The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as those facts stipulated to by the parties, the following facts are found: The petitioner has been employed with the Pinellas County school system since 1969. She is currently an instructor and department chairperson at Clearwater High School. In the 1984-85 school year, petitioner taught Introduction to Data Processing and COBOL Programming, Levels 2, 3 and 4, to sophomores, juniors and seniors. Along with twelve to fifteen other teachers at Clearwater High School, petitioner applied for the 1984-85 designation as Associate Master Teacher. The Master Teacher Program requires candidates to receive superior scores on both a subject area examination and a performance evaluation. Both components require scores at or above the seventy-fifth (75th) percentile on norms for candidates tested or evaluated. Petitioner received a score in the 86th percentile on her subject area examination. For the performance evaluation, each candidate must have two observations by approved observers who utilize an approved performance observation instrument known as the FPMS (Florida Performance Measurement System. Summative Observation Instrument. To become an approved observer, one must undergo a period of training involving approximately three days. The training programs entail extensive instruction in the research base of the FPMS, how to use the Summative Observation Instrument and in coding procedures. During the training session, the observers are given practice sessions with video taped lessons and then feedback on their coding accuracy. The observers are trained as data collectors and are not taught to score the observation instrument. This scoring function is performed at the University of South Florida's Teacher Evaluation and Assessment Center (TEAC). The three observers in this case had all successfully completed the training session and were approved observers for the State Master Teacher Program. The three persons who observed the petitioner had a part in observing 12 Master Teacher Program candidates for the 1984-85 school year. Of those 12 candidates, 30 percent passed the performance evaluation component. This was slightly higher than the state norm of a 25 percent passage rate. Petitioner's initial two performance observations were conducted on February 20 and 21, 1985, in her Introduction to Data Processing course which she had taught for five years. In preparation for her observations, petitioner created a detailed lesson plan which she believed contained the requirements necessary to receive a passing score on the FPMS. She was not personally trained to code or score the Summative Observation Instrument. Petitioner utilized the same lesson plan for both observations, though a different group of students were being taught on each day. Assistant Principal John Nicely, an approved observer, utilized the FPMS Summative Observation Instrument to conduct the petitioner's performance evaluation on February 20, 1985. This was the first or second evaluation he had conducted after receiving his training as an observer for the Master Teacher Program. Mr. Nicely felt that his training had been adequate and that she was competent to mark the positive and negative indicators required on the Summative Observation Instrument. He felt that he marked the instrument in accordance with what he had observed. His personal opinion of the class which he observed was that petitioner was well prepared, presented a very good lesson, and that student learning was taking place during that class. Bill Williamson, the then Principal of Clearwater High School, and an approved observer, conducted the performance evaluation of petitioner on February 21, 1985. He felt that he had received adequate and comprehensive training and felt confident in his ability to record the behaviors he observed on the Summative Observation Instrument. Mr. Williamson's personal opinion after observing petitioner's class on February 21, 1985, was that she had done a nice job and had given a very fine lesson. The observation instruments completed by Mr. Nicely and Mr. Williamson were sent to TEAC for scoring, and the average of the two scores was formed with the scores of approximately 20,000 candidates for the 1984-85 Master Teacher Program. As the result of the two initial evaluations, petitioner received a score of 18.92 percent on the performance component of the Master Teacher Program. Upon her request, petitioner's scores were hand verified, which did not alter the 18.92 percentile score. The rules governing the Master Teacher Program provide a procedure for candidates who are dissatisfied with their initial performance scores to request reevaluation by a third observer. Petitioner made such a request and was reevaluated by Assistant Principal Dorothy Cheatham on August 29, 1985. Ms. Cheatham was an approved observer of the FPMS, having attended the three-day training session, as well as a review session. Believing that her training was adequate, she felt confident to complete the Summative Observation Instrument. Ms. Cheatham had conducted four Master Teacher Program observations prior to observing petitioner in August. She felt that she had observed an effective lesson in petitioner's class. Following the reevaluation performed by Ms. Cheatham, the three observation scores were averaged and petitioner's revised score improved to the 32.44 percentile. Pursuant to Rule 6A-4.46(5)(b), Florida Administrative Code, a candidate's Principal may recommend to the Department of Education that the candidate receive up to ten additional evaluation points. Mr. Williamson recommended that petitioner receive all ten points. This recommendation was approved, resulting in a final percentile score on the performance evaluation component of 53.17, still below the required 75th percentile. Each of the three approved observers of petitioner's classroom performance were surprised and could not understand or explain how their completion of the observation forms could have resulted in such a low score for petitioner's performance evaluation. Each believed that they had correctly completed the Summative Observation Instrument, yet each felt that the low score did not accurately reflect the level of teaching they had observed. The three observers were trained to utilize the "intervening behavior" or "intervening episode" rule, which means that a teaching behavior that continues is recorded a second time only if there is an intervening behavior or episode. Petitioner's observers utilized this rule in evaluating her performance on February 20 and 21, and August 29, 1985. It does appear from the testimony that at least some of the petitioner's behaviors with regard to her use of audio visual equipment throughout her lesson may have been undercoded. However, there is insufficient evidence to establish how many such instances occurred or how their omission may have affected her overall score or ranking. The cover page of the Summative Observation Instrument contains a section entitled "Instruction Format/Frame Factors." Petitioner's three observers did not recall specific indepth instruction during the training sessions as to the proper manner of completing this portion of the form. They circled different methods of teaching for petitioner's observed lessons. Mr. Nicely indicated a combination of lecture, discussion, recitation and interaction. Mr. Williamson indicated a combination of all methods used in the classroom. Ms. Cheatham indicated a combination of lecture and independent study or work. While the form of instruction a teacher utilizes during a performance evaluation can result in a point differential in the norming of a candidate's score, the total effect is small. The score adjustment was not determined to be great enough to justify norming separate norm groups based upon instructional format. The FPMS was developed to be used for teachers of all levels and in all subjects, with two norm groups, elementary and post-elementary. It is a low inference observation instrument, designed to collect objective data and to be scored against a norm group. As opposed to a high inference or rating instrument, the FPMS does not require the observer to make a judgment or opinion about the teacher's performance At the time the data is collected and recorded, no scores are entered on the instrument. Indeed, observers are not taught to score the instrument; they are trained as data collectors. The