is apparently a "tradition" at SHS. The SHS administration had directed the school staff to try to prevent this conduct and/or to get the students off campus and onto their busses as quickly as possible. Respondent observed a group of students involved in a water fight near his office in the media center, and he went outside to break up the students. The group included Nichole and her friend Natalie Cotto-Caraballo, who was a tenth-grader at SHS. Nichole and Natalie were wearing white tank-top shirts that they had made for the last day of school. The shirts had gotten wet during the water fight and, as a result, the girls' bras were visible through the shirts. Respondent commented to Nichole and Natalie that he could see their bras through their shirts and that they needed to cover themselves up. He then directed the girls and the other students in the group to their buses. Nichole testified that the comment made her feel somewhat uncomfortable because "it's our bras and, you know, even though people see them, usually they don't say anything, you know." Respondent's comment regarding his ability to see the girls' bras was not inappropriate under the circumstances; it was a statement of fact and justified Respondent's direction to the girls to cover themselves up. Nichole did not immediately report the bra comment, either to her parent(s) or the SHS administration. Indeed, the comment did not even come to light until Nichole's second interview with the School Board's investigator in August 2002. Respondent gave Nichole a hug as she was leaving for her bus on the last day of school and told her to have a nice summer. Despite its close proximity in time to the bra comment, Nichole testified that the hug did not make her uncomfortable. She just considered it to be friendly "good bye" hug, which was all that was intended by Respondent. Nichole did not complain about Respondent to her parent(s) or anyone in the SHS administration during the time that she was his peer counselor. Lunch Invitations During Summer School Nichole attended the first session of summer school, which began on June 3, 2002, less than two weeks after the end of the regular school year. The only class that Nichole took during summer school was an English class taught by "Ms. Morris." Nichole was not Respondent's peer counselor during summer school, nor was she working on any school-related project with Respondent during that time. On June 3, 2002, while Respondent and Mr. Williams were in Ms. Morris' class fixing a computer, Respondent asked Nichole if she wanted to go to lunch with him off-campus. Nichole declined the invitation because she was "grounded" and had to pick up her brother from school. Respondent was again in Ms. Morris' class on June 5, 2002, and he again invited Nichole to lunch. Nichole again declined. Respondent did not have permission from Nichole's parent(s) or the SHS administration to take Nichole off-campus. The reason that Respondent invited Nichole to lunch was to thank her for doing a good job as his peer counselor and to congratulate her on deciding to stay in school and attend summer school, which Respondent and Mr. Williams had both counseled her to do. Respondent had taken a former male student off-campus to lunch for the same reasons in the past. Respondent and Nichole were not alone at the time of either invitation. Both invitations occurred in Ms. Morris' classroom, and Ms. Morris and other students were "milling around" in the classroom at the time. At the hearing, Nichole testified that she didn't think anything of the lunch invitations at first since she considered Respondent a "friend." However, she also testified that it "it was a little uncomfortable because he is a teacher." Nichole did not report the lunch invitations to Ms. Morris or to anyone in the SHS administration. Nichole did, however, tell her mother about Respondent's lunch invitations because "she thought she should know." On June 5, 2003, Nichole's mother called the SHS principal, Karen Coleman, and complained about the lunch invitations. Ms. Coleman told Nichole’s mother that she would look into the matter, which she did. The resulting investigation led to this proceeding. Investigation and Preliminary Disciplinary Recommendation Ms. Coleman began the investigation by speaking to Nichole on June 5, 2002. That discussion focused only on the lunch invitations. Nichole provided Ms. Colemen an unsworn written statement regarding the lunch invitations on June 5, 2002. That statement did not include any reference to the "lingerie incident" discussed below or the incidents described above involving the bra comment or the hug that Respondent gave to Nichole on the last day of school. Nichole provided Ms. Coleman another unsworn written statement on June 6, 2002. That statement referenced Respondent's comments about the source of Nichole's back pain, but it did not mention the lingerie incident or the other incidents described above. After speaking