The Issue The issue is whether Respondent is guilty of failing to make reasonable effort to protect a student's safety, in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a).
Findings Of Fact Respondent holds Florida Educator Certificate 646554 in the area of Mentally Handicapped. For the past six or seven years, Respondent has been employed as an ESE teacher at Windy Ridge. The record contains no evidence of prior discipline of Respondent's educator certificate, but the District suspended her for five days without pay for the three incidents that are described below. For the 2012-13 school year, Respondent and four paraprofessionals taught a class of seven ESE students. The paraprofessionals performed tasks assigned to them by Respondent. Absences on December 4, 2012, reduced the class to five ESE students, Respondent, and two of the four paraprofessionals regularly assigned to Respondent's classroom. The principal assigned a substitute for one of the two absent paraprofessionals, so four adults were supervising five students on that day. One of the five students present on December 4 was D.R., who was nine and one-half years old and suffered from a "significant cognitive disability." As documented by his Individual Educational Plan (IEP), which is dated November 6, 2012, D.R.'s mother was "very concerned" about the safety of her son, who was tube-fed, "non-verbal," and able to follow only "some simple one-step commands." The IEP warns that D.R. was in a "mouthing stage," meaning that he put "everything" in his mouth for sensory input. As described in his social/developmental history, which is dated November 1, 2012, D.R.'s health was "fragile." The three incidents at issue took place during approximately one hour at midday on December 4. The first incident took place at 11:10 a.m. Serena Perrino, a District behavior trainer, was sitting alone in Ms. Barnabei's classroom, which is next to Respondent's classroom. The two classrooms are joined by the two teachers' offices, so it is possible to walk between the classrooms without entering the hallway. On a break, Ms. Perrino had turned off the lights and was on the computer at the front of Ms. Barnabei's classroom. While facing the computer monitor, Ms. Perrino heard a noise behind her, turned around, and saw D.R., by himself, seated on the floor playing with a toy. Ms. Perrino knew that he belonged in Respondent's classroom. Without delay, Ms. Perrino walked D.R. toward his classroom, but, as they were passing through the teachers' offices, Ms. Perrino and D.R. encountered one of Respondent's paraprofessionals, who said that she was "just coming to get him, thanks." The second incident took place between 11:30 a.m. and noon. Bernadette Banagale, the substitute paraprofessional assigned to Respondent's classroom on that day, was eating lunch in a small outside courtyard that is located at the end of the hallway where Respondent's classroom is located. Ms. Banagale saw D.R., by himself, enter the courtyard from the doors at the end of the hallway. Ms. Banagale approached D.R. and, with some difficulty, walked him back to Respondent's classroom where she left him in the custody of the other two paraprofessionals, Susan Brown and Delta Porter, but not Respondent, who was not in the classroom when Ms. Banagale returned the child. The third incident took place shortly after noon. Cathy Zimmerman, a teacher, was sitting in a classroom eating lunch with another teacher. Looking out the window of the classroom, Ms. Zimmerman noticed D.R. in the adjoining breezeway, which divides the building from the school parking lot. Ms. Zimmerman did not know D.R., nor where he belonged, but she saw that he was unescorted. Approaching D.R. in the breezeway, Ms. Zimmerman guided him back through the doors leading to a hallway that, after a short distance, intersects the hallway where Respondent's classroom is located. As she was walking the child into the building, Ms. Zimmerman directed the teacher with whom she had been having lunch to enter the nearest classroom to see if anyone could identify the child. As directed, the other teacher entered Ms. Barnabei's classroom, where she found Ms. Perrino, who again took custody of D.R. and immediately returned him to Respondent's classroom where Ms. Perrino found Respondent and one or more paraprofessionals. In an effort to prove that Respondent failed to make reasonable effort to protect D.R., Petitioner offered two pieces of evidence: during direct examination, the principal prescribed that a classroom teacher is required to know at all times the location of her students, and, during cross-examination, Respondent agreed with the metaphor supplied to her by Petitioner's counsel that a classroom teacher is the "captain of the ship." The principal's prescription and Respondent's metaphor constitute the entirety of Petitioner's explicit analysis of the reasonableness of Respondent's effort to protect D.R. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the first incident. The principal's testimony is inapt because Petitioner failed to prove that a paraprofessional did not always know D.R.'s location; that Respondent failed to protect D.R. when a paraprofessional knew his location, regardless of whether Respondent knew his location; and that D.R.'s safety was compromised at any time during the few seconds that he was in the adjoining classroom. Respondent's testimony is inapt because Petitioner did not prove that a paraprofessional failed to make reasonable effort to protect D.R.'s safety, which would be a pre-condition to attributing this failure to the captain of the ship, as discussed in the Conclusions of Law. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the second incident. Petitioner failed to prove that Respondent was in the classroom at the time of D.R.'s escape or at any time during his ensuing absence from the classroom and failed to prove that Respondent's absence from the classroom was unauthorized. As for the absence of Respondent from the classroom at the time of the escape in the second incident, the strongest evidence is Respondent's written statement to this effect. Other evidence tends to support Respondent's written statement that she was not in the classroom at the time of the escape. Ms. Banagale's scheduled lunch was 11:30 a.m. to noon, and nothing in the record suggests that the substitute paraprofessional took her lunch at other than her scheduled time. The distance between the front door of Respondent's classroom and the exterior doors leading to the courtyard is the width of the single classroom that separates Respondent's classroom from these exterior doors, so it would not have taken D.R. long to travel from the front door of the classroom to the exterior doors leading to the courtyard. Respondent's scheduled lunch was 11:00 a.m. to 11:30 a.m., but Respondent testified that she was behind schedule when she took her lunch. She also testified that she returned to the classroom "a little after noon." Nothing in the record indicates how long Respondent took for lunch, but, if she took all of her allotted time, she likely left the classroom shortly after Ms. Banagale, leaving a very narrow window for D.R. to escape, if he were to do so after Ms. Banagale's departure, but before Respondent's departure--a fact that Petitioner has not established. The only evidence suggesting that Respondent was in the classroom at the time of D.R.'s escape comes from Respondent's testimony at the hearing to this effect. Notwithstanding the inculpatory nature of Respondent's testimony, it is impossible to credit it. Provided nearly two years after the incident, Respondent's testimony was, at times, confused and unclear, but her written statement is clear and straightforward. It would appear that, based on the findings below concerning the third incident, Respondent may have confused the second and third incidents. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the third incident. The third incident is more complicated than the first and second incidents because it is more difficult to determine exactly what Petitioner proved and the extent to which the material factual allegations extend to the proof of the third incident.2/ At minimum, Petitioner pleaded3/ and proved that D.R. escaped from the classroom, and Respondent was in the classroom at the time of the escape. Respondent gave a written statement admitting that she was present when D.R. left the classroom and that she was unaware of his departure "because my back was turned by me working with another student on the computer, [as D.R.] left out the rear door." At the hearing, Respondent testified confusingly, possibly suggesting that she was at lunch or in planning when D.R. escaped in connection with the third incident, but any such exculpatory testimony is discredited for the same reason that her inculpatory testimony regarding the second incident was rejected. As was true of the written statement in connection with the second incident, other evidence tends to support Respondent's written statement in connection with the third incident. As noted in the discussion of the second incident, Respondent returned to the classroom "a little after noon." At this point, Respondent, Ms. Banagale, and Ms. Brown were in the classroom. Ms. Porter's scheduled lunch was from noon to 12:30 p.m., and nothing in the record suggests that she did not take her lunch as scheduled. As discussed in the Conclusions of Law, analysis of whether Respondent failed to meet a reasonableness standard may be facilitated by consideration of the burden of taking precautions sufficient to prevent an escape, the probability of an escape, and the magnitude of the threat to D.R.'s safety, if he escaped. The burden of taking additional precautions was not insubstantial. The classroom has three exits, and D.R. used each of them in connection with the three incidents. In the first incident, as noted above, D.R. used a side exit through the teachers' offices to get to the adjoining classroom of Ms. Barnabei. In the second incident, D.R. used the front door to get to the courtyard. In the third incident, D.R. used the rear door to access the adjoining breezeway, where Ms. Zimmerman found him no more than 75 feet from the rear door. Evidence suggests that locking the doors at each of these exits was forbidden, possibly due to fire regulations. Although three adults were supervising only five ESE students at the moment of D.R.'s escape in the third incident, the paraprofessional who normally taught D.R. one-on-one at the time of the escape was absent. It is not entirely clear how long Respondent was in the classroom before D.R. escaped, but Respondent was performing instructional duties at the moment of the escape, so additional attention by Respondent to security would have meant reduced instruction, at least of the child whom she was teaching one-on-one at the time of the escape; this adds to the burden of taking escape precautions.4/ The probability of D.R.'s escape was demonstrably very high, as evidenced by his three escapes in a single hour on December 4. The magnitude of the threat to D.R.'s safety from an escape is difficult to assess. D.R. was a medically fragile, highly vulnerable child. However, he suffered no injuries in any of the three escapes that are the subject of this case. The magnitude of the threat posed to D.R.'s safety from escaping was thus low. Considering that the burden of taking additional precautions was moderate, the probability of escape was high, and the magnitude of threat to D.R.'s safety from an escape was low, it is impossible to find that Petitioner proved by clear and convincing evidence that Respondent failed to make reasonable effort to protect D.R.'s safety by preventing the escape in connection with the third incident. The analysis in the preceding paragraphs focuses on Respondent's failure at the moment of D.R.'s escape, not on the duration of his absence from the classroom and any ongoing failure to notice that the child was missing from the classroom. As explained in the Conclusions of Law, Petitioner did not plead these failures as grounds for disciplining Respondent, but, in an abundance of caution, the following findings address these alternative grounds for determining that Respondent failed to make reasonable effort to protect D.R.'s safety in connection with the third incident. There is no direct evidence of how long D.R. was out of the classroom in connection with the third incident. There is only one point in time established by direct evidence: Ms. Zimmerman first saw the child at 12:10 p.m. There is no direct evidence of when D.R. escaped from the classroom, nor could there have been such evidence from the known witnesses. Ms. Zimmerman's written statement notes that all of the physical education teachers, which may include her, were in the area of the breezeway from noon to 12:07 p.m., and they never saw D.R. Ms. Zimmerman's statement implies that someone would have seen D.R. if he had been anywhere in the breezeway by himself. Although Ms. Zimmerman could have estimated how long she had the child before turning him over to Ms. Perrino, no one asked her to do so.5/ And there is no other direct evidence of how long Ms. Zimmerman had the child. Based on the evidence cited in the preceding paragraph, D.R. escaped the classroom between 12:08 p.m. and 12:10 p.m. and returned to the classroom between 12:11 p.m. and 12:13 p.m. Limiting inferences to those supported by clear and convincing evidence, as discussed in the Conclusions of Law, the earliest that D.R. left the classroom was 12:09 p.m., and the latest that D.R. returned to