Findings Of Fact Respondent was issued Florida Teacher's Certificate No. 482561 on April 23, 1981, which certified her as authorized to teach elementary education and act as an elementary and secondary school counsellor until June 30, 1985. This certificate is valid now and was valid at all times pertinent to this hearing. On December 16, 1981, at the time of the incidents alleged, Respondent was working for a telephone answering service in Fort Lauderdale, Florida. She was in the process of moving to Jacksonville and had hired an individual named James Dallas to move her possessions for her. Since the day prior to the day in question, she had seen Dallas and his friend going through her luggage, she became convinced he was planning to rob her. As a result, she removed certain items from her luggage to her purse, which items included the handgun and the "knife" in question. Respondent admits to having the gun in her possession concealed in her purse. She contends, however, she had purchased it legally and was of the opinion it was properly registered. Whether it was or not is immaterial, as the ultimate fact is it was concealed in her purse and she did not have a license to carry a concealed gun. As to the "knife," she contends it was not a knife, but part of a manicuring set. The probable cause affidavit executed by the police officer who arrested her, however, indicated that he found a 4 1/2 inch black- handled steak knife in her purse along with the handgun. At no time did Respondent draw or threaten with either weapon, although at the time of her arrest she was involved in a disturbance with Dallas. I find, therefore, that the "knife" in question was in fact a knife. On March 5, 1982, Respondent pleaded guilty in the Circuit Court for Broward County, Florida, to carrying a concealed firearm and carrying a concealed weapon (misdemeanor) She was placed on probation for three years for carrying the gun and for one year, to run concurrently with the three, for carrying the knife, and adjudication of guilt was withheld with a provision for expungement of the record upon successful completion of probation. She immediately moved to Jacksonville. She initially intended to apply for employment in the Duval County school system, but found that she needed to attach a copy of her teaching certificate, which had, in fact, been stolen from her luggage. Therefore, on April 2, 1982, she submitted an application for a duplicate certificate on which she listed her arrest for and the disposition of her offense. It was on the basis of her application for a duplicate license that this action to discipline her was initiated. In January, 1983, almost a year later, there was no showing of any report by the courts to Petitioner or any complaint or report by any other agency. Respondent is currently working at Edward Waters College in Jacksonville as Recruitment and Admissions Counsellor and has been so employed since December, 1982. Her supervisor, the Dean of Student Affairs, finds her to possess high skills and creative abilities and to have much to offer the field of education, even though he is aware of her plea of guilty and the offenses to which it relates. Her probation officer, who has observed her since she arrived in Jacksonville, relates a glowing picture of her probation and indicates she has been very satisfactory and absolutely no problem. She follows and lives up to all standards of her probation. In fact, she has been so good, he intends to recommend early termination of her probation as soon as she has completed half the term, which is the earliest he can do so. The Director of Personnel Systems and Records for the Duval County school system does not know Respondent, knows nothing of her professional record or competence, and has not reviewed any application from her to teach in the Duval County schools. However, he is of the opinion that by virtue of her involvement with the law alone, and regardless that upon completion of her probation her record would be expunged, her effectiveness in an educational situation would be lessened because of the knowledge by others within the system of her offenses. Under the teachers' Code of Ethics, a teacher should set an example for the students. A teacher is responsible to not only the students, but also to the faculty and parents, and a teacher's off-campus conduct can and does have an effect on the teacher's performance. Respondent does not feel her effectiveness as a teacher has been reduced. In fact, she feels that because of what she has learned from this situation she has become more aware of her responsibilities to society and to the educational system. This, she feels, enhances her effectiveness.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. RECOMMENDED this 8th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1983. COPIES FURNISHED: J. David Holder, Esquire Berg & Holder Post Office Box 1694 Tallahassee, Florida 32302 Marvin I. Edwards, Esquire Edwards, Willis & Marinucci 3300 Independent Square Jacksonville, Florida 32202 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D. TURLINGTON, as Commissioner of Education, Petitioner, vs. CASE NO. 83-501 BEVERLY J. MCNAIR, Respondent. /
The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 2nd day of May, 2016.
Findings Of Fact Respondent, Charles L. Smith, holds a temporary state teaching certificate number 514251 issued by the State Department of Education covering the area of physical education. He has been a teacher for fourteen years and holds a master's degree in special education. He is presently the head football coach and a physical education instructor at Stewart High School in Lumpkin, Georgia. This is not respondent's first involvement with a disciplinary proceeding. On June 8, 1983, petitioner, Ralph D. Turlington, as Commissioner of Education, filed an administrative complaint against Smith alleging that while he was employed as a teacher at Dunnellon High School (Marion County) in school year 1982-83, he made derogatory statements to students and engaged in improper conduct of a sexual nature with a minor female student. The matter eventually culminated in an administrative hearing held on August 11, 1983, where one of petitioner's witnesses was Ruth Annette Edwards, a teacher's aide in Smith's class. Her testimony in that proceeding has been received in evidence as petitioner's Exhibit 3. The testimony can be characterized as damaging, for Edwards gave testimony which tended to corroborate the allegations against Smith. Although the Hearing officer recommended that Smith be found guilty of all charges and that his certificate be revoked for two years, in its Final Order rendered on November 9, 1983, the Education Practices Commission (EPC) expressed "strong doubts that the incident (with the female student) actually occurred" and instead placed respondent on probation for one year and imposed the following conditions: The Respondent will break no laws, nor any rules of the State Board of Education. The Respondent will perform in a satisfactory manner as a teacher, and will cause reports of his performance to be forwarded to the Education Practices Commission. Therefore, under the terms of pro- bation, if respondent violates any state law or EPC rule during the ensuing year, he risks the loss of his teaching certificate. The probation period expires on November 9, 1984. Respondent's contract to teach at Dunnellon High School was not renewed in school year 1983-84. However, Smith's failure to teach there was not due to the EPC disciplinary action, but rather was attributable to his failure to pass the mathematics part of the teacher certification examination. Because of this, he weighed alternative offers from Alachua County School Board and the State of Georgia, and accepted the latter offer because of its higher pay. Sometime prior to 10:30 a.m. on Sunday morning, January 29, 1984, the Clara Davis household in Dunnellon, Florida, received a telephone call. Mrs. Davis