evaluator's purpose is to code what the teacher does and not what the evaluator thinks of the teacher. The observer records data concerning the teacher's behavior in the classroom by simply describing the numbers of times they see a listed behavior. The data recorded is then compared with all other teachers who are being scored on the same instrument. With low inference instruments, the only judgment made is after the scoring or recording of data is completed. At that time, the norm table is determined and the teachers are placed in rank order. Low inference evaluations based upon structured observations produce more useful data than high inference or rating evaluations in relating teacher performance with student achievement. Indeed it has been determined that the use of high inference instruments in evaluating teacher performance bears little or no correlation with student behavior and student achievement. The Pinellas County School Board utilizes a high inference rating system to perform the annual evaluations for instructional personnel. The main purpose of this evaluation, while it contains some of the same items as the FPMS, is feedback and improvement of the teachers for employment purposes. Unlike the FPMS, whose purpose is to recognize superior ability, the Pinellas County evaluation system does not compare teachers when ratings are given. In contrast, Master Teacher Program candidates are compared to each other statewide to determine whose teaching performance is superior. For the 1984-85 school year, approximately 47 percent of the teachers at Clearwater High School received the highest rating of "exceeds expectations" in the instructional area. Another 49 percent received the next highest rating designation of "meets expectations." Petitioner's annual performance evaluations during her years of employment with the Pinellas County School Board have been consistently above average. For the 1984-85 school year, petitioner was evaluated by Dorothy Cheatham and received an overall rating of "exceeds expectations" in the area of instructional performance. A three-member team of outside evaluation experts reviewed the FPMS for compliance with the criteria specified in Rule 6A-4.46, Florida Administrative Code. While the team had some recommendations for improvement and suggested certain areas of caution in future use, it enthusiastically endorsed the use of the FPMS for the merit program. The team found the observer training program to be effective and impressive. Testing results have indicated a good distribution of awards among the various disciplines and instruction modes and indicate that the FPMS was appropriately normed.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's amended petition seeking the granting of the Associate Master Teacher Endorsement and the $3,000.00 merit incentive award be DENIED. Respectfully submitted and entered this 28th day of July, 1986, in Tallahassee, Florida. DIANE D. TREMOR 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 28th day of July, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0023 The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 1. The date of application is rejected as unsupported by any evidence. 7. Last sentence rejected as contrary to the greater weight of the evidence. 15. The words "gave the same lesson" rejected as unsupported by competent, substantial evidence. Rejected as unsupported by competent, substantial evidence, and that portion relating to Williamson's understanding of the coding rules is rejected as contrary to the evidence. Partially rejected in that it was not conclusively demonstrated that undercoding occurred. 20 and 21. Rejected as irrelevant and immaterial to the issues in dispute. 23 - 26. Rejected as unsupported by competent, substantial evidence. Respondents Rejected as immaterial to any issue in dispute. 22 and 26. Rejected as constituting a legal conclusion as opposed to a factual finding. 27. This proposed finding is supported by the evidence, but is not particularly relevant to any issue in dispute. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P. A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32301 Barbara Staros Harmon Deputy General Counsel State Board of Education Knott Building Tallahassee, Florida 32301 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Department of Education Knott Building Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Dawn McIntyre, from her employment as a teacher for three days without pay on charges contained in the July 11,1990, letter from the School Superintendent, Scott N. Rose. 1/ The letter charges: (1) that, on one occasion during the 1987-88 school year, the Respondent pushed a teacher aide; (2) that on May 9, 1990, the Respondent struck another teacher aide with a lamp; and (3) that the Respondent also handled two students in a rough, punitive manner during May and June, 1990. The charging letter asserts that the Respondent's alleged conduct constitutes misconduct in office.
Findings Of Fact The Respondent, Dawn McIntyre, has been a teacher at Safety Harbor Elementary School since the 1984-85 school year. Until this year, she taught pre-kindergarten emotionally handicapped children. For the 1990-91 school year, she accepted a smaller class of children with varying exceptionalities. She has an annual professional service contract, not a continuing contract. She is certified to teach early childhood, mental retardation and special learning disabilies. During the 1987-88 school year, the Respondent became involved in a confrontation with an aide at school. The seeds of this confrontation were sown when the aide and the teacher with whom she worked presented flowers to the school principal in appreciation for the efforts of the principal in saving the aide's job, which was in jeopardy of being eliminated for budgetary reasons. Shortly afterwards, in conversation in the teacher's lounge, the Respondent labeled the aide as a "[expletive deleted] brown-nose." This comment was reported to the aide by a participant in the conversation, and the aide was upset by it. She decided to confront the Respondent and explain the circumstances to demonstrate that the label was unfair. When she confronted the Respondent, the Respondent did not give her an opportunity to explain but rather pushed the aide on the shoulder with the palm of her hand and rudely insisted that the label fit. In January, 1990, the Respondent began working with a new aide. Although the new aide was unfamiliar with the work and needed some on-the-job training, the Respondent worked reasonably well with the aide until, in late April or early May, the aide volunteered to help another teacher who did not have an aide and needed assistance. The Respondent objected, taking the position that the Respondent needed all of the aide's available time to help in the Respondent's class. The Respondent told the aide that the aide's volunteering for another teacher would have to be put on her evaluation as an adverse comment. From that point forward, the Respondent began to treat the aide more and more poorly, and the Respondent's working relationship with the aide quickly deteriorated to the point that the aide felt compelled to seek the advice of her union representative on how to handle the situation. While the aide's handling of the situation may have contributed marginally to the deterioration of the working relationship between the two, the breakdown would not have happened without the Respondent's inappropriate behavior. On or about May 9, 1990, the Respondent instructed the aide to take only half of the children's hour rest period for lunch and use the rest to do paperwork in the classroom. After her lunch, the aide began to arrange a place to do the paperwork. The Respondent objected to the way the aide set a desk lamp on the table the aide was going to work at, thinking it threw too much light on where some of the children were sleeping, and she told the aide to move the lamp. When the aide did not move fast enough for the Respondent's liking, the Respondent rushed over to the table in disgust and snatched the lamp off the table before the aide could move it. In the process, she shouldered and elbowed the aide out of the way, knocking her temporarily off balance and accidentally grazing the aide's elbow with the lamp. Greatly upset by the way in which the Respondent handled the situation, together with the cumulative effect of the Respondent's prior inappropriate