Findings Of Fact This matter comes on before the undersigned for consideration following an Administrative Complaint brought by Ralph D. Turlington, Commissioner of Education for the State of Florida, against Robert J. Browne, Respondent. No genuine factual issue is in dispute because no communication, including an election of rights or an appearance from the Respondent, has ever been received. Pursuant to the above-cited rule, the matter was required to proceed to hearing before the undersigned for the presentation of a prima facie case by the Petitioner, regarding the establishment of the reputed facts alleged in the Administrative Complaint upon which the Petitioner seeks revocation of the Respondent's Certificate. The Administrative Complaint is dated July 1, 1981. After the Administrative Complaint was filed, various efforts were made to achieve service of the same on the Respondent. The Respondent never responded to the Administrative Complaint. Diligent search and inquiry failed to locate the Respondent, or a means or location whereby he might be served with the Complaint. Attempts to serve him at his last-known forwarding address resulted in the certi- fied mail being returned unclaimed and unforwardable. The undersigned attempted to serve notice of this proceeding itself upon the Respondent at the last known address with the same result. Service by publication of the Administrative Complaint was achieved by the Petitioner. The Respondent holds Florida Teaching Certificate Number 440435, Post Graduate, Rank II, which expires on June 30, 1998, authorizing him to engage in the profession of teaching in the areas of mental retardation, junior college, administration, and supervision. At all times pertinent hereto, he was employed at the Exceptional Student Educational Center in Broward County, Florida, at Eastside Elementary School. The Respondent's position was that of administrator or assistant principal at the school. The Respondent was employed at the school during the summer of 1980. Mrs. Annie Turner was employed at the school as the custodian during that same summer. She worked from the hours of 3:00 p.m. to 7:00 p.m. in the evening. She often took her son Ronnie, who was the youngest of seven children, to the school with her during her working hours. She did this in order for him to assist her in her job duties. On an early visit to the school, Ronnie met the Respondent, Mr. Browne. They met on frequent occasions thereafter, when Ronnie was at the school with his mother and talked of sports and other things of interest to Ronnie, and they ultimately struck up a friendship. Mrs. Turner began noticing that her son would go to a distant bathroom in the school and stay an inordinate period of time. This happened on a number of occasions and she noticed that Mr. Browne would follow her son into the mens' bathroom while she was engaged in cleaning another room nearby in the school. She did not feel anything was amiss until this happened on a regular basis. Finally, on a Thursday evening (she does not remember the date), in the summer of 1980, Mr. Browne and Ronnie entered the bathroom and stayed so long she opened the door to check on her son and observed the Respondent on his knees committing a homosexual act on the person of her son. She was not observed by Mr. Browne. She ultimately informed-the County Superintendent and Mr. Browne was confronted with the subject accusation by his superiors. Sometime thereafter the Respondent resigned his position at the school. Mrs. Turner no longer respects Mr. Browne and would not want one of her children in a school where he was principal or a teacher due to her apprehension regarding their physical and emotional welfare. The testimony of Ronnie Turner corroborates that of his mother, Annie Turner, and in addition, establishes that the homosexual act observed by Mrs. Turner occurred on three (3) other occasions in a substantially similar fashion and location. The occasion when Annie Turner discovered the Respondent committing a homosexual act on her son was the fourth and last of those occasions, all of which occurred during a three-week period during the summer of 1980. Ronnie Turner sougnt on several occasions to avoid association with the Respondent during this time after he became aware of the Respondent's intentions. He would not want to attend a school at which the Respondent was employed and fears that the same fate will befall other children at any school at which the Respondent should be employed. Ronnie Turner was fourteen years of age at the time the pertinent events occurred. After the Respondent resigned from his position with the Broward County School System, there ultimately ensued an Administrative Complaint brought by Ralph Turlington, Commissioner of Education of the State of Florida, seeking revocation of the Respondent's Florida Teacher's Certificate.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of counsel for the Petitioner, it is, RECOMMENDED: That the Respondent, Robert J. Browne, have his Teacher's Certificate in and for the State of Florida revoked permanently. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER 203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302 Mr. Robert J. Browne 1771 Northeast 12th Street Fort Lauderdale, Florida 33304
Findings Of Fact Respondent, Henry, was employed as a sixth grade mathematics teacher at Inverness Middle School, Citrus County, Florida, on May 3, 1977. Henry has had some 23 years service as a teacher in Citrus County. On that day Henry was on lunch duty, which required him to maintain control of the students on the play ground after the midday meal. At approximately Noon, Barry Allen Remley and Robert Lee Thomas, both twelve years old and students in grade six at the Inverness Middle School, were fighting on the play ground. A large group of children surrounded the boys, cheering on their particular favorite in the affray. Henry proceeded to the altercation and instructed the boys to stop the fight. Henry's instructions were heard by at least one of the participants in the fight but they were disregarded. Henry pulled off the belt he was wearing, doubled it up and held the buckle in his hand. Henry attempted to pull the boys apart, without success, and at that time began striking the boys with the belt for the purpose of stopping the fight and separating them. The fighting stopped almost immediately at which time Henry ceased using the belt. However, one of the participants, Robert Lee Thomas, turned around and struck Henry. The children were taken by Henry to the principal's office but because none of the school administrative personnel were in the office, discipline was deferred to another time. It is proposed by Petitioner's counsel that it be found as a matter of fact that Robert Lee Thomas received injuries and suffered an acute anxiety reaction because Henry struck him with the belt. However, such a conclusion is unsupported by the evidence and, indeed, is contradicted by the witnesses who testified that the blows were "easy hits", "a tap" or "like your parents will give you a paddling." Another witness, Chris Atkins, testified that, in his judgment, the taps received by the boys with the belt were less than what he got at home. Robert's physician was unable to testify that the anxiety reaction was related to the incident and the very minor injuries sustained by Robert may just as easily have been caused by the fight as the belt. Accordingly, no finding is made that an unreasonable amount of force was used by Henry.