answered the telephone and was asked by the caller to speak to her grandson, Pretis Griffin, then nineteen years old and a senior at Dunnellon High School who resided with her. Pretis was a former student in Smith's English class in 1982-83, and also knew him from varsity athletics. Mrs. Davis responded that Pretis was still asleep and hung up. The same caller telephoned back a few minutes later and said he was calling long distance from Gainesville and needed to talk to Pretis. She roused Pretis, who answered the call. Pretis testified the caller identified himself as respondent and sounded like Smith. Although Smith denied he made the call, it is found that Smith did indeed telephone Pretis on January 29. After the two made small-talk initially, Smith then asked Pretis if he would do him a favor. Pretis said "yes," and Smith said "I want you to tell Mrs. Edwards something." Pretis asked "What," and Smith replied, "Tell Mrs. Edwards thanks for what she's done, and I will get back at her through her husband." After some more small-talk, the two ended the conversation by Smith saying, "Don't forget to tell her," followed by a "little laugh." After the call ended, Pretis told his grandmother the caller was Coach Charles Smith. The next day, Monday, January 30, Pretis approached Ruth Edwards at school and told her respondent had telephoned him and wanted to convey a message. Pretis then told her "Coach Smith said thanks for what you done and he'll get you back through your husband." Upon hearing this, Edwards simply shrugged and walked away. The following Sunday, February 5, 1984, the Davis household received another telephone call for Pretis prior to 10:30 a.m. According to Pretis, it was the same caller as the previous Sunday, and despite Smith's denial, it is found that respondent made a second call to Pretis on February 5, 1984. After making small-talk, Smith eventually asked if his message had been delivered and what Edwards' response had been. When Pretis responded that he had, and that Edwards had merely shrugged and walked away, Smith commented "Oh, she thought it was a joke," and Pretis said "I guess." The two then discussed an upcoming basketball game at Dunnellon the following Saturday night and the fact that Smith might attend the game. In the next day or so, Pretis told Edwards at school that Coach Smith had telephoned again and that he might attend the high school basketball game that weekend. Edwards gave no visible response to Pretis' comment. Edwards, who readily acknowledged she dislikes Smith, initially claimed that Pretis relayed three separate messages to her from Smith, and also gave a more threatening account of the conversations between Pretis and Smith. However, it is found that only two calls took place, and the substance of the calls was accurately portrayed by Pretis. After Pretis told Edwards that Smith had telephoned a second time, she went to the assistant principal and advised him that Smith had threatened her. Later, Edwards and Pretis were interviewed, and the matter was then turned over to the Marion County School Board, and eventually referred to petitioner. That prompted the issuance of the administrative complaint herein. Smith, who has never met Edwards' husband, denied making the calls. He seemed fully aware of the terms of his probation, and recognized that any violation might jeopardize his teaching certificate. He contended it would be "stupid" to threaten Edwards because it would lead to the exact predicament he finds himself in. On the two mornings in question, he claimed he was either at work (as a clerk at a 7-11 store in Gainesville) or in church. However, his wife was unable to confirm this because of the passage of time since January and February, 1984. Until the hearing, Smith has not seen nor spoken to Edwards (or her husband) since the administrative hearing conducted in August, 1983 and has never carried out any threats against her.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 6B-1.06(3)(m) and that he be placed on probation for a period of one (1) year. DONE AND ENTERED this 8th day of November, 1984, at Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of November, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Arthur G. Haller, Esquire 771 N.W. 23rd Avenue, Suite 1 Gainesville, Florida 32301 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The central issue in this case is whether or not Respondent should be suspended retroactively without pay from his non-instructional position and terminated from his employment as a custodian.
Findings Of Fact At all times material to the allegations of this case, Respondent was employed as a custodian at VBHS. At the beginning of the 1992-93 school year, Anthony Dissis, a deputy employed by the Indian River County Sheriff's Department, was assigned to be an undercover officer at VBHS. Deputy Dissis enrolled at the school, attended classes with other students, and in all respects attempted to give the appearance of being a student at the school. To that end, he met and talked with other students. During the course of his school experience, Deputy Dissis met Respondent who was known on the campus and who was frequently in student areas. In late October, 1992, Deputy Dissis approached Respondent and sought to purchase marijuana. Despite some initial delays, Deputy Dissis and Respondent came to an understanding whereby the officer gave $50.00 to the Respondent for marijuana. Later, Respondent told Deputy Dissis to meet him at a parking lot on campus and the delivery would take place. At the appointed time, Deputy Dissis went to the parking lot and Respondent handed him an envelope in which the contents were later tested and confirmed to be marijuana. Such testing was performed by Bob Parsons, an analyst with the regional crime laboratory. Marijuana is a controlled substance as defined by Florida law. Subsequently, the Respondent was suspended from his employment. When tried on the criminal charges which arose from the same incident complained of herein, Respondent was found not guilty by a jury.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Indian River County School Board enter a final order confirming the suspension without pay of the Respondent, and terminating his employment as a school custodian. DONE AND RECOMMENDED this 30th day of July, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0327 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraph 1 is accepted; however Respondent's age and place of birth are irrelevant to these proceedings. Paragraph 2 is rejected as irrelevant to the allegations of this case. With the deletion of the third sentence which is rejected as irrelevant, paragraph 3 is accepted. With regard to paragraph 4, it is accepted that Dissis paid Respondent $50.00 for marijuana on school grounds and near the gym class; it is not established that other students viewed the transaction as suggested by the paragraph and such finding is rejected as not supported by the evidence presented. With regard to paragraph 5, it is accepted that Dissis and Respondent worked out the details of the marijuana delivery while Respondent was working, on school property, and near the gym. It is further accepted that the delivery was to take place later in the day at a location on campus; otherwise, the paragraph is rejected as not supported by the evidence presented or irrelevant. See comment to paragraph 4 above. Paragraphs 6 through 11 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: Paragraph 6 (Respondent's paragraphs 1 through 5 were preliminary, not proposed findings of fact) is accepted. Paragraphs 7 and 8 are accepted. Paragraph 9 is rejected as argument, or not supported by the weight of credible evidence. COPIES FURNISHED: G. Russell Petersen G. RUSSELL PETERSEN, P.A. 3426 Ocean Drive Vero Beach, Florida 32963 Thomas E. Shafovaloff 411 North Park Avenue Suites 12-14 Winter Park, Florida 32789
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.