behavior, the aide immediately left the classroom without saying anything to the Respondent and reported the incident to the administration, in accordance with the advice of her union representative. The aide refused to continue to work with the Respondent and was reassigned. Two of the three other available aides also refused to work with the Respondent. One was the aide whom the Respondent had pushed and called a "[expletive deleted] brown-nose," and she refused to work with the Respondent partly because of the pushing incident. The other had not been involved personally in any unpleasant confrontations with the Respondent but was uncomfortable working with the Respondent in light of the incidents involving others that had been related to her. The third aide was only part-time and was too new to be thrust into the gap, in the opinion of the school principal. The principal had to go to the aides' union to force one of the other aides to work with the Respondent for the rest of the school year. As it turned out, the aide forced to work with the Respondent used sick leave so as to work with the Respondent as little as possible, and aides had to be put in the classroom on a rotating basis. On or about May 10, 1990, while in the process of escorting her class from the lunchroom back to the classroom, the Respondent walked up to one of her more difficult pupils, who had just spent most of the lunch period in "time- out," grasped him around the chin, with her thumb on one cheek and her fingers on the other cheek, applying more pressure than necessary to merely get his attention, and spoke to him sternly. This was done in the presence of the other children in the class and within sight of other children and adults in the lunchroom. On or about June 5, 1990, while again in the lunchroom, the Respondent walked up to another pupil from her class, who was sitting at the "time-out table," and reprimanded him sternly for untruthfully having told her that he had eaten his lunch. As she reprimanded the pupil, she squeezed his ear between her fingers and twisted it as part of the discipline. This, too, was done within sight of the children and adults in the lunchroom. Although perhaps technically corporal punishment in violation of School Board policy, the facts described in Findings 6 and 7, above, can be described as minor, or even marginal, violations. Neither child was injured, and neither complained to any adult that the Respondent had hurt them. (The child involved in the June 5th incident said that his ear hurt a little, but that was only when directly asked by one of the adults who witnessed the incident.) The "punishment" was so minor as to leave question whether it was punishment or just a case of overdoing an effort to get and keep the children's attention. By the time of the final hearing, all of the adult witnesses to these incidents were feuding with the Respondent in some form or fashion, and their testimony describing the incidents could have been slanted by the animosity between them and the Respondent. The Respondent has been and continues to be an effective teacher of pre-kindergarten children with learning disabilities. However, as reflected in the preceding Findings, she unfortunately has been susceptible to improper and unprofessional behavior which has hampered her working relationships with a significant number of her teaching colleagues and has created difficulties for the administration of the school. This has reduced her effectiveness as a teacher. The parties stipulated on the record of the final hearing that, if the charges are proven, a three-day suspension would be the appropriate discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order finding the Respondent guilty of misconduct in office and suspending her for three days without pay. RECOMMENDED this 17th day of December, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1990.
The Issue The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board). Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991. The Board's Reasons for Termination Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/ As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document. Respondent's Case Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the charging document and that he be terminated from his position as a teacher aide. DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of July, 1991.
Findings Of Fact In September, 1970, Dr. Van Twyver was appointed Assist-ant Professor of Psychology by the University. The appointment was made in accordance with a contract which ran from September, 1970 through June, 1971. He was given a similar appointment for the academic year beginning September, 1971. Prior to the academic year beginning September, 1972, Dr. Van Twyver was promoted to the rank of Associate Professor (Complaining Party's Exhibit 8). Dr. Van Twyver received appointments as Associate Professor of Psychology for the academic years beginning in September, 1972, 1973, 1974, 1975 and 1976. Dr. Van Twyver also received several appointments to the same position for summer academic terms. Copies of the various appointments offered to and accepted by Dr. Van Twyver were received in evidence as Complaining Party's Exhibit 6. Prior to the appointment for the academic year beginning in September, 1976, each of Dr. Van Twyver's appointments was to tenure earning positions. The position covered by the appointment for the present academic year which commenced in September, 1976, is not a tenure earning position. Dr. Van Twyver's present contract provides that it is a terminal contract and will not be renewed. During his fifth year with the University (the academic year beginning September, 1974) Dr. Van Twyver applied for tenured status on the faculty. He was told by the Chairman of the Psychology Department that due to a change in policy he would not be considered for tenured status until his sixth year. During his sixth year (the academic year beginning September, 1975) Dr. Van Twyver again applied for tenured status. He submitted an application to the Department Chairman. The application was forwarded to the Department of Psychology Faculty Evaluation of Faculty Committee. The Committee was composed of five members. The members of the Committee originally voted unanimously in favor of recommending Dr. Van Twyver for tenure. The vote was based upon an evaluation in which areas of performance substantially equivalent to those itemized in Rule 6C-5.05(2) F.A.C. were considered. At a meeting of the Committee conducted on October 10, 1975, two members urged that Dr. Van Twyver and other tenure applicants be evaluated based upon an additional criterion, that being whether granting tenure would serve the best interests of the University. Dr. Burroughs who chaired the Committee indicated that Dr. Abbott, the Chairman of the Department, thought the additional criterion should be considered. The other members of the Committee rejected the argument, and at an October 15 meeting the Committee voted to recommend Dr. Van Twyver for tenure by a vote of three in favor and two abstaining. A copy of the Committee's final evaluation form dated October 15, 1976, was received in evidence as Complaining Party's Exhibit 2. The Committee considered Dr. Van Twyver acceptable or above acceptable in each of the categories evaluated other than in "research and other creative activities" in which he was rated outstanding. Dr. Van Twyver's application was next considered by members of the tenured faculty of the Department of Psychology. By a vote of four to one the tenured faculty voted against recommending tenure. The lone favorable vote came from Dr. Phillip Tell. The meeting at which the vote was taken was brief, lasting less than ten minutes, and matters other than Dr. Van Twyver's application were considered. Dr. Abbott, the Department Chairman, stated that the vote should be based upon a determination of whether granting tenure would serve the best interests of the University. Dr. Tell asked what was meant by "best interests of the University". Dr. Abbott answered by reading Paragraph G from the recommendation form utilized by department chairpersons in recommending granting or denying tenure or other promotions. Paragraphs A through E of the form set out criteria for evaluating an applicant which correspond with the criteria for evaluating faculty performance set out in Rule 5.05(2), F.A.C. Paragraph F of the form provides a