the classroom was 12:11 p.m. This means that Petitioner has proved that D.R. was absent from the classroom for no more than two minutes: one minute by himself and one minute accompanied by Ms. Zimmerman. The burden of taking adequate precautions to detect the child's absence and return him to the safety of the classroom is lower than the burden of preventing the escape, which can occur in a few seconds, although it is difficult to assess what exactly would have been required of Respondent to conduct a search or, by notifying school administrators, to cause a search to be conducted. The burden of preventing an escape is much greater than the burden of noticing, within two minutes, that a child is missing from a five-student classroom. The magnitude of the threat to D.R.'s safety rises the longer that he is out of the classroom, especially unescorted. Presenting a closer case than the pleaded case involving only an escape, the claim that Respondent failed to make reasonable effort, when directed to the length of time that D.R. was out of the classroom, requires consideration of any effort that Respondent made during D.R.'s absence. The duration of D.R.'s absence is thus linked to whether Respondent noticed that D.R. was missing and, if so, what Respondent did upon discovering that he was gone. As discussed in the Conclusions of Law, because inferences are limited to those supported by clear and convincing evidence, Petitioner has not proved that Respondent and the paraprofessionals failed to notice that D.R. was missing. There is no direct evidence that Respondent and the paraprofessionals failed to notice that D.R. was missing from the classroom. The record lacks admissions from Respondent and the two paraprofessionals in the classroom during the third incident that they were unaware of D.R.'s absence.6/ Both Ms. Zimmerman and Ms. Perrino testified that they did not see anyone in the vicinity of the classroom looking for D.R., and this testimony is credited, but supports no more than an inference by a preponderance of the evidence that the adults in the classroom were not looking for the child, and does not support even an inference by a preponderance of the evidence that the adults in the classroom had failed to notice that D.R. was missing. Ms. Perrino testified that when she returned D.R. to the classroom, none of the adults present seemed to have realized that the child had been missing. This testimony is credited, but, lacks important detail, including on what this testimony is based and whether this observation applied to Respondent, so as to support no more than an inference by a preponderance of the evidence that the adults had not noticed that D.R. was missing. Thus, even if Petitioner has pleaded the duration of D.R.'s absence and a failure to notice the absence of the student as grounds for determining that Respondent failed to make reasonable effort to protect his safety, Petitioner failed to prove these claims by clear and convincing evidence
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2014.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent, Dianne Tice, began teaching home economics at the Jan Mann Opportunity School North (Jan Mann) in the 1981-82 school year. Jan Mann is a school devoted to students with behavior problems, attendance problems and learning disorders. Student James Woody, thirteen years old, was a continuing discipline problem for teachers at Jan Mann. At the time of his admission to Jan Mann, there were discussions as to whether Woody was the type of student who should be admitted. The staff psychologist at Jan Mann believed that a more appropriate placement would have been a residential facility. Nevertheless, Woody was admitted to Jan Mann. On March 13, 1984, Woody was attending respondent's fifth period home economics class. Due to his loud, profane language and banging on desks and chairs, respondent sent Woody to the Principal's office with a referral slip. Approximately twenty minutes later, Woody returned to the respondent's classroom and again became disruptive. Respondent then requested the security guard or hall monitor to either talk to Woody or again take him to the Principal's office. The hall monitor spoke with Woody, placed him back in the classroom and told respondent to put Woody outside the classroom with him if Woody caused any further trouble. Thereafter, the respondent was in the front of the classroom when another student asked to be assisted with the placement of buttonholes in some pants she was sewing. The respondent picked up a pair of scissors, a seam ripper and some keys and began walking to the rear of the classroom to get other equipment from a cabinet so that she could assist the student. At this point, Woody again became disruptive -- pounding on desks and using loud, profane language. The evidence is very conflicting as to what then transpired. Woody left his desk, and it is not clear whether respondent told him to leave the classroom before then or whether he was attempting to proceed to the rear of the room in order to use the restroom. In any event, Respondent was walking toward or behind Woody with the scissors, seam ripper and keys still in her hands. They both ended up at the rear door of the classroom, which opens and closes by means of a push bar. Woody was on the outside of the door and respondent was on the inside. The evidence is again conflicting as to whether respondent was attempting to hold the door closed so that Woody could not reenter her classroom, or whether she was attempting to open the door to either bring him back in or see where he had gone. Whatever she was attempting to do, Woody was either pulling or pushing in the opposite direction. The hall monitor, sitting some ten to fifteen feet away from the door, observed Woody at the door outside the classroom pulling on the door, and began to go over to the door when Woody released the door and cafe over to him. The monitor observed blood on Woody's hand and took him to the bathroom to wash his hand. He then went back to respondent's classroom and asked respondent how Woody had gotten cut. Respondent then ran into the bathroom to help. What was said in the bathroom is also the subject of conflicting testimony. Woody at first told school personnel that he cut his hand while banging on a desk. Respondent told him not to try and protect her. Whatever was said, respondent does not deny that Woody may have been accidentally cut with the scissors, seam ripper or keys during the scuffle at the rear door of the classroom. After the incident, respondent told several people that she had cut Woody. There is no evidence, however, that respondent intentionally stabbed Woody's hand during the incident. As noted above, respondent was first employed at Jan Mann for the 1981- 82 school year. Her annual evaluation for that year indicates that she was rated acceptable in all categories of the evaluation and was recommended for re- employment by her then Principal, Robert Edwards. During this first year, respondent was also formally observed by the Dade County School Board Supervisor of Home and Family Education. She was found to be acceptable in all categories and all comments were very favorable. During the 1982-83 school year, respondent was formally observed in her classroom on three occasions. In November of 1982, Assistant Principal Altman rated respondent unacceptable in the two categories of "classroom management" and "techniques of instruction," and acceptable in the remaining six categories. She was given an overall summary rating of acceptable. In January of 1983, respondent was again observed by Ms. Altman and received an unacceptable rating in three categories, but an overall summary rating of acceptable. Approximately one week after the January evaluation, respondent and Ms. Altman were involved in an incident which resulted in respondent filing a grievance against Ms. Altman for allegedly pushing her in the presence of her students. Principal Oden investigated the matter and decided that respondent's allegations against Ms. Altman were unfounded. In March of 1983, a Department of Education consultant performed an instructional program review and found respondent to have met all assessment standards. Additionally, it was noted that respondent was "commended for her management and organization of the facility." Respondent's annual evaluation by Principal Oden, dated June 9, 1983, indicates that she was rated acceptable in all categories except for the category entitled "preparation and planning." Principal Oden remarked that respondent "does a good job at teaching, but needs to devote more attention to planning." Respondent was recommended for re-employment by Principal Oden. During the 1983-84 school year, Respondent had two formal classroom observations. Assistant Principal Willie Shatteen observed her classroom on October 6, 1983, and found her performance to be acceptable in all categories. His written comments included the following: "lesson plans are evident," "materials are arranged far in advance," "students orderly and attentive," and "has knowledge of background of each student to provide for individual's need." In a follow-up letter, however, Mr. Shatteen criticized respondent for not following her lesson plans and for her negative attitude toward constructive criticism. Several conferences were held between respondent and her supervisors in October and November, 1983. By letter dated November 17, 1983, Principal Oden expressed several concerns he had relating primarily to respondent's planning, teaching and classroom management skills, and made ten recommendations for improvement. Principal Oden formally observed respondent's classroom on December 8, 1983, and rated her acceptable in all categories except "preparation and planning," but gave her an overall rating of acceptable. His comments in the area of "preparation and planning" included "improvement may be achieved through better planning." A "conference for the record" was held on December 13, 1983, to discuss the recommendations made in the November 17th letter. Also discussed was the possibility that respondent would not be recommended for continued employment at Jan Mann should she fail to make the necessary improvements discussed in the November 17th letter. Another conference was arranged for a time between January 19, 1984, and January 25, 1984. The record is not clear as to whether that conference occurred. Respondent's lesson plans were submitted to and reviewed by her supervisors every week. While the January 4, 1984, review found that the plans were not organized to include certain items and that a conference was needed, the plans for the following five weeks were found to be "accepted" and, in one instance, "plans are excellent. No improvement is needed at this time." Just prior to the March 13, 1984, incident involving student James Woody, Principal Oden decided that he was going to recommend respondent for a continuing contract. He told her this and her name was included on the list submitted to the School Board containing those recommended for a continuing contract. While be felt that there were some modifications needed in her teaching behavior, he also felt that there was room for her to improve with the beginning of a new year. Had it not been for the Woody incident, Principal Oden would have recommended respondent for a continuing contract. Indeed, his decision of "not recommended for employment" contained on the 1983-84 annual evaluation contains the remark "pending S.I.U. ..." -- referring to the investigation of the Woody incident by the School Board's Special Investigative Unit. Had respondent been cleared of the Woody incident, she would have been recommended by Principal Oden for re-employment on a continuing contract basis. His annual evaluation for the 1983-84 school year, signed on March 21, 1984, rates respondent as unacceptable in the two categories of "preparation and planning" and "professional responsibility," and acceptable in the remaining six categories. Apparently in connection with the investigation of the Woody incident, a psychiatric evaluation of respondent was performed by Dr. Gail D. Wainger, a psychiatrist. After spending approximately one hour with the respondent on March 20, 1984 (the same day that respondent was informed that she would not be recommended for employment), Dr. Wainger concluded that respondent appears to be suffering from chronic paranoid schizophrenia, and that she experiences misperceptions and shows evidence of poor judgment. This diagnosis was based, in part, upon the respondent's expressions to the effect that the school administration was against her and was attempting to get rid of her and also her relating to Dr. Wainger incidents which occurred at an apartment complex in which she formerly resided. Dr. Wainger is of the opinion that respondent would be likely to decompensate during stressful situations. On June 20 and 22, 1984, another psychiatric examination of respondent was performed by Dr. Lloyd Richard Miller, a psychiatrist. Dr. Miller spent approximately three hours with the respondent over two different days, performed some psychological testing, and also reviewed Dr. Wainger's psychiatric report. It was his conclusion that respondent did not suffer from a mental illness, and he did "not view her as guarded, suspicious or paranoid in any way. It was Dr. Miller's opinion that respondent has the sufficient mental capacity to return to work as a teacher. An expert in the area of teaching personnel evaluation and personnel management employed with the Dade County School Board, Dr. Desmond Patrick Grey, reviewed respondent's personnel files, including her classroom performance and annual evaluations, the investigative reports of the Woody incident and Dr. Wainger's psychiatric report. Dr. Grey was of the opinion that respondent's performance evaluations indicate a serious problem that would limit her effectiveness as a teacher; that the Woody incident impaired the integrity of the profession and the respondent; and that respondent has an incapacity to perform the expected function of a teacher. Three employees at Jan Mann testified in respondent's behalf. A school psychologist believed that respondent's character and reputation at Jan Mann were outstanding. A graphic arts aide felt that respondent was excellent dealing with the children and was dedicated in her occupation. A workshop instructor felt that respondent had been a "pretty competent teacher."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Amended Specific Notice of Charges against respondent Dianne Tice be DISMISSED, and that she be awarded back salary for the remainder of the contract period following her suspension. Respectfully submitted and entered this 16th day of May, 1985, 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 16th day of May, 1985. COPIES FURNISHED: Thomas Robertson, Esquire Merritt, Sikes and Craig, P.A. McCormick Building - 3rd floor 111 Southwest Third Street Miami, Fla. 33130 Carl DiBernardo, Esquire Commercial Bank of Kendall 8603 S. Dixie Highway - Suite 210 Miami, Fla. 33143 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Fla. 33132
