Findings Of Fact Mrs. Judy Jean Emens is the mother of Teresa Ann Emens who was a student in respondent's biology class at Apopka High School in May of 1978. Late on the night of May 25, 1978, a Thursday, Teresa finished a project for biology class on the kidneys. Perhaps because she was up so late the night before, she did not feel well on the morning of May 26, 1978, and Mrs. Emens decided that her daughter ought not go to school. Teresa asked her mother to take the project to school for her but Mrs. Emens declined and Teresa took it herself on Monday. When Teresa returned from school with the report that respondent refused to accept her project because it was late, Mrs. Emens telephoned Apopka High School, and complained. In general, however, she believes respondent has "been a very good teacher." (T13). Erla Mae Miles is the mother of Barbara Miles, who was a student in respondent's biology class at Apopka High School in May of 1978. On the night of May 25, 1978, Barbara suffered an asthma attack. She did not go to school the following day, a Friday. When she took the project to school on Monday, respondent refused it. Learning of this Mrs. Miles telephoned Apopka High School and complained. On Tuesday May 30, 1978, Mr. Acree, assistant principal at Apopka High School told the principal, Roger Augustus Williams, that a mother had called to complain about respondent's refusal to accept her daughter's project. Later, Mr. Williams himself spoke to another mother with a similar complaint. That afternoon, Mr. Williams discussed the situation with respondent, who said he did not intend to accept the girls' projects. Mr. Williams said "Mr. Lee, you better think this over and come in tomorrow morning and let's discuss it." (T26). The following day Mr. Williams directed respondent orally and in writing to "accept these two projects and grade them. . ." Petitioner's exhibit No. 2. Respondent told Mr. Williams, "I just can't accept those. . .[The two] students knew what day it was due in and. . .the other kids would want to turn them in and it wouldn't be fair to them." (T29). Respondent reiterated this refusal some ten days later. He never accepted the projects for grading. In Mr. Williams' opinion, respondent was insubordinate but not insulting; he testified that respondent has never shown him any disrespect. Paragraph A of Article XIV of the contract between petitioner and the union of which respondent is a member provides: Teachers shall have academic freedom in the District, provided that: The teacher must be acting within accepted and/or adopted curriculum and courses of study. Instructional materials presented must be pertinent to the subject and level taught. The teacher presents all facts in a scholarly and objective manner. Topics discussed and materials presented within the classroom must be relevant to the subject matter under study and within the teacher's area of professional competence. A teacher shall have freedom in the implementation of the curriculum including the right to select material and to determine the class needs as they relate to the curriculum, however, this does not exclude the right and obligation of the principal or immediate supervisor to question, consult and direct whenever necessary. Petitioner's policy on attendance and excuses provides, in part: A student may be granted an excused absence when in the opinion of the Principal or his representative the absence is to the educational advantage of the student or an absence which is due to. . .personal illness of the student whose attendance in school would endanger his/her health or the health of others. . . Petitioner's exhibit No. 1. Apopka High School's policy is consistent with petitioner's policy, both of which were known to respondent in May of 1978.
