The Issue The issues in this case are: Whether Respondent, County of Osceola School Board (the "Board"), discriminated against Petitioner, Valmyr Vilbrun ("Vilbrun"), on the basis of his race (African-American) in violation of the Florida Civil Rights Act; and Whether the Board retaliated against Vilbrun when he filed a discrimination claim.
Findings Of Fact Vilbrun is an African-American male who, at all times relevant hereto, was teaching an exceptional student education (ESE) class at the School. Vilbrun is currently employed at Alternatives Unlimited, a school in Polk County, Florida. He also works as a dispatcher for the St. Cloud Police Department, a position he has held for several years. The Board is the agency responsible for hiring and supervising all teachers in Osceola County, including those employed at the School. The Board is further responsible for determining whether teachers working under annual contracts are to be renewed at the end of their contract term. Vilbrun was a teacher at the School during the 2008-2009 school year. He was working under an annual contract for that school year only. Vilbrun had been hired by Tapley to teach an ESE class at the School. At the end of the school year, Tapley recommended non-renewal of Vilbrun's contract based, in large part, upon her evaluation of Vilbrun's teaching skills, her concerns about his tardiness, and his negative interaction with a fellow teacher. Vilbrun maintains that the reason for the recommendation of non-renewal was racial discrimination. While citing no direct evidence of discrimination by anyone at the School or the Board, Vilbrun provided circumstantial evidence as to three incidents that had occurred in furtherance of his claim: Vilbrun had a confrontation with a Caucasian, female teacher (Reyes) at the School; Vilbrun had a negative relationship with the dean of students (Andrea Beckel); and There was an issuance of disciplinary letters to four African-American teachers on the same day. Each of those incidents will be discussed more fully below. Incident Involving Fellow Teacher When Vilbrun began teaching at the School, he approached Reyes, a fellow ESE teacher, to help him prepare Individual Education Plans ("IEPs") for his students. IEPs are an integral part of the ESE program, and each teacher is expected to develop IEPs for their students. After a period of assistance from Reyes, Vilbrun began preparing the IEPs for his students by himself. Reyes remembers telling Vilbrun that it was time for him to do the IEPs on his own. Vilbrun remembers deciding to do the IEPs independently after seeing that the extra time spent with Reyes might be misconstrued by others as improper. Reyes is a young, Caucasian woman. In December 2008, about halfway through the school year, one of Reyes' students approached her and asked if she wanted to buy some items that he was selling "for Mr. V's class." Reyes was taken aback because her class was in the midst of a fundraiser at that time, and the School only allows limited fundraisers to be going on at any one time. Reyes telephoned Vilbrun to inquire about his fundraiser, but he did not answer the call. Reyes then emailed the person responsible for coordinating fundraisers at the School to make sure that she (Reyes) was not violating the policy by carrying out her class's fundraiser at that time. She was advised that her fundraiser was authorized. The fundraising coordinator apparently then went to Vilbrun to inquire about his fundraising project. A day or two later, Vilbrun approached Reyes in another teacher's classroom and said, "I can't believe it's in your character to do that." Vilbrun was upset that Reyes had contacted the School office about his alleged fundraiser. He told Reyes that it was not a fundraiser per se and that "the money was going to someone else." The conversation escalated into an argument, and Reyes, a small woman, became uncomfortable and intimidated by Vilbrun's behavior. Reyes was also concerned that because her child and Vilbrun's child both attended the same day care, she would potentially have to confront Vilbrun away from the School grounds. Reyes was upset enough by the incident to contact the principal to discuss her version of what had transpired. The principal spoke with Reyes and asked for a written statement, which Reyes submitted. Coincidentally, Reyes had submitted a typed letter to the office that very morning complaining about another issue she had with Vilbrun, namely, that he was often late to class and that she would have to monitor his students until he arrived. Her hand-written statement about the fundraiser incident was submitted in the afternoon of the day she sent in the tardiness letter. Tapley then issued a letter to Vilbrun advising him that a complaint had been filed against him by another teacher. The letter did not make a determination of whether the complaint was founded, and Vilbrun was given the opportunity to submit a written response prior to meeting with