The Issue Whether just cause exists to terminate Respondent's employment for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact The Broward County School Board, Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times pertinent hereto, Respondent was employed as a teacher at Lauderhill Middle School ("Lauderhill"), which is a public school in Broward County. The Events of March 11, 2010 On March 11, 2010, Respondent was scheduled to administer the science portion of the Florida Comprehensive Assessment Test ("FCAT") to a first-period class at Lauderhill. The FCAT is a significant test in that students' performance on the examination influences the letter grades (A through F) awarded annually to Florida's public schools, which in turn impacts the level of funding school districts receive from the state. Prior to March 11, 2010, and during the same school year, Respondent——as well as all other personnel who planned to administer the FCAT——were required to read the FCAT Test Administration Manual ("FCAT manual") and attend in-service training. Pertinent to the instant case and consistent with the FCAT manual, Respondent and her colleagues were specifically instructed during training that electronic devices, including cell phones, could not be used during testing. The testing schedule for March 11, 2010, contemplated that Respondent and the other teachers administering the FCAT would report to the office of Shalonda Griggs (one of Lauderhill's guidance counselors) at approximately 8:25 a.m. to pick up the testing materials for their respective first period students. Prior to leaving Ms. Griggs' office, each teacher was expected to examine the test booklets and ensure that the materials were intact——i.e., confirm that none of the seals on the test books were broken. It was further anticipated that each teacher would begin the FCAT at 8:30 a.m. On the morning of the examination, Respondent timely reported to Ms. Griggs' office and signed for the testing materials. Respondent reported no issues with the test booklets and proceeded to her classroom. At approximately 8:30 a.m., guidance counselor Janet Jackson——who was monitoring teachers in the area of the school where Respondent's classroom was located——observed Respondent, who had not started the FCAT, engaged in a verbal altercation with a student (C.H.). Ms. Jackson promptly advised Lauderhill's principal, Jeannie Floyd, of the situation, at which point Ms. Floyd and Ms. Griggs responded to the classroom and instructed Respondent to cease her inappropriate dialogue with C.H. and to begin the FCAT immediately. Before she returned to the front office, Ms. Floyd spoke briefly with C.H.——who was visibly upset——and advised her that she could take the FCAT on the following day. Approximately 35 minutes later, Assistant Principal Cindy Pluim proceeded to Respondent's classroom to monitor the testing procedures. Upon her arrival, Ms. Pluim observed Respondent, who had yet to begin administering the test, conversing on a cell phone in front of the class. Although Ms. Pluim ordered Respondent to end the telephone call and exit the classroom so that another member of the faculty could administer the test, Respondent refused and advised that she was speaking with her lawyer. Respondent further remarked that the seals of the test booklets had been prematurely broken——i.e., that the booklets had been unsealed prior to Respondent taking possession of them in Ms. Griggs' office. During the final hearing, Ms. Pluim credibly testified that contrary to Respondent's statement, the test booklets in question had not been unsealed. Between 9:15 and 9:20 a.m., Ms. Pluim returned to the front office and informed Ms. Floyd that Respondent had refused to comply with her directives. At that point, Ms. Floyd and Ms. Pluim proceeded to Respondent's classroom and observed that she had yet to end the telephone call. According to Ms. Pluim, whose testimony the undersigned credits fully, the students appeared nervous and upset by Respondent's conduct. In an effort to avoid any unpleasantness in the students' presence, Ms. Floyd stood in the doorway and repeatedly gestured for Respondent to exit the classroom. Undeterred, Respondent ignored Ms. Floyd and continued with her telephone conversation. After she waited fruitlessly for nearly five minutes in the hope that Respondent would comply, Ms. Floyd returned to the front office and requested assistance from the School Board's special investigative unit (SIU). At 9:44 a.m., Respondent——who was still in her classroom——sent an e-mail to: James Notter, the Superintendent of Schools for Broward County; the Commissioner of Education for the State of Florida; Paul Houchens, the Director of Assessment for the Broward County School District; and Ms. Floyd. The e- mail reads, in pertinent part: Mrs. Floyd you forgot to sign the security checklist the three times you entered my classroom even though I did ask you to. * * * Now I have students complaining that their tests have been tampered with and had to listen to complaints. I don't know what is going on, but testing is a serious matter and not to be taken lightly. I have already reported this information to others. Ms. Floyd, as you are aware my daughter attends this school and testing effects [sic] her. What is going on is a travesty and what is going on now isn't right. At approximately 10:15 a.m., several SIU officers (and an officer with the Lauderhill Police Department) arrived at Lauderhill, removed Respondent (who still had not started the FCAT) from her classroom, and later escorted her from the campus. Subsequent Events On a Saturday morning during late March or early April 2010, Respondent appeared unannounced at the residence of Ronald Bryant, whose daughter attended Lauderhill. During the visit—— which irritated Mr. Bryant due to the early hour and lack of advance notice——Respondent stated that Ms. Floyd was attempting to "cover-up" cheating on the FCAT. Respondent further indicated that she wished for Mr. Bryant to contact the Broward County School Board and lodge a complaint. Although Mr. Bryant did not believe that the allegations were any of his business, he later went to Lauderhill——in an effort to determine why Respondent had come to his home——and spoke with Ms. Floyd. On another occasion following the events of March 11, 2010, Respondent contacted (by telephone) a second parent, Leslie Pullum. During the phone conversation, Respondent attempted to convince Ms. Pullum that Ms. Floyd was using her (Ms. Pullum's) daughter as part of a conspiracy to get Respondent fired. Ms. Pullum, unconvinced and upset by Respondent's remarks, subsequently complained to Ms. Floyd about Respondent's behavior. During the final hearing, Petitioner elicited no evidence concerning the veracity of Respondent's allegations regarding Ms. Floyd.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (1) finding Respondent guilty of misconduct in office; finding Respondent not guilty of immorality; and (3) terminating Respondent's employment as a teacher with the School Board. DONE AND ENTERED this 23rd day of November, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 23rd day of November, 2011.