with Nichole, Ms. Coleman spoke with Respondent. Respondent admitted that he had invited Nichole to lunch off-campus. He further admitted that he did not have permission from Nichole’s parent(s) to take her off-campus and that he did not obtain permission from the SHS administration. Respondent told Ms. Coleman that he did not realize that such permission was necessary. Respondent had taken a male peer counselor to lunch off-campus in the past without receiving approval from the student's parents or the SHS. After Ms. Coleman's conversations with Nichole and Respondent, she contacted John Reichert, the School Board's director of human resources. Mr. Reichert directed John Byerly, the School Board’s internal affairs investigator, to conduct a formal investigation. Mr. Byerly interviewed Nichole on June 10, 2002, at SHS. Nichole did not mention the lingerie incident, the bra comment, or the hug to Mr. Byerly during that interview. Mr. Byerly also interviewed Respondent and Mr. Williams as part of his investigation. The results of Mr. Byerly's investigation were presented to the Executive Professional Standards Review Committee (Review Committee) on June 27, 2002. Among other functions, the Review Committee is used to make disciplinary recommendations to Mr. Reichert. The Review Committee’s recommendation was characterized at the hearing as "preliminary," and it is apparently not binding on Mr. Reichert when he formulates his recommendations to the Superintendent regarding employee disciplinary actions. The Review Committee recommended that Respondent be suspended for three days and/or be reassigned or transferred to another school. That recommendation was based only upon Respondent’s lunch invitations to Nichole and comments regarding the source of her back pain; it did not take into account the lingerie incident, the bra comment, or the hug because those incidents had not been disclosed by Nichole or Natalie at that point. Mr. Reichert and/or the Superintendent apparently did not accept the Review Committee’s recommendation because the Superintendent's July 26, 2002, letter recommended termination of Respondent's employment. At the hearing, Mr. Reichert testified that the reason for the change in the recommended discipline was the subsequent discovery of the lingerie incident, which he characterized as the "major driving factor" behind the termination recommendation. However, the preponderance of the credible evidence demonstrates that the lingerie incident was not disclosed to School Board staff until after the July 26, 2002, letter. Alleged Gift of Lingerie The lingerie incident was first disclosed by Natalie on August 2, 2002, when she was interviewed by Mr. Byerly.1 Natalie had given an unsworn written statement to Ms. Coleman on that same date, but that statement did not mention the lingerie incident. Based upon the "new information" from Natalie, Mr. Byerly interviewed Nichole again on August 15, 2002. The interview occurred at Lyman High School (LHS), where Nichole had transferred for her senior year.2 After the interview, Mr. Byerly had Nichole prepare a sworn written statement. The statement included the following account of the lingerie incident, which was consistent with Nichole's testimony at the hearing: When I was a peer counselor for Mr. Reeder, I had walked into class on[e] afternoon in 7th period and we were talking and he said ["]oh here I got something for you.["] He handed me a white plastic bag and through the bag I could see a black thing and I knew it was the langera [sic]. I then just put it on the floor and went on with my work. When the bell rang I picked up my belongings including the white plastic bag. When I got on the bus I showed Natalie it. It was a black see[-]through spagatie [sic] strap shirt and black thongs. When I got off the bus I walked home and through [sic] it away. That was the last time anything was ever said about it. Mr. Byerly interviewed Natalie again on August 16, 2002. Natalie's told Mr. Byerly that the lingerie incident occurred "a couple months before the end of the regular school year" and that Nichole showed her the lingerie on the bus. However, the sworn written statement she prepared after the interview indicated that the incident occurred "[a]bout the day before school was over" and that she learned of it "on the bus/car." Nichole told Natalie that the lingerie was from Respondent. Natalie had no independent personal knowledge that it was from him. There were some inconsistencies in Natalie's and Nichole's descriptions of the lingerie, but those inconsistencies were not material. They consistently described the lingerie as having a black see-through top and black panties. Nichole did not report the incident to the SHS administration around the time that it allegedly occurred. Nor did she tell her mother about the incident, even though she considered the lingerie gift to be more inappropriate than the lunch invitations which she did immediately tell her