the principal. There is no evidence that a written response was prepared by Vilbrun. Tapley then conducted an investigation to determine whether there were grounds for discipline against either of the teachers involved. As a result of Tapley's investigation into the matter, Tapley verbally advised Vilbrun to keep his distance from Reyes. Tapley then issued a letter of guidance to Vilbrun directing him to follow procedures for all fundraising activities. The letter also addressed Vilbrun's failure to report to work on time. The letter did not provide any sanction or direction concerning interaction with Reyes or other colleagues. As far as Vilbrun knew, no action was taken against Reyes. Relationship With Dean of Students For unknown or unstated reasons, Vilbrun did not have a good working relationship with Beckel, the dean of students at the School. Vilbrun believed Beckel was not adequately performing her role, that she was not able to handle unruly or disruptive students, and that she failed to provide Vilbrun with sufficient support. In April 2009, Vilbrun submitted a memorandum to Tapley addressing his concerns about the relationship between him and Beckel. The memorandum discussed Vilbrun's perception of his interactions with Beckel, but without benefit of Beckel's version of the facts, it is impossible to make a finding as to the exact nature of the relationship between the two individuals. However, the gist of Vilbrun's complaint against Beckel is professional in nature and relates to differences between the two concerning the handling of student discipline. There is one peripheral comment about an "outright discriminative" email received from Beckel in the memorandum. However, the emails presented into evidence by Vilbrun do not substantiate that claim. As a matter of fact, Vilbrun, when asked whether race was a motivating factor for the way Beckel interacted with him, stated, "I can't speculate on that" and "As far as what was causing that, I can't really say." [Transcript, pp. 296-297.] Vilbrun had a general perception that Caucasian teachers did not seem to have the same difficulties with Beckel that he was experiencing. Adverse Action Towards Four African-American Teachers On the day before he received the letter from Tapley concerning the Reyes matter, Vilbrun was the recipient of a letter from Tapley concerning his attendance and punctuality. In fact, all four ESE teachers, all of whom are African-American, received letters on that same day, March 10, 2009. Vilbrun views that fact as evidence of discrimination against him and the other African-American teachers. Tapley generated each of the letters, but states they were based on alleged violations by each teacher and were not based on reference to the recipient's race. Tapley's testimony in this regard is credible. The letters are known as "9.02 letters," based on the section of the Union Agreement in which such letters are described. The 9.02 letters advise teachers of perceived or alleged violations that have been reported and give the teacher an opportunity to respond before further action is taken by administration. The letters are not final and do not establish fault. Rather, they are merely a preliminary step that may either result in a sanction or may be dismissed entirely. One of the recipients of one of the four 9.02 letters, Sweeney, adamantly defended Tapley as non-racist. In fact, Tapley assisted Sweeney and helped her find a new position when Sweeney's class at the School had to be eliminated due to loss of students. Other than the fact that each of the four recipients of a 9.02 letter from Tapley on that date was African-American, there is no evidence that race had anything to do with the letters. A former ESE teacher at the School testified that ESE teachers were sometimes discriminated against as a group, i.e., as ESE teachers, but there was no racial discrimination at the School to her knowledge. Other Factors for Consideration At the end of the 2008-2009 school year, Tapley made a recommendation to the Board for non-renewal of the annual contracts for 17 teachers from the School. Of that group, 11 were Caucasian, three were African-American, and three were Hispanic. Tapley was described by almost every teacher, except Vilbrun, as acting responsibly and without regard to race when dealing with issues at the School. There is no evidence that Tapley engaged in any racist behavior. To the contrary, her demeanor and fairly universal support from staff indicates just the opposite. Andrea Beckel, with whom Vilbrun alleges a strained relationship and who Vilbrun suggests made statements with racist undertones, did not testify. It is impossible to make a finding of fact concerning her behavior or demeanor. The union representative at the School, Patty Minor, described Tapley as decidedly non-racist. Vilbrun never went to Minor with a complaint about Tapley acting in a discriminatory fashion based on race or anything else. One of Tapley's "hot