The Issue The issue in this case is whether a district school board is entitled to terminate a teacher’s employment for just cause based upon the charge that he committed misconduct in office.
Findings Of Fact Sapp is a teacher in the Broward County Public School System. At the time of the events giving rise to this proceeding, Sapp was serving as a teacher, track coach, and Athletic Director at Silver Lakes Middle School (“School”). As Athletic Director, Sapp was entrusted with a “master” key that allowed him access to most buildings and offices in the School, a privilege not available to all teachers. Most of the School’s teachers, including Sapp, were assigned a laptop computer. A teacher’s laptop was either an IBM-compatible Dell or an Apple Macintosh. The School did not have on hand a surfeit of laptops but rather just enough for most teachers to have one. Sapp’s was an Apple Macintosh. The School’s technology specialist was Julian Kuilan, who had started work in that capacity in January 2001. Among other things, Mr. Kuilan was responsible for taking care of the computers that were assigned to the teachers. On Thursday, February 22, 2001, Mr. Kuilan was in possession of a Dell laptop computer that he intended to assign to a teacher the next day. When he left work that afternoon, Mr. Kuilan stored the Dell laptop under his desk,1 where it was concealed from casual visitors, and locked the door to his office, which was situated in the School’s media center. The media center, too, was locked for the night. At around 8:00 p.m. that evening, Sapp returned to the School after a track meet. He remained on campus until all of the adults and students who were with him had left the vicinity. Then, at around 8:30 p.m., when Sapp knew that he was alone except for the custodial crew, Sapp used his master key to enter, first, the media center and, next, Mr. Kuilan’s locked office. Once he was in Mr. Kuilan’s office, Sapp located the computers hidden under the desk and picked up a Dell laptop. Sapp left Mr. Kuilan’s office with the computer and departed the media center through the back door (not the front door through which he had entered). He took the laptop to his own classroom and stashed it there. Sapp then left to go home. In the parking lot, he bumped into the School’s security specialist, Mr. Stevens, who was washing a bus.2 Sapp did not mention the computer to the Mr. Stevens. When Mr. Kuilan arrived for work the next morning, Friday, February 23, 2001, he quickly discovered that one of the laptops which had been placed under his desk the previous afternoon was gone. He promptly notified the administration of the loss. The School’s principal, Mr. Traeger, immediately initiated an investigation to determine the whereabouts of the missing computer. The police were called, as was the School’s Special Investigative Unit (“SIU”). The SIU assigned an investigator named Kathleen Andersen to the case. Meanwhile, that Friday morning, as others were trying to find out what had happened to the laptop, Sapp returned to the media center to borrow a VCR. Sapp did not mention to anyone in the media center, including Mr. Kuilan, that he had entered Mr. Kuilan’s locked office the night before and removed a computer——which, as only Sapp knew, was presently located in Sapp’s classroom. Later that day, around 3:00 p.m., Mr. Traeger convened a meeting in his office to interview persons, such as the night custodial staff, who had access to the media center and might have been on campus when the computer was taken. Sapp was summoned to this meeting because he held a master key and had been at the School after hours due to the track meet. When Sapp arrived at the principal’s office, Mr. Traeger told him that a computer was missing and inquired whether Sapp had seen anyone enter the media center on Thursday night.3 Sapp answered that he had not and was excused.4 When he left work that Friday, Sapp did not take the laptop computer home with him for the weekend of February 24-25, 2001. The computer remained in his classroom. That same weekend, Ms. Andersen (the SIU investigator) obtained data from the motion detectors in the media center. This information enabled the investigator to home in on the likely time frame during which the computer had been taken and to pinpoint the areas in which the culprit had been present. Knowing these facts would facilitate the review of the surveillance videotapes that were the product of the many security cameras located around the School’s campus——cameras that operate 24 hours a day, seven days a week. On Monday, February 26, 2001, Ms. Andersen arranged to watch the surveillance videotapes the next day.5 For his part, Sapp came to work as usual that Monday——and said nothing to anyone about the laptop he had taken from Mr. Kuilan’s office. When he left in the evening, Sapp took the laptop home and placed it in his attic. On Tuesday morning, February 27, 2001, Ms. Andersen reviewed the surveillance videos. When she did, she discovered that the cameras had captured the image of the man who had taken the computer——and it was someone she knew. Right away, Ms. Andersen recognized Sapp as being the person shown in the film exiting the media center with a laptop computer. Ms. Andersen informed Mr. Traeger, who then personally viewed the tapes. He, too, identified Sapp without difficulty. They decided that Sapp needed to be questioned right away. Sapp was attending an athletics-related off-campus meeting that morning when he received a telephone call from Mr. Traeger, who instructed Sapp to return to the School immediately. Sapp complied, and he arrived in the principal’s