mother about. Nichole testified that she was somewhat embarrassed by the gift and she did not want her mother to think she "led into it." Respondent unequivocally denied that he gave Nichole any lingerie or other clothing, and Nichole's and Natalie's testimony relating to the lingerie incident was not credible. Thus, the School Board failed to prove that Respondent gave Nichole the lingerie. It is undisputed that Respondent never engaged in any type of sexual contact (e.g., kissing, inappropriate touching) with Nichole. Nichole made that point clear in both of her interviews with Mr. Byerly and in her testimony at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board issue a final order which dismisses the Petition for Termination and provides Respondent the remedial relief that he is entitled under the collective bargaining agreement. DONE AND ORDERED this 17th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 July, 2003.
The Issue The first issue in this case is whether, as the district school board alleges, a teacher abused, mistreated, or otherwise behaved inappropriately towards one of his special-needs students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this case, Respondent Edouard Jean ("Jean") was employed as an Exceptional Student Education ("ESE") teacher in the Broward County public schools, a position which he had held for the preceding 16 years. During that period, Jean taught students with disabilities, who typically receive specially designed instruction and related services pursuant to individual educational plans. Ahead of the 2013-14 school year, Jean was transferred to Crystal Lake Middle School, where he had not previously worked. He was placed in an "SVE" class and assigned to teach ESE students having "varying exceptionalities." Jean's class contained a mix of high- and low-functioning students, about nine in number. Jean's colleague, Ray Montalbano, taught a similar SVE class in a nearby room. At the beginning of the school year, the two ESE teachers agreed to share responsibility for their respective students under an arrangement that separated the higher functioning students from the lower functioning students. Jean and Mr. Montalbano took turns teaching the two groups, exchanging one for the other at midday. In this way, each teacher spent roughly equal time with the respective sets of students. For the last hour of the day, they combined the two groups and jointly instructed the approximately 18 students in Mr. Montalbano's classroom, which was larger. There were two paraprofessionals, or teacher's assistants, working in Jean and Mr. Montalbano's SVE classes. One, named Lisa Phillips, was assigned to both teachers; she alternated between their classrooms during the day. The other, Donna Rollins, was assigned to Mr. Montalbano's class, where Jean spent an hour each afternoon. In view of the cooperative arrangement between Jean and Mr. Montalbano, both of the teacher's assistants regularly worked in the same classroom as Jean and assisted with the provision of instruction and services to the 18 students for whom Jean and Mr. Montalbano were responsible. On October 15, 2013, Jean was removed from his classroom and informed that he was the target of a criminal investigation arising from allegations that he recently had abused one of his pupils, a 13-year-old boy with Down Syndrome named Z.P., who was among the lower functioning students. Jean's accuser was an occupational therapist named Lisa Taormina, who at all relevant times worked as an independent contractor for the School Board, providing services to students at various public schools in Broward County. Jean consistently has denied Ms. Taormina's allegations, which shocked and surprised him. Ms. Taormina, who that year was seeing students at Crystal Lake Middle School once per week each Friday, reported having observed Jean mistreat Z.P. on October 4, 2013, and again on October 11, 2013. Ms. Taormina claimed that the alleged events of October 4 took place in Jean's classroom with Ms. Phillips in attendance. The alleged events of October 11, in contrast, purportedly took place in Mr. Montalbano's classroom during the hour when the two SVE classes were combined. Thus, the alleged abuse supposedly occurred in the presence of Mr. Montalbano, Ms. Phillips, Ms. Rollins, and a substitute teacher named Shirley Ashcroft who happened to be there that day. Ms. Taormina's allegations were investigated by the Broward County Sheriff's Office and the Broward District Schools Police Department. During these investigations, neither Z.P. nor any of the other students were interviewed, because most of them (including Z.P.) are either nonverbal or too intellectually limited to be reliable witnesses.1/ All of the adults were questioned, however, and none of them corroborated Ms. Taormina's allegations. Unsurprisingly, therefore, no criminal charges were brought against Jean. On the strength of Ms. Taormina's allegations, the School Board