buttons" for her teachers was timely arrival at school. Vilbrun had some issues with timeliness during his tenure at the School. Reyes testified that she had to cover Vilbrun's students on many occasions. Minor, as the union representative, counseled Vilbrun about the necessity for timely arrival. No documentary evidence was presented, however, to substantiate that Vilbrun was habitually tardy. During the 2008-2009 school year, Vilbrun received two "annual" reviews, performed by assistant principal Neves. The reviews indicate satisfactory performance of most of his required tasks and that improvements were being made. However, Vilbrun was viewed by his principal and other administrators as deficient in the classroom. His students were observed to be unfocused and lacking in clear direction as to their studies. Vilbrun rejects those allegations on the basis that Tapley was not his direct supervisor and did not perform regular reviews of his classroom. Tapley, however, viewed Vilbrun on numerous occasions and relied upon reports from other teachers and administrators as the basis for her actions. Of the six teachers hired for the ESE department at the School for the 2009-2010 school year, five had less experience than Vilbrun. However, Tapley testified that she considers qualifications, rather than experience, as the deciding factor for hiring teachers. Vilbrun claims retaliation by the School and/or the Board because of his complaint to the Commission. One of the purported retaliatory actions was a phone reference check form evidencing that Tapley told Ana Smith, a Board employee, she would not rehire Vilbrun or recommend him for employment. Vilbrun also applied for numerous jobs, and he believes that someone at the School or Board was sabotaging his applications or blackballing him in some fashion because he could not get any interviews. However, the phone call and Vilbrun's applications occurred in May 2009; his complaint to the Commission was filed in December of that year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioner, Valmyr Vilbrun, in its entirety. DONE AND ENTERED this 27th day of July, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 July, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gary M. Glassman, Esquire Brown, Garganese, Weiss & D'Agresta, P.A. 111 North Orange Avenue, Suite 2000 Orlando, Florida 32801 Candance N. Vilbrun Post Office Box 701975 St. Cloud, Florida 34770
The Issue The issue in this case is whether there is just cause to terminate Lontay Finney's employment with Palm Beach County School Board based upon the allegations made in its Petition.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Palm Beach County, Florida. Article IX, Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Finney started his employment with the School Board on December 19, 2005. He was employed pursuant to an annual contract. Finney taught at Glades Central High School ("Glades Central") from 2010 through 2015. He was last employed as both a science teacher and assistant athletic director. Finney's annual evaluations were acceptable and effective during each year of his employment at Glades Central. As a teacher, Finney was expected to comply with the Code of Ethics. On June 1, 2010, he signed an acknowledgment that he received training, read, and would abide by School Board Policy 3.02, Code of Ethics. Reniqua Morgan ("Morgan") was a female student at Glades Central from 2011 to 2015. She was a cheerleader athlete but never had Finney as a teacher. Finney knew of Morgan as one of the daughters of his teacher colleague, Renee Johnson Atkins ("Atkins") and from seeing Morgan around school. Morgan and Finney also knew who each other were because they had a niece in common and lived in the small town of Belle Glade. However, Finney and Morgan did not associate with one another directly before March 2015. On or about March 22, 2015, Finney initiated contact, reaching out to Morgan by poking her on Facebook. Morgan poked him back and then Finney followed up by inboxing her next. Morgan was surprised that Finney was conversing with her. They continued to chat for several weeks not on an open feed of Facebook but messaging each other's inbox privately. Between 10:30 and 11:00 p.m. on Sunday, April 12, 2015, Finney initiated a conversation with Morgan and they chatted on Facebook. Finney suggested that the two of them get together and asked Morgan, do you want to "chill?" Morgan agreed and said "I don't mind." They then decided to meet up. Finney did not offer to pick Morgan up at her house. Finney instructed her to meet him at the stop sign, around the corner and down the street from where she lived.1/ Morgan, unbeknownst to her mother, met Finney by the stop sign. At the stop sign, Morgan got in Finney's mother's truck with Finney. When Finney first made contact with Morgan that night, he gave her a hug. He then drove her to his home. At all times relevant to these proceedings, Morgan was a 17-year-old