office around noon, where he met Mr. Traeger and Ms. Andersen. Sapp was asked whether he could provide any additional information concerning his activities on the night of February 22, 2001, that might shed light on the circumstances surrounding the disappearance of the laptop. Sapp became upset and asked that Ms. Andersen leave the room so that he could speak privately with Mr. Traeger. She left. Alone with Mr. Traeger, Sapp finally admitted that he had entered the media center the last Thursday night, although he still did not reveal that he had taken the computer. The principal asked Sapp if he was confident enough about these facts to write a statement. Sapp said that he was and wrote the following in longhand:6 When coming back for the track meet on Thursday 22nd of Feb. I open the boys locker room for the boys to dress from the track meet. After boys dress me and the girl track coach went to the back and check and see if all the kids was gone. We entered the school east side of the school. Going up the hallway. Then we stop by the teacher lounge. Then went in the west hallway. I stop by the media center on the west side for a min. The girl track coach kept walking. So I caught up with her to walk her to her classroom. We stay in the classroom for about five min then she walk out the west side to her car. We talk for a min or so. Then she left. I walk back up the hallway. I went into the teachers’ lounge. Then I came out enter the media center. I came out the back of the media center. I went into the east hallway into the locker room to pick up my books. Then I went to the classroom and check and see how things was left after the sub. Then I walk out to the park lock. Mr. Stevens was in the park lock. I spoke to him. Then his son drove up. Mr. Stevens told me that he lock his keys in the car and that why his son came back. I told him that I am going to go. I was very sleep and I would see him tomorrow. Arnie Lee Sapp 2-27-2001 Sapp’s written statement was not the whole truth and, indeed, was misleading in its omission of the material fact that Sapp had taken the computer out of Mr. Kuilan’s office. At some point in the ensuing discussion, Mr. Traeger confronted Sapp with the evidence of the videotapes and offered to let him resign if he would confess and return the computer. Shortly thereafter, Sapp confessed to Mr. Traeger (but he did not resign). After Sapp had admitted taking the computer, Mr. Traeger called Ms. Andersen back into the room. By this time, Sapp was visibly distraught and crying. He continued to make incriminating statements, such as “I’ve done something really stupid” and “I’ve let a lot of people down.” Sapp also alarmed the others present by talking about “end[ing] it all on Friday”——which they interpreted as a possible threat to commit suicide. Eventually, Sapp calmed down and assured Mr. Traeger and Ms. Andersen that he was not going to hurt himself. Notably, however, despite being asked, Sapp did not disclose why he had taken the computer, giving only the vague explanation that “personal issues” had forced him to do it. As the meeting ended, Sapp agreed promptly to return the computer. Ms. Andersen and another officer followed Sapp to his house, where the laptop was retrieved. Sapp’s Exculpatory Scenario Except as noted, the basic material facts in the above account were largely undisputed. Where the litigants mainly part company is over the veracity of Sapp’s present explanation for his actions. What follows is a brief summary of Sapp’s exculpatory scenario. Sapp claims that he “borrowed” the Dell laptop on February 22, 2001, so that a friend with good typing skills would be able to use it to prepare the program for a March 8, 2001, track meet while Sapp and this friend attended Sapp’s college reunion in North Carolina, where they were scheduled to be from Friday, March 2, 2001, to Sunday, March 4, 2001. According to Sapp, an IBM-compatible Dell was needed for this task because he was having trouble printing documents stored in the Apple Macintosh laptop that had been assigned to him. Sapp, in sum, maintains that he had a legitimate purpose for taking the computer. On the surface, Sapp’s story has, at best, a patina of plausibility, and a bit of probing wipes even that away. To believe Sapp would require the making of too many assumptions that are out of step with common sense and everyday experience—— assumptions that are, in the final analysis, incompatible with a reasonably likely hypothesis of innocence. To start, there is the manner in which Sapp acquired the laptop. The facts are that Sapp took the property at night when the campus was nearly empty; that he used a master key to open locked doors and enter another employee’s office; and that he removed the computer from a location in that office which can fairly be called a hiding place. To explain this suspicious conduct, Sapp asserts that the School’s equipment checkout policy was not always strictly followed and that he had been permitted, in the past, to borrow property without observing the formal sign-out procedures. Assuming this is true, however, there is no credible evidence that the School ever tolerated conduct similar to Sapp’s. Moreover, common sense instructs that, barring an emergency,7 a teacher having a legitimate reason to use school district property will not simply take the property by stealth but will ask, at least informally, for permission. It is, therefore, not likely that Sapp would have taken the computer as he did if his intentions were good. Next is the fact that, time and again, Sapp never mentioned to anyone that he had taken the computer, when common sense