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent Susan L. Duerson was employed by Petitioner Miami-Dade County School Board as a School Clerk II, a position classified as an educational support employee pursuant to Article XXI, Section 3, of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade (the collective bargaining agreement). Respondent was initially employed by the School Board on November 15, 1996, as a part-time "skilled clerical" employee and assigned to Homestead Middle School. On November 10, 1997, Dr. Antonio T. Fernandez, the principal of Neva King Cooper Educational Center (hereinafter "NKC"), hired Respondent on a full-time basis as a School Clerk II. NKC is a special education center which serves profoundly mentally handicapped students. Because of their condition, many of the students at NKC are medically-fragile and require specialized attention. As a School Clerk II, Respondent was required, among other things, to maintain a wide variety of documents, forms, reports, evaluations, and business correspondence. As part of her duties, she was also responsible for maintaining attendance records; scheduling meetings, conferences and appointments between parents and instructional staff; and arranging bus transportation for the students at her school site. Approximately two months after being hired at NKC, Respondent suffered a stroke while hospitalized for kidney stones. From January 12, 1998, through June 19, 1998, Respondent was on medical leave due to a variety of health problems. Although Respondent was not eligible for an extended leave of absence due to her brief employment at NKC prior to her stroke, Dr. Fernandez, along with district administrators, approved Respondent's request for an extended leave of absence. On April 14, 1998, Respondent's treating physician notified Petitioner's Office of Professional Standards that Respondent was capable of performing most of her duties, but that as a result of her stroke, Respondent could not climb, could not grasp, and did not have finger dexterity of her right hand. Respondent also had difficulty remembering the daily tasks and duties that she was required to perform. On June 20, 1998, Respondent returned from her leave of absence and began working at NKC. Because of her physical limitations resulting from her stroke, Respondent sought accommodations from Petitioner in order to fulfill the essential requirements of her job. These requests were presented to Petitioner's District Consultative Committee. The Committee made recommendations in an attempt to provide Respondent with reasonable accommodations. On October 28, 1998, Petitioner approved several accommodations to assist Respondent in fulfilling her responsibilities, including providing a "Wanchik's writer," a "slip-on typing aid," a "day-timer," and a hand-held tape recorder. The tape recorder was provided to Respondent so that she could accurately copy messages for their intended recipients and track her assignments as Respondent frequently was unable to remember them. Respondent was given written instructions for assignments that were not routine in nature, was given the assistance of another employee in removing and replacing files for Respondent's use, and was allowed to leave work early three times a week so that she could attend physical therapy. Respondent's work performance, upon returning from her leave of absence and despite the accommodations provided to her, was unsatisfactory. Assignments were not completed in a timely fashion and were not accurately documented. For example, notices to parents were sent late and with the wrong student's information on them. On December 14, 1998, almost six months after returning from her leave of absence, Respondent was formally observed by her principal. Her work was found to be deficient in the areas of knowledge, quality of work, efficiency, dependability, judgment, attendance, and punctuality. During the December 14 observation, it was noted that Respondent failed to timely schedule conferences, failed to complete assigned tasks, and was unable to correctly process and prepare records required by her work site. Respondent's work was also found to be deficient with respect to her attendance data collection duties. Schools are required by law to maintain accurate attendance records. When they fail to do so, a school can loose funding. Due to Respondent's inability to maintain accurate attendance records, NKC lost funding for some of its programs. Respondent was also found to have problems correctly scheduling transportation for some of the students at NKC. At times, students would not be picked up as the necessary transportation was not requested by Respondent although she was required to do so. Respondent also had difficulty maintaining accurate records for students in the Exceptional Student Education program, particularly with regard to scheduling meetings with parents, staff members, and psychologists. Due to her unsatisfactory rating on December 14, 1998, Respondent was issued an interim evaluation which rated her as unsatisfactory for the 1998-99 school year. On January 11, 1999, a conference-for-the-record was held with Respondent to address her non-compliance with site directives, her unsatisfactory interim evaluation, her prescription for improvement of those deficiencies noted in the interim evaluation, and her future employment status with Petitioner. She was informed that her failure to correct those deficiencies would result in disciplinary action. On April 22, 1999, another conference-for-the-record was held with Respondent to address her non-compliance with site directives and to review her performance to date, together with the status of her prescription and her future employment. She was advised of her continuing failure to complete her duties in a satisfactory and timely manner. Respondent was issued a new prescription for improvement of her performance, which was based upon her supervisor's observations of her performance since Respondent's prior formal observation on December 4, 1998. She was advised that the prescriptive activities assigned to her must be completed by the agreed-upon deadlines and that her failure to remedy her deficiencies would lead to disciplinary action, including dismissal. By the time of the April 22 conference, Respondent had been working at NKC for ten months, exclusive of the period of time that she had been on a leave of absence. Nonetheless, she was still exhibiting the same or similar deficiencies that had been noted in her first evaluation. After student records could not be located at the school due to Respondent having taken them home, she was issued a written directive on May 10, 1999, ordering her not to remove permanent student records from the school site. Respondent had previously been directed not to take student records to her home but had disregarded that directive. Accordingly, the May 10 directive advised Respondent that failure to comply with the directive again would be considered an act of insubordination and might lead to further disciplinary action. On May 11, 1999, Respondent was reminded of the accommodations that had been provided her in order that she could perform the duties of her position in an effective manner. Although Respondent was allowed to leave early to attend physical therapy sessions and was provided the assistance of office personnel in removing and replacing files, her supervisor noted that Respondent--of her own volition--had not taken advantage of many of the accommodations provided by her work site. Respondent admitted that she had not taken the adaptive devices that had been purchased as part of her accommodations to her physical therapist, who was to have these devices adjusted so that they fit her properly. Since Respondent's performance had not improved, and since Respondent repeatedly made the same mistakes, her principal urged her to take advantage of the accommodations provided her. After Respondent's excessive absenteeism began to have a detrimental effect on her work, on May 21, 1999, Respondent was issued a written directive advising her of her failure to maintain appropriate attendance and requiring Respondent to notify her work site of her employment intentions, i.e., whether Respondent was going to return to work or take another leave of absence. As of that date, she had accumulated over forty absences. On May 25, 1999, Respondent met with the principal and requested a second leave of absence. She and her doctor believed that she needed to take a leave of absence until May 10, 2000, due to the alleged stress brought on by her duties. Respondent was still on prescription for improvement of her performance at the time she took a second medical leave of absence effective from May 10, 1999, through May 9, 2000. On May 9, 2000, a conference-for-the-record was held with Respondent at the Office of Professional Standards to address her medical fitness to return to duty, to review her employment history, and to address her future employment status with Petitioner. Due to her prior medical history, including her having fallen at her work site on two occasions, she was required to show that she was medically fit to return to her regular duties. At the May 9 conference, Respondent's medical fitness was addressed. Respondent's doctor had cleared her to return to work and advised that Respondent's only limitation was that she could only type with one hand on a left-handed keyboard. The Office of Professional Standards cleared Respondent to return to work. At the conference, Respondent was advised that her prescriptive status would be removed so that she could start anew but that her performance would continue to be monitored throughout the school year. She was directed to maintain regular attendance and was told that all intended absences must be communicated to her principal or his secretary. She was also advised that all absences for illness must be documented by her treating physician. She was informed that her non-compliance with the directives issued at this conference would lead to disciplinary action. On June 8, 2000, approximately a month after she returned from her second leave of absence, a meeting was held with Respondent to address numerous errors she committed while performing her daily tasks. She was advised that she had lost certain records and had failed to properly notify parents of conferences involving students in the exceptional student education program. She was reminded that her failure to properly notice these conferences could expose the school district to liability. In order to assist Respondent to improve her performance and to insure that errors would not continue to occur, she was directed to meet with the assistant principal on a daily basis. On June 20, 2000, Respondent was provided with additional accommodations to assist her in performing her duties. She was advised that a left-handed keyboard would be purchased for her, that she would continue to be provided the assistance of another employee to remove and replace files for her, that she was to continue tape-recording her assignments as a reminder to herself of the tasks that she must complete, and that she would continue to receive written instructions with regard to non-routine assignments. On July 14, 2000, another tape recorder was purchased for Respondent since the one previously issued to her had been lost. She was also issued a new day-timer calendar to keep track of her daily assignments. Over a year after her previous evaluation, on July 27, 2000, Respondent was formally evaluated and was again found to be unsatisfactory in the categories of quality of work, efficiency, and dependability. She was issued a new prescription to assist her in improving her performance. She was required to keep a log of her files since she continued to lose documents and had, by this point, lost a complete file. As a result of her unsatisfactory evaluation, on July 27, 2000, a conference-for-the-record was held with Respondent to address her performance, her interim evaluation, and her future employment with