minor. Finney did not have permission from Morgan's parents to either pick her up or take her to his house. His inappropriate actions were outside of school and not in connection with any school-related activity in any way. At approximately 12:24 a.m. on Monday, April 13, 2015, Morgan's mother, Atkins, was at her residence and went to use the restroom and she then discovered that Morgan was not at home. Morgan had left home without her permission. Atkins was worried about Morgan being out that early in the morning because it was "unsafe because [of] the neighborhood that [she] live[d] in, there [were] some people in that neighborhood that [were] unsafe."2/ While at Finney's house, Finney and Morgan remained in the parked truck alongside of the house alone together for approximately an hour and a half to two hours and spent some of the time talking and scrolling through Netflix on Finney's phone. Neither Morgan nor Finney can recall the name of any of the movies they watched on Netflix. Morgan's mother was looking for Morgan and found out from Bethanie Woodson ("Woodson"), Morgan's friend, that her daughter was with Finney. Atkins took Woodson with her and drove to Finney's house looking for Morgan. While in the truck with Finney, Morgan's friend contacted her and let her know that her mother was looking for her. Morgan told Finney she needed to go home. Atkins also learned while at Finney's house that Morgan was on the way home, so she got back in her vehicle and returned home. Morgan told Finney to drop her off near the railroad track, which is not the same place he picked her up. He then dropped her off where she suggested near Avenue A, a neighborhood on the opposite side of the railroad tracks from where Morgan lived, and several blocks away from her home. After Finney dropped Morgan off in the early school day morning while it was dark outside, Morgan had to walk down the street, come through the neighborhood and then walk across the bushy railroad tracks to get to her residence. The foot path Morgan took was also unlit, grassy, and rocky near the train tracks. No streetlights were near the tracks.3/ When Morgan got home, her mother, sister, and Woodson were waiting for her. Morgan's mother was irate that Morgan had been with Finney and drove Morgan back to Finney's home to address his actions with her daughter. Finney lived with his parents. When Atkins knocked on the door, Finney's father came to the door and Atkins requested to see Finney. Atkins confronted him angrily and berated him for being a teacher, picking up Morgan, and taking her to his house at that hour of the night. Atkins also informed Finney's mother what occurred while she was at their house. Morgan and Finney have had no contact since the incident. Morgan's mother reported the incident to Glades Central. As a result, the principal assigned Finney to his residence by letter, with pay, starting April 13, 2015, pending the investigation or notification of a change in assignment in writing. On April 15, 2015, Finney was assigned to temporary duty at Transportation Services pending investigation. An investigation by the school police found no violation of a criminal law by Finney, and the case was referred to Petitioner's Office of Professional Standards, which is charged with conducting investigations into alleged violations of School Board policy. On or about May 11, 2015, the Office of Professional Standards opened an administrative investigation. Dianna Weinbaum ("Weinbaum"), now director of Office of Professional Standards and former human resources manager, was assigned to investigate the matter. Around the time the investigation was being conducted, Finney deactivated his Facebook page due to the mostly negative comments and statuses, as well as rumors surrounding the incident of him picking up Morgan and taking her to his house. Finney was able to finish the school year working back at Glades Central between investigations. Weinbaum performed a thorough and complete investigation regarding the allegations against Respondent. She interviewed all the witnesses and obtained statements, as well as visited the locations where Finney picked up and dropped off Morgan. On August 4, 2015, consistent with District policy, Respondent was removed from the classroom and reassigned from his teaching position back to a temporary duty location again. On October 8, 2015, a pre-determination meeting was held with the director of the Office of Professional Standards and Finney, who was represented by counsel regarding the interactions between Finney and Morgan. Finney was provided a copy of the investigative file. At the end of the investigation, it was determined that Finney's actions were both an inappropriate relationship with Morgan and posed a clear threat to Morgan's health, safety and welfare. Weinbaum recommended discipline for Finney consistent with discipline received by other employees based on the superintendent and School Board's position that employees who