space for recording the results of the tenured faculty vote. Paragraph G contains the following language: I (am, am not) satisfied that the nominee has met all of the criteria for (tenure, promotion) of this university and the Board of Regents, and that he/she (has, has not) demonstrated a high degree of competence in his/her professional field. I believe that granting him/her (tenure, promotion)(will, will not) serve the best interests of the institution and the State University System of Florida. I recommend that: ( )tenure ( )promotion to the rank of (be, not be) granted. The form then provides a space for comments and the chairperson's signature. Dr. Abbott expressed the view that the criterion "best interests of the institution" was apart from and in addition to the criteria for evaluation listed in paragraphs A through E of the form. The vote of the tenured faculty of the Department was based upon this interpretation as was Dr. Abbott's recommendation that tenure not be granted. A copy of Dr. Abbott's evaluation and negative recommendation for Dr. Van Twyver was received in evidence as Complaining Party's Exhibit 3. It cannot be determined from the evidence whether the tenured faculty would have voted in the same manner, or whether Dr. Abbott would have made the same recommendation if the criterion "best interests of the institution" had not been considered as additional to criteria set out in Paragraphs A through E of Complaining Party's Exhibit 3. It does appear that Dr. Van Twyver was considered at least satisfactory in each of those areas. It cannot be determined from the evidence why the tenured faculty voted against recommending tenure or why Dr. Abbott recommended against tenure unless it was for the reason that the concept of "best interests of the institution" was given some unknown interpretation and applied as an area to be evaluated apart from the other criteria. The college of Social Sciences Personnel Committee considered Dr. Van Twyver's application. By a vote of three to two it recommended in favor of granting tenure. The Personnel Committee's evaluation was received in evidence as Complaining Party's Exhibit 4. Charles N. Millican, President of the University decided against recommending to the Board Of Regents that Dr. Van Twyver's application for tenure be granted. His decision is set out in a letter dated March 19, 1976. Copies of the letter were received in evidence as Exhibit A to Hearing Officer's Exhibit 2 and to Complaining Party's Exhibit 1. President Millican set out the following as the basis for his decision: "A careful review of your file indicates that 80 per cent of the tenured faculty members in your Department voted against your tenure nomination, and in addition, your Department Chairman forwarded a negative recommendation. "The University President's decision was thus based upon the tenured faculty vote and Dr. Abbott's recommendation, both of which utilized the test of "best interest of the institution" as determinative. No evidence was presented at the hearing from which it could be determined that constitutionally impermissible criteria were applied to Dr. Van Twyver's application at any stage of the tenure application process. Dr. Van Twyver did not have an objective expectation of reemployment at the University at the time that he applied for tenured status or at any material time.
Findings Of Fact Phillip Ortwein was employed by USF December 1, 1966 on a 7-month contract expiring June 30, 1967. On his application for employment (Exhibit 16) he indicated that he held a Masters Degree in Physical Education from Indiana University in 1948 and that he had done 1 1/2 years work on a Doctorate Degree which he expected to complete in 1968. He was employed in the Physical Education Department and assigned duties in the functional program as well as in the activities program instructing in tennis. His contract was renewed on July 1, 1967 for the period 9/1/67 to 6/30/68 on a 12-month appointment (Exhibit 4). His contract was again renewed July 1, 1968 for the 12-month period ending 6/30/69 (Exhibit 5). By memo dated March 3, 1969 Petitioner was notified that his contract would not be renewed effective June 30, 1970. Upon receipt of this notice Petitioner went to the Director of the Physical Education Division who had authored the notice to see if there was any hope his contract would be renewed. The Director, Dr. Bowers, advised Petitioner that there was always hope but that the notice remained effective. He was advised that he should upgrade his knowledge of changes in the academic physical education field. Petitioner was also aware that his immediate superior, Professor Prather, was not satisfied with his performance in the functional program of the Physical Educa-tional Division. Then or shortly thereafter Petitioner requested to be relieved of his duties in the functional program to devote more time to upgrading his knowledge and this was granted. Some six months later Petitioner first spent time in the library for this purpose. On January 27, 1969 the Physical Education Tenure Committee was requested by Bowers to submit a recommendation regarding the tenure status of Ortwein. At this time Ortwein was not eligible for tenure as he had not been employed by USF for the three years required. However, this was the only professor evaluation committee extant and Bowers, in order to get faculty input on whether or not to recommend renewal of Ortwein's contract, asked for the evaluation. On February 26, 1969, Bowers was advised the committee had voted 3 for granting tenure and 3 for deferring tenure. By letter dated December 22, 1969 Dean Edwin P. Martin, following a discussion with Ortwein, advised Petitioner that, due to an apparent misunderstanding by Ortwein regarding Bowers' notice he, Martin, was rescinding the termination notice of March 3, 1969, and that his employment would be terminated December 31, 1970. Following further discussion with Bowers Petitioner requested the full faculty in the Physical Education Division be polled to evaluate him. Results of this poll were 3 recommending granting tenure, 9 opposed, and 3 undecided. Due to administrative error Appointment-Reappointment Notice dated September 1, 1970 (Exhibit 7) renewing Petitioner's contract from" September 18, 1971 to June 13, 1971 was forwarded to and accepted by Petitioner. By letter to Ortwein dated October 9, 1970 (Exhibit 11) Dean Martin acknowledged that the contract (Exhibit 7) served to extend Petitioner's termination dated to June 13, 1971. Exhibit 12, letter of December 14, 1970, incorrectly dated December 14, 1971, Harris Dean, Acting President of USF, notified Petitioner that his employment would be terminated at the end of quarter 1, 1971, more than one year from the date of the letter. Exhibit 8, Notice of Appointment - Reappointment dated December 14, 1970 extended Ortwein's appointment to December 16, 1971. The parties stipulated that evidence subsequent to this latter termination date was not relevant to these proceedings. The pleadings indicate Ortwein was finally terminated in June, 1975. The letter of termination (or nonreappointment) dated December 14, 1970 was the first notice received by Respondent signed by the president of USF and this notice provided twelve months advance notice to Ortwein that his appointment would not be renewed. By letter of December 10, 1970 (Exhibit 13) Bowers presented to Acting President Dean four reasons for the recommendation not to reappoint Ortwein. These were: (1) Lack of performance in the area of functional physical education; (2) Contribution limited to area of tennis; (3) No contribution to the department outside the area of tennis; and (4) When the entire faculty of the Physical Education Division were polled there were 3 votes for and 9 against his continuing employment with 3 abstentions. Petitioner's performance in the Physical Education Division was unsatisfactory. He exhibited difficulty handling large groups and communicating instructions to them. His contributions at staff meetings were non-existent or negligible. His relations with students were considered brusk and too militaristic by his superiors. Neither Petitioner nor any other witness testified to any personal animosities between them and Petitioners; or of any conflict with any religious, political or social philosophies between them and Petitioner. In fact all witnesses testified no such personal difficulties existed or were apparent.
