Findings Of Fact Respondent has been employed by the School Board of Dade County, Florida, as a continuing contract teacher for some years. The contract between the Dade County Public Schools and the United Teachers of Dade, introduced as Respondent's Exhibit No. 1, contains the terms and conditions of Respondent's employment. The contract states that the superintendent has the authority to assign or reassign the Respondent to any school within the system. The superintendent or his designee may, when deemed in the best interest of the school system, involuntarily transfer a teacher. Before a teacher is involuntarily transferred a conference shall be held with the area superintendent or his designee or appropriate division head, except where such transfers are the result of a legal order. The contract further provides for the filing of grievances by employees concerning the application or interpretation of the wages, hours, terms, and conditions of employment as defined in the contract. The contract defines a grievance as a formal allegation by an employee that there has been a violation, misinterpretation or misapplication of any of the terms and conditions of employment set forth in the contract. Respondent was involuntarily transferred from a sixth grade teaching position at Edison Park Elementary School to a first grade teaching position at Primary C Elementary School. Prior to the transfer he was afforded the opportunity of a conference with a designee of the Area Superintendent at which time he unsuccessfully challenged his transfer. The Respondent believes that the conference which was held was a sham and was not meaningful. Respondent continued to be dissatisfied with the transfer and continued to seek a solution to his problem by engaging in subsequent conversations with the Area Superintendent and others within the Dade County School System. Respondent did not follow the provisions for grievance filing contained in the contract but rather reported for duty on August 25, 1976. On or about that date, he notified his principal and Mr. Steve Moore, the Assistant Superintendent for Personnel, that he would not and did not intend to remain at his assigned position. Respondent worked on August 26, 1976, but then departed, calling in sick for the work days up to and including October 8, 1976. This period of absence constituted authorized sick leave. On October 8, 1976, Respondent advised Dr. West and other members of the school system administrative staff that he was available for assignment to another school but would not report to work at Primary C Elementary School. Up to and including the date of the hearing, Respondent has failed and refused to report for duty at his assigned work location and has in fact performed no duties as a teacher during that time. The school system administration has at no time authorized Respondent's absence from duty from October 8, 1976, to the date of the hearing.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Henry Young, is employed as a teacher by the Dade County School Board at Nathan B. Young Elementary School in Miami, Florida. Respondent holds teaching certificate #177938 issued by the State of Florida, Department of Education, in Elementary Education, Guidance and Early Childhood Education. On January 19, 1984, Metro-Dade Police Officer Michael Amabile was on routine patrol in the Liberty City section of Miami when he received a call for assistance from another unit on an arrest for a weapons violation. When Officer Amabile arrived at the scene, he observed that Police Officer Strohs had detained a female who was seated in her automobile. While Officer Strohs ran a routine check on the weapon, Officer Amabile observed the Respondent standing in the street near the female's automobile. After the check determined that the weapon was stolen, Officer Amabile asked Respondent to leave the immediate area. The Respondent refused to leave the area, began to talk with the female, and told Officer Amabile that he was a member of the City Crime Watch and that he did not have to leave. Officer Amabile and two other police officers at the scene repeatedly asked the Respondent to leave the area so that the female could be transferred from her vehicle into a police cruiser and the matter further investigated. The Respondent refused to leave the area and began arguing loudly back and forth with the police officers. A crowd began to gather and Respondent was informed that if he did not leave the area, he would be arrested. The Respondent moved slightly away from the area towards the middle of the street but continued arguing with the police officers. The Respondent was subsequently arrested and charged with resisting an officer without violence, On February 29, 1984, the charge was disposed of in the County Court of Dade County. The Respondent was given credit for two (2) days time served in jail (after his arrest) and the case was closed. The record did not indicate what plea was entered to the offense by Respondent and failed to show whether the Court adjudicated the Respondent guilty of the offense. On April 16, 1984, Officer Smith of the City of Opa-Locka Police Department received a call for back-up from Officer McQueen in reference to an altercation at a bar located on Ali-Baba Avenue in Opa-Locka, Florida. When Officer Smith arrived at the bar, the Respondent was "yelling and screaming" at a small crowd of people and the person in charge of the bar indicated that he wanted the Respondent