The Issue The issues in this case are whether, as Petitioner has charged, Respondent offered for sale training in a program of physical exercise, or the right or privilege to use equipment in furtherance of a program of physical exercise, at an unregistered business location, in violation of section 501.015(1), Florida Statutes; and, if so, whether a penalty should be imposed.
Findings Of Fact The Department is the state agency responsible, among other things, for administering the laws regulating health studios. For purposes of circumscribing the Department’s jurisdiction, the term health studio “means any person who is engaged in the sale of services for instruction, training, or assistance in a program of physical exercise or in the sale of services for the right or privilege to use equipment or facilities in furtherance of a program of physical exercise.” § 501.0125(1), Fla. Stat. Magloire is a person who meets the definition of a “health studio” subject to the Department’s regulatory jurisdiction. During the period from, roughly, December 2018 until December 2019, Magloire operated a gym under the name “Adrenaline Fitness,” which was located at 3700 Northwest 124th Avenue, Coral Springs, Florida (the “Gym”). There is no dispute that Magloire allowed persons to use equipment or facilities at the Gym for the purpose of physical exercise. It is also undisputed that Magloire never registered the Gym with the Department, which would have been required if the Gym were a “business location.” See § 501.015, Fla. Stat. A health studio constitutes a “business location” if “studio services” are performed onsite. The term studio services “means privileges or rights offered for sale or provided by a health studio.” § 501.0125(2), Fla. Stat. Magloire maintains that the Gym was a “private facility” where services were not “offered for sale” to the public, but rather were made available as a convenience to his personal friends and acquaintances. The relevant distinction here, however, is not between private and public facilities, per se, but between commercial and noncommercial gyms. A homeowner who installs exercise equipment in his garage for personal use and invites a few friends over for a workout once in a while does not thereby turn his home into a “business location.” Magloire’s Gym did not involve this kind of obviously personal, noncommercial use. Magloire testified that many of the persons who worked out at the Gym did not pay him with money for the privilege, although a few did, occasionally, tender cash; the undersigned accepts this as true. Magloire admitted, however, that he received other valuable consideration from guests, such as services, in exchange for his letting them use the Gym’s equipment and facilities. The undersigned determines as a matter of ultimate fact, based on clear and convincing evidence, that the Gym constituted a “business location” where “studio services” were “offered for sale.” Magloire, therefore, was required to register the Gym with the Department pursuant to section 501.015(1), which he failed to do, in violation of the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order imposing a fine of $1,000 against Magloire for providing studio services at an unregistered business location in violation of section 501.015(1), Florida Statutes. DONE AND ENTERED this 24th day of February, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 24th day of February, 2020. COPIES FURNISHED: Genevieve Hal1, Esquire Amanda B. McKibben, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Vladimir Magloire Adrenaline Fitness Studio 10370 Northwest 40th Place Coral Springs, Florida 33065 (eServed) Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800
The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be suspended or terminated for the reasons specified in the letter of notification of suspension and dismissal dated September 6, 2012, and the Notice of Specific Charges filed on January 10, 2013.
Findings Of Fact The Miami-Dade County School Board (School Board) is charged with the responsibility to operate, control, and supervise the public schools within the School District of Miami-Dade County, Florida. Ms. Isabel Diaz-Almarez was employed as a full-time dance teacher at South Miami Senior High School (South Miami), within the School District of Miami-Dade County. Ms. Diaz- Almarez also served as coach of the Cobra Charmers Dance Team and sponsor of the Booster Club for the Cobra Charmers. Ms. Diaz-Almarez was employed by Miami-Dade County Public Schools (MDCPS) pursuant to a professional services contract beginning in July 2009. In July 2012, as a result of parental concerns voiced to the administration, an investigation was initiated and conducted by the MDCPS Civilian Investigative Unit. MDCPS sent Ms. Diaz-Almarez a letter of notification of suspension without pay and initiation of dismissal proceedings dated September 6, 2012, advising her of the alleged grounds for termination and of her right to an administrative hearing. Ms. Diaz-Almarez is substantially affected by action of the School Board to suspend or terminate her employment. Ms. Diaz-Almarez was a dance teacher, the coach of the dance team, and the sponsor of the Booster Club. Testimony of a parent and several students indicated that Ms. Diaz-Almarez was a good teacher and was effective in performing her roles. She was popular with students, some of whom referred to her as “Mrs. D.” Ms. Diaz-Almarez had an intern assigned to her class through MDCPS. The intern’s name was Ivonna Ledon, and she passed the required background clearance and was fingerprinted. After the internship ended, Ms. Ledon would occasionally teach one of Ms. Diaz-Almarez’s classes during the day, and continued to come in after school to work with the students on the dance team. She was paid by Ms. Diaz-Almarez with checks from Booster Club funds. Ms. Ledon described her position as the assistant coach of the Cobra Charmers dance team. Classes at South Miami are set up in three periods each day, with each period lasting two hours: periods one, three, and five on one day; periods two, four, and six the next day; in alternating fashion. The Dance Team class met in periods five and six, a two-hour block at the end of each day. One of these periods was officially called “ballet.” Ms. Diaz-Almarez also hired Ms. Priscilla Marrero to come to her fifth and sixth period classes, usually once or twice a week, to teach the Cobra Charmers Dance Team. Ms. Diaz- Almarez testified that she believed Ms. Marrero had been fingerprinted through the “Arts for Learning” program before she came to South Miami because Ms. Marrero told her so. Ms. Diaz- Almarez did not send an e-mail to the district to verify if Ms. Marrero had been cleared to work with students. Ms. Diaz- Almarez would sometimes watch Ms. Marrero teach her class, sometimes participate in the class, and sometimes do other work related to planning and preparation for upcoming events and performances. The instructors hired by Ms. Diaz-Almarez were not hired by the administration of South Miami or MDCPS. Teachers are permitted to have volunteers. A one-time volunteer must go through the main office at South Miami in order to sign in. Longer-term volunteers must complete background forms with MDCPS and be cleared with a background check. Ms. Ledon and Ms. Marrero were paid from Booster Club funds and were not volunteers. South Miami students Dayron Davilla, Felipe Gonzalez, Ernie Diaz, and Marcelo Gonzalez were not enrolled in dance classes during the 2011-2012 school year, and did not have Ms. Diaz-Almarez as a teacher. These students nevertheless frequented Ms. Diaz-Almarez’s classroom. Felipe testified that he would go to Ms. Diaz-Almarez’s classroom three or four times a week. He testified that he would get a pass to do things like help Ms. Diaz-Almarez “move a couch or something” and that he never went to Ms. Diaz-Almarez’s classroom without a pass. Felipe was seen sleeping on the couch in Ms. Diaz- Almarez’s classroom on more than one occasion. Felipe testified he did fall asleep on the couch “once or twice” but that it was during lunch or after school. He testified that on one occasion he had ordered food from a nearby restaurant that was delivered to him at the school, so he was not hungry when lunch period came and he fell asleep on the couch. The principal at South Miami during the 2011-2012 school year was Mr. Gilberto Bonce. On one or two occasions, Mr. Bonce discovered the boys in Ms. Diaz-Almarez’s classroom when they were not supposed to be there, and sent them back to their classroom. Ms. Diaz-Almarez set up a collection box in her room in which the students would deposit payments to the Booster Club. The child of the Booster Club treasurer would collect payments from the box and give them to her mother, and the student would return with Booster Club checks made out to whoever was to get the money. Periodically during the 2011-2012 school year, Ms. Diaz-Almarez would receive checks from the treasurer of the Booster Club with which she would then pay the choreographers (she also sometimes paid them in cash). This was all Booster money, and Ms. Diaz-Almarez did not go through the school’s internal fund accounting processes. Ms. Diaz-Almarez also had an ATM card from the Booster Club’s bank account, which had been given to her by the treasurer to purchase items that the Booster Club did not have time to handle, such as first aid supplies, fundraising supplies, ribbon for costumes, or awards and trophies. Again, these were Booster funds and Ms. Diaz-Almarez did not go through the school’s internal funds for these purchases. Ms. Diaz-Almarez was aware of the guidelines for managing a Booster Club and knew that, as faculty advisor, she was not permitted to handle Booster Club funds. Only students and parents are permitted to handle Booster Club funds under these guidelines. During the 2011-2012 school year, Ms. Diaz-Almarez maintained accounts on social media sites such as Facebook, Twitter, and Instagram. On Facebook, Ms. Diaz-Almarez was “friends” only with students who were seniors or 18 years of age. On Instagram, Ms. Diaz-Almarez was at first unaware that she could set up a private account in which she would be able to approve each person wanting to “follow” her. Instead, she initially had a public account, which allowed anyone to read the content and view the pictures on her account. Later, she established a private account. She also “followed” some seniors at South Miami on her Instagram account, including some students who were not students in her classes. On Twitter, she also was unaware that there was a private setting. She would try to block non-senior students who were “following” her on Twitter when she caught them, but she allowed seniors to follow her. She communicated with her students on these social