dictates that an innocent person would have done so. It is, of course, highly probable that Sapp, as a reasonable person, knew that the disappearance of a laptop computer from Mr. Kuilan’s locked office likely would cause a stir——which is why, if Sapp truly had taken the computer for the reasons he now claims, Sapp almost certainly would have told someone (probably Mr. Kuilan) at the very first opportunity on Friday, February 23, 2001. Sapp’s continued silence is inconsistent with innocence. Making matters worse for Sapp is that he remained silent even when asked by the principal on the afternoon of Friday, February 23, 2001, about suspicious activity in the media center the night before. Sapp now concedes that it was a “mistake” not to tell the Mr. Traeger the supposedly exculpatory truth that day, and clearly it was——but it was more than that. If Sapp were innocent as he now claims, common sense teaches that he would have revealed everything to Mr. Traeger then and there. Sapp’s silence at this point is not only inconsistent with innocence but also circumstantial evidence of guilt; the reasonable inference is that he was covering up a known wrong. By now, Sapp’s story is so discredited that to note that on February 26, 2001, Sapp secreted the computer in his attic seems gratuitous, but that is the incriminating fact. Of greater significance, however, is that on Tuesday, February 27, 2001, during the second meeting with Mr. Traeger concerning the missing laptop, Sapp again failed to tell the whole truth and signed a written statement for Mr. Traeger that omitted the material fact that he had taken the computer. It is nearly impossible to imagine that Sapp, if innocent, would have continued actively to conceal this fact; common sense suggests that an innocent person would have spoken up long before it became necessary for Mr. Traeger to produce the inculpatory surveillance videos. At bottom, to fit Sapp’s story to the undisputed objective facts concerning his conduct demands belief in an improbable set of circumstances that ultimately defies belief. The simpler explanation for Sapp’s conduct, in contrast, is credible and probable: Sapp stole the computer and then attempted to cover up the misdeed until, when confronted with the videotapes, he was compelled to confess. Ultimate Factual Determinations Sapp’s taking of the laptop computer on February 22, 2001, was, if not theft as defined in the criminal law, at least dishonest and hence in violation of Rule 6B-1.006(5)(a), Florida Administrative Code (employee shall maintain honesty in all professional dealings). In addition, by using the master key with which he had been entrusted as a perquisite of his position as Athletic Director to gain unauthorized access Mr. Kuilan’s office, Sapp violated Rule 6B-1.006(4)(c), Florida Administrative Code (employee shall not use institutional privileges for personal gain or advantage). Sapp committed separate violations of Rule 6B- 1.006(5)(a), Florida Administrative Code, when he knowingly concealed material information from his principal on February 23, 2001, and again on February 27, 2001. Sapp violated Rule 6B-1.006(5)(h), Florida Administrative Code (employee shall not submit fraudulent information on any document in connection with professional activities), when, on February 27, 2001, he tendered a signed, written statement to Mr. Traeger that omitted material facts and was, as a result, false and misleading. Sapp’s misconduct, which violated several principles of professional conduct as noted above, also violated Rule 6B- 1.001(3), Florida Administrative Code (employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as acts of dishonesty and fraud necessarily demonstrate a failure to sustain the “highest degree of ethical conduct.” Sapp’s violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. Contrary to Sapp’s argument, the evidence amply supports this finding. Indeed, Sapp’s own testimony, in which he admitted having breached the confidence and trust that had been reposited in him as a teacher and Athletic Director, was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Further, as a teacher and coach, Sapp was required to be a role model for his students. To be effective in this position of trust and confidence, he needed to maintain a high degree of trustworthiness, honesty, judgment, and discretion. Yet, as Sapp admitted at hearing, if a student athlete had engaged in conduct similar to his own, that student would be dismissed from the athletic program and probably expelled from school. Obviously, having committed acts that would subject a student to severe repercussions, Sapp’s effectiveness as a role model has been seriously compromised——perhaps (and hopefully) not irreparably, but grievously nonetheless. Based on the above findings, it is determined that Sapp is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order ratifying Sapp’s suspension without pay effective September 11, 2001, and discharging him from further employment in the Broward County Public Schools. DONE AND ENTERED this 24th day of September, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2002.
The Issue The issues concern the claim by the Petitioner to relief for alleged age discrimination. See Section 760.10, Florida Statutes. In particular, it is alleged that the Respondent dismissed the Petitioner from employment with the Duval County School Board based solely upon his age, in violation of the aforementioned statute. There is presented the collateral issue, which is the claim by the Respondent that this dismissal based upon age was authorized by Section 231.031, Florida Statutes.