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact Background The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. 1 At the conclusion of the hearing, the parties stipulated that students N.E., C.Z., T.C., and S.M., were unavailable, and that their deposition testimony, included within the School Board’s Exhibit No. 12 and Respondent’s Exhibit Nos. 16 through 18, could be received in evidence in lieu of their live testimony. The School Board hired Respondent in 2010 as a teacher at Campbell Drive K-8 Center ("Campbell Drive"), a public school in Miami-Dade County. During the 2016-2017 and 2017-2018 school years and at all times relevant to this case, Respondent was employed at Campbell Drive as an intensive reading teacher pursuant to a professional services contract. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade ("UTD"). The alleged conduct giving rise to the School Board’s proposed suspension and termination of Respondent occurred during the 2016-2017 and 2017-2018 school years. Allegations Involving K.S. The School Board alleges in paragraph 10 of the Notice of Specific Charges that during the 2016-2017 school year Respondent made grossly inappropriate physical and verbal sexual contact with K.S. At the time of the alleged conduct, K.S. was a female 12-year-old student in Respondent’s seventh-grade intensive reading class. Specifically, paragraph 10 of the notice alleges: During the course of the school year, beginning sometime after the Winter Recess, he would touch her private area over her clothing. On one day during lunch, the Respondent requested that this student come to his room during lunch to make up a test. When she arrived in the room, the Respondent initiated physical sexual contact with the student. In addition to touching the girl beneath her clothes, the Respondent exposed himself to her and had her touch his private area. After the brief encounter, the girl exited the room. During the course of the school year the Respondent also asked her to engage in sexual acts and made sexual comments to her. The School Board further alleges in paragraph 10 of the notice that during the 2017-2018 school year, when K.S. was a student in Respondent’s eighth grade intensive reading class, "Respondent requested a sexual favor from [K.S] on a small note that he had handed her." At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with K.S. 2 K.S.’s Written Sworn Statement to Detective Webb On March 2, 2018, K.S. was interviewed by Detective Steven Webb, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. That same day, K.S. gave a written sworn statement to Detective Webb, received into evidence as Respondent’s Exhibit No. 11. In this sworn statement, K.S. stated that during the 2016-2017 school year, Respondent "became sexually active with students, he did multiple things." K.S. went on state that Respondent: started off by touching my private area and then he advanced a couple of days later by pulling his pen[n]is (sic) out and grabbing my hand and, placing it there. One day he sent a student to get me from the cafeteria and on the pass it stated that I had to make up a test, but when I entered his class he rubbed my breast, and started to suck them for about 10 to 15 seconds, and then I pushed him away. He was dropping my grade until I did the things he wanted me to do with him which is to have sex, give him head, thing of that nature. Recently, about 2-3 weeks ago he asked me to do things with him and that’s a reason to why I left early recently. 2 K.S. did not complete her seventh-grade school year at Campbell Drive. Before the school year ended, the principal of Campbell Drive asked K.S. to leave the school because of disciplinary problems involving physical altercations with other students and defiant behavior. K.S. subsequently enrolled in Villa Prep Academy, a private school where she completed her seventh-grade year. K.S. did not attend Villa Prep Academy for very long because she was dismissed from that school during the early part of her eighth-grade year. In December 2017, K.S. re-enrolled in Campbell Drive. Upon her return, K.S.’s mother requested that she be put in Respondent’s classroom and K.S. was a student in Respondent’s eighth-grade intensive reading class for the remainder of the 2017-2018 school year. There was nothing mentioned in K.S.’s written sworn statement about Respondent engaging in any inappropriate conduct toward K.S. while she sat at her desk in Respondent’s classroom. K.S.’s Audio Recorded Interview with Detectives Webb and Ochoa In a subsequent audio recording interview of K.S. on March 2, 2018, by Detective Webb and Detective Gil Ochoa, received into evidence as the School Board’s Exhibit No. 5, K.S. initially described the cafeteria pass incident as follows: K.S. stated she left the cafeteria with her food tray in hand and went to Respondent’s classroom. Upon entering Respondent’s classroom, she began telling him things about her family. K.S. stated Respondent then took away her food tray, set the tray down, and pulled her over to another area of the room, at which time he touched her breasts over her shirt, lifted up her shirt and sports bra, exposed her breasts, and sucked on one of her breasts for about 10 to 15 seconds. K.S. stated she got scared and left the classroom, and that is all he did that day. K.S. failed to mention anything about Respondent pulling out his penis on this occasion until asked specifically about it by Detective Ochoa near the conclusion of the interview. School Board’s Ex. 5 at 13:22. K.S. then stated that she saw his penis, but she was scared and looked away. K.S. made no mention of Respondent placing her hand on his penis. During this interview, K.S. went on to describe another occasion in Respondent’s class that occurred after school was dismissed for the day. According to K.S., on this particular occasion, Respondent asked her "to give him head" and "to have sex with him." However, according to K.S., it never happened. K.S. further stated that recently (two to three weeks ago), Respondent asked that she "give him head." There was no mention in this interview of Respondent touching K.S.’s vaginal area or dropping her grades. The entire audio recorded interview lasted approximately 15 minutes. At the conclusion of the interview, K.S. was asked if there was anything else that she remembered that she wanted to add. K.S. declined and she did not state any other alleged inappropriate physical and verbal sexual contact by Respondent. K.S.’s Testimony at Hearing At the final hearing, K.S. testified that toward the beginning of the 2016-2017 school year, Respondent moved her seat next to his because she was easily distracted by the other students and failed the first test. Subsequently, the following exchange occurred between counsel for the School Board and K.S.: Q: Now, during that school year, did Mr. Rizo ever do anything inappropriate to you during class time? A: Yes. Q: All right. Can you explain to the