Conclusions It is hereby ordered and adjudged that Petitioner's complaint be and the same is hereby dismissed. Even if the complaint were to stand, the record supports, with competent substantial evidence, the conclusion that the Petitioner should not be re-employed by the University. Therefore, that decision is affirmed and adopted as the final action of this agency. Done and ordered at Tampa, Florida, on September 14, 1977. Wm. REECE SMITH JR. President
The Issue The issue in this case is whether the Education Practice Commission should grant Petitioner's application for a Florida teaching certificate.
Findings Of Fact By Application for Florida Educator's Certificate filed February 22, 1995, Petitioner requested an initial two-year nonrenewal temporary teaching certificate and a two-year part-time coaching certificate. The application discloses that Petitioner was born July 24, 1960. A question on the form asks: Have you ever been convicted, found guilty, entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic accident (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to s.943.058, F.S. Failure to answer this question accurately could cause denial of certification. A YES OR NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet if you need more space. The additional information requested on the form, if the "yes" box is checked, provides spaces for the following information: "city where arrested," "State," "Charge(s)," and "Disposition(s)." In response to this question, Petitioner checked the "yes" box and filled in the three spaces provided. Petitioner disclosed that, in East Williston, New York, in 1978, he was charged with "DUI" and the disposition was "license revocation." (This would mean driver's license because Petitioner answered in the negative the next question on the form, which asks whether he had ever had a teaching certificate revoked or otherwise disciplined in another state.) Petitioner also disclosed that, in Roslyn, New York, in 1979, he was charged with "DUI" and the disposition was "license revocation." Last, Petitioner disclosed that, in Mineola, New York, in 1986, he was charged with "Disorderly-Conduct" and the disposition was "Plead Guilty/Paid Fine [and] Placed on Probation." On a separate sheet of paper attached to the February 22 application and entitled "Arrest/Revocation Record," Petitioner disclosed: In addition to the records I have provided you, I was arrested several other times around the year 1980, and I don't recall the exact dates and dispositions--they were misdemeanors for disorderly conduct, and the charges were either dismissed or reduced and a fine paid. In signing the application, which is acknowledged by a notary, Petitioner attests that "all information pertaining to this application is true, correct, and complete." By Application for Florida Educator's Certificate filed March 11, 1994, Petitioner requested only a two-year part-time coaching certificate. This application is identical to the first except in the disclosure of convictions. In the March 11 application, Petitioner disclosed the East Williston and Roslyn offenses, although the years changed to 1979 and 1980, respectively. Instead of a Mineola offense in 1986, Petitioner listed an Old Westbury offense in 1986. The Old Westbury offense was also for disorderly conduct and the disposition was a guilty plea and payment of fine, although the probation was omitted. Petitioner did not disclose on a separate sheet or otherwise the additional material disclosed on the separate sheet attached to the February 22 application. Petitioner has passed the relevant portions of the examination required of teachers and has met the conditions for issuance of a Florida teaching certificate except for issues in connection with his criminal history. By letter dated February 23, 1995, Respondent informed Petitioner that his application for a Florida teaching certificate had been denied. The letter refers to an accompanying Notice of Reasons. The Notice of Reasons recites that Petitioner filed an application for a Florida teaching certificate in March 1994. The Notice of Reasons notes that Petitioner disclosed only three of ten criminal convictions and concludes that the nondisclosures and convictions themselves constitute violations of the statutes and rules cited in the Preliminary Statement above. On February 19, 1979, Petitioner was arrested and charged with resisting arrest, driving under the influence, and operating a vehicle without a license. This and all other arrests took place in Nassau County, New York. On May 10, 1979, Petitioner pleaded guilty to, and was adjudicated guilty of, the reduced charges of disorderly conduct and driving while ability impaired by alcohol. The court sentenced Petitioner to a $500 fine, alcohol rehabilitation, and restriction of his driver's license to business and school. On September 27, 1979, Petitioner was arrested and charged with driving under the influence and two counts of criminal mischief. On July 2, 1980, Petitioner pleaded guilty to, and was adjudicated guilty of, a reduced charge of two counts of disorderly conduct. The court sentenced Petitioner to a $75 restitution payment or 10 days in jail and conditionally discharged him. On November 25, 1979, Petitioner was arrested and charged with resisting arrest and driving under the influence. The former charge was dismissed. On July 2, 1980, Petitioner pleaded guilty to, and was adjudicated guilty of, driving under the influence. The court sentenced him to a $200 fine and revocation of his driver's license. On January 12, 1982, Petitioner was arrested and charged with assault. On April 12, 1982, Petitioner pleaded guilty to the reduced charge of harassment. The court deferred disposition and conditionally discharged Petitioner pending payment of $32 restitution. On May 19, 1984, Petitioner was arrested and charged with criminal mischief. On April 1, 1985, Petitioner pleaded guilty to, and was adjudicated guilty of, the reduced charge of attempted criminal mischief. The court unconditionally discharged him. On May 26, 1985, Petitioner was arrested and charged with criminal mischief and resisting arrest. On June 12, 1986, Petitioner pleaded guilty to, and was adjudicated guilty of, the charges. The court sentenced Petitioner to three years' probation. On November 5, 1986, Petitioner was arrested and charged with harassment and resisting arrest. On December 1, 1987, Petitioner pleaded guilty to, and was adjudicated guilty of, both charges. The court conditionally released Petitioner. Petitioner is recovering from dependencies on alcohol and drugs. In 1987, he entered a rehabilitation clinic on Pine Island where he underwent a month's treatment. He then entered a halfway house in