nevertheless determined that Jean had abused Z.P. and thus should be fired. As it happens, Ms. Taormina's final hearing testimony is the only direct evidence against Jean, whose colleagues Mr. Montalbano, Ms. Phillips, Ms. Rollins, and Ms. Ashcroft, to a person, credibly denied under oath having ever seen him mistreat Z.P. or any other student. The outcome of this case, therefore, depends on whether Ms. Taormina's testimony is believed likely to be an accurate account of the relevant historical events. In assessing Ms. Taormina's credibility, the undersigned finds it especially significant that Jean's co- workers, who were able to observe him for extended periods of time on a daily basis in the classroom, never witnessed him engage in any troubling or suspicious behavior during the roughly seven weeks he taught at Crystal Lake Middle School; to the contrary, everyone who testified (except Ms. Taormina) who had seen Jean in the classroom praised his performance generally, and his relationship with Z.P. in particular. The undersigned credits the consistent, mutually corroborative, and overwhelmingly favorable testimony about Jean's exemplary conduct. Because an isolated incident, however out of character, can be squared with evidence of otherwise superlative performance, the fact that Jean was well regarded by the employees with whom he closely worked does not exclude the possibility that Jean abused Z.P., but it does diminish the likelihood that he could have abused Z.P. on multiple occasions. For that reason, if Ms. Taormina claimed only to have seen Jean mistreat Z.P. once, her testimony likely would have been more believable. Ms. Taormina claims, however, to have seen Jean abuse Z.P. on two separate days——on consecutive weekly visits to the school, no less. If Ms. Taormina is to be believed, Jean's alleged abuse of Z.P. was not an isolated incident but was rather, if not necessarily part of a pattern of behavior, at least something Jean was capable of repeating. Here it bears emphasizing that Ms. Taormina saw Jean, at most, once per week for relatively brief periods of less than 30 minutes apiece. Within the context of this limited contact, Ms. Taormina (if she is believed) happened to witness Jean abuse Z.P. on back-to-back visits, while Jean's colleagues, who saw him every workday, never noticed anything amiss. Logically, there are, broadly speaking, two possible explanations for this anomalous situation. First, Jean might have abused Z.P. only when Ms. Taormina was present in the classroom, which would explain why no one else ever saw him mistreat the student, so long as the failure of the four other adults in the room on October 11 to witness the alleged misconduct——a lack of attentiveness that defies reasonable expectations——is overlooked. Given that Ms. Taormina's brief weekly visits comprised such a tiny percentage of Jean's total time with the students, however, to abuse Z.P. only in her presence probably would have required Jean to act according to a plan, which beggars belief;2/ otherwise, Ms. Taormina's presence at the very moments that all such abuse occurred was a most remarkable coincidence. At any rate, while the probability that Jean abused Z.P. only when Ms. Taormina was around to witness his misdeeds is perhaps greater than zero percent, the undersigned regards this explanation as far too implausible to be considered likely. Alternatively, and likelier, Jean might have abused Z.P. not only in Ms. Taormina's presence, but also in her absence. Because Ms. Taormina is the only person who has ever claimed to have seen Jean mistreat Z.P., however, to accept this explanation requires believing that Jean's co-workers never saw him abusing Z.P., or that everyone who witnessed such abuse except Ms. Taormina resolved not to report it.3/ Yet both situations are unworthy of belief. More likely than not, if Jean were abusing Z.P. at times when Ms. Taormina was not in the room, which was most of the time, then at some point over the course of seven weeks Mr. Montalbano or one of the paraprofessionals would have noticed something wrong4/——and none of them did, as found above. Similarly, it is difficult to imagine——and impossible reasonably to infer in the absence of any supporting evidence——that another teacher or paraprofessional, or some combination of these employees, would fail to report suspected child abuse and lie under oath to protect Jean. In any event, the undersigned has found that Jean's fellow employees never saw Jean abuse Z.P., which means that, in all likelihood, Jean did not abuse Z.P. when Ms. Taormina was not in the room. In sum, it is unlikely that Jean repeatedly abused Z.P. only in Ms. Taormina's presence; and yet, it is unlikely that Jean ever abused Z.P. during the vast majority of the time when Ms. Taormina was not in the room (but another adult or adults typically were). Therefore, the logical conclusion is that Jean likely never abused Z.P. at all, contrary to Ms. Taormina's