engage in inappropriate relationships with students and who endanger the health, welfare and safety of a child will be terminated. On November 19, 2015, Petitioner notified Finney of the superintendent's recommendation for termination of his employment at the School Board Meeting set for December 9, 2015. The School Board accepted the superintendent's recommendation and voted to suspend Finney for 15 days and thereafter terminate his employment. Finney timely requested a hearing to contest the superintendent's recommendation. Finney's disciplinary history does not include any discipline for actions similar to these for which suspension and termination are recommended. Petitioner charged Finney by Petition with soliciting an inappropriate relationship with a student that jeopardized her health, safety and welfare. The Petition charged Finney with the following violations: School Board Policies 0.01(2)(c),(2)(f) Commitment to the Student Principle 1; 3.02(4)(a)(b)(d)(e),(g); 3.02 5(a),(a)(iii),(a)(v),(a)(vii); Code of Ethics; 1.013(1) and (4), Responsibilities of School district Personnel and Staff; School Board Policies 1.013 and 3.27, Criteria for Suspension and Dismissal, and Code of Ethics of the Education Profession in Florida; the Collective Bargaining Agreement Article II, Section M; and (C) Rule 6A-5.056 (2)(a),(b) and (4) F.A.C., Criteria for Suspension and Dismissal; 6A-10.081 (3)(a) and (3)(e), F.A.C.; 6A-10.080(1),(2) and (3) F.A.C. Code of Ethics for the Education Profession of Florida; and 6A-10.081(3)(a) and (3)(h) F.A.C. Principles of Professional Conduct for the Education Profession. During the final hearing in this matter, Finney testified that his decision to drive Morgan to his house "was a lapse in judgment and it was just a bad decision that I made." At hearing, the testimony and exhibits established that Finney initiated contact with Morgan and solicited an inappropriate relationship with a student that jeopardized her health, safety and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: dismissing charges of violations of policies 0.01(2)6., 3.02(4)(a), (d), (e), and (g); 5(a), (a)(iii), (a)(v), and (a)(viii); 1.013(4); and rule 6A-10.081(3)(e) and (h); finding Respondent in violation of rules 6A-10.080(2) and (3), 6A-5.056(2), 6A-10.081(3)(a), policies 0.01(2)3., 1.013(1), 3.02(4)(b), and 3.02(5)(a)(vii), as charged; and upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 4th day of January, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 4th day of January, 2017.
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2007),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(d), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(4)(b), 6B-1.006(5)(a), 6B-1.006(5)(d), and 6B-1.006(5)(f), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Ms. Mackroy is licensed to teach in the fields of emotionally handicapped and sociology pursuant to Florida Educator’s Certificate No. 385206, which is valid through June 30, 2011. At all times pertinent to the Administrative Complaint, Ms. Mackroy was employed as the lead teacher at the Exceptional Student Education Countywide McLaughlin Center (McLaughlin Center) in the Polk County School District. On September 6, 2007, Officer Tiffany Holden, a school resource officer employed with the Lake Wales Police Department, was dispatched to McLaughlin Center to investigate a report of a disruptive student, A.H. When Officer Holden arrived at McLaughlin Center, she observed A.H. sitting quietly in a chair with his arms inside his shirt, looking as if he was napping. Officer Holden also observed that the front office area was in disarray, with papers and a doughnut box on the floor and several chairs that had been overturned. Ms. Mackroy told Officer Holden that A.H. had been disruptive and was responsible for overturning the chairs and throwing the papers and doughnut box on the floor. Ms. Mackroy told Officer Holden to arrest A.H. because the school staff could do nothing with him. Based on Ms. Mackroy’s statement that A.H. was responsible for the trashing of the front office, Officer Holden handcuffed and arrested A.H., who began to cry. A.H. was transported to the police station. He told Officer Holden that he did not throw the items on the floor and did not overturn the chairs. A.H. stated that, while he was seated outside the office door, he had observed Ms. Mackroy throw the papers on the floor and overturn the chairs. Because of the conflicting evidence, Officer Holden did not charge A.H. with disorderly conduct, but took A.H. home and spoke to his mother. On October 25, 2007, during an unrelated, subsequent investigation, Officer Rodney Fowler interviewed Terry Benton (Ms. Benton), who at that time was a teacher at McLaughlin Center. Ms. Benton had witnessed the incident involving A.H. and advised Officer Fowler that A.H. had not put the front office in disarray, but Ms. Mackroy had knocked over the chairs and put the papers and other items on the