Findings Of Fact This cause is presented through the petition for relief from an alleged unlawful employment practice which the Petitioner filed with the Florida Human Relations Commission. The service date of that petition was May 9, 1984. Duval County School Board, Duval County, Florida, was the named respondent. Through the petition document Petitioner claims that the Respondent committed an unlawful employment practice by forcing the Petitioner to take an involuntary retirement due to his age. There being no successful informal resolution of this dispute, the matter was referred to the Division of Administrative Hearings for a formal Section 120.57(1), Florida Statutes, hearing, which was held on August 20, 1984. The petition is brought under the authority of Chapter 760, Florida Statutes, formerly Chapter 23, Florida Statutes. Petitioner is an individual within the meaning of Section 760.02(5) and .10(1), Florida Statutes. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner, Robert P. Morrow, was continuously employed as a teacher by Respondent, Duval County School Board, from September, 1962, through June, 1983. During his employment he held tenured status or continuing contract status through the close of the 1981-1982 school year. The balance of the time in which he served as a teacher in the system was in the capacity of an employee on an annual contract basis. This latter arrangement pertains to the school year 1982-1983. Petitioner celebrated his seventieth birthday on September 26, 1981, which was shortly after the beginning of the 1981-1982 school year. In early 1982 Petitioner received a memorandum from Dalton D. Epting, Director of Certificated Personnel of the Duval County Schools, indicating that in view of the fact that the Petitioner would reach 70 years of age within the school year, and in keeping with Section 231.031, Florida Statutes, Petitioner should request an appointment with his principal, one Ronel J. Poppell. Epting had prepared the memorandum based upon information he had been given indicating that the Petitioner would reach 70 years of age within the 1981-1982 school year. In keeping with the suggestion of the memorandum from Epting, Petitioner spoke with Principal Poppell and in that conversation indicated a desire to teach for another year or two beyond the 1981-1982 school year. Poppell spoke to Epting and was reminded of the existence of Section 231.031, Florida Statutes, pertaining to teachers who have obtained 70 years of age. Epting did not advise Poppell on the question of whether to retain the Petitioner as a teacher in the Duval County high school where Poppell served as principal and Petitioner acted as a teacher. Out of the conversation between the Petitioner and Poppell, Poppell determined to allow the Petitioner to remain as a teacher at the subject school for one more year, i.e., the school year 1982-1983. As alluded to before, this arrangement was consummated and Petitioner served as a teacher at Nathan Bedford Forrest Senior High School in the school year 1982-1983 based upon an annual contract arrangement, as opposed to continuing contract. While Section 231.031, Florida Statutes, refers to the superintendent making the decision for retention, in fact Poppel caused the retention of Petitioner in the school year 1982-1983. The effects of such retention were to cause another teacher to be "surplused" who had been involved in the overall program at the school. This arrangement lasted for the 1982-1983 school year. Generally speaking Herb A. Sang, Superintendent of Schools in Duval County, Florida, makes the decision on the question of retention of 70year-old teachers based upon the recommendation of the principal and other school board staff members. Normally, according to Sang, a teacher who has reached 70 years of age would be retired as provided by Section 231.031, Florida Statute. If retained, per Sang, that retention is based upon the needs of the school system and not the record of achievement of the individual teacher in question. In application, teachers who are 70 years old will not be retained unless there is a specific need within the school system for services which they can provide, i.e., a specialty which cannot be filled by teachers under 70 years of age or for reasons of continuity of student projects in which the teacher is involved over more than one school year. On March 3, 1983, Principal Poppell completed an annual evaluation of the Petitioner's performance and on that occasion, as had been the case in all evaluations made of the Petitioner as an employee of the Duval County School System, Petitioner was found to be a satisfactory teacher, the highest possible rating that could have been given. Nonetheless, Poppell noted in the evaluation form that the Petitioner would not be recommended for an extension of his annual contract based upon Section 231.031, Florida Statutes. This opinion was expressed in a March 4, 1983, letter from Poppell to the Petitioner in which it was indicated that Poppell would not recommend that Superintendent Sang renew the annual contract of the Petitioner. In that correspondence Poppell indicated that he felt no further obligation to the Petitioner reference extension of his contract beyond 1982-1983, which extension was based upon Poppell's understanding of the discussion with the Petitioner in 1981-1982 in which the Petitioner had indicated that he would wish to teach for another year or two. In furtherance of Poppell's suggestion, Petitioner was not renewed as a teacher in Duval County and that decision was reached based upon the fact that the Petitioner was over 70 years old. No attempt was made to compare the relative merits of the Petitioner's performance with that of persons younger than 70 years of age, in deciding who to employ on annual employment as teachers for the school year 1983-1984.