Ft. Myers for three months. He regularly attends Alcoholic Anonymous meetings and obtains counseling. Prior to obtaining treatment, Petitioner attended St. Johns University and the Berklee College of Music, evidently without obtaining any degrees. Since treatment, Petitioner obtained in 1989 an Associate Arts degree from Edison Community College in Ft. Myers and in 1992 a Bachelor of Fine Arts degree from Emerson College in Boston with a major in acting and a minor in literature. While in Boston pursuing the BFA degree, Petitioner taught writing to gifted high school students and voluntarily performed for high school students plays that Petitioner had written and produced. He also tutored inner city students in reading. In April 1994, Petitioner obtained a statement of eligibility from Respondent. This allowed him to teach for up to two years, during which time he had to apply for a temporary nonrenewable teaching certificate. In August 1994, Petitioner was employed to teach seventh grade social studies and reading at Cypress Lake Middle School in Lee County. After a month, he was transferred to the special education department where he taught students in the middle-school drop-out prevention program. While at the school, Petitioner served as an assistant coach on the girls' basketball team and the boys' baseball team. The principal of the school terminated Petitioner's contract February 21, 1995, evidently when he learned that Respondent would be denying him a Florida teaching certificate. Petitioner has since been employed as a teacher by a private school in Lee County. Petitioner relied on advice from a well-meaning friend when he filed a second application a couple of weeks after filing the first application. The friend had told Petitioner that he could apply for a coaching certificate without applying on the same application for a two-year temporary teaching certificate. The innocent filing of two separate applications generated confusion for both Petitioner and Respondent. When denying Petitioner's request for a teaching certificate, Respondent inadvertently omitted mention of the first application. Similarly, when filing the second application, Petitioner inadvertently failed to include the separate sheet that he included with the first application. However, Respondent already had the separate sheet from the first application. It would be as disingenuous for Respondent to claim lack of knowledge, as to the second application, of the disclosures contained on the separate sheet attached to the first application as it would be for Petitioner to claim that the denial of the second application is not also intended to be a denial of the first application. The adequacy of the disclosures on the separate sheet is a separate matter. The two applications refer to two of the three 1979 arrests and report sentences of revocation of driver's license. The three 1979 arrests actually resulted in convictions for disorderly conduct and driving while ability impaired by alcohol (February 1979 arrest), disorderly conduct (September 1979 arrest), and driving under the influence (November 1979 arrest). The actual sentences were, respectively: $500 fine, driving restrictions, and alcohol rehabilitation; $75 restitution; and license revocation and $200 fine. The first two disclosures do a fair job of revealing Petitioner's first three convictions, especially given the fact that they took place 15 years ago when Petitioner was 18 and 19 years old. Obviously, one arrest/conviction is missing, but it appears that the court disposed of the second and third arrests at the same time and possibly in a consolidate proceeding. This may account for Petitioner's recollection that the second and third arrests were a single case. Also, the separate sheet addresses omissions. The dates are a little off, but the first arrest was early in 1979, and the consolidated disposition of the second and third arrests was in 1980. As reported by Petitioner, the charges are roughly correct, and the dispositions suggest the seriousness of the offenses. It is hard to tell which conviction the third reported arrest signifies. After the three 1979 arrests, there were four more convictions for which Petitioner had to account. To his credit, Petitioner identified 1986 as the year of the arrest, so as not to suggest that his criminal problems were further behind him than they really were. Although none of the actual arrests or convictions is for disorderly conduct, which is what Petitioner reported on the application forms, all four of the convictions could be fairly described as disorderly conduct. The reported and actual dispositions do not preclude the possibility that Petitioner was identifying any of the four arrests. Thus, Petitioner was probably disclosing the November 1986 arrest on the application forms, and he did a reasonably complete job of doing so. The disclosure question is therefore whether the separate sheet adequately accounts for the convictions arising out of the 1982, 1984, and 1985 arrests. These arrests took place "around the year 1980," as Petitioner reported on the separate sheet. "Disorderly conduct," as stated on the separate sheet, roughly describes the nature of the offenses, although less so the nature of the arrests, which is what Petitioner claims on the separate sheet to be describing. In fact, Petitioner paid restitution of $32 once, was unconditionally discharged once, and was placed on probation once. The reported fine in each case serves as reasonable disclosure, at least where no jail time is involved. On balance, Petitioner's disclosures did more than place Respondent on inquiry notice. The disclosures were reasonably accurate and detailed. They gave a fair picture of the kind of trouble that Petitioner got into at that point in his life. Respondent's case is based on Petitioner's unfitness to teach based on his alleged dishonesty in the application process and his past criminal behavior. Once the question of dishonesty in the application process is resolved in favor of Petitioner, the remaining focus is on his behavior 9-15 years ago when he was 18-26 years old. The number of arrests and convictions is troubling. But the dispositions do not suggest offenses of extreme gravity. Petitioner is now 35 years old. He has rehabilitated himself in terms of intoxicants, as well as educationally. For many years, he has demonstrated a clear commitment to teaching and evidently is skilled in the profession. He has served his communities well and seeks to continue to do so as a teacher in Florida. Given the nature of the offenses, their age, and the age of Petitioner at the time he committed the offenses, there is no basis in the record to find that Petitioner is morally unfit to teach.