floor. She knew that Ms. Mackroy had falsely accused A.H., but she was intimidated by Ms. Mackroy and was afraid that Ms. Mackroy would lie in order to get her fired. Ms. Benton was told by Ms. Mackroy that she had contacts with the police department and would know if Ms. Benton said anything against her. The information received from Ms. Benton concerning A.H. was relayed to Officer Holden, who filed a complaint affidavit with the State Attorney’s Office charging Ms. Mackroy with filing a false police report. Officer Fowler had been dispatched to McLaughlin Center on October 25, 2007, to investigate allegations that Ms. Mackroy had hit D.C., a student, on the head. During the investigation, he learned that, approximately two or three weeks before the investigation, D.C. had gotten upset during class. Ms. Mackroy came into the classroom and took D.C. out of the classroom and told him to go to the end of the hallway. D.C. got to the end of the hallway and got on the floor, lying on his stomach. While D.C. was lying on the floor, Ms. Mackroy bent down and hit him on his head with her hand. D.C. was not trying to harm Ms. Mackroy at the time of the incident; he was crying and asking her to stop hitting him. As a result of Officer Fowler’s investigation, he charged Ms. Mackroy with simple battery. The Polk County School District began an investigation into the incidents involving Ms. Mackroy and the two students, A.H. and D.C. At the conclusion of the investigation, it was recommended that Ms. Mackroy be terminated from her position with the Polk County School District. Ms. Mackroy resigned in lieu of termination on December 19, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Mackroy violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes; finding that Ms. Mackroy violated Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(d), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(4)(b), 6B-1.006(5)(a), and 6B-1.006(5)(d); and permanently revoking Ms. Mackroy’s educator certificate. DONE AND ENTERED this 31st day of March, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2010.
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2017.
Findings Of Fact Ronald E. Boyd is a teacher in the State of Florida, licensed by the Department of Education under Certificate No. 370632, covering the area of physical education. At the time of the events alleged in the Amended Administrative Complaint, Mr. Boyd was employed by the Escambia County School District as a teacher at Ransome Middle School in Pensacola, Florida. On about November 10, 1983, Respondent was apprehended while in possession of more than 20 grams of cannabis, a felony under Florida law. On November 10, 1983, Sgt. Joel Mooneyham of the Escambia County Sheriff's Department, searched the residence of John and Daniel Driggers, who were suspected of being involved in the sale of drugs. During the search, Mooneyham discovered Mr. Boyd sitting on the floor of the bedroom in the midst of a large quantity of marijuana, which was apparently being manicured or cleaned for sale. Mooneyham saw Mr. Boyd sitting among a number of marijuana plants with scissors and other items necessary for the manicuring of the plants. Approximately 187 pounds of marijuana was seized at that time. Mr. Boyd was arrested and charged in the Escambia County Circuit Court with the crime of possession of a controlled substance, to wit: more than 20 grams of cannabis in violation of Section 893.13(1)(e), Florida Statutes. Subsequently, the charges against him were amended to include conspiracy to possess and distribute marijuana. The circumstances of Mr. Boyd's arrest resulted in newspaper publicity in the Escambia County community which was adverse to Mr. Boyd. On the day and at the time of Mr. Boyd's arrest, he was scheduled to be at Ransome Middle School teaching. However, on that day Mr. Boyd had apparently called in a substitute teacher to take his place. After his arrest, Mr. Boyd failed to contact his school or to make any effort to advise the school of his situation. Mr. Boyd has been absent without leave from his teaching position since that time. Dwight D. Leonard, Principal of Ransome Middle School, testified that as a result of Boyd's conduct, Mr. Boyd's effectiveness as an employee of the school board has been substantially reduced. Additionally, Mr. Leonard testified that the School Board did not give employment consideration to any applicant for employment if the applicant had a record similar to that of Mr. Boyd. The acts of Mr. Boyd have seriously reduced his effectiveness as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Mr. Boyd's teacher's certificate No. 370632 be PERMANENTLY REVOKED. DONE and ENTERED this 5th day of July, 1984, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1984. COPIES FURNISHED: Ronald E. Boyd 9181 N. Palafox Pensacola, Florida 32504 Wilson Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Fl. 32301
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.