Judge what he would do to you? A: He would, like, walk by, ‘cause since I was sitting so close to him, he would just touch me, like, my private areas or he’ll just, like go down on my arm, like that. Stuff like that. Q: All right. Now, this would occur during class time? A: Yes. Q: When specifically--was there a specific time that it would occur during class time? A: Mainly when we were testing or doing our work. T. Vol. 1, pp. 28-29. Counsel for the School Board went on to question K.S. about the testing process and Respondent’s efforts to curtail students cheating on tests. K.S. testified that students placed raised stapled manila folders on their desks to prevent students from seeing each other’s tests. Counsel for the School Board then asked K.S., in leading fashion: "So it was this time, during the testing, when he would touch you? K.S. responded: "Yes." Id., Vol. 1, pp. 29-30. However, K.S. could not describe the number of times "this occurred" during the 2016-2017 school year. Moreover, this alleged inappropriate touching supposedly occurred while 20 to 25 other students were in the classroom. At hearing, K.S. testified at one point that Respondent’s touching of her vaginal area occurred every time they had tests, but she acknowledged that the raised stapled manila folders were not always present on the students’ desks during testing. At hearing, K.S. further acknowledged that had the inappropriate touching occurred as she testified to, any student at any point could have looked and seen Respondent caressing her in her vaginal area. Counsel for the School Board then inquired of K.S. if there was "ever anything more serious that [Respondent] did to [her]" that school year (2016- 2017). In response, K.S. described the alleged cafeteria pass incident as follows: A: I was in lunch--because I was in seventh grade at the time, seventh grade goes to lunch before anybody, and he sent one of his eighth grader students with a pass to go to get me. Because in order to leave the lunchroom, you have to have a pass. Security didn’t let you leave the lunchroom. Security called me and told me that my teacher was calling me to make up a test. When I got in the room, I had my tray in my hand, and he took my tray, put it down, he exposed himself. And then there was a corner and he, like, put me in the corner and he sucked on my breast. T. Vol. 1, pp. 32-33. However, moments later, K.S. described the incident differently: First he pushed me to the corner, and then after he sucked my breast, then he exposed himself. And then I was just scared. And he--when he exposed himself, he grabbed my arm and he made me touch his area, and then I grabbed my tray, I threw it away, and then I left. Id. at p. 33. According to K.S., she was in Respondent’s classroom on this particular occasion between five or ten minutes. The corner of Respondent’s classroom is located right next to the door entering the room. K.S. testified that the incident occurred with just Respondent and K.S. in the classroom, but with the other student who had retrieved K.S. from the cafeteria still waiting outside the door when K.S. left Respondent’s classroom. At hearing, counsel for the School Board also asked K.S., in leading fashion, whether she ever told the police officers that Respondent would "suck on your breasts or try to have sex with you multiple times?" In response, K.S. testified: "I told them--I told them the suck on my breast part, when he exposed him. And then when they asked about my eighth-grade- year, I told them how he wrote on a sticky note that I want to give him head, like oral sex …." Inconsistently, K.S. testified in her deposition that Respondent wrote on the sticky note: "Can I eat her?" According to K.S. in her deposition, Respondent picked up the sticky note, showed it to K.S., and she grabbed it from him and threw the note away. School Board’s Ex. 11, p. 11. At hearing, K.S. testified that Respondent handed her the sticky note and that she then threw it away. K.S. and Respondent never communicated by telephone, text, e-mail, or social media. There are no witnesses to any of the alleged incidents. K.S. never reported any alleged inappropriate conduct by Respondent to her parents, a teacher, or school administrators. However, at hearing, K.S. testified she told V.S.C. about Respondent’s conduct toward her during the 2016-2017 school year when V.S.C. came to her house on a single occasion sometime during K.S.’s eighth grade school year. Allegations Involving V.S.C. The School Board alleges in paragraph 11 of the Notice of Specific Charges that during the 2017-2018 school year, Respondent also made inappropriate comments to V.S.C. during his role as an afterschool care supervisor, and that he would "bump up against" V.S.C., "rubbing himself on her buttocks area." V.S.C. was not a student in Respondent’s classroom. The alleged inappropriate conduct occurred while V.S.C., a female 14-year-old eighth grade student at Campbell Drive, attended the school’s Students with a Goal ("SWAG") afterschool program. SWAG is an outdoor program where students can engage in a variety of recreational activities. Respondent was one of six school staff members that participated in the program. At any given time, there were approximately 100 students in attendance. Students could play soccer, basketball, football, dodge ball, board games, or do homework. Students could freely rotate through the different activities by simply notifying the adult conducting the desired activity. Respondent primarily engaged in soccer, but would occasionally participate in other activities. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with V.S.C. V.S.C.’s Audio Recorded Interview with Detective Bernice Charley On March 6, 2018, V.S.C. was interviewed by Detective Bernice Charley, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. An audio recording of the interview was received into evidence as the School Board’s Exhibit 8.3 During the interview, V.S.C. stated that while she and Respondent were at SWAG during the 2017-2018 school year, Respondent told her he wanted to slap her face with his penis; he asked her if she liked it rough (referring to sex); and he told her his penis was his "third leg." According to V.S.C., she and Respondent would engage in a verbal "back and forth," and he would say these comments in front of other students at SWAG. Additionally, V.S.C. stated she and Respondent would "bump" into each other at SWAG. According to V.S.C., Respondent would bump into her side or back from behind. During the interview, V.S.C. stated she had a bad memory. V.S.C. was reluctant to speak and there were many long pauses by her after questioning by Detective Charley. After much prodding and requests by Detective Charley for V.S.C. to "open-up," V.S.C. actually stated: "There’s nothing to talk about because nothing did happen." School Board’s Ex. 8, at 38:48-38:52. After further pauses, prodding, and requests by Detective Charley for V.S.C. to "open