allegations. The foregoing reasons are sufficient for the undersigned to reject Ms. Taormina's testimony as ultimately unpersuasive and to find that the School Board has failed to prove its allegations against Jean. Nevertheless, Ms. Taormina was a good witness in many respects. Her story has been consistent, her recollection seemingly clear, her testimony vivid and detailed. Ms. Taormina is articulate and her demeanor at hearing suggested sincerity. She had barely known Jean before the events at issue and was not shown to have had grounds to dislike him or any other motive for damaging him with false allegations of misconduct. Thus, while not necessary to the disposition, it is desirable to examine Ms. Taormina's specific accusations in greater detail. Ms. Taormina claims that on October 4, 2013, while Z.P. was lying on his back on the floor, Jean spun Z.P. around, using the student's legs as a handle for twirling the boy's body. Then, she says, Jean tapped Z.P. with a ruler to prod him into getting up from the floor. Z.P. refused to rise, and Jean resumed spinning the student. Ms. Taormina recognized that Jean and Z.P. were "playing around" and concluded nothing "abusive" had occurred, but she deemed Jean's conduct "inappropriate." As mentioned, Z.P. is cognitively limited in consequence of Down syndrome. He was also, at the time of the events at issue, aggressive, sometimes mean and abusive towards teachers, including Jean, and known to bite, scratch, kick, and spit on others. Z.P., who was a big boy, could be difficult to redirect. By October 2013, however, Jean had established a rapport with Z.P. The student liked his teacher, and Jean and Z.P. would play with each other. One activity that they enjoyed entailed Jean spinning Z.P. around——which is what Ms. Taormina observed. Except for Ms. Taormina, no one who witnessed Jean playfully spinning Z.P.——which Jean admits doing——considered this activity to be inappropriate. There is no persuasive evidence in the record establishing an objective standard of conduct that Jean might have violated when he played with Z.P. in this manner. Striking Z.P. with a ruler would be another matter, of course. Jean denies ever having done that, however, and no one but Ms. Taormina claims to have observed Jean misbehave in such fashion. The undersigned finds, based on the greater weight of the evidence, that Jean did not hit Z.P. with a ruler on October 4, 2013, as alleged, but rather tapped the floor with it, as he testified. According to Ms. Taormina, Jean's conduct the following week, on October 11, was worse. She testified that, upon arriving in the classroom, she noticed that Jean's fingers were resting on the back of Z.P.'s neck as he (Jean) moved the student around. To Ms. Taormina, "it looked . . . like [Jean] was searching for, like, a pressure point or tender point . . . ." In fact, Jean was not searching for a pressure point, and he did not dig his fingers into a tender spot on Z.P.'s neck, which explains why no one (including Ms. Taormina) saw or heard the student cry out or grimace in pain. The undersigned credits Jean's testimony that he touched Z.P.'s back and shoulders to guide or comfort him, not to hurt him. Ms. Taormina asserted that after putting his fingers on the back of Z.P.'s neck, Jean gave Z.P. a "violent shaking" which caused Z.P.'s head to rock up and down ("just flapping back and forth") so fast that Z.P.'s features were an unrecognizable blur, but only for "just a few seconds." Somewhat incongruously, however, she characterized this "mockery" as being "more, like, playing" and noted that Jean, who was smiling, did not appear to be acting out of anger. The behavior that Ms. Taormina recounted is indeed disturbing. Yet some of the details seem a bit off. For example, although no expert testimony was presented, the undersigned's rudimentary understanding of simple biomechanics makes him think that violently shaking a passive or helpless person so hard that his features become blurry (assuming this could be accomplished in just a few seconds' time) would cause the victim's dangling head, not to flap up and down (rapidly nodding), as Ms. Taormina described, but to rotate uncontrollably. The undersigned finds it difficult, too, to imagine that such abuse could ever look "like playing." Moreover, it seems peculiar, given the number of adults in the room, that Ms. Taormina did not immediately intervene or speak up to protect Z.P., if Jean were harming the student as she has stated. More important, it is likely that a vigorous physical battery such as the attack on Z.P. that Ms. Taormina recalls would have caused a considerable commotion. And yet, even though there were four other adults in the room besides Jean and Ms. Taormina, no one but the occupational therapist noticed Jean inflicting this alleged abuse. The undersigned cannot find, based on the greater weight of the evidence, that Jean violently shook Z.P. as alleged. This incident, therefore, was