to leave. When the officers approached Respondent to find out what the problem was, Respondent directed his loud and abusive language toward them. The Respondent refused to calm down and was arrested for disorderly conduct. A search incident to Respondent's arrest revealed a small amount of suspected cocaine concealed in his clothing. A subsequent laboratory analysis determined that the suspected substance was, in fact, cocaine. The Respondent was taken to the Opa-Locka Police Station for processing. While in custody at the police station, Respondent was removed from his jail cell for photographing. At that time, the Respondent became extremely violent and hostile toward the police personnel. The Respondent punched one officer in the head and spat on two officers. Based on the incident of April 16, 1984, the Respondent was charged with disorderly conduct, possession of cocaine, possession of drug paraphernalia, battery on a police officer, and resisting an officer without violence. On or about November 15, 1984, all of the charges were dismissed. There was no evidence as to why the charges were dismissed. On January 1, 1985, the Respondent was arrested outside of the Orange Bowl in Dade County, Florida, for the offense of scalping tickets to the Orange Bowl football game between the University of Oklahoma and the University of Washington. The Respondent attempted to sell four game tickets for $30.00 each. The face value of the individual tickets was $25.00. On September 24, 1985, Metro-Dade Police Officers Garvin and Jackson observed the Respondent enter a Mercedes Benz automobile carrying a machine gun- type weapon with a strap. The Respondent opened the right rear door of the vehicle and placed the weapon in the back seat. While approaching the automobile, the officers observed the Respondent turn and place something in the back seat. At this time, the officers converged on the automobile and ordered the Respondent and a female passenger to get out. During a search of the vehicle incident to arrest, the officers found a white paper bag in the back seat containing a small quantity of suspected marijuana and a glass pipe which contained suspected cocaine residue. The officers placed Respondent and the female under arrest. The weapon was later determined to be an Intratec 9MM Luger, Model TEC-9, a semi-automatic weapon which has the appearance of a machine gun. The weapon contained a clip with twenty-five (25) live rounds of ammunition. Possession of such a weapon is not illegal in Dade County, Florida, and the weapon in question was found to be registered. The Respondent was charged with the offense of carrying a concealed firearm and carrying a firearm without a license. There were no charges brought concerning the suspected illegal drugs. The case was subsequently nolle prossed by the State Attorney's Office. On March 4, 1986, John Riley, the then Mayor of the City of Opa-Locka, observed what he believed to be a drug buy by the Respondent in the "triangle" area of Opa-Locka. The triangle area has a reputation for heavy narcotics activity. Mayor Riley summoned Opa-Locka Police Chief Reeves and Officer Davis to the scene. As the officers and Mayor Riley approached the Respondent, he was observed standing outside a Mercedes Benz automobile talking to several young people on the street. When Respondent observed the police officers and Mayor Riley approaching, he acted in a "suspicious manner" and appeared to Chief Reeves to be attempting to conceal something. The Respondent entered the automobile and started the engine. Reeves identified himself as a police officer. Chief Reeves asked Respondent to turn off the engine and get out of the car. The Respondent refused to do either. Chief Reeves then reached inside the vehicle and attempted to switch off the ignition. The Respondent knocked Chief Reeves' hand loose and sped away. Chief Reeves' arm was brushed by the car but he was not injured. The Respondent was apprehended several days later. The Respondent was charged in Dade County Circuit Court with battery on a law enforcement officer and resisting an officer without violence. On January 7, 1987, Respondent entered a plea of no contest to a reduced charge of simple battery. The Court withheld adjudication of guilt and placed Respondent on probation for a period of two years with the special conditions that Respondent serve six months in the Alcohol and Drug Abuse Program (ADAP) at the Dade County Stockade, followed by six months in the Structured Treatment Program (STP). On September 26, 1986, Metro-Dade Police Detective Taylor was working in an undercover capacity. At approximately 9:20 p.m. on that date, Respondent approached Officer Taylor on the roadside at 17th Avenue and Northwest 83rd Street in Miami. Respondent asked: "What do you want," and Officer Taylor responded: "Two ten cent pieces," street language for two ten dollar portions of crack cocaine. The Respondent then produced two pieces of crack cocaine which he sold to Officer Taylor for $20.00. The Respondent was subsequently arrested and charged by information with the offense of possession of cocaine. On January 7, 1987, Respondent entered a plea of no contest to the charge. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of two years with the special conditions that he serve six months in the Alcohol and Drug Abuse Program in the Dade County Stockade, followed by six months in the Structured Treatment Program concurrent with the sentence imposed for the battery offense of March 4, 1986. Many of the activities of Respondent resulting in his arrests previously described herein received media attention and press coverage in the Miami Herald, a daily newspaper distributed throughout Dade County. On June 28, 1985, the Respondent submitted a sworn application for extension of teaching certificate to the Florida Department of Education. In Section V of the application, Respondent answered "no" to the question: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a miner traffic violation or are there any criminal charges now pending against you other than minor traffic violations." The Department of Education extended the Respondent's teaching certificate through June 30, 1990. Respondent is currently on authorized leave without pay for medical reasons from his duties as a teacher with the Dade County School Board. The Respondent is voluntarily enrolled in the Dade County School Board's Employee Assistance Program which is designed to provide treatment, care and follow-up to teachers with substance abuse problems. The Respondent, Henry Young, is 42 years old, married and has two sons. Respondent attended undergraduate school at Bethune Cookman College in Daytona Beach and received a graduate degree at Florida A&M University in Tallahassee. Respondent has taught in the Dade County school system continuously since 1966. Respondent started drinking heavily during his senior year in college and started using hard drugs when he became friends with several of the Miami Dolphin professional football players. Respondent developed an addiction to and dependence upon, both drugs and alcohol. Respondent first entered Dade County's Alcohol and Drug Abuse Program in May 1986. Respondent was assigned to the Structured Treatment Program (STP), a residential program where the participant is required to live in a structured, drug and alcohol-free environment from three months to one year. Respondent initially remained in the program from May to October of 1986. In October of 1986 the Respondent left the program, only to encounter additional problems with his drug and alcohol addiction. Respondent re-entered the program in January of 1987 where he remained up to the date of the final hearing. Respondent plans to remain in the STP residential setting until July or August of 1987. Drug and/or alcohol addiction is a physiological or psychological dependency upon a narcotic or other psychoactive or mood altering substance to the extent that such dependency impairs a person's health and substantially interferes with the person's social and/or occupational functioning. Respondent's addiction interfered with his social functioning, his decision making, and his judgment. During Respondent's total of ten (10) months in the STP program, he has received intensive individual and group counseling focusing primarily on his long history of alcohol and drug abuse. Since the Respondent's return to the program in January of 1987, he has exhibited a marked change in his behavior and his attitude towards both his treatment and himself. Respondent has accepted the fact that he has an addiction problem and that he will need to be involved in some type of treatment program for the rest of his life. Breaking through the participant's denial of addiction is one of the primary goals of the STP program and is considered to be a real and positive step toward recovery. Steven Fogelman, supervisor of Metro-Dade County's Alcohol and Drug Abuse Program believes that after the Respondent leaves the STP program, he will need to continue in STP's two-year aftercare program, receive additional outpatient counseling and continue to attend Narcotics Anonymous and Alcoholics Anonymous meetings. Fogelman feels that if Respondent stays in treatment that he will have a very good chance of leading a substance-free life.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's teaching certificate be suspended for a period of three years from the date of the Final Order. Respondent be placed on probation for a period of five years with the following conditions: Respondent shall be required to enroll in the Metro-Dade County's Drug and Alcohol Program's two-year aftercare program and submit to the Department of Education, Education Practices Commission, signed and notarized statements from appropriate managerial personnel of the ADAP establishing that he has, in fact, satisfactorily completed the two-year aftercare program. Respondent shall be required to continue his present participation in the Dade County School Board's Employee Assistance Program for substance abuse during the full five-year period of probation and cooperate fully with the terms of any treatment plan implemented in his behalf, including, but not limited to, enrollment in a private substance abuse counseling program at Respondent's own expense. Respondent be assessed an administrative fine of $2,000.00, specifically for the offense of providing false information on his application for teaching certificate. Said administrative fine shall be due no later than 45 days after the date of the Final Order. DONE AND ORDERED this 17th day of July 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 17th day of July 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4148 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 5. 8. Adopted in Finding of Fact 6. 9. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 11, matters not contained therein are rejected as subordinate and/or not established by the weight of the evidence. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 13. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 9 and 15, matters not contained therein are rejected as contrary to the weight of the evidence. Partially adopted in Finding of Fact 18, matters not included therein are addressed in the Conclusions of Law section. Adopted in Finding of Fact 12. Adopted in Findings of Fact 13, 14 and 22. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1, 19 and 20. Adopted in substance in Finding of Fact 14. Partially adopted in Findings of Fact 2, 3 and 4, matters not contained therein are rejected as misleading and/or subordinate. Partially adopted in Findings of Fact 6, 7 and 8, matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 9. Adopted in substance in Findings of Fact 10, 11 and 12. Adopted in substance in Findings of Fact 13 and 14. Partially adopted in Findings of Fact 15 and 16, matters not contained therein are rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 17. Adopted in substance in Findings of Fact 22 and 23. Adopted in substance in Finding of Fact 24. Adopted in substance in Finding of Fact 24. Rejected as subordinate. 14. Rejected as subordinate and/or misleading. Although the Respondent is on the road to recovery, the evidence did not establish that Respondent has in fact made a complete recovery. 15. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 William DuFrense, Esquire 2950 Southwest 27th Avenue Suite 310 Miami, Florida 33132 Karen Barr Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street Room 3 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent held Florida Teaching Certificate No. 390436, Provisional Graduate, Rank III, valid through June 30, 1981, covering the areas of Sociology, English, History and Social Studies. On or about October 19, 1978, Respondent while acting within the scope of his employment as a teacher at Robert E. Lee Junior High School in Dade County, Florida, was observed to seize a student, Rodney Canull, by his hair and right arm, lift the student off the ground, and throw the student repeatedly onto a concrete ramp. As soon as the student was able to extricate himself from Respondent, he fled the scene of the altercation. However, later the same day, Respondent was again observed in a confrontation with this same student, in which Respondent had twisted the student's arm behind his back, and the student was doubled over in pain with his head below his knees. On or about April 24, 1978, Respondent was involved in a physical confrontation with another student, Carla Brinson, at Robert E. Lee Junior High School. The confrontation between Ms. Brinson and Respondent occurred in the course of Respondent's attempt to discipline the student. When Respondent requested that the student turn around so that he could administer corporal punishment, she refused. Upon the student's refusal, the Respondent threw her to the floor. The student got up from the floor, and struck Respondent with her fist, whereupon Respondent struck the student in the face with his fist. The student then ran out the front door of the classroom in which the confrontation had occurred, and was pursued by Respondent, who began to strike the student with his belt. Both Respondent and the student ended up on the ground in front of the portable classroom where Respondent again struck the student in the forehead with the heel of his open hand. When another teacher attempted to intervene in the confrontation, he was pushed aside and Respondent continued to strike the student with his belt. On or about May 11, 1977, Respondent was involved in a physical confrontation with a student at Madison Junior High School in Dade County, Florida, named Wesley G. Frater. In the course of Respondent inquiring as to whether the student belonged in a particular room, the student referred to Respondent as "man", whereupon Respondent began shoving the student into a row of standing metal lockers, approximately 25 in number, and then lifted the student upside down from the ground and dropped him onto a concrete floor. On or about May 20, 1977, Respondent was involved in a physical confrontation at Madison Junior High School with a student named Vincent Johnson. Some dispute of an undetermined nature occurred between the student and the Respondent, after which the student attempted to flee from Respondent. Respondent chased the student down in the school parking lot, and threw the student against a parked truck. Respondent then threw the student to the ground, picked him up and attempted to transport him to the principal's office. Once in the corridor of the school building, Respondent picked the student up and repeatedly threw him to the floor. Other teachers at the school, after hearing a disturbance in the hallway, intervened to separate Respondent and the student. As previously indicated in this Recommended Order, Respondent neither appeared in person nor offered any evidence for inclusion in the record in this proceeding through his counsel. As a result, the record in this proceeding contains no explanation or justification for Respondent's conduct. However, it is clear from the record that Respondent's conduct, as outlined above, worked to create an atmosphere of fear among his students, thereby seriously reducing his effectiveness as a teacher.
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
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. /