Petitioner. She was advised of her continued inability to perform her daily duties and that her failure to improve would lead to disciplinary action. On September 20, 2000, a conference-for-the-record was held to address Respondent's performance, to review the prescriptive activities assigned to her during the conference held on July 27, and to address her future employment. By the time of that conference, more than four months after Respondent had returned from her second leave of absence, her work performance had not improved. During the September 20 conference, Respondent was advised of her continuing failure to correctly input student attendance information and to provide adequate and timely notice of parent conferences. She was also reminded of the importance of using her school-issued tape recorder in order for her to minimize mistakes and to accurately process information. In order to assist her in improving her performance and in completing her prescriptive activities, the deadline for completing the prescription was extended to October 27, 2000. On October 23, 2000, Respondent was given written notice of her repeated failure to properly send parental notices of conferences and "staffings." She was directed to rectify these deficiencies and to continue to meet with the assistant principal for further assistance. She was advised that if she needed additional assistance, it would be provided to her. On November 16, 2000, another conference-for-the- record was held with Respondent to address her performance and to review the status of the prescription that had been issued at the conference-for-the-record held on July 27. She was advised of her continued deficiencies, which included incorrectly inputting attendance dates, improperly responding to administrative requests, improperly dating time-sensitive material, and failing to give adequate parental notice for school "staffings." She was also issued an addendum to the July 27 prescription. Respondent was further advised that she had failed to complete the prescriptive activities that had been previously issued but that in another effort to assist her, the deadline for completing those activities would be extended to January 12, 2001. Respondent was further advised that her failure to overcome her performance deficiencies would lead to disciplinary action. Respondent acknowledged the support and assistance that the office staff had given her and thanked the principal for all of his support. On December 1, 2000, Respondent, after failing to provide timely notice of a conference with a parent and failing to provide notice of a meeting with another parent, was again reminded by the assistant principal that part of her duties was to provide adequate and timely notice of staff conferences with parents. On December 12, 2000, Respondent was notified in writing that she had failed to complete the prescriptive activities that had been assigned to her on July 27 and amended on November 16. Among other things, Respondent had failed to keep a log of her files and had failed to notify staff and parents of scheduled meetings. Respondent had still failed to make use of her tape recorder. On January 16, 2001, a conference-for-the-record was held with Respondent to address her performance and to review the status of her prescriptive activities and her future employment status. She was advised that her performance had not improved and that her repeated failure to complete her prescriptive activities despite three extensions of time was considered insubordination. Respondent was also advised that her failure to improve her overall performance mandated a recommendation for disciplinary action, which could include dismissal. On March 8, 2001, a conference-for-the-record was held with Respondent at the Office of Professional Standards to address her performance, her non-compliance with site directives, and her professional responsibilities. She was advised that although she had been on prescription for a significant portion of the year, she had failed to correct her deficiencies and improve her performance. As a result of her continuing unsatisfactory performance, she was advised that a recommendation for disciplinary action, including dismissal, would be submitted to the School Board. On March 22, 2001, Respondent's principal recommended that due to her inability to complete her prescriptive activities or to correct her performance deficiencies in spite of continuous support and assistance at the work site, her employment by Petitioner should be terminated. After she continued to accrue excessive and unauthorized absences, on May 9, 2001, Respondent was again reminded of prior directives that she report to work on a regular basis; that if she was to be absent, she needed to communicate that fact to school administrators; and that Respondent provide documentation for any absence alleged to be related to illness. She was also advised that her excessive absenteeism and her repeated failure to comply with administrative directives regarding her absences would lead to disciplinary action, including dismissal. On June 20, 2001, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and initiate dismissal proceedings against Respondent for just cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension, denying any claim for back pay, and dismissing Respondent from her employment by the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 3rd day of April, 2002, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 3rd day of April, 2002. COPIES FURNISHED: Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Susan L. Duerson 15601 Southwest 137th Avenue, No. 306 Miami, Florida 33177 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Room 912 Miami, Florida 33132-1308
The Issue The issue is whether Respondent's employment should be terminated by Petitioner.
Findings Of Fact At all times material, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Lake County, Florida. Respondent, Robert Jenner, began working as a technology education teacher for the School District in August 2004, and has held a professional services contract since 2007. Technology education is the current-day version of shop class or industrial arts. At all times material to this proceeding, Respondent taught at Carver Middle School (Carver). Linda Shepherd is the principal and Greg Smallridge is the assistant principal of Carver. While not a member of the local teachers’ union, Mr. Jenner is an instructional employee and, therefore, a member of the collective bargaining unit between the School Board and the Lake County Education Association. Respondent is also subject to all School Board policies regarding instructional personnel. All classrooms at Carver have a traditional classroom with a lab connected to it. Respondent’s lab area contained several technology workstations for the students, and contained specialized equipment, e.g., a lathe and a robotic arm. Typically, class would begin in the traditional classroom area, and then the class and Respondent would go into the lab area. Because of the configuration of the classroom and the lab, as well as the nature of the course, there were instances when Respondent could not see every student every minute of class. During October and November 2009, three incidents occurred in Respondent’s classroom involving a female student. These incidents involved inappropriate behavior, including behavior of a sexual nature with a male student. The female student received discipline for two of the three incidents ranging from an in-school suspension to an out-of-school suspension. Two of the incidents were observed not by Respondent, but by a teacher who was teaching in an adjacent classroom. These incidents raised the issue of whether Respondent was adequately supervising his classroom. Mr. Smallridge became aware of these issues and on November 23, 2009, he, Ms. Shepherd, and Respondent met and visited Respondent’s classroom to discuss steps to correct the problems concerning supervision of students. On November 30, 2009, a meeting took place which included Mr. Smallridge, Respondent, Dr. Maggie Teachout, and Dr. Teachout’s assistant. The purpose of the meeting was for Dr. Teachout to visit Respondent’s lab to make suggestions and recommendations as to ways in which supervision of the students could be improved in light of the configuration of the classroom and lab.1/ At some point, Mr. Smallridge determined that completing an Appraisal II for Respondent was the appropriate course of action. An Appraisal II takes place due to problems or concerns regarding a teacher that have arisen outside of an actual classroom observation. An Appraisal II is part of the Instructional Personnel Performance Appraisal System (IPPAS) for teachers, which is a policy adopted by the School Board. An Appraisal II notes deficiencies, places the teacher on notice about these deficiencies, and gives direction to the teacher as to what steps should be taken to correct the deficiency. On December 2, 2009, Ms. Shepherd, Mr. Smallridge, and Respondent met in Ms. Shepherd’s office during Respondent’s planning period for the purpose of completing the Appraisal II. During such a meeting, it is standard practice to complete the form during the course of the meeting. Mr. Smallridge had a blank Appraisal II form and intended to complete the form during the course of the meeting. However, during the meeting and before the Appraisal II form had been completed, Respondent stated that he would not sign the form. Mr. Smallridge informed Respondent that if he did not sign the form, it would be considered insubordination. Blank signature lines appear at the bottom of the Appraisal II form for the signatures of the teacher and the person assessing the teacher. Underneath the blank for the teacher’s signature appears the following: “Indicates receipt of appraisal and not necessarily agreement with the contents.” Mr. Smallridge read this to Respondent, but Respondent still refused to sign the form and stated that he was going to quit. Further, paragraph V (5) of the Appraisal II form provides a space for the teacher’s response with the notation “Attach additional sheets if desired.” Ms. Shepherd and Mr. Smallridge asked Respondent to reconsider his announcement that he would quit. However, Respondent went back to his classroom, and collected his personal items. He returned to Ms. Shepherd’s office, placed his keys on Ms. Shepherd’s desk and left school. This was the last time Respondent worked at Carver. While Respondent returned to Ms. Shepherd’s office to turn in his keys, Ms. Shepherd spoke to Respondent again and saids “Please, please don’t do this.” Despite this, Respondent left school during the school day. Ms. Shepherd instructed her secretary to call for a substitute. Ms. Shepherd stayed with Respondent’s class until the substitute arrived so that the class would not be unattended. At no time did Ms. Shepherd or Mr. Smallridge tell Respondent that he was terminated. Respondent did not request leave prior to leaving school, or at any time thereafter. Ms. Shepherd next saw Respondent on December 15, 2009, when he came to school on payday. She again asked him to reconsider his decision. He responded that he would let her know his decision that Thursday, but did not do so. On December 16, 2009, Ms. Shepherd wrote a memorandum to Respondent which states as follows: This letter is written to put you on notice that I am requesting the Superintendent to take your termination to the Board based on your absence without leave since December 2, 2009. This violates School Board Policy 6.511, Absence without Approved Leave. I base this letter on the facts that on Wednesday, December 2, 2009 at 10:20am, we (Mr. Smallridge, you and I) were prepared to write an Appraisal II for the lack of supervision that occurred in your classroom on Wednesday, November 18, 2009. At that time, you stated that you were not going to sign the Appraisal II document and if we (Mr. Smallridge and I) were going to write you up for the incident that occurred in your classroom, you were handing in your keys. I asked you to sign a resignation and you stated that people walk off the job everyday without signing a resignation. You handed in your keys and left campus approximately 12:15pm. You have not reported to work since that date. On December 17, 2009, Superintendent Moxley sent a letter to Respondent informing him that he was considered absent without approved leave in violation of School Board Policy 6.511. The letter informed Respondent that she would be recommending his termination of employment to the School Board and gave him notice of his right to a hearing regarding his dismissal. Respondent sent a letter to Dr. Moxley requesting a hearing on his termination, which gave rise to this proceeding. At hearing, Respondent explained his reasons for not signing the Appraisal II: he refused to sign the Appraisal II because he did not want his name “besmirched”; he believes that the school administration has not adequately dealt with the female student’s discipline regarding her inappropriate behavior in his class and felt he was somehow being made a scapegoat; he was concerned that there would be some type of criminal implications regarding the female student’s behavior and, “if I signed that document, I would have been brought into it.” Prior to the events that transpired in November and December 2009, Respondent had received satisfactory evaluations in the area of classroom supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 30th day of April, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 30th day of April, 2010.