Recommendation It is RECOMMENDED that Education Practice Commission enter a final order granting Petitioner's February 1994 application for a Florida teaching and coaching certificate. ENTERED on October 6, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 6, 1995. APPENDIX Rulings on Respondent's Proposed Findings 1-13: adopted or adopted in substance. 14-15: rejected as unsupported by the appropriate weight of the evidence. 16: adopted or adopted in substance. 17-18: rejected as unsupported by the appropriate weight of the evidence. 19-22: adopted or adopted in substance. 23-27: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 301 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Barbara J. Staros, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Attorney Jerry L. Lovelace 909 SE 47th Terrace, Suite 201 Cape Coral, FL 33904 Ronald G. Stowers Office of the General Counsel Department of Education Suite 1701, The Capitol Tallahassee, FL 32399-0400
The Issue The issue for consideration is whether the Petitioner, Donna B. Lopez, is qualified to sit for the examination as a mental health counselor in Florida by virtue of her education and experience.
Findings Of Fact In April, 1985, the Petitioner, Donna B. Lopez, filed an application with the Florida Board of Psychological Examiners, (Bgard), to sit for examination as a mental health counselor. In paragraph 7 of the application, which called for a listing of all post-secondary psychology related education, Petitioner indicated that she received a degree as psychologist with a major course of study in psychology from the Universidad Nacional de Rosario, Esquela de Psicologia, in Rosario, Argentina, which school was accredited by the Universidad Nacional del Litoral in the Republic of Argentina. Petitioner graduated from that school on December 30, 1971. When the application was received by the Board, it was evaluated by Ms. Biedermann, who determined Petitioner did not qualify to sit for the requested examination because the university from which she received her degree was not accredited in accordance with state requirements that the applicant have a Master's degree from a university accredited by an agency approved by the United States Department of Education. To make the evaluation, Ms. Biedermann used two documents to determine accreditation; the 1981-1982 edition of Accredited Institutions of Post Secondary Education (Programs/Candidates), a directory of accredited institutions and programs published for the "Council on Post-Secondary Education" of the American Council on Education and Accredited Post-Secondary Institutions and Programs, published by the United States Department of Education in September, 1980. Supplements to the latter are published in the Federal Register and during the evaluation, Ms. Biedermann considered not only the basic document but also the then current edition of the Federal Register. Petitioner's university was not listed as an accredited university by any of the documentation either at the time of evaluation of the application or at the time she graduated in 1971. Consequently, Ms. Biedermann advised Petitioner that her application to sit for the examination had been denied. Another reason for rejection of Petitioner's application was that Ms. Biedermann was unable to determine if Petitioner's degree was equivalent to a Master's degree in the United States. Included with Petitioner's application was a translation into English of a Spanish language document which constitutes a description of her course work, but it is not an official transcript. Nonetheless, Ms. Biedermann called the United States Department of Education to inquire if there were any schools in Argentina accredited by United States approved agencies and was advised that there were not. Petitioner attended undergraduate school in Rosario, Argentina, graduating from a five year course of study with the degree of Psychologist in 1971. Thereafter, she completed a three year internship in a mental health center in Buenos Aires during which time she did a series of rotations throughout the different departments of the center. From there she went into private practice in Buenos Aires and was a member of a psychiatric team in a hospital from 1973 through 1978. During this time she was supervised by a psychiatrist who is a member of the American Psychiatric Association. In 1979 she settled in Miami, becoming an American citizen in 1986. After her arrival, she applied to the Dade County Board of Psychologists, then the accrediting agency, and was issued an occupational license as a psychologist in late 1979 or 1980. She thereafter practiced as a psychologist in Dade County until 1981 when the Florida Legislature passed the current statute, (Section 490.005) governing the licensing of psychologists and various sub-disciplines. In the 1950's, the original Chapter 490 of Florida Statutes licensed psychologists at the Doctorate level only. In 1979 this statute sunsetted and from 1979 to 1981, at least in both Dade and Broward Counties the county occupational license was issued to almost anyone applying for it without a prior demonstration of qualification. In the memory of Dr. Jospeh R. Feist, who was instrumental in the process designed to cure this situation, approximately 800 occupational licenses were issued in the first six months of this period: a figure the same as the total number of licenses issued statewide under the prior licensing statute in the prior twenty years. In 1979, the Dade County Commission passed an ordinance to revoke the occupational licenses issued during the hiatus period and established qualifications for licensing. It also created a board to review applicants. Dr. Feist was appointed as Secretary of the board which was made up of six members, all of whom were Ph.D's. In the course of this service, Dr. Feist became acquainted with Petitioner who applied sometime during 1980. The board recommended approval of her application. In Dr. Feist's opinion, Petitioner's course work was at or beyond the Master's level in the United States. The Board, however, did not inquire into whether Petitioner's university was properly accredited here. Dr. James E. Gorney is a clinical psychologist who is also an assistant professor of psychiatry at Cornell University Medical Center. As a part of his duties, he participates in the training program for post-doctoral psychologists and for 11 years or so, has examined the transcripts of numerous individuals possessing both Master's and Doctor's degrees in psychology. He got to know the Petitioner when they were both selected to serve on a prestigious international panel in New York City made up of university teaching psychologists hand picked by the conference leaders. Dr. Gorney has reviewed Petitioner's course work and based on it and his personal knowledge of her work and experience, he is of the opinion that she possesses the equivalent of a Master's degree from Cornell. Her program far exceeds any program for a Master's degree in psychology Dr. Gorney has seen anywhere in the United States and is the equivalent of a Doctoral program. It surpasses many programs approved by the American Psychiatric Association. Every area is covered and many related areas normally covered in Doctoral programs are included providing a very broad range of experience. Dr. Gorney's opinion is reinforced and supported