Findings Of Fact Since August 16, 1972, and at all times material to this case, Alfred Gorton (Respondent) was employed as a member of the Lee County School District instructional staff by a continuing contract with the Lee County School Board. In February, 1993, the Respondent was teaching a Social Studies class during third period at Dunbar Middle School. The Respondent had recently been moved into the classroom and much of his instructional material remained boxed. While his students were working on an assignment, the Respondent began to search for a book in his possession which had been requested by another teacher. He intended to deliver the book upon its discovery. As he went from box to box, he chanted, "ennie meenie miny moe...ennie meenie miny moe." Upon opening a box and locating the book, he exited the classroom and completed his "ennie meenie miny moe" chant while standing just outside the classroom door by saying "catch a nigger by the toe." Immediately upon making the statement, he realized his error. He delivered the book to the teacher and returned to his classroom. Upon entering his classroom, he was confronted by some of his students who had heard the remark. Some of the students took offense at the statement and the connotation of disrespect towards black persons. At that time, the Respondent engaged the class in a brief discussion during which he attempted to explain his statement. He stated that, in his opinion, the word "nigger" could be applied to white or black person, apparently believing that no one should be offended. The Respondent testified, and there is no evidence to the contrary, that he had not previously used the term "nigger" in the classroom other than as to the history of slavery. He further testified that he did not intend to offend anyone. He stated that the rhyme was one he learned as a child, and that he was reciting it apparently absentmindedly while searching through the boxes. One student took specific offense at the remark. Several days after the incident, the Respondent discussed the matter with both the student and his father and apologized for his statement. The student's father suggested that the Respondent should also apologize to the entire classroom. The Respondent discussed the matter with the school's principal. Because of the lapse of time since the incident, the principal thought it better to let the matter rest and directed the Respondent to refrain from further classroom discussions regarding the statement. The school principal testified that he does not condone the use of the word "nigger" and does not believe the Respondent's behavior was appropriate. In discussions with the school board officials, the principal recommended that the Respondent receive a written reprimand for his behavior. On April 13, 1993, the school board suspended the Respondent without pay and benefits for twenty (20) working days.,
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order rescinding the suspension of Alfred Gorton and providing for back pay and benefits for the 20 day period of suspension. DONE and RECOMMENDED this 10th day of January, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2936 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-8, 10-12, 20-23, 25-26. Rejected, subordinate, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 8. Rejected, subordinate. COPIES FURNISHED: Dr. James A. Adams, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament, Esquire Kunkel & Hament Suite 785, 1800 Second Street Sarasota, Florida 34236 Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902
Findings Of Fact On March 19, 1986, petitioner, William W. MacKillop, filed an application for a teaching certificate with respondent, Department of Education, Education Practices Commission (EPC). The application itself is not a part of this record. On the application, petitioner was asked if he had ever been convicted of a crime, regardless of adjudication. Petitioner responded "Yes," and indicated he had pled guilty to trespass (a misdemeanor) on December 19, 1984 in Palm Beach County. Through a fingerprint search conducted by the Florida Department of Law Enforcement, respondent confirmed the above incident. It also learned that petitioner had initially been charged with the criminal offenses of burglary, damage to criminal property (criminal mischief) and trespass in a structure, and had pled guilty to the lesser offense of trespass. Because of this, EPC eventually issued a notice of denial of the application on January 15, 1987 on the ground petitioner was guilty of gross immorality or an act involving moral turpitude, or was guilty of personal conduct which would seriously reduce his effectiveness as a school board employee. That precipitated the instant proceeding. In 1984 petitioner was involved in a divorce proceeding with his wife after a marriage of some eight years. While in a highly emotional state, MacKillop entered the unoccupied home of his estranged wife in Lake Clarke Shores on October 6, 1984. He stated he did so with a key although a broken bathroom window in the home suggested the entry may have been in that manner. In any event, after gaining entry MacKillop proceeded to destroy or damage numerous personal effects of his wife, including dishes and photographs. In addition, MacKillop