media sites. Some of these communications were not dance-related. Shortly before the winter break of the 2011-2012 school year, Ms. Diaz-Almarez posted a picture of Felipe Gonzalez, Dayron Davilla, Kassandra Llanes, Marcelo Gonzalez, Sara Sigel, and Kayan Fernandez (all students at South Miami) on her Facebook page. The picture was taken in Ms. Diaz-Almarez’s office. Several of the students can be seen smiling and holding up miniature bottles of alcohol and shot glasses. Ms. Diaz- Almarez testified she could not remember how she got the picture. Ms. Diaz-Almarez testified she did not realize the picture showed the students with alcohol. The evidence showed that at one point, she said she thought the bottles contained perfume, and she also testified that she just saw a picture of a group and posted it. Her testimony was not credible. Ms. Diaz- Almarez knew that the picture showed students with alcohol. Although the School Board alleged that Ms. Diaz- Almeraz gave the small bottles of alcohol and the shot glasses to the students, this was not proven. Ms. Diaz-Almarez denied it. A student by the name of Alex Martinez testified that he and another student, Kassandra Llanes, gave the boys in the picture the small bottles of alcohol and that he took the picture. Another student also testified that she saw Alex taking the photograph. The classroom used by Ms. Diaz-Almarez included three smaller rooms connected to the open studio: a dressing room, a storage room where costumes and props were kept, and the office. The dressing room and the storage room did not have doors that could be locked from the inside. A “Do Not Disturb” sign was kept so that when privacy was needed in these rooms, Ms. Diaz- Almarez could put up the sign on the outside of the doors. Ms. Diaz-Almarez testified that on one occasion after school she put up the “Do Not Disturb” sign on the storage room door and told her students that she was going to be getting waxed, but she testified that she had only said that as a joke, and that she actually was going into the storage room to show a visitor costumes. At the end of the 2011-2012 school year, students began planning for the prom. About 15 students, many of whom were associated with the Cobra Charmers, collected money to rent a hotel penthouse suite for the weekend after the prom. The suite rented for more than $1,000. Ms. Diaz-Almarez testified that the hotel in Miami would only accept “Paypal” and not credit cards. She testified that at the last minute the students were in danger of losing their reservation because neither they nor any of their parents had a Paypal account and they could not wait the three days it required to open one, so she put the suite on her Paypal account. The Friday afternoon of the prom, Ms. Diaz-Almarez took a half-day of sick leave and went with some students to get the suite ready. Ms. Diaz-Almarez drove with Dayron Davilla, while Javier Trujillo drove another vehicle. They unloaded food from the two cars and took it upstairs to the suite, where Ms. Diaz-Almarez helped put it away in the kitchen. Ms. Diaz- Almarez testified that there was no alcohol in her car and that she saw no alcohol in the suite. Dayron asked Ms. Diaz-Almarez to help him create a little gift display with rose petals and mints for his girlfriend, and she did. Ms. Diaz-Almarez also left a number of items in the suite that she had bought as gifts for the students. She testified that “[i]t was for them to possibly use. It was a little bit of a joke, and I bought them things that I knew that they probably would forget to take on purpose.” She testified she gave them a first aid kit, sunscreen, after-sun lotion, mouthwash, mints, toothpaste, freeze pops, Gatorade, and Jolly Ranchers. She denied arranging these items in a display on a tray and denied that she also gave them Jell-O, lemons, two bottles of alcohol, or condoms. Javier’s screen name on Instagram was “javixxt.” A picture of a tray containing most of the above-mentioned items, including the Jell-O, lemons, two bottles of alcohol, and condoms, was posted to his account, along with the notation, “Thank you Mrs. D!!!(:” Felipe testified that Javier read out a card to the students in the suite from Mrs. Diaz-Almarez that said, in substance, “I’m proud of you. Have a good weekend. Be safe.” Felipe said he never saw where the card came from and did not know if it was sitting on the tray. As Janette Vazquez and Xaylin Garza -- two of the students who stayed in the after-prom hotel suite -- testified, each of the roughly 15 students staying there brought their own bottle of alcohol. These were full size bottles, that is, liters, quarts, or “fifths.” The alcohol was put in the kitchen. The suite was fairly large and a person had to walk by the kitchen to get to the bedrooms. Ms. Diaz-Almarez returned to the hotel room the following day around lunchtime with her husband. Her husband made steaks in the oven because there was no grill. As Felipe testified, Ms. Diaz-Almarez was also in the kitchen. After lunch, Ms. Diaz-Almarez talked with the girls in one of the bedrooms, then went down to the pool and the sauna with them. They then returned to the suite, watched television, and had dinner. After this, Ms. Diaz-Almarez and her husband left. Ms. Diaz-Almarez testified that she never saw any of the students drinking alcohol. She testified she never saw any alcohol in the suite. Several students testified that they never saw Ms. Diaz-Almarez drinking alcohol or taking “Jell-O shots.” Ms. Diaz-Almarez’s testimony that she did not see any alcohol in the suite is not credible, and is rejected. Given the testimony of numerous witnesses as to the amount of alcohol in the suite, and the credited testimony that the bottles were in the kitchen and that Ms. Diaz-Almarez spent time in the kitchen, a bedroom, and the living room, it is determined that she saw the alcohol. Ms. Diaz-Almarez’s interactions with her students reflect a deep immaturity and craving for their approval. She dealt with them as if she wanted to be popular with them and be their peer, rather than assume an appropriate role displaying strong leadership and character for their benefit. Ms. Diaz-Almarez failed in her obligation to protect students from conditions harmful to their mental and physical health. Assisting students to rent a hotel suite and fraternizing with students in after-prom activities where there was alcohol were completely incompatible with maintaining a position of authority with respect to students, and were so serious as to impair Ms. Diaz-Almarez’s effectiveness as a teacher in MDCPS. The facts did not show that Ms. Diaz-Almarez intentionally exposed any student to embarrassment or disparagement. The facts did not show that Ms. Diaz-Almarez intentionally violated or denied a student’s legal rights. The facts did not show that Ms. Diaz-Almarez harassed or discriminated against any student, or failed to protect any student from harassment or discrimination. The facts did not show that Ms. Diaz-Almarez exploited a relationship with a student for personal gain or advantage. The facts did not show that Ms. Diaz-Almarez used institutional privileges for personal gain or advantage. Ms. Diaz-Almarez’s conduct in posting a picture showing students in her office with alcohol on her Facebook page, as well as in assisting students to rent a hotel suite and fraternizing with them in after-prom activities where there was alcohol was conduct inconsistent with the standards of public conscience and good morals. Ms. Diaz-Almarez’s conduct in posting the Facebook picture and her conduct surrounding the after-prom weekend was not sufficiently notorious to bring public disgrace or disrespect to herself or to the education profession. The facts did not show that Ms. Diaz-Almarez’s conduct in posting the Facebook picture and her conduct surrounding the after-prom weekend impaired her service in the community. The facts did not show that Ms. Diaz-Almarez failed to teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by rules of the State Department of Education. The facts did not show that Ms. Diaz-Almarez failed to maintain honesty in all her professional dealings. The facts did not show that Ms. Diaz-Almarez failed to maintain, prepare, or submit promptly any report that was required by State law, State Department of Education rule, Board rule, or administrative directive. The facts did not show that Ms. Diaz-Almarez used abusive or profane language or displayed unseemly conduct in the workplace. The facts did not show that Ms. Diaz-Almarez made malicious or intentionally false statements about a colleague. The facts did not show that Ms. Diaz-Almarez submitted fraudulent information on any document in connection with professional activities. The facts did not show that Ms. Diaz-Almarez failed to obey local, State, and national laws, codes and regulations. The facts did not show that Ms. Diaz-Almarez unreasonably denied any student access to diverse points of view. The facts did not show that Ms. Diaz-Almarez sent any students on non-school-related errands. Ms. Diaz-Almarez inappropriately associated with students in a manner which gave the appearance of impropriety, including participation in situations that were sexually suggestive and which involved alcohol. Ms. Diaz-Almarez’s inappropriate association with students in a manner which gave the appearance of impropriety, including participation in situations that were sexually suggestive and which involved alcohol, impaired Ms. Diaz- Almarez’s effectiveness in the school system. The facts did not show that Ms. Diaz-Almarez engaged in unacceptable relationships or communications with students in the nature of dating; any form of sexual touching or behavior; making sexual, indecent, or illegal proposals, gestures or comments; or exploiting her teacher-student relationship. Ms. Diaz-Almarez transported a student in a private vehicle without the approval of the principal. Ms. Diaz-Almarez’s transportation of a student in a private automobile did not impair Ms. Diaz-Almarez’s effectiveness in the school system. The actions of Ms. Diaz-Almarez constitute misconduct in office and just cause for suspension or termination of her employment as a dance teacher at South Miami.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Miami-Dade County, Florida, enter a final order finding Ms. Isabel Diaz-Almarez guilty of misconduct in office, suspend her employment without pay for a period of 180 school days, and place her on probation for a period of two years. Because Ms. Diaz-Almarez has already been suspended for more than 180 school days, it is RECOMMENDED that her employment be reinstated, with the calculation of back pay not to include pay for the 180-day suspension period. DONE AND ENTERED this 30th day of July, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2013.