Recommendation Upon consideration of the foregoing and in order not to disrupt respondent's students' education unduly, it is RECOMMENDED: That petitioner suspend respondent for one day. DONE and ENTERED this 10th day of January, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Mr. Thomas S. Lee, Jr. 4289 Lake Richmond Drive Orlando, Florida 32805
Findings Of Fact Prior to May 18, 1977, the Respondent was employed by the School Board as a driver education teacher and head football coach at Miami South Ridge High School. At approximately 3:00 A.M. on May 15, 1977, the Respondent left his home in Miami, Florida, and drove to the back of a business located at 7211 S. W. 40th Street in Miami, Florida. John F. Allen operates a boat, motor, and trailer sales, service, and repair business at that location. In the back of the building there is a work area that is surrounded by a chain link fence. Customers' boats and motors are stored in this area while work is done on them in the shop. The Respondent walked down an alleyway along the fenced area, and climbed over the fence. He removed an outboard motor from a boat, and pulled it away from the boat toward the fence. The Respondent did not work in the boat yard, and he was not authorized to be there after regular business hours. There was no direct evidence as to the Respondent's intentions. The circumstance of his being in the fenced in portion of the boat yard at between 3:00 A.M. and 4:00 A.M. and the circumstance of his removing an outboard motor from a boat, and carrying it toward the fence, lead inescapably to the conclusion that the Respondent was seeking to steal the engine. The Respondent did not remove the engine from the boat yard. For unknown reasons, he abandoned his effort to steal the engine and left the boat yard. The Respondent was not armed with any weapon, and no other person was in the boat yard while he was there. The outboard engine which the Respondent was attempting to steal was a 40 horsepower Johnson outboard engine. The weight of the engine is approximately 140 pounds. The engine has a wholesale value of approximately $250. Even if the engine were in the worst possible operating condition, it would still be worth approximately $150. While the Respondent was in the boat yard, two police officers employed by the Dade County Public Safety Department were undertaking a routine patrol of the area in an unmarked car. They observed the Respondent's automobile parked adjacent to the boat yard. One of the officers walked along the chain link fence in back of the boat yard and observed the Respondent inside the yard holding an engine. There was heavy vegetation along the fence, but the police officer was able to see through it at one point. The officer went back to his car, and told his partner what he had witnessed. Shortly thereafter the Respondent came out of the alley, got into his car, and drove away. The police officers turned on a flashing light in their car, pulled up behind the Respondent's car, and stopped him. The Respondent was placed under arrest. The police officer read the Respondent his rights from a "Miranda card". During interrogation after the arrest the Respondent pointed out the motor that he had removed from the boat, and told the officers were he had gotten it. The Respondent was then taken to a police station where he was fingerprinted, and later released on bail. A criminal action is now pending against the Respondent in the courts in Dade County. Tools of a sort which could have been used in perpetration of a burglary were found in the Respondent's pockets and on the floor of the Respondent's automobile by the police after they stopped him. There was no evidence presented that these tools were used by the Respondent in breaking into the boat yard or in removing the outboard engine from the boat. There was no evidence that the Respondent intended to use the tools for these purposes. There was evidence presented that the tools were put in the automobile by a friend of the Respondent's wife. There is insufficient evidence from which it could be concluded that the Respondent intended to use the tools to commit any trespass or burglary. The School Board acted promptly to suspend the Respondent from his position at South Ridge High School. The instant proceeding ensued.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent should be discharged for alleged violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1991)("Act"), as set forth in the Notice of Termination entered May 6, 2004.
Findings Of Fact The Respondent holds Florida Educator's Certificate No. 537246, licensing her to teach in Florida. That license allows her to teach music for kindergarten through twelfth grades. She has worked for the Duval County School Board as a teacher continuously since 1997 and is a tenured teacher. She has prior teaching experience with the Duval County School Board as well. During the 2001-2002 school year Patsy Butterbrodt, a music teacher for the Petitioner, evaluated the Respondent during Ms. Johnson's assignment as a teacher at William Raines High School (Raines). Ms. Butterbrodt found that the Respondent's teaching was unsatisfactory due to the Respondent's poor organization, her failure to comply with the music curriculum which had been adopted, and overall lack of professionalism. Ms. Butterbrodt, is the principal author of the music curriculum, provided the curriculum to Ms. Johnson and observed her teaching. The Respondent taught at Andrew Jackson High School (Jackson) during the 2002-2003 school year. During that year Principal Jack Shanklin counseled the Respondent concerning her excessive absences and excessive tardiness, as well as her failure to comply with the Petitioner's curriculum standards and other requirements. He found that her lesson plans were habitually inadequate and "sketchy" and that she failed to adequately adhere to "standards