Findings Of Fact This case was presented for consideration based upon the Administrative Complaint and subsequent amendment presented by Ralph D. Turlington, as Commissioner of Education, State of Florida, against Michael H. Deis, holder of teaching certificate No. 356436, Rank II, post graduate valid through June 30, 1987. The accusations set forth in the Administrative Complaint and its amendment are as indicated in the Issues statement to this Recommended Order. The remaining facts found result from a formal Subsection 120.57(1), Florida Statutes, administrative hearing held upon request of the Respondent. The Respondent was born March 7, 1945, and is married and has three children, ages one and one-half, four, and eight. The Respondent has been married since June 17, 1972. Respondent has a Bachelor of Science degree, a Masters Degree in Business Administration and fifty-five hours' credit toward a Doctorate of Philosophy in Education. The Respondent has been employed with the Collier County School System in the State of Florida since February, 1974. Prior to that time, the Respondent had been employed in management for General Motors Corporation and with General Development Corporation for a period of three years in Miami, Florida. After becoming an employee of the Collier County School System, the Respondent taught math in the sixth through eighth grades at East Naples, Florida, Middle School. The range of ages for those students was twelve to fourteen years old. Beginning in the January term of 1975, the Respondent taught adult education in the Collier County School System. In 1976, Respondent moved to Everglades High School where he coached boys' basketball, varsity basketball and girls' basketball. His academic responsibility at that school included the teaching of basic math and other subjects to boys and girls whose ages ranged from fourteen to twenty. The Respondent then moved to Barron Collier High School in September, 1978, as a daytime adult education instructor. The age range for those students was from sixteen to eighty-three. In the school years 1978-79 and 1979-80, the Respondent coached girls' softball, girls' junior varsity basketball and assisted with the track program for girls. The ages of the girls Respondent coached or assisted were fourteen through eighteen. During the school year 1978-79, the Respondent met one Lori Tomaselli, a member of the girls' basketball team. This initial introduction was followed by correspondence of August 1979, addressed to the Respondent from Lori Tomaselli in which she made comment about her summer vacation and related that she had "missed" the basketball program. At that time Tomaselli was fifteen years old. The letter of August, 1979, was followed by an act on the part of Tomaselli on December 20, 1979, in which she walked up to the Respondent, turned him around and gave him a kiss. Deis' reaction was one of sunrise, followed by a comment to the effect that she was his favorite basketball player. She replied that she had cared for him since the first basketball meeting in October, 1978, when she was fourteen years of age. On December 30, 1979, Tomaselli wrote Deis while she was vacationing in the State of New York. The Respondent did not write in return or contact her. Respondent next saw Tomaselli on January 5, 1980, after she had returned from her vacation and was a participant in a basketball game which the Respondent coached. From the time of this basketball game forward through the basketball season, the Respondent would sit next to Tomaselli on the bus used to transport the basketball team. Approximately two weeks beyond January 5, 1980, the Respondent selected Tomaselli as his classroom assistant or aide. Tomaselli served in this capacity for a period of approximately two months, one hour each day. In the initial part of 1980, the Respondent would also assist Tomaselli with her math and science lessons. Beginning in February 1980, Tomaselli kept the statistics for the girls' softball team which was coached by the Respondent. At the time, Tomaselli was also participating on the girls' track team. The relationship between the Respondent and Tomaselli escalated and on March 7, 1980, Tomaselli kissed the Respondent and gave him a hug. The occasion for this display was that of the Respondent's birthday. Also in the month of March, the Respondent indicated that he began to feel an "interest" in Tomaselli. Prior to the spring school break for 1980, the Respondent paid Tomaselli $50.00 to assist in painting his home. During that same vacation, the Respondent met Tomaselli at a local beach, he coincidence. At one of the track events at which the Respondent was assisting and the young woman Tomaselli was participating, Tomaselli hugged Deis in the presence of her parents. During the time period of the track season, the Respondent drove Tomaselli to her home after school on three occasions and explained his reason for doing so as being one, that a girl friend of Tomaselli's car had broken down; two, that her parents would not pick her up and three, that Tomaselli had asked him for a ride. These rides took place before April 14, 1980. On Sunday, April 13, 1980, the parents of Lori Tomaselli had a discussion with Deis and through this conversation expressed the desire that Deis cease his relationship with their daughter to the extent of not associating with her. Among his responses, the Respondent indicated to the parents that if their daughter were eighteen years old and single, he would ask her out. On that same date, the Principal at Barron Collier High School called the Respondent to inform Deis that the Tomasellis had complained to the Principal. Deis then indicated that he would resign his coaching position effective the next morning. On Monday, April 14, 1980, the Respondent met with the Principal and a Mr. Munz, Assistant Superintendent of the Collier County School System, and as a result of that conference, was given a memorandum which instructed him to have no further contact with Lori Tomaselli. At that meeting, Respondent explained to the school officials that he had a strong emotional attachment for Lori Tomaselli. On the next morning, April 15, 1980, Tomaselli went to Deis' classroom and was shown a copy of the aforementioned memorandum and Deis told her "they would have to cool it." After Tomaselli left his classroom, the Respondent immediately went to see the Principal and told the Principal that he had shown the memorandum prohibiting contact to Tomaselli. As a result of this conversation with the Principal, the Respondent received a second memorandum from Assistant Superintendent Munz which reminded Deis that he was under direct order not to talk to Tomaselli and telling him that the conversation which Deis had had with Tomaselli about the meeting of April 14, 1980, was, by its terms, a violation of the Assistant Superintendent's instructions. The Respondent became angry about the second memorandum in that he thought it was unnecessary. He felt that he was being harassed. As a result of this attitude Respondent began to write to Tomaselli, and she in turn would reply. This letter writing activity continued on a daily basis. In some of these letters, the Respondent instructed Lori Tomaselli, when questioned by the Principal, "to keep cool" and further instructed Tomaselli that when she met with her mental health counselor that she should not indicate that she had been with the Respondent. The letters also indicated to Lori Tomaselli that the Respondent intended to divorce his wife and marry Tomaselli. In addition to the letter writing, Tomaselli began to call the Respondent as much as twice a day, using the cafeteria phone in the school to speak to the Respondent. In May, 1980, the Respondent accidentally saw Tomaselli at a local skating rink while there with his daughter. On May 14, 1980, Deis met with the School Superintendent, Dr. Thomas Richie, and through that conversation agreed to take personal leave. This leave was taken and the Respondent sought psychiatric counseling from Dr. Frank Dennis at the behest of school officials. The leave of absence was from the period May 15, 1980, through May 29, 1980. Dr. Dennis' fees were paid by the Collier County School Board. (During the month of April, 1980, the Respondent had had another meeting with Dr. Richie in which he expressed the opinion to Dr. Richie that he realized his relationship with Tomaselli had become too personal and that he had failed to take steps to correct the situation, and further that he was personally responsible for continuing the development of this relationship.) On