The Issue The issue is whether the Petitioner is entitled to receive a Florida Educator's Certificate, or whether he should be denied a certificate based on the allegations in the Amended Notice of Reasons dated January 30, 2006.
Findings Of Fact Petitioner, Allen Dubois, (Petitioner or Mr. Dubois) received his bachelor's degree in physical sciences and chemistry, with a minor in mathematics in 1972. From 1972 to 1992, he worked for the United States Postal Service and as a tennis instructor. In 1992, Mr. Dubois received his master's degree in health education and nutrition, and began teaching in New York City high schools. Mr. Dubois was licensed to teach in New York with a certificate of qualification (CQ), the equivalent of a provisional or temporary teaching certificate. In New York, the CQ differs from other types of temporary teaching certificates only because it allows someone who may not be teaching full-time to have additional time to meet the requirements to secure a permanent teaching certificate. In April 1994, Mr. Dubois filed an application with New York State Education Department for a permanent certificate to teach biology and general sciences in grades 7-12. In March 1994, a sixteen-year old female student alleged Petitioner had engaged her in an inappropriate relationship and forced her to have sexual intercourse with him. Mr. Dubois was placed on paid leave through the end of the school year, June 1994. Mr. Dubois denied the allegations, and continues to maintain the allegations are false. He does admit to having had several conversations with the student that made him feel "uncomfortable," that included information about her mother's boyfriend and her showing him pictures of her baby. He concedes that, on a Friday evening following a sports event at the school, she walked with him some distance from the school to his parked car and that he offered her a ride. Mr. Dubois said that as she was getting in the car, "[w]e saw the bus coming and then she decided to take the bus." Mr. Dubois admitted calling the girl's house a day or two after he offered her a ride, but stated that she was not there and he talked to her grandmother. After that, Mr. Dubois continued to have conversations with a member of the girl’s family. The allegations were investigated and presented to a grand jury that, in October or November 1994, failed to indict Mr. Dubois. After he was fired from his job as a teacher by the Board of Education of New York City, Mr. Dubois apparently did not pursue the matter at a hearing, as he could have, but instead moved to Florida in December 1994, where he has lived since then. When he first came to Florida, Mr. Dubois was employed with the State Department of Labor and Employment Security. Among other duties, Mr. Dubois provided seminars and workshops on how individuals could file applications for employment with the State of Florida. Since that time, he has gone on to work for another state agency and, at some time, also taught at a community college in St. Lucie County. On July 22, 2003, Mr. Dubois filed an application for a Florida Educator's Certificate. On the application, he listed his teaching experience in New York City. Question #29 on the application is titled "Revocation" and requires a yes or no response to the following question: "Have you ever had a teaching certificate revoked, suspended or denied by any state, or is there any action pending against your certificate or application? If YES, you must give the state, reason, and year in which your certificate was revoked, suspended, denied, or in which action is pending against your certification or application." Petitioner answered "no" to the question. A letter, dated October 3, 1995, from New York City investigators to the New York State Commissioner of Education indicated that Mr. Dubois was “. . . currently suspended from service.” There is no evidence that the City had the authority to suspend his certificate. In fact, the letter was intended to give notice to the State so that it could take disciplinary action against the certificate. On June 12, 1996, the Commissioner of Education of the State of New York filed a Notice of Substantial Question as to Moral Character, charging Mr. Dubois with having sexual intercourse with the sixteen-year old female student on or about March 25, 1994. The Notice offered an opportunity for a hearing, if requested within 30 days. Mr. Dubois received the Notice, but testified that he did not recall responding to it. He did recognize a letter, in his hand writing, that he must have written on or about September 26, 1996, ". . . acknowledging that New York is questioning my moral character" and asking the New York authorities to contact the attorney who handled the criminal charges against him. Mr. Dubois testified that he had a telephone conversation, in 1998, with an attorney for the New York State Department of Education, who indicated that he had been unable to contact the criminal attorney who previously represented Mr. Dubois. Mr. Dubois testified that, ". . . it was not my intention to pursue a teaching license in New York. At that point in 1998 I was not inclined to want to become a public school teacher." As a result of the telephone discussion, Mr. Dubois entered into an agreement with the New York State Education Department that provides as follows: This is written confirmation of the fact that the parties have agreed to settle this matter and not proceed to a hearing under the provisions of Part 83 of the regulations of the Commissioner of Education. The Education Department will withdraw the Part 83 charges now pending against Allen J. DuBois in return for the surrender of his certificate of qualification of a teacher of biology and general science 7-12 and the withdrawal of his pending application for permanent certificate in the same areas. Allen J. DuBois, by this agreement, neither admits nor denies the allegations in the Notice of Substantial Question dated June 12, 1996, but acknowledges that he is unable to defend against them at this time. Upon surrender, the Department will notify all licensing and credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teacher Education and Certification (NASDTEC) and advise them of the surrender and withdrawal but will not otherwise disclose nor make public the contents of this agreement or the charges contained in the Notice unless required by law or upon an order of a court of competent jurisdiction. Allen J. DuBois reserves his right in the future to apply to the Education Department for certification as a teacher in biology and general science 7-12 or any other area and will be held harmless from any changes in the educational requirements subsequent to the date of this agreement. However, in the event he makes application for certification in the future, the Education Department reserves its rights under Part 83 of the Regulations including the right to hold a hearing on the issues raise in the Notice. In furtherance of this agreement, Mr. DuBois, shall forward the original certification document to the education department within thirty (30) days or, if said document cannot be located, then he will provide a written statement to that effect. As provided in the agreement, the State of New York filed a form with NASDTEC, reporting that the nature of its action on the CQ was a denial. There is no evidence that Mr. Dubois received a copy of the document. Concerning the agreement, Mr. Dubois said, in his deposition, that he felt “railroaded” into signing it without legal advice, and that (although explicit in the agreement) he did not know that there would be a report to some national network that might keep him from ever getting a teaching job any place in the United States. The NASDTEC document that appeared to contradict the information on his application was received by Respondent, prompting a further investigation of his Florida application. Mr. Dubois testified that he answered "no" to Question 29 on the application because he never had a permanent teaching certificate in New York. He denied that he thought his "provisional status" constituted a certificate. He claimed not to ". . . know that New York City passed something on to New York State," although the agreement he signed was with state authorities. In any event, based on the fact that the CQ was surrendered and the application for a permanent teaching certificate was withdrawn, Mr. Dubois maintains that he did not have to respond affirmatively to the question that was so narrowly worded as to only ask about certificates that were "revoked, suspended or denied" and suggested that "[m]aybe the State of Florida . . . needs to reword the questions on the application. " In an Amended Notice of Reasons dated January 30, 2006, Respondent notified Mr. Dubois that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Amended Notice of Reasons cited six statutory violations and four rule violations as grounds for the denial: Statute Violations Count 1: The Applicant is in violation of Section 1012.56 (2) (e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character. Count 2: The Applicant is in violation of Section 1012.56(12)(a), Florida Statutes, which provides that the Department of Education may deny an Applicant a certificate if the department possesses evidence satisfactory to it that the Applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate. Count 3: The Applicant is in violation of Section 1012.795 (1)(a), Florida Statutes, in that he obtained or attempted to obtain an educator's certificate by fraudulent means. Count 4: The Applicant is in violation of Section 1012.795 (1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude. Count 5: The Applicant is in violation of Section 1012.795(1)(f), Florida Statutes, in that he has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 6: The Applicant is in violation of Section 1012.795 (1)(I) [sic], Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Rule Violations Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 8: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 9: The allegations of misconduct set forth herein are in violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Applicant has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment of discrimination. Count 10: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage. Respondent offered no competent evidence that Mr. Dubois engaged, as alleged by New York authorities, in any inappropriate relationship with a student and forced her to have sexual intercourse with him. One of Respondent's witnesses testified that she believed the alleged victim has been located and would be available to testify, if needed, but that was not done. Respondent offered no competent evidence that Mr. Dubois' answer to Question 29 was an intentional fraudulent misrepresentation. Mr. Dubois was not credible when he asserted, in a 2006 deposition, (1) that he thought his CQ was not a teaching certificate, (2) that he did not expect New York City to pass information to New York State (although he signed the agreement with the State), or (3) that he was not aware that a report would be sent to a national network. He is correct, however, that the CQ was surrendered and the application was withdrawn, in exchange for not having an action against him proceed to hearing. Because he has no current certificate of application, there is also no action pending against either of these. Without having to answer yes to Question 29, Mr. Dubois did not have to give information concerning the matters that could be the subject of a hearing only if he ever again applies to teach in New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner be issued a Florida Educator's Certificate. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 19th day of December, 2008. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Pinellas county School Board, operated the primary and secondary public school system for Pinellas County, Florida. Respondent, Herbert Latimore, was employed by the Petitioner as a continuing contract teacher of physical education at Tyrone Middle School, a school operated by Petitioner. On August 25, 1993, very early in the school year, Respondent made a presentation to a group of sixth grade students in a physical education class. In prior years, Respondent had experienced a reluctance on the part of some students to take showers after physical education classes, and to forestall that problem, he indicated verbally that he did not want the boys to stand outside the showers looking at each other because, "...there were no faggots around here." He also told the students he expected compliance and that he did not want parents calling the administration about student shower misconduct because that created problems for him and would get him "pissed off." It is also alleged that in the course of his presentation he told a group of male students who were not paying attention that he spoke clearly and did not talk like a "nigger." Respondent, who is, himself, African-American, denies making that comment though, according to Mr. Valdes, the vice principal, Respondent admitted doing so to him in an interview the day after the alleged incident took place. It is found that Respondent did, in fact, use the word, "nigger" in his discussion with the students, but it can not be said, under the circumstances, that it was used in a racist or manner derogatory toward any student or group of students. One of the students in the Respondent's class to whom he made the comments complained of was Stephanie Zavadil, a young female who did not want to be in a physical education class in the first place and who was supposed to be in a music class instead. The incident took place the first day of school which was, coincidentally, the first day of middle school for the students in this particular class. After school that day, Stephanie, who was quite upset by the Respondent's use of the language alleged, told her mother what had happened and indicated she would rather go to summer school than be in Respondent's class. She also cried when recounting the story and indicated she was so afraid of Respondent, she would not appear to testify at hearing even under subpoena. Mrs. Zavadil, herself a high school teacher in the Pinellas County system, after discussing the matter with her husband, reported it to the school principal, Ms. Desmond. She also indicated she did not want her daughter in Respondent's class. There is no indication any other student or parent has indicated a similar objection, though as a result of the press' attendance at a School Board meeting at which this matter was discussed, an article appeared in the Clearwater edition of the St. Petersburg Times reporting the incident. Before she could call Respondent in to discuss the matter, Ms. Desmond was approached by him in the school