based teaching" principles and requirements. She was required to make a syllabus for her students and never did so. These problems, coupled with her excessive tardiness and absences resulted in her being placed upon a "Success Plan" designed to improve her performance. She continued to be deficient, however. Her student progress reports were never done on time and she was non-compliant with her Success Plan. After the inauguration of the Success Plan her lesson plans were still inadequate. On December 16, 2002 the Respondent was given a written reprimand for her tardiness and excessive absences and was suspended without pay for five days. At the request of Principal Shanklin, the assistant principal for curriculum, Ms. Pierce, observed and evaluated the Respondent. Ms. Pierce concluded that her performance was unsatisfactory. Ms. Pierce reported that the Respondent failed to comply with the curriculum standards or with standards for punctuality. She often simply failed to attend her class. In fact, security became a problem during the Respondent's tenure at Jackson High School. She was often not at her classroom on time, causing the students to be locked out of the room. The Respondent also repetitively failed to enforce tardy procedures for students. Ms. Pierce wrote the Success Plan which the Respondent failed to comply with for her tenure at the Jackson High School. Principal Shanklin also asked Allen Fletcher, the assistant principal for curriculum at Jackson to observe and evaluate the Respondent. He evaluated and monitored her compliance with the Success Plan. He established that progress reports for students were not finished on time by the Respondent and that the "scan sheets" regarding student academic progress were habitually late. He established that she was non-compliant with the Success Plan designed to improve her performance (See Exhibit M in evidence). At the conclusion of the 2002-2003 school year, Principal Shanklin evaluated Ms. Johnson as being unsatisfactory. Art Lauzon was the principal at Sheffield Elementary School at times pertinent hereto. The Respondent was assigned, at her request, as a music teacher at that school for the 2003- 2004 school year. A Success Plan was developed for the Respondent at Sheffield and principal Lauzon personally administered the plan. During that school year Mr. Lauzon observed the Respondent using inappropriate teaching methods and being excessively tardy and absent on multiple occasions. He had difficulty getting her to attend school reliably. She was ultimately assigned an unsatisfactory rating for that school year. Mr. Lauzon found that her lesson plans were never adequate and that parents were sending letters of complaint to him. Dr. Mary Jeanette Howle has a doctorate degree in music education and is nationally board-certified in music education. Dr. Howle established the applicability of the Sunshine State Standards for music education as the basis for the curriculum the Respondent was supposed to employ (as shown by exhibit B in evidence). She observed the Respondent on three occasions. The Respondent did not comply with the properly adopted musical curriculum nor did she employ appropriate teaching standards. Additionally Jan Moore, a teacher with 35 years' experience in the Duval County System and 33 years' experience at Sheffield Elementary was asked to observe the Respondent's teaching. Ms. Moore found the Respondent's attendance to be unsatisfactory and that she employed poor teaching methods and practices. She opined that the Respondent was an unsatisfactory teacher, although she was a very talented musical performer and a nice person. Dr. Howle likewise found her to be a warm and loving person in her relationship with students, but a very unsatisfactory teacher. Their opinions are most credible and are accepted as fact. At the conclusion of the 2003-2004 school year at Sheffield Elementary, Ms. Johnson received another unsatisfactory evaluation, as a result of these observation and evaluation efforts. Mr. John Williams has 25 years' experience with the Duval County School Board. He is the director of professional standards and is responsible for employee discipline. He suspended the Respondent for five days without pay due to her repetitive tardiness. He established that the Respondent's tardiness, attendance pattern, and absences were unacceptable. Mr. Williams sponsored Composite Exhibit A which is a two-page compilation of the Respondent's absences. She had missed a total of 356.85 hours at Jackson High School and 259.73 hours at Sheffield Elementary School. These attendance deficiencies are grossly excessive. Mr. Williams also established that there had been many problems in the Respondent's past history with the Duval County School Board concerning her performance, her attendance, and tardiness earlier than the past two years and at least as far back as 1992. Mr. Williams was the custodian of the Respondent's complete file, including her disciplinary record, and also established that the Respondent has been a unsatisfactory teacher for a substantial period of time. The Respondent testified and essentially admitted most of the allegations of the Petitioner. She acknowledged the problems with her teaching and the problems with her tardiness and attendance. She argued, however, that her previous many years' employment experience with the Petitioner should ultimately affirm her value as a teacher and justify her retention. Mr. Williams established, particularly on rebuttal, that the problems found above concerning the Respondent's performance as a teacher, and her past history of performance were of long standing as to her attendance, punctuality and adherence to professional standards. Indeed, if she had made only one point lower on her evaluation for the 1991-1992 school year she would have received an unsatisfactory rating for that year as well. In summary, the Petitioner established that the Respondent's performance as a teacher, and her professional competence as a teacher are so deficient as to justify her termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Duval County School Board finding that the Respondent, Diane Johnson, should be discharged from her employment with the Duval County School District. DONE AND ENTERED this 2nd day of March, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2005. COPIES FURNISHED: John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Virginia Baker Norton, Esquire City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Diane Johnson 2746 Stardust Court, No. 44 Jacksonville, Florida 32211