Findings Of Fact At all times material, Respondent Raimundo Manuel Dante was enrolled as a student at W. R. Thomas Junior High School in Dade County, Florida. During the course of two periods of enrollment at W. R. Thomas Junior High School, Respondent has had numerous disciplinary referrals. On one occasion, Respondent was recommended for assignment to the Dade County opportunity school program, but his mother withdrew him before the formal proceedings could be resolved. He was transferred back to W. R. Thomas Junior High primarily due to failing grades at a private school. During summer school for 1984, Respondent was tardy on six occasions. He earned three "D" grades and one "C" grade out of four academic subjects. He was absent three days in the "C" course, mathematics, and four days in each of the other courses, including homeroom. Because of the short timeframe for summer school (July 9, 1984 through August 17, 1984), the Respondent's absences and tardies are excessive. During the regular 1984-1985 school year, Respondent was assigned to the eighth grade. His absences span a minimum of eleven to a maximum of thirty- nine in various classes during the final grading period alone. This is clearly excessive and not conducive to any learning activity. His final grades were failing in all classes except "vocational basic," in which he obtained a "D." On December 12, 1984, Mrs. Gomez referred Respondent to Mr. Helip, who as assistant principal has primary responsibility for discipline at W. R. Thomas Junior High School. The referral was not only for disruptive behavior on that date, but was a culmination of a number of occasions when Respondent had behaved similarly. The nature of Respondent's disruptive behavior on December 12, 1984, involved coming to the front of the room without permission and "answering back" disrespectfully to Mrs. Gomez when she did not grant him permission to leave the room to conduct business he should have handled prior to the beginning of class. This was repetitive of similar behavior which had gone on the previous day and which had not resulted in a student management referral at that time. On December 12, Mrs. Gomez also gave Respondent a detention assignment for social talking which was disrupting the class and he uttered a disruptive and insulting retort in Spanish to the effect that nothing would happen to him if he did not comply with the detention assignment. Mrs. Gomez, who speaks and understands Spanish, then considered all Respondent's past misbehavior in the referral of December 12, including his consistent failure to come to her class equipped with appropriate books, paper and writing implements. On April 26, 1985, Mrs. Gomez referred Respondent to Mr. Helip due to his ten tardies in the last two-week period, for kissing girls while sitting atop his desk, and for wandering about the room, talking, and being off task on April 26 and on several prior occasions. Respondent's remarks, when reprimanded orally by Mrs. Gomez, were interpreted by her as disrespectful and threatening. All counseling with the parents in the 1984-1985 school year appear to have dead-ended. During the regular 1985-1986 school year, Respondent was assigned to the ninth grade. His absence record was less than the previous school year but still varied from four to eight days' absence during the final grading period, depending upon which class was involved. This is also excessive and not conducive to any formal learning experience. His final grades were four failures and one "C" out of the courses attempted. During the 1986 summer session, Respondent was absent five days, which was again excessive in view of the summer session's abbreviated timeframe (July 7 through August 15, 1986). Out of two ninth grade subjects attempted, Respondent failed one and got a "D" in the other. On September 16, 1986, in the course of the regular 1986-1987 school year, Mrs. Robbie referred Respondent for discipline due to his yawning, talking, and back talk to her which disrupted her class. Mrs. Robbie had referred Respondent a number of times in the previous year. He failed her class in that school year, and, therefore, on September 16, 1986, Mr. Helip reassigned him to another English teacher without taking any punitive action against him. During the first grading period of the regular 1986-1987 school year, Respondent had been absent eleven days before the occurrence of the incident which precipitated his administrative assignment to the Dade County opportunity school system. At that time, he had failing grades in every one of the six subjects attempted. At the end of the first grading period, Respondent's conduct grades were all failing. The incident which precipitated administrative assignment of Respondent to the opportunity program involved Ernie Ortiz, a 17-year old ninth grader. Upon leaving the school grounds at the close of a school day in October 1986, Ortiz was "tailed" by a slow-cruising brown Camaro automobile with at least four young men in it. Ortiz saw Respondent in the car. A B-B gun was fired from the car at Ortiz who was on the sidewalk. Ortiz was hit by the B-B shot fired from the car and was subsequently treated at a hospital. The next day, Ortiz saw the same car at school and reported the incident to Mr. Helip. Although Ortiz was never able to say whether Respondent was driving or who shot him, the school resource officer found a pellet gun and pellets, a knife, and a roach clip in the car identified by Ortiz, and Respondent admitted to Mr. Helip that the gun was his. Mr. Helip recommended expulsion of Respondent because he believed a weapons charge had been made against Respondent. Instead, based upon all the circumstances, the school board made an opportunity school placement. There is no competent substantial evidence to show that any criminal charge was made against Respondent. In the past, counseling, corporal punishment, and outdoor suspensions have been tried with regard to Respondent but to no avail. The regular Dade County school program resources have been exhausted as regards Respondent.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Douglas MacArthur Senior High School-South. DONE and RECOMMENDED this 13th day of March, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 13th day of March, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mr. and Mrs. Raimundo Dante 1095 S.W. 134th Court Miami, Florida 33184
The Issue Whether Respondent's teaching certificate should be disciplined on grounds that he fraudulently obtained a higher ranking teaching certificate, and thereby also committed an act of gross immorality and moral turpitude.
Findings Of Fact Respondent is a 46-year-old school teacher who has taught in the public elementary schools of Dade County since 1962. After earning a Bachelor of Science Degree in Elementary Education from Florida A & M University, he applied for and was issued a state teacher's certificate in 1976, he successfully completed several post-graduate courses offered in the Miami area by Florida A & M, the University of Miami, and Dade County Junior College. (Testimony of Scott; P-1, P-3). While teaching at Biscayne Elementary School in 1978, Respondent met Eugene Sutton, a Florida A & M instructor from Tallahassee, Florida. It was Sutton's responsibility to observe and supervise Florida A & M students serving as intern elementary education teachers in various schools throughout the state. In exchange for help with his student teachers, Sutton offered to help Respondent pursue a Master's Degree at Florida A & M. Respondent, beset with financial difficulties, 2/ accepted Sutton's offer. (Testimony of Scott, McAllister; R-2) II. Thereafter, Sutton enrolled Respondent at Florida A & M for the summer and fall quarters of 1978. Sutton, acting as an intermediary, transmitted assignments and course work between Respondent and the various instructors. In this manner, Respondent completed eight courses at Florida A & M; by the end of the 1978 fall quarter, he had legitimately earned 29 hours toward a Master of Education Degree in Elementary Education. To earn the degree, an additional 25 hours was required. (Testimony of Scott; P-3, R-1, R-2.) The course registration fees which Respondent paid Sutton were not, however, deposited with the university. In lieu of the fees-- and without Respondent's knowledge--Sutton filed two "Certificates of Participation" purporting to entitle Respondent to waiver of registration fees. Such certificates are ordinarily issued in recognition of services rendered to the teaching profession. (Testimony of Scott; P-2.) III. Toward the end of 1978, Sutton offered to supply Respondent with a completed Florida A & M Master's Degree transcript--without his having to earn the remaining 25 credit hours--for a fee of $2,500. In December, 1978, Respondent accepted the offer and began making $250 payments--usually in cash-- every two weeks. (Testimony of Scott; P-2, R-2). At hearing, Respondent testified that--at the time of the transaction-- he believed that his other accomplishments would substitute for the course work ordinarily required for a Master's Degree: Based on my experience as a teacher in Dade County, based on the fact that I was successful in the area of teaching reading using the developmental approach, the system approach in reading and math, and based on my ability to manage a classroom and my knowledge of the balanced curriculum for Dade County, these things were taken into consideration. And a lot of the course work I didn't have to pursue, I was given credit for those experiences. (Tr. 97) 3/ * * * I didn't have a degree given to me. I worked and I paid my money. Nobody gave me anything. (Tr. 100.) In sum, Respondent contends that he was entitled to the Master's Degree because of his past achievements and experience as a teacher in Dade County. This contention is expressly rejected as unworthy of belief. It is self-serving and non-specific; it is uncorroborated by any independent evidence and inconsistent with his prior explanations to law enforcement authorities. When interrogated on September 4, 1980, Respondent admitted to authorities that his actions were wrong and improper. His sole defense was that he legitimately completed part of the course work required for the Master's Degree. (Testimony of Scott, McAllister; P-2.) IV. In February, 1979, Sutton sent to Respondent the agreed upon Master's Degree transcript and an application for a state teacher's certificate. The transcript falsely indicated: (1) that Respondent had successfully completed a total of 15 courses at Florida A & M between 1971 and 1978; and (2) that he had successfully completed 63 credit hours and was awarded a Master of Education Degree in Elementary Education on March 16, 1979. In truth, Respondent neither took those courses nor received a Master's Degree: the transcript was a forgery. (Testimony of Scott; P-2.) Thereafter, Respondent completed and filed with the State Department of Education an application for a higher ranking teacher's certificate. After indicating on the application that Florida A & M had awarded him a Master of Education Degree he signed a notarized statement: I understand that Florida Statutes provided for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. (Section 231.28, Florida Statutes.) I further certify that all information pertaining to this application is true and correct. (P-2). (Testimony of Scott; P-2.) On June 5, 1979, the Florida Department of Education approved Respondent's application and issued a new higher ranking teacher's certificate, No. 122380 (post-graduate level). (Testimony of Scott, Gray; P-2.) V. On April 25, 1979, Respondent completed and filed with his employer, Dade County Public Schools, an "Application for Credential Payment for Advanced Degree(s)." As basis for the credential payment, i.e., increased salary, Respondent represented that he had obtained a Master of Education Degree on March 16, 1979, and attached, as documentation, the false Florida A & M transcript. 4/ (Testimony of Gray, Scott; P-2.) The Dade County School System approved Respondent's application for credential payment based on his purported advanced degree and paid him an increased salary retroactive to the date on which the advanced degree was allegedly conferred: March 16, 1979. During the ensuing months, Respondent was paid--as a result of the claimed post-graduate degree--$2,951.41 in excess of the salary to which he was entitled. (Testimony of Gray; P-8.) On June 25, 1979, Respondent made the last payment on the $2,500 fee owed to Sutton for obtaining the Master's Degree; it consisted of a check in the amount of $452. (Testimony of Scott; P-2.) Respondent falsely represented to the Florida Department of Education and the Dade County Public School System that he had been awarded a Master of Education Degree by Florida A & M on March 16, 1979; as a result, the Department issued him a higher ranking (post-graduate level) teacher's certificate and the school system increased his salary. When he made such representations, he well knew they were false. (Testimony of Scott, McAllister; P-1, P-2.) This ultimate finding of Respondent's guilty knowledge-- notwithstanding his disclaim--is based on his subsequent admission to law enforcement authorities that he had acted wrongfully. Several factors buttress this finding: (1) Respondent paid Sutton $2,500 for the false transcript--a fee disproportionate to its ordinary cost; 5/ (2) most payments were made in cash and hand delivered; and (3) the transcript was replete with entries that Respondent would have easily recognized as false. 6/ (Testimony of Scott, McAllister; P-1, P-2.) By fraudulently obtaining a post-graduate teacher's certificate and a corresponding increase in salary, Respondent's effectiveness as a teacher in the Dade County School System has been seriously reduced. (Testimony of Gray.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent be found guilty of violating Section 231.28(1), Florida Statutes (Supp. 1980), and his teacher's certificate, No. 122380, (post-graduate level), be permanently revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of July, 1981. R. L. CALEEN, JR. 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 2nd day of July, 1981.