cafeteria the following day. Ms. Desmond, who was on cafeteria duty at the time, told Respondent she would discuss the matter with him later, but he followed her to the side of the room, still trying to talk with her. When she finally had the quiet to talk with Respondent, she reported to him the substance of the complaint she had received from Mrs. Zavadil and told him that in her opinion his use of the words alleged was inappropriate and a demonstration of bad judgement. Respondent acknowledged he had used the words. Thereafter, the matter was reported to the office of the Superintendent of schools, where the matter was investigated by Mr. Barker who interviewed Stephanie and other students involved. He also spoke with Respondent who admitted the use of all words alleged except "nigger." Mr. Barker also reviewed Respondent's personnel file in which he found two prior disciplinary actions taken against Respondent. In 1982, Respondent was reprimanded for pushing a student, and in 1992, was again reprimanded for using poor judgement in making inappropriate statements in front of a student and the use of physical force with a student. On the basis of his investigation, Mr. Barker, utilizing the school board's unwritten progressive discipline policy, recommended that disciplinary action to include a suspension without pay for five days be imposed. His recommendation was based on his conclusion that Respondent's effectiveness as a teacher had been impaired by his use of the words alleged. Mr. Barker is of the opinion that teachers should comport themselves in a manner which causes students to look up to them. Here, Respondent's comments could affect the way students perceived him and also might frighten some students who, as a result, might not want to take classes from him. Respondent's use of the word "faggot", as alleged here, complicates the already existing problem schools have regarding the reluctance of some elementary and middle school children to dress out for physical education training. Mr. Barker's opinion regarding Respondent's effectiveness was reinforced by those of Dr. Hinesley, Ms. Desmond, and Mr. Valdes. Dr. Hinesley believes that teachers should be role models and Respondent's use of the language alleged was a violation of the Teacher Code of Conduct which could undermine public support for the educational process if left unpunished. Ms. Desmond agrees with the proposed suspension because of her belief that Respondent's language was both frightening to the students and inappropriate. Students and their families discuss what happens at the schools and if Respondent, because of his language, were to develop an unfavorable reputation within the community, it would make it difficult for him to establish credibility and would also impact the school's effectiveness in the community. Respondent does not contest his use of the terms "pissed-off" and "faggot" but claims he has heard them used many times by other teachers and had never been told by the principal or anyone else that they were bad words. He claims that had he considered the words to be inappropriate, he would not have used them. He also claims, and it is so found, that he did not call any student either a "faggot" or a "nigger", not did he claim to be "pissed-off" at any particular student. Respondent has three daughters and professes to love children, asserting he would never intentionally use bad language to hurt anyone. With regard to his alleged admissions to Ms. Desmond and Mr. Valdes, he claims neither one specifically asked him about his use of the words alleged. Mr. Barker did do so, however, and Respondent admitted to the use of "faggot" and "pissed-off." He has been a teacher for 18 years and during that time has never received a bad evaluation. He claims he has never been cautioned about his language, and the reprimand administered in 1992 relates more to the use of poor judgement in attempting to intimidate student rather than to the use of "inappropriate" language.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Herbert Latimore, be suspended from employment as a teacher with the Pinellas County School Board, without pay, for a period of five (5) days. RECOMMENDED this 15th day of April, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of April, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5748 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 13. Accepted and incorporated herein. 14. & 15. Not relevant to the issues herein. FOR THE RESPONDENT: ARGUMENT paragraphs, unnumbered, as treated in sequence. Not a Finding of Fact but a Conclusion of Law. Accepted and incorporated herein. & 4. Accepted as a correct comment on the state of the testimony. 5. & 6. Accepted as a correct comment on the state of the evidence. Accepted and incorporated herein. Not evidence but argument and statement of position. Accepted as an accurate recounting of Respondent's testimony. Accepted as an accurate comment on the evidence. Accepted as Respondent's position. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board 301 4th Street, Southwest Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 J. Howard Hinesley, Ed.D. Superintendent Pinellas County Schools 301 4th Street, Southwest Largo, Florida 34649-2942
The Issue Whether Petitioner established, pursuant to section 1012.33(1)(a), Florida Statutes (2014),1/ that Respondent, Susan Steverson (Respondent), committed gross insubordination and should have been disciplined therefore.
Findings Of Fact The School Board is responsible for the public education of students in grades pre-K through 12 in Holmes County, Florida. The School Board is also responsible for the hiring, firing, and overseeing all employees within the Holmes County School District (District). The District has a total of approximately 3,250 students enrolled and employs just under 475 persons. Mr. Eddie Dixon is the Superintendent of School for the Holmes County School District. He was elected as Superintendent in 2012. As Superintendent, Mr. Dixon is responsible for the management of district employees and regularly makes recommendations to the School Board regarding the suspension, discipline, or termination of such employees. The District is comprised of seven traditional schools and one alternative school. One of the traditional schools within the District is Bethlehem School, a Pre-K through 12 school. Approximately 500 students are enrolled at Bethlehem School, which has roughly 55 faculty and staff members. Brent Jones is the current principal of Bethlehem School and was principal during the 2014-15 school year. Rosanne Mitchell is the current assistant principal of Bethlehem School and was assistant principal during the 2014-15 school year. At all relevant times to these proceedings, Respondent has been employed by the School Board as a classroom teacher. Respondent was employed at Bethlehem School for over 28 years. Respondent met Superintendent Dixon shortly after he became superintendent. Superintendent Dixon removed Zeb Brown as principal of Bethlehem School in the middle of the 2012-13 school year, around December of 2012. Respondent, along with a number of teachers, disagreed with the decision and voiced her concerns. According to Respondent, Superintendent Dixon was dismissive of those concerns. Respondent also disagreed with a policy change that took place at Bethlehem school after Principal Brown was removed during the tenure of an interim principal, Principal Thompson. The policy had to do with pre-approved permission forms for student activities. Before the change, teachers could decline to sign the form if a student was not performing or behaving well in class. After the change, teachers no longer had veto power over the forms. They were told that they were to sign the forms, even before the student received it. During the 2014-2015 school year, while Respondent was employed as a classroom teacher at Bethlehem School, Principal Jones received reports that Respondent was leaving students outside of her locked classroom during instructional time. The standard policy that had been put in place at Bethlehem School at the time required that after classes began, classroom doors were to be locked from the inside, requiring late-arriving students to knock on the door to gain entrance. During the fall of 2014, Respondent became "fed up" with the situation, especially during her first period, because late- arriving students interrupted her class. Therefore, she told her students that, after Thanksgiving break, if a student was tardy, they were to knock on the door only once, and that she would open the door when there was a convenient break. According to Respondent, the strategy worked well, and students were never left outside for more than a minute or two. On December 11, 2014, while taking attendance during her first period, a student knocked on her door, and Respondent called out "Just a minute." In less than a minute, she opened the door but no one was there. Shortly thereafter, there was an intercom announcement that there was a late bus and to please allow students in the classrooms. The announcement was followed by a phone call to Respondent in her classroom from the receptionist who had made the announcement, who asked Respondent to allow students in her classroom. That phone call was followed by another from Principal Jones, who asked Respondent why she was locking students out. While Respondent was explaining, the phone call was interrupted by another knock on the door by a late-arriving student. The next day, Friday, December 12, 2014, Principal Jones and Assistant Principal Mitchell met with Respondent during her planning period. During the meeting, Principal Jones told Respondent that they were not running a military-styled school and instructed Respondent to stop leaving students locked outside of her classroom. Principal Jones also gave Respondent instructions regarding the handling of student tardies, acceptance of late work, and the accommodations for ESE students. Regarding leaving students locked outside, Principal Jones told Respondent that she needed to keep her door locked and suggested that she have a student open the door when a late student knocks. Respondent advised Principal Jones that it disrupts educational time, but that she would open the door. On the issue of tardies, Principal Jones explained that the administration's hands were tied because Holmes County had not adopted an attendance policy. In fact, Bethlehem School did not differentiate between excused or unexcused tardies. Some of the teachers at Bethlehem School, including Respondent, had stopped filling out referrals for tardies because they had been told by the school administration that they were not going to be counted. Prior to the meeting, Respondent had a policy of not accepting late work in an effort to promote students’ personal responsibility and fairness to other students. Respondent told Principal Jones that her policy of not accepting late work had been effective. Nevertheless, Principal Jones instructed Respondent to accept late work. He also instructed her to allow students who came unprepared to leave the classroom to get their materials if it was just outside the room in their locker. Principal Jones also mentioned that Respondent needed to make accommodations for ESE students with Individual Education Plans so that those students could succeed and pass. Respondent advised Principal Jones that if the student does nothing, she would not give them a passing grade. Respondent became visibly upset during the meeting, which ended abruptly. The following Monday morning, December 15, 2014, Assistant Principal Mitchell and Principal Jones received reports that Respondent was reading a prepared statement about Principal Jones to her classes. Principal Jones reported the incident to Superintendent Dixon, who asked Principal Jones to obtain a copy of the statement which Respondent had read to the students. Thereafter, Principal Jones went to Respondent’s classroom and asked for a copy of the prepared statement. Respondent stated that she would have to talk to her lawyer. Principal Jones said, "Okay," and walked away. Petitioner did not receive a copy of the statement until many months later when it was produced as part of this proceeding. Later that day, Respondent was called down to the Bethlehem School office during her seventh period to meet with Superintendent Dixon. Respondent was accompanied by fellow teacher, Donna Mollet, at Respondent’s request. When they arrived, Superintendent Dixon handed Respondent a memo on Holmes County School Board stationary from the Superintendent to Respondent dated December 15, 2014, which stated: This is notification that you are suspended with pay from your regularly assigned duties pending the outcome of an investigation concerning gross insubordination of Principal Brent Jones with students at Bethlehem High School. Please be advised that this suspension does not constitute a disciplinary action. We will keep you apprised as the investigation continues; including written notification of the outcome once the investigation is concluded. You are to immediately leave school grounds and not return until further notice. The Superintendent asked Respondent to sign the letter, which she did. When she asked him what she had done, the Superintendent declined to discuss it further at that time and asked her to leave. Respondent was then accompanied to her classroom by Assistant Superintendent Goodman and Carmen Bush from the District office, where she gathered her personal belongings and left. Mr. Goodman and Ms. Bush told Respondent not to return to the school until notified. Principal Jones and Superintendent Dixon conducted an investigation, which included obtaining statements from students who witnessed her conduct. The witness statements indicated that Respondent had told her students that Principal Jones would not enforce her rules and that students might be better off taking an on-line, virtual class, rather than attending Bethlehem School. Following the investigation, the Superintendent determined that Respondent had been grossly insubordinate and had violated the School Board policy regarding Employee Communications. On December 17, 2014, Pam Cameron from the District office called Respondent and asked that she come to the District office the next day. When Respondent arrived at the District office on December 18, 2014, she met with Superintendent Dixon and Principal Jones. Principal Jones handed her a letter of reprimand (Letter of Reprimand) which he had signed, stating: This correspondence is a formal reprimand of your actions and behavior on Monday, December 15, 2014. Our investigation has found that you were grossly insubordinate. The gross insubordination includes reading the prepared statement to your classes and your refusal to provide a copy to