Findings Of Fact During December, 1978, James White, then a student at Cutler Ridge Junior High School, in Dade County, was involved in at least two incidents that were drug-related. In one incident, James White was observed behaving in a manner indicative of the abuse of drugs while within the school. Subsequent to that and on the same day, James White, his father, and a great dane dog, confronted an assistant principal on the school grounds or just outside the gate of the school grounds. As a result of that confrontation, James White struck another person with a length of chain and Mr. White was involved in a fight with the assistant principal. Police had to be summoned to relieve the tension of the confrontation. No evidence was presented on behalf of James White.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED: This cause should be DISMISSED. DONE and ORDERED this 10th of February, 1983, in Tallahassee, Florida. CHRIS H. BENTLEY, Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1983. COPIES FURNISHED: Mitchell D. Aronson, Esquire 1461 Northwest 17th Avenue Miami, Florida 33125 Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Ludwig J. Gross, Executive Director Division of Student Services Dade County Public Schools 5975 East Seventh Avenue Hialeah, Florida 33013 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether the Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Petitioner was a school board charged with the responsibility of operating and supervising the public schools within its district. Such responsibility includes the employment of non-instructional school employees. At all times material to the allegations of this case, Respondent was employed as a non-instructional school employee and was utilized as a security monitor assigned to Earlington Heights Elementary School. Prior to the incidents complained of, Respondent had been a satisfactory employee for approximately eight years. During the 1996/97 school year Respondent came to know an eight year old student, R.B., who was enrolled at Earlington Heights in the second grade. On March 14, 1997, Respondent went to R.B.'s classroom during an after school period and advised R.B.'s mother, who was present at the time, that the student was being taken to the office. Contrary to that remark, Respondent took R.B. to a restroom and requested that the minor child urinate into a paper cup left inside the restroom while Respondent remained outside. R.B. did as he was told but was not very happy. When R.B. did not return to the classroom, his mother went to find the minor, found him in the hallway, and asked him what had happened. R.B. related the incident of Respondent requesting him to urinate in the cup. At that time, R.B. and his mother went to see the school principal to lodge a complaint against Respondent. R.B. was frightened; his mother was angry at the prospects of what might have occurred with her son; and the principal tried to pacify them by calling Respondent to the office. Respondent admitted, in front of the principal and R.B.'s mother, that he had taken the child to the restroom so that he could urinate into a cup. Respondent explained the matter by saying he needed the urine for a friend's drug test. Subsequently, Respondent was placed in an alternate assignment away from contact with children while Petitioner investigated allegations of lewd and lascivious behavior (unsupported) and the instant charges of conduct unbecoming a school board employee and misconduct in office. Later during the investigation, Respondent admitted to Officer Ruggiero that the urine was needed for his own drug testing program. Apparently, unbeknown to his employer, Respondent was required to submit to drug testing several times prior to March 14, 1997. According to R.B., prior to March 14, 1997, Respondent had asked him for urine several times and had, on more than one occasion, paid him for same. At all times material to the allegations of this case, Respondent wore a security uniform and was in a position of authority over the minor child, R.B. Respondent claimed to want to help R.B. by "adopting" him and supporting him for various school programs. Thus Respondent sought and exercised additional control over the minor student. R.B. complied with Respondent's requests for urine because he was, in part, afraid of the mean look on Respondent's face. R.B. was embarrassed by the requests for urine. Respondent's conduct with R.B. demonstrates a lack of professional judgment, exploitation of a minor, and a gross indifference to the child's rights. Respondent has offered no explanation for such a breach of ethics. Respondent's conduct has seriously impaired his service to the school district as administrators can no longer trust Respondent around minor students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida enter a Final Order dismissing Respondent from his employment with the district. DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1997. COPIES FURNISHED: Mr. Roger C. Cuevas Superintendent Dade County School Board 1450 Northeast 2nd Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Patricia M. Kennedy, Esquire Leslie Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed September 28, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a professional service contract that is subject to a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." The School Board has adopted Rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-4A-1.213, Code of Ethics, requires employees of Petitioner to abide by state regulations. The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsections (3)(a) and (e) thereof provide as follows: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety. * * * (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner has employed Respondent as a full-time P.E. teacher at South Miami Heights since the 2006-07 school year. South Miami Heights is a public school located in Miami-Dade County, Florida. Respondent has not been the subject of any disciplinary actions by Petitioner other than the incident that is the subject of this matter. Respondent's practice throughout her tenure at South Miami Heights was to require students arriving at P.E. to line up, stop talking, and generally exhibit good behavior prior to starting class. On those occasions when students were not well- behaved, Respondent required the students to walk in an orderly fashion until they calmed down and showed they were ready for class. On hot days, she would required them to walk around the inside corridors of the school, while on cooler days the students would walk outside. In prior years, with a different principal, Respondent would have the students walk in front of the principal's office, who would then go out and call the students to attention to get them to calm down. During the 2009-10 school year Respondent taught P.E. at South Miami Heights to second, third, fourth, and fifth-grade students between the hours of 8:30 a.m. and 3:00 p.m. Her last P.E. class started at 2:00 p.m. and ended at 3:00 p.m. Students in her last class typically brought their book bags with them. On April 15, 2010, at approximately 2:00 p.m., third- grade students from Ms. Fuentes-Garcia's class walked from her class to Respondent's class. There were approximately 25 students in the class. Each student had a book bag. When Respondent took responsibility for the class, many students were talking or otherwise misbehaving. Respondent directed all students in the class to make laps around an outdoor basketball court by walking the white lines that define the outer boundaries of the basketball court. The temperature on April 15, 2010, was 81 degrees. The students were exposed to the sun while they were walking. Respondent required the students to carry or wear their backpacks while walking around the outdoor basketball court.1 According to Respondent, the students were required to walk around the basketball court until they calmed down. She had no idea how long the students would have to walk until they calmed down when she first directed them to start walking. All students in the class were required to walk without stopping for 32 minutes. A student who tried to put her book bag on the ground was told by Respondent to pick it up and keep walking. At the end of the 32-minute period, Respondent escorted the class back to the vicinity of Ms. Fuentes-Garcia's classroom and had the students walk in an orderly fashion to the playground, where they played games until approximately 2:54 p.m. There was a water fountain on playground, but it was not functioning on April 15, 2010. Water was available in a building adjacent to the playground. The students were not permitted to drink water between 2:00 p.m. and 2:54 p.m. At approximately 2:54 p.m. the students left the playground and entered the adjacent building to drink water. A video of the students walking the white lines of the basketball court was captured by the school's security cameras. In one portion of the video, a child can be seen dragging a backpack on the ground. It cannot be determined from the video whether the backpack had wheels. In another portion of the video, Respondent can be seen monitoring the students while standing in the shade of a tree. On April 16, 2010, Ms. Hernandez, the school principal, received complaints from four or five parents of students in the class. M.V., the mother of one of the students in the class, confronted Respondent about the incident on April 16, 2010. This parent testified, credibly, that Respondent told her that she had the class walk the white lines of the basketball court to calm them down and as punishment for being hyper. Following the complaints, the matter was referred to Petitioner's Civil Investigation Unit (CIU) where it was assigned to CIU investigator Terri Chester. Ms. Chester prepared a report after she concluded her investigation. Ms. Duboulay reviewed the report with Respondent in a Conference for the Record on June 8, 2010, and provided Respondent an opportunity to respond to Ms. Chester's report.2 Thereafter a Disciplinary Review Team convened and reviewed the case and concluded that probable cause existed that Respondent had committed the violations subsequently alleged in the Notice of Specific Charges dated September 23, 2010. The Disciplinary Review Team recommended that Respondent be suspended without pay for 30 days based on the totality of the circumstances of the case and the exposure of the students to harm. The manner in which Respondent disciplined her class on April 15, 2010, did not reflect credit on herself or on Petitioner. The manner in which Respondent disciplined her class on April 15, 2010, was inconsistent with her duty to "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety."3 There was insufficient evidence to establish that Respondent "intentionally expose[d] a student to unnecessary embarrassment or disparagement." Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay for a period of 30 workdays. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011.
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983.