not proved. After Jean allegedly shook Z.P., according to Ms. Taormina, the student climbed up on a table, where he proceeded to eat a banana. Ms. Taormina testified that all of the students and adults in the room (except her) laughed at Z.P. when someone exclaimed that he looked like a monkey. She said that Jean then led Z.P. to a garbage can and made him spit out the piece of banana in his mouth. When Z.P. got down on the floor afterwards, said Ms. Taormina, Jean hit the student with a broom to compel him to stand and, having no success with that, lifted Z.P. by his shirt and pants and shook him a few times before standing the boy upright. Once on his feet, Z.P. wet his pants, Ms. Taormina stated. Based on a preponderance of the evidence, the undersigned finds that Z.P. did, in fact, eat a banana while standing on a table. Further, Jean did hustle Z.P. to the garbage can to spit out the banana in his mouth because the boy was gagging on the fruit. The evidence does not support a finding that the adults laughed at Z.P., although one student did call him a monkey, which prompted Jean to reprimand the offender. The evidence does not support a finding that Jean struck Z.P. with a broom, an act of abuse which Jean credibly denied, or that Jean picked up Z.P. and shook him, a feat which likely could not be accomplished, given the student's size and weight, and which Jean credibly denied. Z.P. did urinate on himself, as Ms. Taormina reported, but the greater weight of the evidence establishes that this was not a response to stress, fright, or abuse, but a common occurrence. In sum, the evidence does not support a determination that Jean likely mistreated Z.P. as alleged. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Jean is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6A-5.056(1).5/ The greater weight of the evidence fails to establish that Jean is guilty of the offense of misconduct in office, which is defined in rule 6A-5.056(2).6/ The greater weight of the evidence fails to establish that Jean is guilty of incompetency, which is defined in rule 6A-5.056(3).7/ It is undisputed that Jean was never charged with, much less found guilty of, any crime as a result of the events which gave rise to this proceeding. Therefore, the School Board does not have just cause to terminate his employment pursuant to section 1012.33(1)(a), Florida Statutes, for "being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Jean of all charges brought against him in this proceeding, reinstating him as an ESE teacher, and awarding him back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 23rd day of December, 2014, 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 23rd day of December, 2014.
The Issue The issue in this case is whether the School Board of Lee County (School Board) should terminate the Respondent, Christel Freeman, for fighting with another school bus employee on School Board property.
Findings Of Fact The Respondent, Christel Freeman, has been a school bus driver employed by the School Board since 2002. There was no evidence that she was anything other than an exemplary employee until an incident that occurred at the School Board’s Leonard Street bus compound at the end of the work day. She and her boyfriend, Mike Ortes, were driving their personal vehicle from the back of the compound to the front, where the employees clock out and usually visit for a while before going home, when she spotted another employee, Ashley Thomas, who had just recently been transferred to Leonard Street. The Respondent approached Thomas, who was visiting with co-workers at a picnic table, because she suspected that Thomas was having sexual relations with her boyfriend and wanted to tell Thomas to stay away from her boyfriend, stop interfering with the Respondent’s family unit, and stop “talking trash about her.” When she got within earshot, the Respondent asked Thomas if they could talk in private. Thomas said, yes, and the two walked away from the co-workers at the picnic table. The Respondent began to tell Thomas what she wanted to talk about, and the conversation soon became heated. After they left the view of the co-workers at the picnic table, they passed another co-worker who was sitting in a vehicle and who said something to Thomas. As Thomas turned to respond to the speaker, the Respondent struck Thomas with her hand or fist on the side of the face, near the eye. Thomas was carrying her car keys, cell phone, and purse and was surprised by the blow. When the Respondent followed up with another blow, Thomas began to defend herself by hitting back. The nearby co-workers very quickly ran to the combatants to separate them. In the process, the combatants fell down, with the Respondent landing on top. The scuffling continued for a brief time until the combatants were separated. By this time, Thomas’s shirt had been torn open at the front buttons, her face was bruised and swelling, and her eye was hurt. The Respondent