Findings Of Fact Respondent has a bachelor's degree in secondary education in English, which she received from Penn State University in 1973. After graduation, she took ballet lessons for six months in New York and then returned home to recuperate from pneumonia. She returned to Philadelphia and taught in a private school for a short time. She then attended a graduate program at Temple University and received her certification as a reading specialist in 1977, although she did not complete her master's degree. While she was in graduate school, she was a long-term substitute for one and one-half years in Philadelphia. She returned home to Miami Beach, Florida, because she was assigned to a school which she considered undesirable and because she had some dental problems. Respondent started teaching in the Dade County Public Schools in September of 1980 at Robert E. Lee Junior High School. During most of that school year, William R. Jones, who is currently the principal of Robert E. Lee Junior High School, was the assistant principal for curriculum at that school. As such, he received numerous complaints concerning Respondent and her classroom instruction from other teachers, from students, and from parents. Therefore, he observed Respondent teaching. Jones attempted to help Respondent with her teaching presentation, a fact which was acknowledged by Respondent at the formal hearing in this cause when she admitted that he had helped her a great deal in the field of teaching. However, during the 1980-1981 school year she responded to his assistance inappropriately. She told Jones that he had conditioned her to respond favorably to him sexually, and she told other teachers of her physical attraction to Jones. Respondent began to display bizarre behavior at school. On three occasions she was found lying on the front lawn of the school. The students thought that she was asleep, ill, or possibly dead, and this understandably caused commotion in the classrooms. After the first such occasion, Jones told her not to do it again. However, on two subsequent occasions she was found lying on the front lawn of the school. On another occasion, Respondent hysterically interrupted a conference Jones was having with another member of the school staff. He told Respondent that he was involved in a conference, but she refused to leave. She vacillated between laughing and crying. Finally, Jones advised Respondent that if she did not leave, he would call school security. She continued to refuse to leave, and he was compelled to terminate his conference so that he could talk to her. She then indicated that she had nothing to say to him. At the conclusion of the 1980-1981 school year, after Jones had become the principal of Robert E. Lee Junior High School, he was conducting a faculty meeting. Respondent got out of her seat and began to yell and scream. She ran about the cafeteria where the meeting was being held and made threats toward Jones. Due to this disruption, Jones had to end the faculty meeting and send Respondent home. After observing Respondent's classroom technique, Jones determined there was a need for her to obtain additional help or training in Preparation, planning and techniques of instruction. For example, Respondent changed her classroom activity six or seven times during the class period; she would start the class on an assignment and three or four minutes later, before the class had finished, would change the assignment to something else. Jones requested Respondent to attend the Teacher Education Center. She refused to attend. Jones had Respondent transferred from her regular class of approximately 30 to 35 students to a smaller classroom with 13 to 15 students in the hope that she would be able to cope with this reduced-size class. The attempt was unsuccessful. Both Jones and his new assistant principal, Mr. Bonilla, still found Respondent's performance to be unacceptable. In his final evaluation of the school year, Jones rated her as unacceptable. About halfway through the 1980-1981 school year, Jones advised the executive director for the Division of Personnel Control of the Dade County Public Schools, Dr. Patrick Gray, of Respondent's difficulties. After Jones's and Bonilla's annual evaluation of Respondent at the end of the 1980-1981 school year, Gray held a conference with Respondent and referred her to a psychiatrist, Dr. William Gustafson. As a result of his evaluation, Gustafson advised that Respondent was definitely emotionally disturbed and in need of psychiatric treatment. He further opined that Respondent was definitely not able to function as a teacher at the present. Thereafter, Respondent requested a medical leave of absence without pay for psychiatric reasons, and that leave was approved. About this same period of time, Dr. Gray's office received an undated letter from Respondent charging Jones with numerous acts of unprofessional conduct. Among other things, she alleged that Jones, a married man, was having an affair with a fellow educator and that that person had become pregnant. In fact, that faculty member had never been pregnant. During the 1981-1982 school year, Respondent was on a leave of absence from the Dade County Public Schools on medical leave for psychiatric reasons. It is the school system's policy to pay the premiums on hospitalization, vision and dental insurance during such a leave of absence, and this was done for Respondent. Midpoint in that school year, Respondent advised that she wished to return to work, and Dr. Gray arranged to obtain a medical evaluation by psychiatrist Charles B. Mutter. Dr. Mutter reported that Respondent's judgment was impaired, her insight was nil, and she had marked emotional difficulties warranting further psychiatric treatment. He found she had a schizoid predisposition and was in a borderline state with marked anxiety. As a result of Mutter's evaluation, Respondent did not return to work. On March 2, 1982, Dr. Gray received a report from Dr. Gustafson advising that Respondent had returned to treatment with him. Gustafson stated that she was still quite impaired by her condition, although she had improved in some respects. That same day, Gustafson telephoned Gray to advise that Respondent was no longer in treatment and that she considered Gustafson and Gray to be in a conspiracy against her. Gustafson further opined that Respondent had potential for desperate actions and needed continuing therapy. On June 16, 1982, Gray received a letter from Respondent requesting that her medical leave be extended for another year. However, on July 2, 1982, Gray received a report from Dr. Gustafson recommending only a two-month extension of Respondent's medical leave. On August 4, 1982, Gustafson wrote to Gray stating that Respondent had been successfully able to function as a teacher in a private school over the past summer. At that time, it was his opinion that she could handle the responsibilities of a classroom teacher once again. Gustafson's opinion at that time was based in part on Respondent's representation that she had been teaching a classroom of students during the preceding summer. He stated later that had he known that Respondent was only tutoring one student at a time during her summer employment, a fact which Respondent acknowledged at the hearing, he would have been more cautious about his recommendation that she was able to return to work. On the strength of Gustafson's recommendation, Respondent was returned to work in the Dade County Public Schools. She was assigned to Hialeah-Miami Lakes Senior High School, a school with a low incidence of student disruption and of high student test scores. Hialeah-Miami Lakes was in the top one-third of Dade County schools academically as well as in student activities and in the overall operation of the school. Respondent was assigned to teach English/Communications. Respondent's classes each lasted 55 minutes. During the first nine weeks of the school year, she typically assigned students a test which took approximately five to ten minutes to complete. For the rest of the class, she told them to read material of their own choosing. The students either read or slept. While the students were testing themselves and/or reading and/or sleeping, Respondent stared at the ceiling or else read a book. Sometimes she giggled to herself, even though there did not appear to be anything to laugh at occurring at the time. Some of the students felt that she screamed at students without good cause and "acted crazy." Some students requested to be transferred out of her class. The assistant principal in charge of curriculum at Hialeah-Miami Lakes Senior High School observed Respondent's class and found that there was no teaching being done. Further, although the Faculty Handbook at Hialeah-Miami Lakes requires that a minimum of two grades a week be placed in the teacher's grade book for each student, and although Respondent was advised of this requirement, she had no grades in her grade book by the end of the seventh week of school. Instead, she placed colored squares in her grade book. Although this coloring system may have held meaning for Respondent, a substitute or new teacher for the class would not be able to understand anything from this form of grading system. A conference was held with Respondent, the principal of the school, and the assistant principal for curriculum in the principal's office regarding Respondent's unacceptable performance. At that time, both the principal and assistant principal found Respondent's behavior to be bizarre. She grabbed her arms and started to giggle and laugh even though no one had said anything to precipitate any laughter. Although Respondent insists that her testing of the students was absolutely necessary, it normally takes other teachers one week at the most to accomplish the same testing of the students prior to commencing instruction. Respondent was still testing in the seventh week of school and had not yet begun to instruct or teach the students. Other teachers observed Respondent's behavior during the time she was at Hialeah-Miami Lakes and became concerned to the degree that five of them approached the principal regarding Respondent. Raymond Harrell, the language department head at Hialeah-Miami Lakes, described Respondent's behavior, including her inappropriate giggling. Harrell and another teacher, Gary Graziani, related an incident concerning a school- sponsored television program, which is run every other Friday for 15 minutes and is part of the school curriculum. Respondent was upset about the noise from the televisions and stated to them and others: "We have got to stop the noise, I cannot teach with that noise, it's pounding in my blood." It was suggested that she might take her class to the auditorium on the days that the newscast was run; however, she refused and insisted that the noise must be turned down. She stated: "It's like being behind a train. I just can't take it, I just can't take it." No other personnel at the school, including the teacher who had Respondent's classroom before her, had complained about the noise from the televisions. On another occasion, while Harrell was chairing a department