suffered an arm wound during the incident, and smeared blood from the wound on the carpet, bedspread, clothes and other artifacts. Damage was estimated to be around $1,000. One observer described the house as being "a chaotic scene" after the episode. When the incident occurred, MacKillop was under an order of the circuit court which prohibited him from entering his wife's home. This order was the result of several prior acts of "harassment" on the part of MacKillop. Local police suspected that petitioner was responsible for the incident. Before formal action was taken, on October 8, 1984 petitioner, in the presence of an attorney, voluntarily turned himself in to local authorities where he was placed under arrest. An information was later filed by the state attorney charging petitioner with three offenses. Through a plea negotiation, petitioner pled guilty on December 13, 1984 to trespass, a misdemeanor, and all other charges were dropped. The court withheld adjudication of guilt and placed petitioner on six months unsupervised probation. On January 6, 1987 a motion for expungement was granted by the circuit court and petitioner's record of arrest and conviction was expunged. Until recently, petitioner had been a member of the fire department for the City of West Palm Beach for some fourteen years. While employed with the City, MacKillop had advanced through the ranks and achieved the position of head of a fire station and was in charge of the station, its equipment and men. In school year 1985-86 MacKillop became a substitute teacher for Palm Beach County. He taught on approximately fifty occasions during the school year at some six or seven schools. Although he offered no witnesses or documentation concerning his teaching experience, MacKillop stated he had done a good job while working as a substitute teacher and that no complaints had been lodged by supervisors. This was not disputed by respondent. He now desires to pursue teaching on a full- time basis. Through the testimony of a City of West Palm Beach firefighter, it was established that MacKillop had been a capable and respected firefighter with good moral character. It was also established that MacKillop had responded to hundreds of emergency calls over the years, and while doing so, had never acted in an irrational or impulsive manner. When judged with his work record, the October 6 incident was an isolated incident. This was corroborated by MacKillop's former father-in-law who stated the incident was out of character for petitioner. At hearing, MacKillop expressed remorse and regret for the incident, and blamed it on a highly emotional state of mind caused by a divorce with a woman he still loved. He has successfully completed probation, offered to make full restitution, served in an effective manner in the classroom since the incident, and has no other blemishes on his record. He is therefore rehabilitated. Respondent's expert in teacher certification opined that the incident, standing alone, without contrasting evidence of good moral character, rehabilitation or that the outburst was isolated, constituted a lack of judgment and self-control on petitioner's part. It also placed into question his ability to control and manage a classroom. She also pointed out that on June 19, 1986, or shortly after the application was filed, EPC requested additional facts from MacKillop concerning his arrest but that MacKillop did not respond. She conceded, however, that his lawyer gave general details in a letter dated July 28, 1986. A follow-up request by EPC made on August 26, 1986 resulted in MacKillop's counsel advising EPC that it could obtain such records at the local court. The EPC also suggested that petitioner sought expungement of his conviction to deny EPC access to his records, but there is insufficient evidence to support this charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for certification as a teacher should be APPROVED. DONE AND ORDERED this 20th day of July, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0574 Petitioner: Covered in Background and finding of fact 3. Covered in finding of fact 3. Covered in finding of fact 6. Covered in Background and finding of fact 4. Covered in Background and finding of fact 6. Covered in finding of fact 6. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 3. Rejected as unnecessary. Covered in findings of fact 4 and 6. Covered in finding of fact 3. Covered in findings of fact 4 and 7. Covered in finding of fact 7. Covered in finding of fact 7. Covered in finding of fact 7. Rejected as unnecessary. Respondent: Covered in finding of fact 3. Covered in finding of fact 3. Covered in finding of fact 3. Covered in finding of fact 3. Covered in finding of fact 3. Covered in finding of fact 3. Rejected as unnecessary. Covered in findings of fact 3 and 4. Covered in finding of fact 4. Covered in finding of fact 7. Covered in finding of fact 7. Covered in finding of fact 7. Covered in findings of fact 5 and 7. Covered in finding of fact 3. COPIES FURNISHED: Richard Vespucci, Esquire 1675 Palm Beach Lakes Boulevard Suite 200, Forum III West Palm Beach, Florida 33401 J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Karen Barr Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield, Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