up," V.S.C. stated that Respondent also touched her breasts one time while they were at SWAG. According to V.S.C., this incident occurred with her shirt on. The School Board argues in its proposed recommended order that V.S.C. also described another incident while she and Respondent were at his classroom. According to V.S.C., Respondent was standing at his desk and V.S.C. was standing in the doorway, at which time Respondent stated to V.S.C.: "me and you here and now," followed by Respondent tapping on his desk. V.S.C. interpreted this comment as meaning that Respondent wanted 3 The audio recorded interviews of K.S. and V.S.C. (School Board’s Exhibits 6 and 8) are contained on a thumb-drive accompanying the School Board’s written exhibits received into evidence at the hearing. to have sex with her. According to V.S.C., other students were present when Respondent allegedly made the comment. Notably, this alleged incident is not referred to in the Notice of Specific Charges. The notice was, therefore, insufficient to inform Respondent of the School Board’s contention. The entire recorded interview lasted approximately 52 minutes. Much of the interview involved Detective Charley’s repeated efforts to redirect V.S.C. and her attempts to have V.S.C. "open-up." V.S.C.'s Testimony at Hearing At the final hearing, V.S.C. could not even remember whether she was in seventh or eighth grade during the 2017-2018 school year. In any event, V.S.C. testified that during the 2017-2018 school year, she attended Campbell Drive and the afterschool SWAG program. Respondent and V.S.C. did not have much interaction in the SWAG program. V.S.C. testified that she did not really participate in any of the SWAG activities; rather, she would either just "hang-out with [her] friends or sleep," or watch her friends and Respondent play soccer. However, most of V.S.C.’s time was spent sleeping near a tree, far away from where Respondent spent most of his time with the soccer group. When asked if Respondent ever did anything inappropriate to her during the SWAG program, V.S.C. testified that he talked about his "private part" to her, saying that "it was big," and referring to it once as "his third leg." Counsel for the School Board then asked V.S.C. in leading fashion: "Okay. Did he ever mention anything that he would like to do with his private part," to which V.S.C. responded, "I don’t remember. I just know that he talked about it once." T. Vol. 1, p. 82. V.S.C. described unspecified things that Respondent allegedly said to V.S.C. as "playful, like, in an inappropriate way," and "weird." Counsel for the School Board then asked V.S.C. in leading fashion: "Do you remember telling these things that he would say to you to the police at a given point," to which V.S.C. responded, "I barely remember. It’s, like, such a long time ago now." Id. at p. 83. As with her recorded interview with Detective Charley, V.S.C. was reluctant to testify at hearing and there were many long pauses by her after questioning by the School Board’s counsel. After further prodding and requests by the School Board’s counsel to describe "the things he would say to you, other than his talking about his private part," V.S.C. described the aforementioned verbal incident in Respondent’s classroom. On cross-examination, V.S.C. acknowledged this comment was loud enough so that other students could hear it and that she read a sexual connotation into the comment. Id. at p. 97. Counsel for the School Board again asked V.S.C. if Respondent ever made any other comments to her during SWAG, to which V.S.C. responded, "I can’t remember." Id. at p. 85. Subsequently, the following exchanges occurred between counsel for the School Board and V.S.C.: Q: Did he ever threaten to slap you with anything?" A: Yeah, with his penis. Q: What did he say? A: He said he wants to, like, slap me in the face with his penis. Q: And when did he say that? A: I think in SWAG. Yeah, it was in SWAG. * * * Q: Do you remember Mr. Rizo touching you in any other way other than bumping you with his hip or anything like that? A: When we would play fight, he would, like, put his pelvis, like, on my back area. Q: What would he do with his pelvis? A: He would just, like, be there, like, behind me and play fighting me. Q: Did he ever try to touch you sexually in any way? A: I guess, yeah, if he’s doing that, if he’s behind me like that. Id. at pp. 87 and 92. V.S.C. never reported any alleged inappropriate conduct by Respondent to her parents, teachers, or school administrators. At hearing, V.S.C. acknowledged that she and K.S. were friends. At hearing, V.S.C. admitted that she and Respondent were never alone during the SWAG program and that she was always close to the other students. At hearing, nothing was mentioned about Respondent touching V.S.C.’s breasts. Allegations involving N.E. In paragraph 12 of the Notice of Specific Charges, the School Board alleges that "Respondent also made sexual advances and over the clothing sexual contact with a third female student [N.E.] during the 2017-2018 school year." However, N.E. did not testify live at hearing and the School Board did not present any eyewitness testimony in support of the allegations. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with N.E. Ultimate Findings of Fact At hearing, the undersigned had the opportunity to observe the testimony and demeanor of Respondent, K.S., and V.S.C. The testimony of Respondent is credited and is more persuasive than the testimony of K.S. and V.S.C., which is not credited or persuasive. Notably, K.S.’s and V.S.C’s versions of the events as set forth in their statements to the police and testimony at hearing were vague, differed in key respects, and much of their testimony and statements to the police were obtained through patently leading questions. Moreover, V.S.C. admitted that her memory is bad and that "there’s nothing to talk about because nothing did happen." It is also inconceivable that K.S. would have returned to Respondent’s classroom for intensive reading during the 2017-2018 school year had the alleged conduct during the 2016-2017 school year actually occurred. Had the alleged incidents occurred as testified about by K.S. and V.S.C., who were friends, it is also expected that there would have been eyewitnesses. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in inappropriate physical and verbal sexual contact with K.S., V.S.C., or N.E., as alleged in the Notice of Specific Charges, and Respondent did not engage in conduct with K.S., V.S.C., or N.E., which constitutes misconduct in office or immorality.4 4 K.S. and N.E. were also friends. As detailed above, N.E. did not testify at the hearing. However, an audio statement and a written statement purportedly authored by N.E., both of which are hearsay, were received into evidence at the final hearing as the School Board’s Exhibit Nos. 6 and 16, respectively. Although hearsay is admissible in administrative proceedings, this does not necessarily mean that the undersigned must use the hearsay in resolving a factual issue. The statements cannot be used as the sole basis to support a finding of fact, because they do not fall within an exception to the hearsay rule. Furthermore, the statements do not supplement or explain other non-hearsay evidence. See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). At hearing, the parties stipulated to the receipt into evidence of N.E.’s deposition testimony in lieu of her live testimony. Even if the audio statement and written statement could be used by the undersigned, however, the audio statement, written statement, and deposition testimony would not be given any weight based on the live testimony Respondent presented at hearing. Unlike N.E., who did not testify live