Findings Of Fact M.G., as he is now known, was born on May 30, 1966. He attended kindergarten at Rainbow Park Elementary School. After beginning first grade in the fall of 1972, at Miami Baptist Temple, a private school, he entered Westview Elementary, one of Respondent's schools, in 1973. On May 3, 1974, he transferred to South Miami Elementary, another public school. Even before the transfer, his mother realized M.G. could not read, but she approached his teachers only after the family had moved and M.G. was settled in his new school. Ms. Mitchell, the second grade teacher with whom Mrs. G. conferred in the spring of 1974, told her that the school system would arrange various tests and interviews that might shed some light on M.G.'s academic difficulties. Among Respondent's records is a note from Ms. Mitchell dated June 13, 1974, saying, "M.G.'s Mother has requested a psychological evaluation. She is very much concerned as to why M. [h]as not been able to make more academic progress (and so am I)." Respondent caused psychological testing to be done in the middle of the following school year. On January 27, 1975, Elizabeth I. Smith, a psychologist in Respondent's employ, finished her psychological evaluation of M.G. Ms. Smith decided that M.G. had "a poor self-concept", "dependency needs", and "paranoid tendencies"; and that he was "a rather lonely child" and "ha[d] too strong a tendency to delay emotional satisfaction." Joint Exhibit No. 7. At this time, administration of Wechsler Intelligence Scale for children indicated that M.G. had normal "full scale" intelligence (101), with subtest scores ranging from 5 (coding) to 16 (object assembly). Contemporaneous Wide Range Achievement Test (WRAT) scores put him a year or more behind the average child at his grade level, with scores ranging from 1.8 (spelling) to 2.1 (reading) to 2.4 (arithmetic). On the WRAT, he mistook "41" for "14". Errors on the Wepman Auditory Discrimination Test indicated inadequate auditory discrimination. Ms. Smith concluded that M.G. had perceptual difficulties that should be evaluated, but decided that his main problems were emotional. Inter alia, she recommended "[r]esource into an Emotionally Disturbed Class . . . [and a]dministration of the Illinois Test of Psycholinguistic Abilities" (ITPA). Joint Exhibit No. 7. The ITPA is administered to children (up to ten years old) in an effort to measure auditory and visual process deficits, among other things. After talking to Ms. Smith, Mrs. G. signed a form on February 21, 1975, authorizing Respondent to place M.G. in a class for emotionality disturbed children for part of the day. At the time, she was unaware that Respondent had full-time classes for children with specific learning disabilities. The teacher of the class for emotionally disturbed children told M.G.'s parents that "she would be working with him with his LD problem." (T. 153.) Respondent never administered the ITPA to M.G.. Dr. Ronald I. Cantwell, a pediatrician who limits his practice to developmental disabilities, first examined M.G. in January of 1975. He found that M.G. confused left with right, had difficulty copying foot patterns, was unable to distinguish between "12" and "21" or between "b" and "d", and could not remember a sequence of five numbers or letters. Codeine acted to excite rather than to sedate M.G. Dr. Cantwell felt M.G.'s principal problems were academic rather than emotional, and recommended tutoring. With tutoring during the summer of 1975, M.G. learned multiplication tables, which he forgot after school began that fall, even though his tutoring continued. In the middle of the following school year, H.U. Puryear, a psychologist in Respondent's employ, concluded, on a psychological referral form dated February 3, 1976, that M.G.'s tutoring should be rescheduled so as not to conflict with school hours, if tutoring was really needed, and that "assignment to another E.D. setting requires no additional professional [psychological] procedures." Joint Exhibit No. 8. M.G. spent the latter part of the fourth grade in a varying exceptionalities class at South Miami Elementary. M.G. is tutored at Dr. Cantwell's Pediatric Achievement Center the summer following fourth grade, just as he had been the summer before. In addition to this tutoring, M.G. had the help of his mother and an uncle, who between them spent four hours a night with M.G., during the first semester of the fifth grade. M.G. and his mother grew increasingly disturbed about his slow progress in school, especially in light of his performance at home. In December of 1976, Mrs. G. attended a conference which Dr. Marshall, head of Respondent's Southwest Area office, Mr. Torano, principal of South Miami Elementary, Lenora Hays, M.G.'s "regular fifth grade teacher," and Ms. Jackson, who had begun two weeks earlier as the teacher of M.G.'s varying exceptionalities class, also attended. At the conference, Ms. Hays undertook to locate either a science or a social studies textbook on a more appropriate level. Mrs. G. sought to persuade the school authorities to transfer M.G. to Ms. Patterson's "continuing LD class," but she was unable to. (T. 168.) After Christmas vacation, in January of 1977, M.G. began at Gables Academy, a private school for children with learning disabilities, where