meeting concerning curriculum, Respondent raised her hand and gave a 10- to 15-minute speech about the history of her high school curriculum and the way she did things in Pennsylvania. Her comments had nothing to do with the subject of the meeting, and she told the department head to be quiet and pay attention. Harrell, who has also observed Respondent staring at the ceiling and even talking to the ceiling, is of the opinion that she is absolutely incompetent to be a teacher. During the month of October 1982, the principal of Hialeah-Miami Lakes Senior High School requested Dr. Charles Sherwood, the regional supervisor for the Dade County schools, who has extensive background in reading and in English, to come to Hialeah-Miami Lakes to evaluate the reading program at that school. On October 15, 1982, Dr. Sherwood complied with that request, and, as part of his evaluation, he observed Respondent. Dr. Sherwood observed Respondent give a test to her students which required approximately five or six minutes to administer and take. She collected the test sheets and told the class to find something to read. Some students looked at magazines, others talked with each other, and Respondent sat down in a chair and looked at the ceiling. She was not teaching at all. Although Respondent's students were required to have writing instruction, she did not give them any. Dr. Sherwood questioned Respondent as to the materials and supplies she would be using, and she advised him that she would find some when she needed them. The materials that she did have and intended to use when she finished testing the students were not appropriate for her class. Dr. Sherwood does not believe that Respondent is competent to teach school. When the principal of Hialeah-Miami Lakes raised questions as to Respondent's fitness to teach, she was again referred to Dr. Patrick Gray. Gray again referred her for psychiatric evaluation, and, although Respondent resisted, eventually the evaluation did take place. On November 5, 1982, Respondent agreed to see Dr. Anastasia M. Castiello, a board certified psychiatrist. Dr. Castiello diagnosed her as schizophrenic. Dr. Castiello concluded his report on his November 5, 1982, evaluation of Respondent as follows: . . . Finally, in response to your specific question, i,+ is my opinion that Miss Ronburg's mental condition is such at the present time that she would be unable to properly function as a teacher and as a matter of act [sic], it is unlikely that she could function in whatever capacity in a job situation of any kind. After reviewing Dr. Castiello's evaluation, Dr. Gray concluded that the school system had exhausted its efforts to help Respondent and would not be able to be of further assistance to her. He did not feel that medical leave of absence would achieve any further positive results and therefore recommended the termination of Respondent's employment with the school system. On the basis of his educational background and his experience in the area of personnel control, Dr. Gray believes that Respondent clearly lacks the competence to perform the assigned functions of an instructional staff member in Dade County Public Schools. Effective November 18, 1982, Respondent was suspended from her employment with the Dade County Public Schools, and the school board instituted proceedings to dismiss her from employment. On February 7, 1983, Respondent's attorney took the deposition of Dr. William Gustafson who had first seen Respondent in the spring of 1981. Dr. Gustafson agrees that Respondent is suffering from schizophrenia, which he describes as an inability to differentiate what is real from what is unreal and a difficulty in arranging thoughts in an orderly, reasonable, and rational manner. When he first saw her, Gustafson believed that Respondent was delusional about her situation at Robert E. Lee Junior High School and her feelings about Mr. Jones. He noted her inappropriate laughter, from which it appeared that she was responding to things that were within herself. Although Gustafson believes that Respondent has improved somewhat, as of the date of his deposition, his diagnosis remains the same. Dr. Gustafson has been hampered in his treatment of Respondent by her refusal to come for treatment as often as the psychiatrists recommend to be desirable and necessary for treatment of her condition and by Respondent's refusal to take the medication prescribed for her. After her suspension from her employment, Respondent visited Gustafson, who became concerned that she had suicidal feelings, and he hospitalized her for this reason. She checked out of the hospital within three hours. Gustafson believes that if Respondent continues in treatment and accepts medication, she can recover. She has not, however, admitted that she is sick, and she continues to refuse medication and treatment. As of his deposition on February 7, 1983, Gustafson had not seen Respondent in his office for approximately one month. In fact, he had seen her only three or four times since he hospitalized her in November of 1982 and has no reason to believe that she will come in to see him any more often than she has in the past. He believes that in order to be of assistance to her, he should see her once or twice a week for hourly sessions. Since Respondent has only seen Dr. Gustafson approximately 12 times over the period of two years between her first referral to him and the date of the formal hearing in this cause, Dr. Gustafson cannot be considered as her treating physician, and his opinion is entitled to only the same weight as the opinions of the other two psychiatrists who have evaluated Respondent. The most recent psychiatric evaluation of Respondent was performed by Dr. Charles B. Mutter on March 23, 1983. Dr. Mutter is the same psychiatrist who evaluated her in January 1982. Dr. Mutter found that Respondent's judgment is impaired, and her insight is superficial. He further found that she needs more intensive psychotherapy than she is receiving and is in definite need of medication to help her remain more stabilized." Dr. Mutter concluded that Respondent's present mental state precludes her from teaching. He would only recommend that Respondent be permitted to return to the classroom with two stipulations: that she continue treatment with Dr. Gustafson on at least a twice-monthly basis, and that she take medications prescribed by Dr. Gustafson on a consistent basis. At the formal hearing in this cause, Respondent admitted that she would not take medication for her illness even though she has been advised to do so by the psychiatrists. She also testified that she does not feel that she requires psychiatric treatment in order to perform the role of a classroom teacher. Since all three psychiatrists agree that Respondent needs continuing regular therapy and medication in order to improve, and since Respondent refuses to undergo therapy and take medication, it is clear that until she chooses to follow medical advice she will not improve and cannot function as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the suspension of Respondent Donna Ronburg, dismissing her from her employment with the School Board of Dade County, Florida, and denying her claim for back pay. DONE and RECOMMENDED this 30th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 June, 1983. COPIES FURNISHED: Phyllis O. Douglas, Esquire School Board of Dade County Lindsey Hopkins Building, Room 200 1410 NE Second Avenue Miami, Florida 33132 William du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was employed by Petitioner under a continuing contract. The Respondent, Muriel Johnson Krueger, holds Florida teaching certificate number #0367469 issued by the Florida Department of Education covering grades K through 6. The Respondent is also certified in Florida for administration and supervision, grades K through 12. She also holds a Wisconsin teaching certificate. The Respondent taught in Wisconsin for a number of years; she taught in a one-room school house, grades 1 through 5. She began teaching in Florida in 1974 at Brooksville Primary School in Hernando County, where she taught first grade for two years. She next taught first grade at Moton School Center (Moton) also in Hernando County, for four years. She received her continuing contract in 1977. In 1979, the Respondent was appointed primary specialist at Moton; she held that position until August, 1985. As primary specialist, the Respondent was not assigned to a classroom; she worked primarily with teachers and teachers' aides. She was not responsible for drawing up lesson plans, recording grades, or developing pacing schedules, as those procedures are used in the ordinary classroom. The Respondent received favorable evaluations throughout her career in the Hernando County school system, until January, 1986. However, Respondent has never received an evaluation of her performance which would support her dismissal. In March, 1985, the Respondent was diagnosed as having certain physical and psychological problems, including diabetes and atypical psychosis. The Respondent's medical conditions, including the details regarding her psychological illness, were reported to the school system by the Respondent's doctors, Dr. Renee Haney, a psychiatrist and Dr. Joanne Pegg- McNab., a psychologist. In August, 1985, two days prior to the commencement of the school year, the Respondent was notified by the Petitioner that she would be teaching third grade at Spring Hill Elementary School (Spring Hill) during the 1985-86 school year. Previously, the Respondent had been given to understand, based on representations made to her by school administrators, that she would be teaching second grade in 1985-1986. The Respondent had prepared materials for the teaching of second grade, which she was unable to use in teaching third grade. Louise Ross, principal of Spring Hill, was aware that Respondent had not been a classroom teacher for at least four years prior to Respondent coming to Spring Hill in August, 1985. Ross was aware of Respondent's treatment for psychological illness. Prior to the students' return, the Respondent worked one week at Spring Hill. During that period, Respondent attended general meetings, and although Respondent received a packet of material during this period, it did not contain any specific instruction in regard to preparing lesson plans, grading or pacing. Respondent received specific written instruction regarding the recording of grades and pacing at a later date. Respondent did not receive any specific verbal or written instructions from Ross or any other person respecting the procedures in effect at Spring Hill in regard to grading and pacing until the memorandums of September 24, 1985 and November 19, 1985 from Ross concerning grades and pacing, and the December 16, 1985 letter to Respondent from Ross setting forth Ross' concerns about Respondent's procedures in grading, pacing, and lesson plan preparation that were covered in the meeting between Ross and Respondent on December 16, 1985. On September 24, 1985, approximately one month after school opened on August 22, 1985, Ross issued a memorandum regarding the number of