May 16, 1980, Tomaselli mailed a letter to the Respondent expressing her affection for him. Around May 18, 1980, Tomaselli ran away from her home and a friend of hers took her to a location where the Respondent, acting as a real estate salesman, was showing a model home. At that time, the Respondent did not want Tomaselli to come into that location and resisted this encounter. The follow-up to the May 18, 1980, meeting was a series of calls from Tomaselli to the Respondent at a residence of a friend of the Respondent's, in view of the fact that Deis had moved from his home. On May 30, 1980, Respondent was called by Tomaselli to ask him to pick her up. The Respondent agreed and after picking up Tomaselli and being afraid of being detected with Tomaselli in his automobile, a circumstance developed in which Tomaselli exited his van and was slightly injured. The Respondent left the area where Tomaselli had jumped from the van and he then removed her property from his automobile. Sometime during the 1979-80 school year, the Respondent had returned Tomaselli's affection by kissing her and expressing his affection for her to the extent of telling Lori Tomaselli that someday she would be Lori Deis, meaning that she would be the Respondent's wife. On July 29, 1980, the Respondent resigned his teaching position in the Collier County School System. After his resignation, there have continued to be letters and telephone communications between tie Respondent and Lori Tomaselli. Those communications were as recent as March 24, 1981, at which time a letter was received by the Respondent from Lori Tomaselli. The relationship between the Respondent and Lori Tomaselli took place at a time when the Respondent was having marital problems and Lori Tomaselli was having difficulty with her parents. Those circumstances continued to exist at the time of the hearing. Nonetheless, the relationship was contrary to the expressed prohibition by the School Administration. The existence of such a relationship was such that it reduced the effectiveness of Deis as a teacher in the Collier County School System and did not provide a proper example for the students, nor allow the Respondent to practice his profession at the highest ethical standards.
Findings Of Fact The Respondent was a noninstructional employee of the School Board of Date County, Florida at all times material hereto, and was assigned to Thomas Jefferson Junior High School as a teacher's aide. The Respondent has six years' experience as a teacher's aide with the Dade County School System. He has a high school education and thirteen months of college, as well as twelve months of technical training, including studies in psychology. The Respondent has never, in all the time he has been employed in the Dade County School System, had any complaints lodged against him for aggressive or violent conduct and has never been previously involved in an incident in which he struck a student, although on one occasion he had to defend himself when a student attacked him. On September 22, 1980, the Respondent escorted some students to a physical education class on the school athletic field. While he was attempting to get the complaining student, Jose Velez, to return to the classroom, that student threatened him with violence and ultimately physically attacked the Respondent. Mr. Turnquist had to restrain the student and escort him to the school office for imposition of disciplinary measures regarding his behavior. The Petitioner's first witness, Gloria Randolph, is the Assistant Principal for Curriculum and Teacher Morale. She supervises the Exceptional Student Department, as well as the teachers' aides, and is acquainted with the protagonists in the subject incident. She observed the Respondent enter the school office with the student, Jose Velez, conversing in loud voices, both the Respondent and Velez appearing quite agitated. The Respondent told her that he "brought this boy up here and want something done about it." The Respondent and the subject student, at that time, were standing about five feet apart. She stepped between them, but the student kept advancing and she had to shove him back repeatedly. The student, Velez, acting in an aggressive, mocking manner, urged the Respondent to hit him, and threatened him with bodily harm. The tension between the two kept increasing, with the ultimate result that the Respondent struck the student with a light blow to the cheek. According to both Petitioner's witnesses, the student seemed relieved at that point and immediately calmed down. Witness Randolph acknowledged that the Respondent exercised good judgment, up until the point of striking the student, because he followed appropriate procedures in bringing the student to the office for disciplinary measures to be taken, and did not indulge in an argument with the student, although she did feel it was poor judgment for him to strike the student. The student, Jose Velez, is at least six feet in height and is considerably taller than the Respondent. Petitioner's witness, Marilyn Mattran, a teacher at Jefferson Junior High School, who was in the office and observed the subject altercation, established that Velez repeatedly threatened the Respondent with physical harm and that the student engaged in most of the yelling and in the aggressive behavior she observed. She corroborated the fact that when the Respondent actually struck Velez, that he immediately calmed down. She also corroborated the testimony of witness Randolph, as well as the Respondent's witness, Leah Alopari, that Jose Velez is an emotionally disturbed student who has an extensive history of aggressive, violent behavior and has made a practice of threatening students and teachers with physical violence and harm, even to the extent of threatening the use of a deadly weapon. He has, on occasion, done physical violence to other children. These three witnesses all acknowledged that the Respondent has never in the past, in their experience, demonstrated poor judgment in his conduct toward and transactions with students or teachers. Leah Aloari is the Respondent's supervising teacher. Jose Velez was one of her students, and she corroborated the fact, demonstrated by the other witnesses, that this particular student was aggressive, difficult to control and prone to engage in violent behavior. The Respondent assisted her in helping discipline her students, with the academic program and in escorting children to and from lunch, classes and the athletic field. She has never observed the Respondent engage in violent behavior in his relations with teachers or students, nor commit an act which exhibited poor judgment or misconduct in the course of his duties. As indicated above, the Respondent has had an exemplary record in his six years with the Dade County School System. Jose Velez, on the other hand, has been a constant disciplinary problem as acknowledged by the Petitioner's and Respondent's witnesses. The Respondent has a chronic neck injury involving a pinched nerve in the neck, and genuinely believed himself to be in danger of physical assault and harm by Velez when the incident occurred in the office. He believed it unwise to retreat in the fact of Velez's threats and aggressive advance upon him because he felt Velez was about to physically attack him. The Respondent did not feel that the other teacher and the Assistant Principal, who were the only other persons in the office at the time, could have restrained or adequately controlled Velez alone if he had retreated. There is no question, especially in view of the fact that the Respondent had already been assaulted by the student on the athletic field, that he genuinely believed that the situation called for him taking steps to defend himself. His act of self-defense in striking the student was itself marked by some restraint in the sense that he withheld striking the student with as much force as he was capable of. There is no evidence that he caused any permanent harm to the student. Indeed, even the Petitioner's witnesses established that it had the beneficial effect of calming the student down and preventing any further violent conduct on his part or possible injury to the students, the Respondent, others present, or possible damage to the Petitioner's property in the immediate vicinity. The undersigned considers it significant also that the student, although initially complaining of the Respondent's action, did not appear and testify at the hearing in furtherance of his complaint against the Respondent and that there was no significant physical injury inflicted upon Velez.