also had an eye injury from being hit with Thomas’s car keys. The police were called, but the Respondent left the scene with her boyfriend by the time the police arrived. After some leading questions by the Respondent, Ortes supported her testimony that they went to the hospital for emergency treatment for her eye and, once there, called the police, who responded to the hospital. After discussing the incident with the police, neither woman pressed charges. The Respondent’s primary defense is that after she called Thomas a “nasty bitch,” Thomas struck her first with the car keys, and the Respondent defended herself. However, the other witnesses to the incident saw it the other way around, with the Respondent hitting first without provocation. The Respondent attempted to undermine that testimony by saying those witnesses were family and friends of Thomas. To the contrary, the evidence was that the family and friends of Thomas were not the eyewitnesses who testified; rather, Thomas’s family and friends either did not testify or testified that they were not eyewitnesses to the incident. While the Respondent attempted to downplay the state of her emotions at the time of the incident, it is clear from the evidence that she was angry at Thomas and initiated the conversation in that state of mind. It is possible that what triggered the Respondent’s violence was Thomas saying the Respondent should ask her boyfriend for the answers to her questions, which the Respondent took as flaunting an admission that they were having sexual relations. According to the Respondent’s testimony, her job with the School Board is very important to her and her family. Notwithstanding that she has not admitted instigating the fight with Thomas and throwing the first blow, she understands that the consequences of engaging in similar conduct again would certainly be the permanent loss of her job. For that reason, it is unlikely that she would put herself in that position in the future. There is a collective bargaining agreement between the School Board and the Support Personnel Association of Lee County (SPALC) that governs the Respondent’s employment. The procedure followed in the Respondent’s case is set out in sections 7.10 and 7.103 of the SPALC agreement. Section 7.10 of the SPALC agreement provides: The parties agree that dismissal is the extreme disciplinary penalty, since the employee’s job seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary actions(s) taken against SPALC bargaining unit members shall be consistent with the concept and practice of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee’s record. Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause. Section 7.10 also states that employee misconduct is a ground for suspension without pay or termination of employment. The SPALC agreement does not define misconduct. The School Board has policies that govern employee conduct. Policy 4.09 adopts a “zero tolerance” policy for threats of violence. It prohibits “any verbal, written or electronically communicated threat, suggestion or prediction of violence against any person.” Id. “Any serious threat of violence shall result in immediate disciplinary action and referral to the appropriate law enforcement agency.” Id. School Board Policy 5.29(1) states: “All employees are expected to exemplify conduct that is lawful and professional ” School Board Policy 2.02(2) describes and prohibits “unacceptable/disruptive behavior.” This includes “[u]sing unreasonable loud and/or offensive language, swearing, cursing, using profane language, or display of temper.” Id. at ¶ (b). It also includes “[t]hreatening to do bodily or physical harm to a . . . school employee . . . regardless of whether or not the behavior constitutes a criminal violation.” Id. at ¶ (c). It also includes “[a]ny other behavior which disrupts the orderly operation of a school, school classroom, or any other School District facility.” Id. at ¶ (e). Section 7.103 of the SPALC agreement allows an employee being terminated to either file a grievance under Article 5 or request a hearing before the School Board, but not both. Section 7.13 of the SPALC agreement provides that employees “shall not engage in speech, conduct, behavior (verbal or nonverbal), or commit any act of any type which is reasonably interpreted as abusive, profane, intolerant, menacing, intimidating, threatening, or harassing against any person in the workplace.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding the Respondent guilty of employee misconduct and either terminating her employment, or suspending her without pay and reinstating her upon entry of the final order. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 27th day of June, 2014. COPIES FURNISHED: Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Nancy J. Graham Superintendent of Lee County Schools 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Christel Freeman 2119 French Street Fort Myers, Florida 33916-4434