grades to be recorded for each subject, and the procedure for recording the grades. On November 19, 1985 Ross issued a memorandum regarding the Ginn Reading Program (pacing student in reading). Both the memorandum and the chart attached pointed out it was a "guide" and that the primary concern was for the student to master the material. There is insufficient evidence to show that Respondent received this memorandum prior to returning to work on December 16, 1985. No documents concerning the pacing in other subjects were issued to Respondent. Pacing involves setting a pace for the teacher and the student to cover the required material in a set time and yet allow the student to master the subject matter. The failure to properly pace a class usually results in the student requiring remediation in the subject matter. Although Ross collected and reviewed Respondent's lesson plan books during the beginning of the school year and prior to Respondent going on sick leave in November, 1985, Ross did not make any suggestions or criticisms concerning pacing because when she checked the lesson plan books Ross found them sufficient. Respondent was aware of the requirement of preparing lesson plans in advance, but at Moton, where she had previously taught, the requirement was to prepare three days of lesson plans in advance, not five days as was required at Spring Hill. Spring Hill required lesson plans to be ready on the Friday immediately prior to week of the lesson plans, but Ross had allowed teachers to prepare lesson plans over the week-end for the following week. Respondent was absent from school beginning November 20, 1985 through December 16, 1985 on approved sick leave. Respondent failed to prepare lesson plans and leave them for her substitute. Respondent's illness prevented her from preparing lesson plans for the period beginning November 25, 1985 and up until Respondent returned on December 16, 1985. However, the lesson plans for November 20, 21 and 22, 1985 should have been prepared prior to Respondent's illness. On December 16, 1985, the day Respondent returned from sick leave, Ross held a meeting with Respondent to advise her of certain changes in performance expected by Ross. The expected changes were the result of Ross reviewing Respondent's grade book and determining that the grades were not recorded in accordance with the September 24, 1985 memorandum, and reviewing Respondent's lesson plan books and determining that Respondent's class (an average class) was ahead of the top class in the third grade in reading and math. Respondent was advised of how to effect the changes and that compliance was expected by the beginning of the second semester. Although Respondent's third grade class was ahead of other third grade classes during the period of school prior to December 16, 1985, the student's mastery of the subject matter covered during this period was within an acceptable range, and remediation was normal. Subsequent to returning to work on December 16, 1987, and up until the Respondent took leave on March 12, 1987, the Respondent's pacing of her students was in accordance with school policy. Respondent's grade books may have shed some light on whether Respondent had properly recorded the student's grades but the grade books were not introduced into evidence. Prior to taking sick leave on November 20, 1985, the Respondent had, in addition to those grades recorded in her grade, recorded grades on sheets of paper in the back of her grade book contrary to the instructions given in the September 24, 1985 memorandum from Ross. However, Ross permitted the Respondent to record these grades in her grade book at a later time. Without knowing that it was against school policy, Respondent allowed her aides to record grades in her grade book. Subsequent to returning to work on December 16, 1987, and up until she took leave on March 12, 1986, the Respondent's recording of grades in her grade books was in substantial compliance with school policy. Although Respondent did not totally comply with the December 16, 1985 memorandum from Ross, her compliance with the memorandum satisfied Sonia Terrelonge, the third grade chairperson, who Ross had assigned the duty of working with Respondent to bring about compliance with the memorandum. Ross did not check Respondent's plan book or grade book on a regular basis as she had indicated in her memorandum of December 16, 1985 but delegated that responsibility to Terrelonge. On March 7, 1986, Respondent escorted her students to Terrelonge's portable classroom to see a movie and, since Respondent had detention duty, she picked up the students from other third grade classes on detention and returned to her portable classroom. At lunch time Respondent returned the students on detention to Terrelonge's portable classroom and escorted her students to lunch. After lunch Respondent escorted her students back to Terrelonge's portable classroom for the balance of the movie; again picked up the students on detention, and returned to her classroom. At the time scheduled for the conclusion of the movie, Respondent returned to Terrelonge's portable classroom to escort her students back to her classroom. Upon arrival at Terrelonge's classroom, Respondent discovered that her students had left earlier with either Maria Wolf or Catherine Winemiller or Jacqueline Mitchie, the other teachers having students at the movie. Although one of these three (3) teachers would have been responsible for supervising the return of Respondent's students to her classroom since Respondent was on detention duty, there is insufficient evidence to show which one had that responsibility. Upon return to her classroom Respondent observed some of her students outside the classroom unsupervised. Some of the students were running around and some were standing on a railing attempting to rescue a shoe from the roof. Respondent summoned her students into the classroom. None of the students were injured in any way. After the movie and the shoe incident the Respondent's children were "hyper". To calm them down, Respondent decided to go to the playground rather than to the scheduled special class. Respondent notified the special class teacher of this change but, without knowledge that she was required to notify Ross, failed to notify Ross of this change. This was the only special class the Respondent's student's missed while under her care during the 1985-86 school year. Other teachers took their students out on unscheduled recess when the children would not settle down. The evidence does not reveal any written policy concerning unscheduled recesses. Respondent kept blank discipline slips and omni passes in an unlocked desk drawer, and that students had on occasions filled out these slips without Respondent's knowledge. There was insufficient evidence to show that the children were under Respondent's supervision at the time the slips were taken out of the drawer and filled out. There were a number of disruptive and behavioral problem students in Respondent's class, but the number of disruptive or behavioral problem children in Respondent's class was not shown to be greater than in any other average third grade class. During the 1985-86 school year, Ross made frequent, unscheduled visits to Respondent's classroom and found Respondent's performance, including her classroom management, satisfactory, except on one (1) occasion, March 12, 1986. As a result of the shoe incident and skipping the special class, Ross called Respondent to a meeting on March 7, 1986 with Edward Poore, Assistant Superintendent, and Cathy Hogeland, Union Representative being present along with Ross and Respondent. As a result of this meeting, Ross advised Respondent to take the rest of that day off, which was Friday, and March 10, 1986 which was Monday. Respondent complied and returned to work on Tuesday, March 11, 1986. On March 11, 1986, the day Ross returned to school her students went on a field trip but Respondent was not allowed to accompany them. During the day Respondent worked on grading, grade books and planning. Also, on March 11, 1986, Ross gave Respondent a handwritten memorandum instructing her in class management, specifically addressing the supervision of students, class discipline, the following of lesson plans and attendance of students at special classes. Additionally, the memorandum instructed Respondent that teachers were not to eat lunch in the classroom and listed those areas where Respondent could eat lunch. On March 12, 1986, around noon, Respondent met with Ross, with Joanne Knight, being present as Union Representative. This meeting occurred as a result of Ross visiting Respondent's classroom and finding the students particularly disruptive and disorderly. When Respondent indicated that she could resume teaching her class that afternoon, Ross informed Respondent that she must take a leave of absence and have a complete physical examination and psychological evaluation or Ross would recommend her termination to the school board. Respondent was also informed by letter from Ross dated April 8, 1986 that her return to work would be based on the psychologist's report which should be submitted no later than May 31, 1986. Due to Ross' demands, Respondent requested leave and signed the necessary papers which had been filled out by the school board office. Respondent was put on leave without pay for the balance of the school year. Respondent resumed seeing Dr. Haney in April, 1986 but due to Dr. Haney's, or Respondent's oversight, an evaluation was not submitted until July 30, 1986. However, on July 1, 1986, Ross had recommended Respondent's dismissal to the superintendent based solely on Respondent's failure to provide the evaluation by May 31, 1986 without any further notice to Respondent other than the letter of April 8, 1986. Respondent learned of Ross's recommendation of dismissal sometime around July 16, 1986 when Ross notified her by letter. The letter also informed Respondent that this recommendation would go to the school board on August 5 1986. During Dr. Haney's treatment of Respondent in 1986, she prescribed medication for her mental condition which had no detrimental side effects on the Respondent. Dr. Haney's report of July 30, 1986 made no recommendation as to Respondent's ability to return to the classroom but left to the school system the interpretation of her findings. Dr. Arturo G. Gonzalez, Respondent's treating psychiatrist, began treating Respondent in October, 1986. Dr. Gonzalez's opinion was that while Respondent does have a mental condition, it is treatable with medication and does not affect Respondent's ability to teach. Dr. Gonzalez prescribes the same medication for Respondent as did Dr. Haney. From his observations, the Respondent takes the medication as prescribed. It was also Dr. Gonzalez's opinion that Respondent understands the need for medication. It was the opinion of Dr. Haney that Respondent better understood the need for medication after her second hospitalization in April 1986 then she had after the first hospitalization in 1985. It was the opinion of both Dr. Haney and Dr. Gonzalez that Respondent's mental condition would not prevent her from being effective in the classroom and that her presence as a teacher would not endanger the welfare of the students. Respondent was a concerned teacher, interested in her student's welfare. There is insufficient competent evidence in the record to show that Respondent had emotional outbursts in the presence of her students. There is insufficient competent evidence in the record to show that, due to Respondent's action, the students in her third grade class were deprived of minimum education experiences. Respondent substantially performed her duties as prescribed by law. There is insufficient competent evidence in the record to show that there was a constant or continuing intentional refusal on the part of Respondent to obey a direct order given by proper authority.