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension and termination of Respondent, Oscar D. Rizo, and reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 18th day of May, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 18th day of May, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent, George L. Johnson (Johnson), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board), since 1982. 1/ The 1982-83 School Year In August 1982, Johnson was employed by the School Board as an occupational specialist, and assigned to Jan Mann Opportunity School. During the course of that employment, two events transpired which foreshadowed Johnson's conduct during the 1985-86 school year, and which precipitated this disciplinary proceeding. The first event occurred on March 9, 1983, when Johnson struck Pierre Sylla, an 8th grade student. On that date, Pierre had been disruptive in class, and had referred to Johnson by the nickname of "Flash". Pierre's conduct apparently offended Johnson's sense of decorum since he excused the class, called Pierre into a smaller room and, upon stating "this is why they call me Flash", punched Pierre in the left eye. The second event occurred on April 27, 1983, when Johnson struck Derrick Corner, a 14 year old student. On that date, Johnson was on leave, but reported to the school to pass out lunch cards. When Derrick approached Johnson to retrieve his card, he smelled alcohol on Johnson's breath and announced "I smell some Bacardi" rum. At that time, Johnson backhanded Derrick across the face, knocking him over a chair to the floor. On July 13, 1983, a conference was held between the School Board and Johnson to discuss the battery committed upon Pierre Sylla and Derrick Corner, as well as any disciplinary action to be taken against Johnson. The School Board concluded that Johnson would be referred to the employee assistance program, transferred to a regular school setting, and that no further disciplinary action would be taken. Johnson was, however, directed to comply with School Board rules for handling disruptive student behavior, and to discontinue the use of his hand in disciplining students. 2/ Notwithstanding Johnson's battery upon Pierre Sylla and Derrick Corner, Johnson's annual evaluation for the 1982-83 school year rated his performance acceptable in all categories, and recommended him for continued employment. The annual evaluation did note, however, that: Mr. Johnson's techniques for handling disciplinary problems need to be improved. Otherwise, he has potential for becoming a good teacher. The 1983-84 and 1984-85 School Years During the 1983-84 school year, Johnson was employed by the School Board as a physical education teacher at McMillan Junior High School. Johnson's annual evaluation for the 1983-84 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark contained on his evaluation was: Although your overall performance during the past year has been acceptable, I would recommend that you carefully self-evaluate your performance with regard to your professional responsibilities, i.e., punctuality. During the 1984-55 school year, Johnson was employed by the School Board as a physical education teacher at Riverside Elementary School and Douglas Elementary School. Johnson's annual evaluation for the 1984-85 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark on his evaluation was: You need to be on time every day and the same applies to lesson plans and reports. Adherence to school board policies is of the utmost importance -- also getting along with your peers. The 1985-86 School Year For the 1985-86 school year, Johnson was employed under a continuing contract with the School Board, and assigned to Silver Bluff Elementary School as a physical education teacher. The proof establishes that during the course of that school year Johnson reacted violently toward students for minor breaches of discipline, and that he failed to comply with lawful orders to refrain from the use of physical force to discipline students. That Johnson was fully cognizant of Silver Bluff's policy against the use of physical force is not disputed. At the school's first faculty meeting of August 28, 1985, Johnson was specifically advised that teachers were not to hit or paddle a child, and that they were not authorized to inflict corporal punishment. On September 16, 1985, following a complaint from a mother that Johnson had grabbed and shaken her son, the principal, Margarita Alemany, again cautioned Johnson that she did not approve of physical discipline, and that he was not to touch his students in any way. Notwithstanding the lawful directives of his principal, the evidence establishes that Johnson routinely relied upon physical and verbal abuse to discipline students for minor transgressions. From late September 1985 to December 1985, the proof establishes that Johnson committed the following abuses toward fourth grade students in his charge: Estany Carballo, who should have been standing in line, was playing in a mud puddle with a toy car. Johnson approached Estany from behind, grabbed his neck, and forced his head downward toward the water. Johnson pulled Estany up by the neck, admonished him "not to do that again", and returned Estany to his place in line. The force exerted by Johnson upon Estany was sufficient to traumatize his neck, inflict pain and limitation of movement, and require the treatment of a physician. Noah Verner and Aramis Hernandez were standing out of line and talking. Johnson grabbed each by the hair with a clenched fist, banged their heads together, and ordered them back into line. Robert Diaz, while standing in line, was talking to a girl behind him. Johnson approached Robert from behind, grabbed him by the hair and, exerting enough force to almost lift him from the ground, stated "who do you think you are asshole?" James Worthington was leaning against a fence, an apparent violation of a Johnson directive. Johnson grabbed his head between his hands and, shaking the child violently enough to induce pain, admonished James not to lean on the fence. Roberto Sanchez was attempting to perform an exercise with the rest of the class, but was unsuccessful. Johnson noted Roberto's failing