me when I requested it. You have been found to be unprofessional and inappropriate in relation to this situation. Please know and understand by way of this correspondence that you are directed to refrain from such unprofessional actions and behaviors in the future. To violate this directive, any School Board Policy, State Statute, or any other School Board Rule can result in further disciplinary action. Please plan to attend the professional practices workshop that will be held during preschool next year. Further, State Board of Education Rule 6B- 1.001, FAC, Section (2) states the educator " . . . will seek to exercise the best professional judgment and integrity." Section (3) states "Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct." Respondent did not sign the bottom of Letter of Reprimand in the place for her acknowledgement. She did, however, read a statement to Superintendent Dixon and Principal Jones about her frustrations regarding lack of discipline and the attendance policy at Bethlehem School. In a letter addressed to Superintendent Dixon dated December 19, 2014, Respondent stated: This document is my response to my letter of reprimand that you issued on December 18, 2014, in your office. I refute the accusation of gross insubordination that you and Principal Jones have made against me. You both refused to give me specific examples of the alleged insubordination other than “reading the prepared statement to your classes and your refusal to provide a copy to me when I requested it.” Never at any time did you or Principal Jones ask me to tell you what I conveyed to my students. During the brief meeting of December 18, 2014, I explained that I told my students of changes in my classroom rules and that I divulged to students Principal Jones’s statements regarding those changes. Principal Jones said that I had undermined his authority. I fail to see that telling students exactly what Principal Jones said can be construed as undermining his authority or insubordination. Furthermore, the method of my suspension was, I firmly believe, meant to humiliate me in front of my students and colleagues. On Monday, December 15, 2014, Principal Jones called me into his office. Superintendent Dixon gave me the paper regarding my suspension from duties, refused to answer my questions regarding the charges, and told me to get my personal belongings and leave the campus immediately. That meant returning to my classroom of sixth graders—including my own child—and gathering my belongings to leave. My son kept asking what was wrong, why we were having to leave, etc. The emotional distress that you caused not only me, but my son in front of his peers, is unconscionable and unforgivable. I was escorted to my classroom by two county office personnel, Jim Goodman and Carmen Bush, and they followed from there to make sure that I left the building and the campus. I was treated as though I were some kind of desperate criminal, which I definitely resent. I contend that I am innocent of the charges and further contend that your handling of this situation has been conducted purposely to damage my reputation. Respondent wanted to challenge her suspension, but was told both in the letter of suspension, as well as by the Chairman of the School Board, that a suspension with pay is not “discipline” that can be challenged or for which there is a right to a hearing. After Respondent was suspended with pay, Principal Jones informed her that she could return to school from her suspension on January 5, 2015, the day that winter break was over. Shortly after her return, Respondent received a telephone call from a concerned parent because, prior to the winter break, Respondent had deducted points from an essay that the parent’s child had submitted to Respondent. The incident involving the student and the essay occurred during the week of December 8, 2014. In fact, the incident involving that student appears to have been one of the issues that Principal Jones discussed with Respondent on December 12, 2014. The student in question was one of Respondent’s first-period students. The essay was due Monday, December 8, 2014. The student was not in Respondent’s class that day, but Respondent saw the student at school later that same day. When she saw the student, she asked him if he had his essay to turn in and the student replied that he did not. The same thing happened on Tuesday, Wednesday, and Thursday of that week. Each of those days, the student was absent from Respondent’s first-period class, but was seen by Respondent later in the day. When asked by Respondent whether he had his essay, he responded that he did not. Then, on Friday, December 12, 2014, the student arrived very late to Respondent’s first-period class. When he arrived, he put his essay assignment on Respondent’s desk. Respondent told the student that she could not accept the assignment because it was late. He picked up the essay and sat down. Upon noticing that other students were working from their books, the student asked Respondent for permission to go get his book. Respondent refused. The student then left Respondent’s class without her permission. Later that same period, the student came back to Respondent’s class with a note from Principal Jones directing the student back to Respondent’s class. Respondent accepted the student back into her class as directed. Later, Respondent accepted the student’s late work as directed by Principal Jones, but she deducted points from the essay because it was late. When Respondent spoke to the parent of the student after winter break, it was agreed that the parent would come in for a parent-teacher conference to be held during Respondent’s seventh-period planning period on Wednesday, January 7, 2015. Respondent informed Assistant Principal Mitchell of the planned parent-teacher conference and asked her to attend. Principal Jones was also aware that Respondent was going to have the parent-teacher conference. The parent-teacher conference was held on January 7, 2015, with Respondent, the parent, and Assistant Principal Mitchell present in a conference room at Bethlehem School. At the beginning of the meeting, the parent apologized for his son leaving Respondent’s classroom without permission. The parent, however, wanted an explanation of why points had been deducted from his son’s essay. Respondent explained that the points were deducted because the paper was late. The parent was under the belief that his son had only been absent for three days and had not been tardy during the time period in question. Respondent advised the parent that her records showed that the student had been absent seven days and tardy 24 times within the nine-week period. The parent wanted to know why he had not been informed that his son had been tardy so many times. Respondent stated to the parent, “We don’t do much about tardies.” Respondent further explained that they had stopped using paper-based referrals after the first nine-week period. Assistant Principal Mitchell advised the parent that phone calls and letters are sent out to parents of students with excessive absences and tardies. Respondent did not disagree with Assistant Principal Mitchell, nor did Respondent question or criticize the school’s administration during the parent-teacher conference. At the parent’s request, the student joined the teacher-parent conference. The parent spoke to his son and then advised that there should be no more problems out of his son. Thereafter, the student left the conference. After the student left, the parent still wanted Respondent to remove the point deduction from his son’s essay. When Respondent advised that she would not do that, the parent suggested that, if she did not remove the deduction, he would just go to the School Board about it. Respondent said, “I guess you will just have to do that.” Assistant Principal Mitchell then suggested that she would like to speak with Principal Jones about the matter prior to the parent going to the School Board. The parent said that would be fine. Thereafter, Respondent then left the meeting. After Respondent had left, Assistant Principal Mitchell told the parent that she would contact him as soon as the matter had been resolved. The parent thanked Assistant Principal Mitchell and left. On Friday, January 9, 2015, Respondent met with Principal Jones. Lisa Matthews accompanied Respondent at Respondent’s request. During the meeting, Principal Jones told Respondent that she could not deduct points from the student’s essay discussed at the January 7, 2015, teacher-parent conference. When Respondent questioned why she should not be able to deduct points under the circumstances, Principal Jones explained that the student had turned in the paper the next time he was in class and that was good enough. Respondent did not refuse to comply with Principal Jones’ request and, in fact, Respondent complied by removing the point deduction from the student’s essay. Further, after discussing what occurred at the parent- teacher conference with Assistant Principal Mitchell, Principal Jones felt that Respondent’s conduct and statements were designed to undermine the administration of Bethlehem School. Therefore, he reported Respondent’s conduct to Superintendent Dixon, who then determined that there was just cause to suspend Respondent, without pay, for a period of five days. On January 9, 2015, Superintendent Dixon suspended Respondent, without pay, for a period of five days which commenced on Monday, January 12, 2015, and ended on Friday, January 16, 2015. That same day, January 9, 2015, Superintendent Dixon signed a document prepared on Holmes County School Board letterhead regarding Respondent’s suspension without pay. The document stated: Friday, January 9, 2015 Susan Steverson RE: SUSPENSION WITHOUT PAY Pursuant to School Policy 6.38, and Section 1012.33(6), Florida Statutes, Eddie Dixon, Superintendent of Schools for Holmes County School District, recommends that Mrs. Susan Steverson, be suspended without pay for a period of five (5) days from employment with the School Board. Mrs. Steverson has engaged in conduct that constitutes grounds for suspension without pay for a period of five (5) days. The grounds for suspension include, but are not limited to being grossly insubordinate of Principal Brent Jones in a parent meeting after having been reprimanded prior to this school year and violating School Board rules to the extent that disciplinary action is required. The foregoing conduct by Mrs. Steverson constitutes grounds for suspension without pay for a period of five(5) days, in violation of School Board Policy 6.38(III)(B), and (F). Mrs. Steverson’s behavior also violates Department of Education Rules, including but not limited to: Rule 6A-10.080 and Rule 6B-5.056, FAC, and other applicable Florida Law. Accordingly, Mrs. Steverson will be suspended from employment for a period of five (5) days beginning Monday, January 12, 2015 at 7:30 a.m. and ending Friday, January 16, 2015 at 3:00 p.m. During this suspension, Mrs. Steverson will not be allowed on any School Board property. Please know and understand that you are directed to refrain from such unprofessional actions and behaviors in the future. Further, State Board of Education Rule 6B- 1.001, FAC, Section (2) states the educator “ . . . will seek to exercise the best professional judgment and integrity.” Section (3) states “Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.” Subsequently, Superintendent Dixon presented the suspension to the School Board at its next meeting and recommended that the suspension be upheld. The School Board voted on January 20, 2015, to approve the suspension without pay. On January 27, 2015, a Notice of Charges against Respondent in this case was signed by Superintendent Dixon. The Notice of Charges states: NOTICE OF CHARGES Pursuant to Section 1012.33(6), Florida Statutes, Eddie Dixon, Superintendent of Schools for the Holmes County School District, recommended that Mrs. Susan Steverson ("Mrs. Steverson"), be suspended without pay for a period of five (5) days by the School Board. Mrs. Steverson has engaged in conduct that constitutes "just cause" for her suspension without pay. The grounds for suspension include, but are not limited to, the following: gross insubordination. Mrs. Steverson has a history of engaging in insubordinate behavior toward administrators, which began under prior superintendents and continued with recent incidents involving comments made to and about the administration of the Bethlehem School in December 2014 and January 2015. Mrs. Steverson has been repeatedly instructed by persons in authority to correct her behavior, but she has failed to do so. INCIDENTS INVOLVING MRS. SUSAN STEVERSON On or about Monday, December 15, 2014, Mrs. Steverson made unprofessional and derogatory statements to her class about what she believed to be a lack of support from her school principal, Mr. Brent Jones. A statement was apparently read to the class strongly criticizing the principal, and advising the class that there were no longer any rules for the class as a result of a lack of support by her school principal. Students reported the statement to administrators out of concern for the class. Mrs. Steverson was asked for a copy of the written statement by Principal Jones but she refused to provide a copy. Mrs. Steverson was reprimanded for her conduct and advised not to allow her unprofessional conduct to continue. Then again, on January 9, 2015, Mrs. Steverson, during a parent teacher conference scheduled by Mrs. Steverson with Vice-Principal Mrs. Roseanne Mitchell present, was grossly insubordinate by criticizing and questioning Principal Brent Jones, in front of a parent. Her obvious intent was to embarrass and humiliate the Principal, and challenge his authority to administer the operations of the school in a manner he deemed appropriate. Mrs. Steverson was suspended without pay for a period of five (5) days beginning on January 12, 2015 to January 16, 2015, immediately prior to the School Board meeting on January 20, 2015, at which this issue was heard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Holmes County School Board: Dismissing the charge of gross insubordination against Respondent and setting aside any discipline subsequent to Respondent’s suspension with pay and reprimand received in December 2014; Dismissing the allegations set forth in the Notice of Charges to the extent they seek to impose or support any discipline subsequent to Respondent’s suspension with pay and reprimand received in December 2014; and Reimbursing Respondent for the five days of pay that Respondent did not receive during her suspension from January 12, 2015, through January 16, 2015, plus interest, as appropriate under applicable law. DONE AND ENTERED this 17th day of March, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2016.