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Petitioner, School Board of Hernando County, enter a Final Order dismissing all charges filed against the Respondent, Muriel Krueger. It is further RECOMMENDED Respondent be restored to her position as a continuing contract employee of the Hernando County School Board, and that she receive back pay for the entire period she has been in a non-pay status because of these charges. Respectfully submitted and entered this 14th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2001 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 in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 3, 4, and 7. Adopted in Finding of Fact 10 as clarified. Adopted in Finding of Fact 16 as clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 17 as clarified. Adopted in Finding of Fact 17 as clarified. Adopted in Findings of Fact 11 and 12 as clarified. Adopted in Finding of Fact 20 as clarified. Adopted in Finding of Fact 20. 11-13. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 11, 12 and 13. Adopted in Finding of Fact 14. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraph 15. Adopted in Finding of Fact 23 except for the last clause which is rejected as not supported by substantial competent evidence in the record. 17-19. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 17, 18 and 19. Rejected as not supported by substantial competent evidence in the record, except for the one occasion on March 12, 1986 which would not be described as a chaotic condition. That classroom management was discussed with Respondent is adopted in Findings of Fact 27 and 29. Rejected as not supported by substantial competent evidence in the record. That students took discipline slips and filled them out is adopted in Finding of Fact 24, the balance of paragraph 23 is rejected as not supported by substantial competent evidence in the record. 24-27. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 24, 25, 26, and 27. Adopted in Findings of Fact 6, 31, 32, 33 and 34. Rejected as not being relevant or material. Rejected as not being relevant or material because that was Dr. Haney's provisional diagnosis which was changed when she made her final diagnosis. The first sentence of paragraph 31 is adopted in Findings of Fact 3 and 4. The balance of paragraph 31 is rejected as not being relevant or material in that although Respondent admitted being acquainted with those school board policies there was credible evidence that Respondent was not aware at the beginning of the school year of Ross' or the Superintendent's specific instruction in regard to maintaining attendance records, grade books, etc. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 8, 10 and 11. Adopted in Finding of Fact 9 but clarified. Adopted in Finding of Fact 12. Adopted in Finding of Fact 15. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 20. Adopted in Finding of Fact 18. Adopted in Finding of Fact 21. Adopted in Finding of Fact 13. Adopted in Findings of Fact 20 and 21. 20.-21. Adopted in Finding of Fact 22 as clarified. Rejected as not being a finding of fact but only a restatement of testimony. Adopted in Finding of Fact 24. Adopted in Finding of Fact 22. 25.-26. Adopted in Finding of Fact 23. Adopted in Finding of Fact 25 but clarified. Adopted in Finding of Fact 27 but clarified. Adopted in Findings of Fact 28 and 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30 but clarified. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 31. Adopted in Findings of Fact 31 and 33. Adopted in Findings of Fact 34 and 35 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37 but clarified. Adopted in Finding of Fact 35 but clarified. Adopted in Finding of Fact 5. COPIES FURNISHED: Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 34601 Susan E. Hicks, Esquire Post Office Drawer 520337 Miami, Florida 33152 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32300 James K. Austin, Ed.D. Superintendent of Schools Hernando County 919 U.S. Highway 41 North Brooksville, Florida 33512-2997
Findings Of Fact Until his suspension in August 1983, Respondent has been continuously employed by the School Board since August 1983, as a teacher, psychologist, and Assistant Principal. He holds Florida Teacher's Certificate Number 232311 and has been on continuing contract with the School Board. During Respondent's 15 years of employment with the School Board, he was evaluated as average and above average as a teacher, psychologist, and Assistant Principal. He was particularly effective as an assistant principal and in diagnosing learning and behavioral problems experienced by kindergarten and first-grade children. On August 9, 1983, Respondent entered a guilty plea and was therefore convicted in the United States District Court for the Southern District of Florida of one count of conspiracy to transfer firearms in violation of Title 18, United States Code Section 371 because the subject firearms were not registered with the Secretary of the Treasury as required by the applicable federal laws. Respondent was originally sentenced to be confined to a minimum security institution for a period of six months with a subsequent period of two years probation. This sentence was then modified to four months in a community treatment center (halfway house) with a subsequent period of three years probation. Respondent is presently serving his probation period. This conviction forms the sole factual basis for the charges herein by both the School Board and the Department. Because the Specific Notice of Charges and the Administrative Complaint are based upon allegations involving Respondent's immorality, moral turpitude and his effectiveness as a teacher, the circumstances surrounding Respondent's arrest, plea, and conviction are extremely pertinent. Respondent's first involvement with the circumstances leading to his conviction stems from conversations he had with his neighbor Jose Lopez regarding the sale of hand guns. At all times material hereto, Respondent was the holder of a Federal Firearms License. Although Lopez knew that Respondent was a licensed gun dealer, Respondent did not know that Lopez was a paid federal informant. Lopez asked Respondent if Respondent could put him in touch with anyone who would sell unregistered firearms. Respondent knew a gun dealer named Zarraga who had previously introduced Respondent to a man named Navarro who owned a gun shop. Respondent told Lopez about these men and introduced them to each other. Lopez contacted Donald R. Kimbler, a Special Agent for the Bureau of Alcohol Tobacco and Firearms of the United States Treasury Department. Lopez, acting with Kimbler's knowledge, then entered into a deal with Navarro and Zarraga wherein Lopez was to purchase seven Ingram submachine guns and eight silencers. Lopez, Navarro, and Zarraga arranged to deliver the guns and silencers to Respondent's home where they were to be picked up by Lopez. Respondent earned no money from the transaction. He was willing to help Lopez locate the guns because he was under the belief that they were to be sent to Nicaragua to aid in the fight against the Communists in that country. Respondent believed that to be a worthy cause based upon Respondent's personal flight as a young man with his family from Communist Cuba. Respondent believed that the persons offering the guns for sale (Navarro and Zarraga) were the ones who had the responsibility to register them with the federal government. The first time Respondent realized he was involved in a serious crime was when he was confronted by Agent Kimbler at Respondent's school. At that meeting, Respondent cooperated with Kimbler and gave a voluntary statement regarding the transaction under investigation. In a subsequent meeting with Kimbler, Respondent gave another statement which constituted a complete account of the events regarding the sale of guns by Navarro and Zarraga in which Respondent was involved. At the time Respondent gave his cooperation and first statement to Kimbler, he was not under arrest and no arrest of Respondent was contemplated by Kimbler. Respondent's attitude throughout the investigative proceedings was one of total and above excellent cooperation with the authorities. His cooperation was based upon his desire to be honest and do what was right rather than on a desire to "make a deal" with the government. Based upon Respondent's cooperation and subsequent testimony, the federal government was able to indict and convict Zarraga and Navarro. Contrary to Agent Kimbler's recommendation, Respondent was also indicted. Although it is common knowledge that machine guns are used to kill people and silencers are used to muffle the sounds of such a weapon, there was no direct evidence as to what use these guns and silencers were to be put. Petitioner's only witness to testify that Respondent's effectiveness as a teacher has been reduced was Patrick Gray, Jr., the Executive Director for the School Board's Division of Personnel Control. That witness further admitted that he did not recall ever having seen a newspaper article regarding Respondent's arrest or conviction. Two other employees of the School Board who are involved in the actual school setting did not believe Respondent has lost his effectiveless.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Final Orders be entered: In Case No. 83-3017 suspending Respondent from his employment by the School Hoard without pay for a period of three years from the effective date of his suspension, and In Case No. 83-3447 suspending Respondent's Florida Teacher's Certificate for a period of three years from the effective date of his suspension by the School Board. Done and Recommended this 30th day of November 1984, in Tallahassee, Florida. LINDA M. RIGOT 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 30th day of November 1984. COPIES FURNISHED: Thomas Robertson, Esquire 3050 Biscayne Boulevard Third Floor Miami, Florida 33137 Wilson Jerry Foster, Esquire Suite 616, Lewis State Bank Building Tallahassee, Florida 32302 Harold M. Braxton, Esquire 45 SW 36 Court Miami, Florida 33135 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner Department of Education The Capitol Tallahassee, Florid 32301 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner. CASE NO. 83-3017 IVAN DANGER, Respondent. /
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of September, 1983.