to the class and opined vocally that if a boy couldn't do an exercise when he was in school, the whole class would beat the boy up. Johnson also embarrassed Roberto by referring to him as "fatso" in the presence of the class. While not exhaustive of the litany of incidents established at the final hearing in this case, the events related in paragraph 11, supra, establish Johnson's failure to abide by lawful directives of his superior, as well as a penchant toward a violent behavior which was harmful to the health and safety of his students. Due to the notoriety of his conduct, Johnson's service in the community, as well as his effectiveness in the school system, was severely impaired. In addition to its claims of insubordination and misconduct in office, the School Board also seeks to discipline Johnson under a claim of incompetence. The predicate for the School Board's charge are the results of three formal observations of Johnson's performance at Silver Bluff Elementary School between October 17, 1985 and January 10, 1986. On October 17, 1985, Ms. Catherine Day, assistant principal of Silver Bluff Elementary School, conducted a formal observation of Johnson's 1:30 p.m. - 2:00 p.m., second grade physical education class. It is worthy of note that the impetus for the October 17, 1985, observation was Johnson's request that the 1:30 - 2:00 p.m. class be observed. That class was a double class, over 60 students, and unwieldy. Ms. Day found that the session taught by Johnson did not comport with the mandatory objectives or activities contained in his lesson plan, that he did not explain to the students the objectives or activities for that day, that he provided no feedback to the students regarding their performance that day, that he allowed students to stand idle for 10 minutes and dismissed them 10 minutes early, and that his class record book contained no grades. Accordingly, Ms. Day rated Johnson's performance as unacceptable in the categories of (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction and (5) assessment techniques. Ms. Day reviewed the results of her observation with Johnson, provided Johnson with a prescription for improvement, agreed to provide Johnson with an assistant for the 1:30 - 2:00 p.m. class, and established a deadline of November 1, 1985, to correct the deficiencies. On November 20, 1985, the principal, Ms. Alemany, conducted a formal observation of Johnson's 10:15 a.m. second grade class and 10:45 a.m. sixth grade class. Ms. Alemany found, inter alia, that the lesson plan for Johnson's sixth grade class contained no objectives, that he failed to provide feedback or suggestions to improve performance, and that after 9 weeks his grade book for the sixth grade class failed to indicate the activity graded and for the second grade class failed to show any grades -- the grade book should have reflected one grade per week for a designated activity. Accordingly, Ms. Alemany, as did Ms. Day, rated Johnson's performance as unacceptable in categories (1) preparation and planning, (4) techniques of instruction, and (5) assessment techniques. On January 10, 1986, Ms. Alemany conducted the final observation of Johnson's performance. While Johnson's overall performance had improved, he was still rated unacceptable in categories (1) preparation and planning, since he failed to have lesson plans available, (4) techniques of instruction, since he failed to provide feedback or suggestions to improve performance, and (5) assessment techniques, since he failed to have any grades for the second, third, fifth or sixth grade classes. Ms. Alemany reviewed the results of her observation with Johnson, provided a prescription for improvement, and established a deadline of January 16, 1986, to correct the deficiencies. On January 17, 1986, a conference-for-the-record was held between Ms. Alemany and Johnson. At that time, Johnson's performance assessments were reviewed and he was advised: It should be noted for the record that you were advised that noted deficiencies must be remedied by your next observation which (sic) approximate date is 1-24-86. Failure to do so ... will have an adverse impact upon your employment. We will continue assisting you as we have in the past. Johnson was not, however, to be accorded any further observations. As events transpired, January 17, 1986, was his last day of employment at Silver Bluff Elementary School; thereafter, he was assigned to the South Central Area office pending School Board action. On February 19, 1986, the School Board suspended Johnson and initiated these dismissal proceedings. Johnson resists the School Board's suspension and proposed dismissal for incompetency on several grounds. First, he avers that Ms. Alemany harbored some animosity toward him because of his service as a United Teachers of Dade union representative. The proof fails to support such a finding. Second, Johnson avers that his request for an independent observation following Ms. Alemany's observation of November 20, 1985, should have been granted. While it may have been better practice to grant such a request, the School Board was bound to no such requirement. Finally, Johnson avers that the School Board's failure to accord him an independent observation following two unacceptable "summative observations" requires that his suspension and proposed dismissal for incompetence not be sustained. 3/ Johnson's final assertion is also without merit. While the proof established that the School Board routinely employed an independent observation following two unacceptable summatives before it recommended dismissal for incompetence, Johnson's removal from the classroom prevented further observation. Where, as here, the School Board removes a teacher from the classroom for cause, i.e.: battery upon a student, it is not thereby barred from seeking the suspension and dismissal of a teacher for incompetence even though an independent observation was not performed. While the School Board is not precluded from maintaining its charge of incompetence, it has failed to demonstrate that Johnson's unsatisfactory performance, observed on three occasions, deprived the students in his charge of a minimal educational experience, or that such performance failed to comply with the rules of the School Board or the terms of the parties' contract. Johnson's deficiencies, absent such proof do not demonstrate incompetence by reason of inefficiency. Further, the physical and verbal abuses Johnson was shown to have visited upon students, while improper, do not establish a lack of emotional stability. Therefore, the School Board also failed to demonstrate that Johnson was incompetent by reason of incapacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, George L. Johnson, from his employment, and dismissing Respondent, George L. Johnson, from his employment with the School Board. DONE AND ENTERED this 30th day of December, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 30th day of December, 1986.