he finished fifth grade and spent sixth and seventh grades. At Gables Academy, M.G. won "an award for advancing two years in every subject . . . an award for reading" (T. 93) , and other awards. The evidence did not reveal the qualifications of Gables Academy's staff, what its school day and school year are, whether it maintains current sanitation, health, or fire inspection certificates, what its procedures to protect the confidentiality of student records are, what written policies it has, if any, and whether it has filed required assurances or reports. Ms. Evelyn Orkney, who was certified as a school psychologist in Connecticut before she moved to Miami, saw M.G. on April 22 and May 13, 1977, before she prepared her initial "psychoeducational evaluation." Joint Exhibit No. 2. She reported WRAT scores of 2.9 (spelling), 3.5 (reading recognition), and 3.9 (arithmetic), and full scale I.Q. of 106. Ms. Orkney observed that M.G.'s "dialogue revealed bitter memories of public school." Joint Exhibit No. 2. She concluded that M.G. "Possesses average aptitude . . . [with] residuals of visual motor problems . . . [and] a significant problem in auditory sequential memory." Joint Exhibit No. 2. Ms. Orkney again evaluated M.G. on August 9, 1979, at which time she observed that he "virtually never experiences depression or bitterness." In the 1979 "psychoeducational re-evaluation," Ms. Orkney reported WRAT scores of 3.5 (spelling), and 6.3 (arithmetic). The Detroit Tests of Learning Aptitude, the ITPA, the Slosson Drawing Coordination, Bender Visual-Motor Gestalt, and other tests were also administered. Ms. Orkney concluded that the "Detroit and ITPA tests confirm severe deficit in the auditory memory area and recommended "special instruction in spelling, as well as auditory sequential memory training and design integration exercises." On the basis of second-hand information, some of which was erroneous, Ms. Orkney recommended that M.G. remain at Gables Academy rather than return to public school. M.G. was evaluated at Respondent's Diagnostic and Resource Center on August 29 and 30, 1979, and a report dated September 27, 1979, was prepared. A number of tests were administered, including the Stanford-Binet Intelligence Scale, various psychological projective tests, the Peabody Individual Achievement Test, Durrell Analysis of Reading Difficulty and Woodcock Johnson Psycho-Educational Battery: Test of Cognitive Ability, Memory for Sentences. M.G.'s vision and hearing were also tested. The diagnostic team concluded that M.G. was "somewhat rigid hut d[id] not have a primary emotional handicap for educational programming purposes." They recommended a specific learning disability program with "primary emphasis in the auditory and visual attention skill areas," and conferences with the school counselor. In their view, his weakest skills were reading and spelling, reflecting "specific process deficits in the visual aid auditory attention areas," as well as in visual memory of words, while arithmetic and general information were strengths. The team made detailed recommendations regarding teaching techniques. Richard Maisel, a clinical psychologist, evaluated M.G. on January 14 and 23 and February 5 and 14, 1980. Joint Exhibit No. 5. He reported WRAT scores of 2.7 (spelling), 4.1 (reading) and 5.6 (arithmetic). Dr. Maisel concluded that M.G. has average intelligence with "very significant auditory and visual attention, memory and sequencing problems." Joint Exhibit No. 5. Dr. Maisel reported "emotional difficulties . . . superimposed upon the underlying learning disability" for which he recommended "psychotherapeutic intervention." He recommended "full-time placement in a learning disabilities program." Joint Exhibit No. 5. M.G. himself wanted, at the time of the hearing, to go to Gables Academy. He remembered assignments at public school that he felt were insultingly simple; and the taunts of children in regular classes; and he did not get along with one of his teachers in public school. He did not want to go to South Miami Junior High because he had "seen injection needles and pill bottles" (T. 91) there as he rode home from Gables Academy. He wanted to "look over a learning disabilities program at Ponce de Leon Junior High School, another public school, but felt he would "really like to go back to Gables Academy]." (T. 92) On November 7, 1979, public school officials, in conjunction with M.G. and his parents, drew up an IEP for the 1979-1980 school year, recommending a full-time learning disabilities placement. Joint Exhibit No. 6. By that time, however, the G.s were obligated for tuition for the 1979-1980 school year, so M.G. stayed the school year there. No IEP had been prepared for the 1980-1981 school year, at the time of the hearing, but Myra Silverstein, a placement specialist in Respondent's employ, testified that a full-time learning disabilities placement would still be appropriate. Such a program is available at Ponce de Leon Junior High. It would include four hours of specific learning disabilities instruction daily by use more teachers along with "mainstream" classes in physical education and shop, art, or some other elective. At Ponce de Leon Junior High School, there is a counselor who works only with student in special education classes.