by the deposition testimony of Dr. Muller whose experience with Petitioner and evaluation of her credentials leads him to conclude that her course work is the equivalent of at least a Master's degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's application to take the examination for licensure as a mental health counselor be denied. RECOMMENDED this 28th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 28th day of August, 1987. COPIES FURNISHED: John L. Britton, Esquire BRITTON & KANTNER, P.A. Barnett Bank Building, Suite 1203 One East Broward Boulevard Fort Lauderdale, Florida 33301 Phillip B. Miller, Esquire Robert D. Newell, Esquire 102 South Monroe Street Tallahassee, Florida 32301 Linda Biedermann, Executive Director Board of Pschological Services 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The central issue in this cause is whether the Respondent, Jose Antonio Blanco, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: During the 1986-87 academic year, Respondent attended Palm Springs Junior High School in Dade County, Florida. Respondent (date of birth: 11-13-72) was enrolled in the seventh grade and was administratively assigned to Jan Mann Opportunity School-North on March 9, 1987, due to his alleged disruptive behavior and failure to adjust to the regular school program. Respondent's grades for the 1986-87 school year, the first grading periods, were as follows: COURSE ACADEMIC EFFORT CONDUCT GRADE Mathematics 1st F 3 F 2d F 3 F Physical 1st F 3 F Education 2d F 3 F Industrial 1st F 3 F Arts 2d F 3 F Education Language 1st F 3 F Arts 2d F 3 F Social 1st F 3 F Studies 2d F 3 F Science 1st F 3 F 2d F 3 F SYMBOLS: GRADE "F" UNSATISFACTORY EFFORT "3" INSUFFICIENT CONDUCT "F" UNSATISFACTORY Respondent did not enroll at the opportunity school and did not attend classes. Instead, Respondent's mother enrolled the student in a private school. His conduct has improved but his grades and academic progress are still below level. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Palm Springs Junior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms, and are used to report behavior problems. During the first two grading periods of the 1986-87 school year, Respondent caused 16 Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's Student Case Management Referral Forms is attached and made a part hereof. Eva Alvarado is a science teacher in whose class Respondent was enrolled. While in Ms. Alvarado's class, Respondent was persistently disruptive. Respondent refused to do homework and in-class assignments. Respondent was unprepared 90 percent of the time and would disturb the class with loud talking. During lectures Respondent would attempt to talk to other students and ignore Ms. Alvarado's instructions. Ms. Alvarado tried to correct the situation by sending notices to Respondent's parents, but little improvement was made. Valdez Murray is a social studies teacher in whose class Respondent was enrolled. While in Mrs. Murray's class Respondent was persistently tardy. Respondent refused to complete homework and in-class assignments. Mrs. Murray contacted Respondent's mother, but the student's work and conduct did not improve. Respondent talked in a loud voice to interrupt class. On one occasion, Respondent walked out of the class without permission and on two other occasions Respondent fell asleep at his desk. Respondent made a practice of talking to others who were trying to do their work, and would laugh at Mrs. Murray's efforts to control the situation. Mrs. Murray would instruct the class to ignore Respondent's noise making activities. Mrs. Alicia Robles is an English teacher in whose class Respondent was enrolled. While in Mrs. Robles' class Respondent refused to perform any work assignments, including in-class oral work. Respondent would instead throw paper darts to the ceiling. Respondent tried to keep other students from working and would interrupt lectures. According to Mrs. Robles, Respondent played with the wires on his braces to create a reason he could be excused from class. Barry Jones is a physical education teacher in whose class Respondent was enrolled. Respondent refused to dress out and participate with the class. Despite Mr. Jones' effort to notify both Respondent and his parents of the problem, no change in conduct or performance was made. Mrs. Blanco acknowledged that her son has a behavior problem, but believes if given another chance his conduct would improve. During the time he has attended private school his conduct has improved tremendously. Although Respondent has not caught up academically, Mrs. Blanco believes he is ready to return to the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School-North. DONE and ORDERED this 8th day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 8th day of October, 1987. SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS DATE INCIDENT DISCIPLINE 10/29/86 disrupting class; parent arguing, talking, conference refusing to work 11/3/86 interrupt class parent refuse to obey conference instruction 11/26/86 tardy, disrupts request be class talking, walking removed changing seats from class- parent contact attempted 12/03/87 tardy, talking to parent contact classmates, showing 3 days out in class in-school suspension 01/13/87 tardy, unprepared 13 days disruptive - noisy, attention defiant parent contact attempted 01/114/87 tardy, refused to additional serve detention detention parent contact 01/15/87 refusal to dress out, 3 days left class area detention without permission 02/014/87 tardy, talks, walks parent contact around disrupting attempted class 02/05/87 refused to do parent contact assignment or test attempted 02/06/87 refused to work, parent contact shouting in class, attempted moving from one seat to another 02/10/87 disrupts class, parent contact running, shouting, unprepared, tardy 02/11/87 tardy, unprepared parent contact for class, failing grades 02/11/87 habitual misbehavior, parent contact lack of respect - refusal to cooperate 02/12/87 refusal to sit in seat; requested threats to other parent to student and teacher get counseling for student 02/25/87 highly disruptive requested during indoor outdoor suspension suspension 02/27/87 disruptive in requested indoor suspension opportunity school APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1453 Rulings on Petitioner's Proposed Findings of Fact: Paragraph 1 is accepted in Findings of Fact paragraphs 1 and 2. Paragraph 2 is accepted in Finding of Fact paragraph 3. The only "D" Respondent received, however, was an exam grade. The grading period was "F." Paragraphs 3 and 4 are accepted in relevant part in Finding of Fact paragraph 6. Paragraph 5 is accepted in relevant part in Finding of Fact paragraph 9 and the Synopsis attached. Paragraphs 6 and 7 are accepted. See Finding of Fact paragraph 7. Paragraph 8 is accepted. See Finding of Fact paragraph 8. Paragraph 9 is rejected as unnecessary, argumentative. Paragraph 10 is accepted. See Finding of Fact paragraph 5 and the Synopsis. Paragraph 11 is accepted. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 3313 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building 11450 Northeast Second Avenue Miami, Florida 33132 Mrs. Bertha Blanco 14535 West 114 Lane Hialeah, Florida 33012 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 11450 Northeast Second Avenue Miami, Florida 33132