Findings Of Fact The Respondent Bain holds Florida teaching certificate number 480711, issued by the Department of Education, covering the area of music education. During the 1981-1982 school year, the Respondent was employed as a permanent substitute teacher by the Dade County School District to teach music education at Miami Jackson Senior High School. On May 21, 1982, the Respondent's students at Miami Jackson held a surprise birthday party for the Respondent. The party began during the first period and concluded during the lunch hour. Punch, cake and cookies were officially served at the party which took place in the chorus room. During the course of the party, at least one student brought an alcoholic beverage into the Respondent's classroom. The Respondent became aware of the alcohol when he smelled it. Since he didn't know who had the alcohol, the Respondent told his class that "whoever has it, get it out of here because its serious consequences for you." (Tr.90) The Respondent believed that the problem had been solved by his warning since the alcohol smell subsided. While the birthday party was in progress, a female student, Ophelia Garcia, entered Respondent's classroom and joined the party. Although Ophelia was not a student in any of the Respondent's classes, he wrote her a pass so that she could attend the party. Approximately ten minutes following her arrival at the party, Ophelia became ill and had to be physically assisted from the classroom. The Respondent ordered two or three students to take Ophelia to the clinic; unknown to him, however, the students instead chose to take Ophelia to a bathroom. Ophelia eventually was taken to the school's administrative offices. She was described as totally intoxicated and the fire rescue squad was called to render assistance. Later that day, Percy Oliver, the principal, received a call from his area office concerning a complaint from parents regarding students becoming intoxicated during a party in the chorus room. Following this call, Oliver called the Respondent into his office and confronted him with the allegations that alcoholic beverages were present during the party. The Respondent repeatedly denied that any alcoholic beverages were present in his class during the party. Several days later, the Respondent admitted to Oliver that alcohol was in the classroom. Based upon the Respondent's failure to take reasonable efforts to eliminate alcoholic beverages from his classroom and his initial false answers to Oliver's questions, it was recommended that the Respondent's employment with the school district be terminated. Dr. Patrick Gray, executive director of the Division of Personnel Control, Dade County School District, held a conference for the record with the Respondent on August 16, 1982. During the conference, the Respondent admitted that Ophelia had become ill due to consumption of alcohol at the party; that he had used poor judgment in failing to personally assist Ophelia when she became ill; and that he had lied to his principal in order to protect students who were at his party. As a result of the conference, the Respondent was restricted from employment with the school district until November 1, 1982, and restricted from that date forward to teaching in a substitute capacity, with the proviso that his conduct would be closely monitored. As a permanent substitute teacher, the Respondent's employment automatically terminated at the conclusion of the 1981- 1982 school year. In Dr. Gray's professional opinion, the Respondent's actions were such that ". . .his integrity as a professional educator and. . .the integrity of the profession. . .had been impugned and, further, that his. . .failure to exercise proper responsibility. . .is such that the continued licensure of this individual. . .should have been. . .and was investigated." In his judgment, ". . .those actions did constitute sufficient cause to question his retention of a teaching license." (Tr.44) Norma Gandes and Reverend Michael Loomis testified as character witnesses for the Respondent. Both consider him truthful and trustworthy. Since June, 1982, the Respondent has worked for Reverend Loomis directing a church music program and serving as a church organist. Other than the incident in question, the Respondent has not been involved in any other disciplinary proceedings while employed as a teacher by the school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission issue a Final Order finding the Respondent Alonzo Bain guilty of violating Rules 6B-1.06(3)(a) and (5)(a), Florida Administrative Code, placing a written reprimand in the Respondent's certification file as authorized by Section 231.262(7)(f), Florida Statutes. DONE and ENTERED this 6th day of January, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1984.