Findings Of Fact On April 7, 1976, respondent Ola Mae Williams resided with her husband, Fred Williams, at 825 Colonial Drive, Tampa, Florida. The night before, she had gone to bed somewhere around 10:30 or 11:00 p.m. At approximately 2:00 a.m. on April 7th, two detectives from the University of South Florida and two or three other uniformed officers came to respondent's apartment to execute a search warrant directed against this apartment and naming respondent's husband as the focal party suspected of engaging in illegal activities on the premises. Upon hearing a knock at the door, she opened the door but left the burglar chain engaged. The police officers identified themselves and advised her that they were there to execute a lawful search warrant. Respondent then left the door to get her robe. While the door was cracked open, the officers heard a flurry of activity within the apartment, saw Fred Williams running around and heard the toilet flushing. When respondent returned to the door, the police again ordered her to open the door. She then closed the door in order to release the burglar chain. At this point, the officers broke in the door with force. "A minute or so" elapsed between the time that respondent first opened the door and the time that the door was opened forcibly. After the officers were inside the apartment, respondent's husband kept yelling commands at her while the officers were telling her to sit down so they could read her rights and the warrant to her. Mr. Williams was physically subdued with handcuffs and respondent feared for his safety. Other than to request permission to get her husband's wallet and clothes, respondent offered no physical or verbal resistance to the officers after they came into the apartment. During the execution of the search warrant, the officers confiscated and seized checks, drivers licenses and other items of male identification bearing names of persons other than respondent and her husband; two sheets of photographs of respondent, lamination sheets, cash, a typewriter, a cassette tape and film strip entitled the "Cashier's Series" and a yellow ceramic planter containing fifteen small plants, ranging in height from five to eleven inches, which the officers suspected to be marijuana. Respondent and her husband were arrested and taken to the police station. Respondent was charged with felony possession of marijuana and counterfeiting activities. These charges against her were subsequently dropped by the state attorney. A newspaper article concerning respondent's arrest and the charges placed against her and her husband appeared on the day of her arrest. The Hillsborough County School Board suspended respondent from her teaching duties on April 7, 1976. On November 7, 1976, she was reinstated to her former position with retroactive pay. The two sheets contained photographs of respondent were annual school photographs. They were of too large a size to be used on a Florida driver's license. Respondent's photograph was not found on any of the seized identification items. The typewriter seized during the search was admitted by the officers not to be the one used in altering the identification cards. Respondent denied that she had any knowledge whatsoever about her husband's alleged counterfeiting activities. The only evidence presented which could lead to a different conclusion is the presence in the respondent's apartment of "The Cashier's Series" cassette and filmstrip. Neither the tape nor the filmstrip were introduced into evidence at the hearing. The two police officers who testified at the hearing could not recall or identify with any specificity what was contained on either the filmstrip or the cassette tape. They did recall that they contained information concerning the detection of bogus checks and improper identification. It was Ms. Williams' testimony that the tape and filmstrip were merely promotional material illustrating other materials available for purchase. She ordered this material because she was teaching a course involving business machines, and there were two cash registers in the classroom. Several students expressed an eagerness to learn about the cash register and she wanted to have some supplementary material thereon. The tape and filmstrip were sent to her school address and she picked them up from her teacher's mailbox on the way home, some one to two weeks before her arrest. Ms. Williams did not listen to the tape or view the filmstrip prior to her arrest. There was no equipment in her apartment with which to do so. Approximately one month prior to her arrest, respondent's husband showed respondent a planter and informed her that the plants contained therein were marijuana plants. Respondent told her husband to get rid of the plants because she did not want marijuana in her apartment. The next time she saw the planter and the plants was on the night of her arrest. The planter in which fifteen plants were growing was found by one of the police officers in the corner of a bedroom windowsill behind closed drapes. The window was located behind a solid headboard of the bed. Ms. Williams testified that she often went for weeks at a time without cleaning that windowsill and that the drapes in the bedroom were usually closed. While the two detectives who appeared at the hearing testified that they believed, from their past experience and training, the plants to be marijuana, neither could recall whether a reagent test was performed or any other laboratory report had been procured which would determine the identity of the plants. As noted above, respondent was suspended from her teaching position at Tampa Bay Vocational-Technical School on April 7, 1976. She was reinstated with retroactive pay on or about November 7, 1976. This was during the second nine week grading period of the first semester. According to respondent, she was called on a Friday and told that, if she wanted her job back, she was to report to school on the following Monday. On Sunday, she went to the home of the teacher who had been substituting for her during her suspension, discussed her procedures and obtained her keys and roll book. Respondent received no assistance or counseling from the school administration prior to her entrance into the classroom on Monday. No one from the administration accompanied her into the classroom or introduced her to the students. She told the students that she had been on leave and was now to be their permanent teacher. The evidence illustrates that some educators and students at the school were aware of respondent's arrest both in April of 1976 and when she returned to school in November, 1976. Respondent denies that she encountered any disrespect from her students after her return. Prior to April, 1976, respondent's teaching record was without blemish. In December of 1976, approximately one month after her return from suspension, Alberta Roberts, the Assistant Principal for Curriculum at Tampa Bay Vo-Tech, received complaints from eight students relating to respondent's grading assignments and methods of instruction. Ms. Roberts informed respondent's department head, Mr. Pat Clyde, of the complaints. Two or three conferences were had between Mr. Clyde, Ms. Roberts and respondent. It was found that respondent had miscalculated some of the grades, had erroneously recorded student absences, and that she had a higher than average failure rate in her classes. The student complaints occurred only during the first nine week period of respondent's return to school. She continued to have a higher than average failure rate in her classes. Since that first nine-week period of her return, no one from the school's administration has attempted to counsel with respondent or review her grades or teaching methods to determine the cause of student failures in her classes. The school's evaluation of respondent for the period ending in April, 1977, contained five areas of unsatisfactory performance and four areas needing improvement. The remaining twelve areas were satisfactory. The January, 1978, evaluation contained all satisfactory markings. In March of 1978, respondent was evaluated as satisfactory in all areas, with two exceptions. The evaluations illustrated that she needed improvement in the areas of "thorough in preparation of lessons, including written plans" and "materials are well organized for effective presentation of the subject matter." The evidence was undisputed at the hearing that no school or county administrator has observed respondent's classroom performance or attended her classes since her return in November, 1976. Her department head has never required respondent to submit her lesson plans to him. The only person ever to observe respondent's performance since her return to the classroom was Ann B. Dolgin, a witness called by respondent. Dr. Dolgin observed respondent's classes on June 8 and 9, 1977, and concluded that respondent's teaching exercises were average and her classroom management procedures were above average. She believed respondent to be an effective teacher, and her observations were consistent with respondent's last two evaluations performed at the school.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is recommended that the petition for suspension of respondent's teaching certificate be DISMISSED. Respectfully submitted and entered this 21st day of July, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Hugh Ingram, Administrator Profession Practices Council 319 West Madison Street - Rm 1 Tallahassee, Florida 32304 Robert J. Vossler 110 N. Magnolia Drive Suite 224 Tallahassee, Florida 32301 Dennis G. Diecidue Diecidue, Ferlita and Prieto, P.A. 601 Twiggs Street, St. 203 Tampa, Florida 33602