Findings Of Fact Prior to May 18, 1977, the Respondent was employed by the School Board as a driver education teacher and head football coach at Miami South Ridge High School. At approximately 3:00 A.M. on May 15, 1977, the Respondent left his home in Miami, Florida, and drove to the back of a business located at 7211 S. W. 40th Street in Miami, Florida. John F. Allen operates a boat, motor, and trailer sales, service, and repair business at that location. In the back of the building there is a work area that is surrounded by a chain link fence. Customers' boats and motors are stored in this area while work is done on them in the shop. The Respondent walked down an alleyway along the fenced area, and climbed over the fence. He removed an outboard motor from a boat, and pulled it away from the boat toward the fence. The Respondent did not work in the boat yard, and he was not authorized to be there after regular business hours. There was no direct evidence as to the Respondent's intentions. The circumstance of his being in the fenced in portion of the boat yard at between 3:00 A.M. and 4:00 A.M. and the circumstance of his removing an outboard motor from a boat, and carrying it toward the fence, lead inescapably to the conclusion that the Respondent was seeking to steal the engine. The Respondent did not remove the engine from the boat yard. For unknown reasons, he abandoned his effort to steal the engine and left the boat yard. The Respondent was not armed with any weapon, and no other person was in the boat yard while he was there. The outboard engine which the Respondent was attempting to steal was a 40 horsepower Johnson outboard engine. The weight of the engine is approximately 140 pounds. The engine has a wholesale value of approximately $250. Even if the engine were in the worst possible operating condition, it would still be worth approximately $150. While the Respondent was in the boat yard, two police officers employed by the Dade County Public Safety Department were undertaking a routine patrol of the area in an unmarked car. They observed the Respondent's automobile parked adjacent to the boat yard. One of the officers walked along the chain link fence in back of the boat yard and observed the Respondent inside the yard holding an engine. There was heavy vegetation along the fence, but the police officer was able to see through it at one point. The officer went back to his car, and told his partner what he had witnessed. Shortly thereafter the Respondent came out of the alley, got into his car, and drove away. The police officers turned on a flashing light in their car, pulled up behind the Respondent's car, and stopped him. The Respondent was placed under arrest. The police officer read the Respondent his rights from a "Miranda card". During interrogation after the arrest the Respondent pointed out the motor that he had removed from the boat, and told the officers were he had gotten it. The Respondent was then taken to a police station where he was fingerprinted, and later released on bail. A criminal action is now pending against the Respondent in the courts in Dade County. Tools of a sort which could have been used in perpetration of a burglary were found in the Respondent's pockets and on the floor of the Respondent's automobile by the police after they stopped him. There was no evidence presented that these tools were used by the Respondent in breaking into the boat yard or in removing the outboard engine from the boat. There was no evidence that the Respondent intended to use the tools for these purposes. There was evidence presented that the tools were put in the automobile by a friend of the Respondent's wife. There is insufficient evidence from which it could be concluded that the Respondent intended to use the tools to commit any trespass or burglary. The School Board acted promptly to suspend the Respondent from his position at South Ridge High School. The instant proceeding ensued.
Findings Of Fact Tracy Tashanna Jackson is a 13-year-old, and Tammy Terrell Jackson is a 12-year-old, who were, until February 7, 1979, assigned respectively to the eighth and seventh grades at Miami Edison Middle School in Miami, Florida. On February 7, 1979, an incident occurred at Miami Edison Middle School which resulted in both students being reassigned to Jan Mann Opportunity School North. At the time of this incident, the two students had been attending Miami Edison Middle School for only approximately one month. On February 6, 1979, one day prior to the incident which gave rise to this proceeding, the students were threatened by another student who allegedly was a member of a group of students popularly known as the "Graveyard Gang." Upon receiving the throat, the students went to the office of the Assistant Principal and advised him that they expected trouble from these other students. The Assistant Principal essentially advised the students to attempt to avoid any confrontation. However, on the afternoon of February 6, 1979, while Tammy and Tracy Jackson were on their way home from school, they encountered the students who had threatened them, and a fight ensued. After the fight, Tracy and Tammy Jackson were advised by the other students that the fight would continue the next day at school, that these other students would have knives, and that Tracy and Tammy Jackson should come prepared. When Tracy and Tammy Jackson and their brother stepped off the city bus in the vicinity of Miami Edison Middle School the next morning, they were met by a large group of other students. Apparently, some member of this group struck Tracy and Tammy Jackson's brother, at which point Tracy and Tammy Jackson first displayed knives which they had brought with them from home. According to the testimony of Tracy and Tammy Jackson, which is not controverted, this was the first and only time that they had attended school armed with knives. The entire group of students apparently began milling around but proceeded generally in the direction of the main school building. At this point, Freddie Robinson, the Assistant Principal at Miami Edison Middle School, noticed the crowd of students, and proceeded into the crowd on the assumption that a fight was occurring. Upon being advised that Tracy and Tammy Jackson were armed with knives, Mr. Robinson managed to direct the students into the main school building, down the hall and into the Counselor's office. At all times during those movements, the Assistant Principal and the students were surrounded by a milling group of hostile students apparently intent on prolonging the confrontation. According to the Assistant Principal, at no time did either of the students display their knives in a threatening or offensive manner, but were instead attempting to defend themselves against attack. At some point in this process, the Assistant Principal was joined by George Thomas, a teacher at the school, who attempted to assist Mr. Robinson in disarming the girls. Mr. Thomas managed to remove the knife from the possession of Tammy Jackson without incident, but when Mr. Robinson grabbed the arm of Tracy Jackson, that student, in attempting to break free, inflicted what appears to have been a minor wound to Mr. Robinson's forearm. Mr. Robinson testified, without contradiction, that it appeared to him that the student did not intentionally stab him, but inflicted the wound accidently in the process of attempting to break free from his hold. On February 22, 1979, both Tammy and Tracy Jackson were reassigned from Miami Edison Middle School to Jan Mann Opportunity School North as a result of this incident. There is nothing in the record to indicate the procedures by which this assignment was accomplished. It is, however, clear that the students never attended Jan Mann Opportunity School North, but were instead held out of school by their mother. As a result, February 7, 1979, was the last day on which these students attended school during the 1978-79 school year. The incident which occurred on February 7, 1979, was the only incident of disruptive behavior in which Tracy and Tammy Jackson have been involved while enrolled in the Dade County Public Schools. The other students involved in the fight with them, however, had been suspended from school on several occasions for fighting and disrupting classes. There is no evidence in the record in this cause concerning Tracy and Tammy Jackson' grades from which any determination could be made that they have been unsuccessful in the normal school environment. Likewise, the record is devoid of any testimony regarding their lack of attendance in the regular school program. Although the students did not attend Jan Mann Opportunity School North after having been assigned to that facility, there appears no evidence of record concerning the programs available at that institution in which the students would have been enrolled had they chosen to attend. In addition, although there exists some testimony concerning a very commendable Dade County School Board policy against the possession of knives on campus at any school in Dade County, no such written policy was offered into evidence at this proceeding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That a final order be entered by the Dade County School Board reassigning the students, Tammy Terrell Jackson and Tracy Tashanna Jackson, to the regular school program in the Dade County School System. Recommended this 17th day of July, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mrs. Jerry D. Jackson 2340 NW 73rd Terrace, #12 Miami, Florida 33147 Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Ludwig J. Gross Executive Director Division of Student Services Dade County Public Schools 5975 East 7th Avenue Hialeah, Florida 33013 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 Michael Neimand, Esquire 3050 Biscayne Boulevard Miami Florida, 33137 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY CASE NOS. 79-709, 79-710 MRS. JERRY D. JACKSON, on behalf of minor child, TAMMY TERRELL JACKSON, Petitioner, vs. CASE NO. 79-709 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / MRS. JERRY D. JACKSON, on behalf of minor child, TRACY TASHANNA JACKSON, Petitioner, vs. CASE NO. 79-710 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting on August 22, 1979, upon the Hearing Officer's findings of fact, conclusions of law, and recommended order, recommending that Tammy Terrell Jackson and Tracy Tashanna Jackson be reassigned to the regular school program in the Dade County school system. IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that the Hearing Officer's findings of fact, conclusions of law and recommended order are adopted with the following modifications: 1. The Hearing Officer's Conclusions of Law are modified by deleting paragraph 7 and substituting the following therefor: 7. F.A.C. Section 6A-1.994 provides: "6A-1.994 Educational alternative programs. Definition. Educational alternative programs are programs designed to meet the needs of students who are disruptive, dis- interested, or unsuccessful in a normal school environment. The educational alter- native may occur either within the school system or in another agency authorized by the school board. Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) or more of the criteria prescribed below as deter- mined by grades, achievement test scores, referrals for suspension or other discipli- nary action, and rate of absences. (a) Disruptive. A student who: Displays persistent behavior which inter- feres with the student's own learning or the educational process of others and requires attention and assistance beyond that which the traditional program can provide; or Displays consistent behavior resulting in frequent conflicts of a disruptive nature while the student is under the jurisdiction of the school either in or out of the class- room; or Displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population." (emphasis supplied) 8. The petitioners have both displayed "dis- ruptive behavior which severely threatens the general welfare of the student or other members of the school population." Meeting this criteria is sufficient grounds for placement in an educational alternative program. Accordingly, they are properly, and in their own best interests, assigned to Jan Mann Opportunity School North. There is no evidence that this assignment is punitive rather than positive in nature. 2. The Hearing Officer's recommendation is, therefore, rejected, and the assignment of Tammy Terrell Jackson and Tracy Tashanna Jackson to Jan Mann Opportunity School North is affirmed. DONE AND ORDERED this 22nd day of August, 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By: Phyllis Miller, Chairman