Findings Of Fact Upon consideration of the testimony adduced at the hearing, the following relevant facts are found: Respondent Randolph Rice has been employed by the petitioner Dade County School Board for seven years. At all times relevant to the charges involved in this proceeding, he was employed as a physical education teacher at Miami South Ridge Senior High School. In the school years 1977-78 and 1978-79, Randy Turner regularly appeared on the campus of South Ridge. Mr. Turner was never enrolled as a student at said high school. Believing that Mr. Turner was a student at South Ridge, respondent Rice allowed him to participate in Rice's physical education classes. Respondent Rice knew that Turner was not enrolled in his class, but he believed that Turner was enrolled at South Ridge to complete two credits he needed for graduation. When Mr. Turner participated in class, he wore the school's regular physical education uniform. At least six students attending and enrolled at South Ridge observed Mr. Turner on campus almost daily for the school years 1977-78 and 1978-79. They saw him in the hallways carrying books, around the physical education area, participating in physical education classes and in the locker room. Turner shared a locker with an enrolled student. He was also observed in a class in plastics. Mr. Turner's photograph appeared in the school's yearbook along with the pictures of enrolled students. Four employees at South Ridge -- a physical education teacher and three persons who work in security -- observed Mr. Turner in the hallways of South Ridge carrying books and around the physical education area. Three of these employees assumed Mr. Turner was an enrolled student at South Ridge. Another, who knew Turner from another high school, had the impression that Mr. Turner had probably finished school. The basketball coach at South Ridge, Everett Moncur, allowed Mr. Turner to help out and keep the statistics in the basketball games end courses. Mr. Moncur assumed Mr. Turner was not enrolled as a student as he had known Turner from another high school. Moncur worked closely with respondent Rice and did not discuss with Rice Mr. Turner's status as a student or non-student. On or about February 9, 1979, respondent Rice's physical education class was having a special challenge with the other physical education classes, and several games were occurring simultaneously. During this period, Mr. Turner became involved in a fight with an enrolled student and the other student was injured. Respondent Rice did not witness this event. The parties have stipulated that there is no legal causal connection between Turner's participation in class and the injury that was received by the other student. Excerpts from the minutes of a March 21, 1979, Dade County School Board meeting indicate that the Board approved the suspension without pay of respondent Rice. By letter dated March 26, 1979, Mr. Rice was notified that the Board bad suspended him without pay for a period of thirty days for willful neglect of duty in allowing a nonschool youth to participate in his class. He was further advised that prior to the expiration of his suspension, he would be advised of his reassignment to another work location to be effective May 3, 1979. The respondent requested a hearing on the suspension, and, on April 9, 1979, the School Board filed "Notice of Charges" charging respondent with willful neglect of duty by allowing a nonschool youth to participate in his physical education class. The Board asked for a thirty-day suspension and reassignment to another school in Dade County. Respondent has served his period of suspension without pay and has been assigned to another school. Respondent seeks to be reinstated at South Ridge High School and further seeks back pay for the period of suspension.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that a final order be entered by petitioner rescinding respondent's suspension and transfer to another school, and that respondent be reimbursed for the salary lost during his suspension and be reinstated to his former position at South Ridge High School. Done and entered this 2nd day of July, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jesse J. McCrary, Jr. Assistant Board Attorney 3050 Biscayne Boulevard Suite 300-E Miami, Florida 33137 William du Fresne Suite 1782 One Biscayne Tower Miami, Florida 33131 Phillis Douglas Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, CASE NO. 79-768 RANDOLPH RICE, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting of September 5, 1979, upon the Hearing Officer's findings of fact, conclusions of law and recommended order, and upon the exceptions filed by counsel for the School Board. The Board having considered the same and having heard argument of counsel, IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that: The Hearing Officer's findings of fact, conclusions of law and recommended order attached hereto be and the same hereby is adopted as the final order of the School Board, with the exception of the recommendation that the respondent be reinstated to his former position at Miami Southridge Senior High School, which is rejected by the School Board; and The suspension of Randolph Rice for the period March 22, 1979 through May 2, 1979 be and the same is hereby rescinded, and the respondent, Randolph Rice, shall be reimbursed for all salary lost during the period of that suspension. DONE AND ORDERED this 5th day of September 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By Phyllis Miller, Chairman
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
