The Issue The issue presented herein concerned the Respondent's appeal of the School Board's assignment of her son, Joseph Robinson, to an alternative school placement.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant findings of fact. By letter dated March 4, 1983, Petitioner, the, School Board of Dade County, Florida, by its Director of Alternative Education Placement, William R. Perry, Jr., advised Mrs. Alfreda Robinson, parent of Joseph Robinson, date of birth July 8, 1971, that her son was being administratively assigned to Youth Opportunity School-South due to the child's, Joseph Robinson, disruption of the educational process in the regular school program. During the 1982-3 school year, Joseph Robinson was a sixth grader at Campbell Drive Middle School in Dade County, Florida. He attended Campbell Drive Middle School up through March 4, 1983, the date that he was administratively assigned to Youth Opportunity School-South. At the outset of the 1982 school year, Joseph Robinson was the subject of repeated incidents of disruptive behavior consisting of defiance, physical altercation with other students, physical threats to instructors, verbal outbursts in class, refusal to perform class assignments and repeatedly attending classes tardy. As example, on September 9, 1982, Joseph Robinson defied an order of his instructor. On October 11, 1982, he was engaged in a physical altercation with two other students which resulted in an indoor suspension. On October 18, 1982, he refused to allow two other students to complete their class assignments. Again, on that same date, October 18, 1982, he physically threatened his instructor which resulted in a three- day outdoor suspension. From the period November 3, 1982 through March 11, 1983, Joseph Robinson was the subject of approximately seven referrals and/or suspensions for disruptive behavior. During early March, 1983, a screening committee of the Department of Alternative Education Placement recommended that Joseph Robinson be administratively assigned to Youth Opportunity School-South based on the repeated acts by him of the disruption of the educational process in the regular school program. Mrs. Alfreda Robinson, the mother of Joseph Robinson, alleged that her son was the subject of disparate treatment by the school board. No evidence was offered by Mrs. Robinson in support of her claim in that regard. It is therefore rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's appeal of the school board's assignment of Joseph Robinson to an alternative school placement be DENIED. RECOMMENDED this 9th day of December, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 9th day of December, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire & Mark Valentine, Esquire 3050 Biscayne Blvd., Suite 800 Miami, Florida 33137 Mrs. Alfreda Robinson 934 NW 2nd Street Florida City, Florida 33034 Leonard Britton, Superintendent Administrative Office Lindsey Hopkins Building 1410 NW 2nd Avenue Miami, Florida 33132
Findings Of Fact Respondent commenced the 1985-86 school year as a student in the eighth grade at Palms Springs Junior High School. By letter dated November 22, 1985, Petitioner advised Respondent's parents that Respondent "as being administratively assigned, effective immediately, to the Jan Mann Opportunity School-North. That letter further advised of a right of review of Respondent's placement into the opportunity school program until Respondent had made sufficient progress to be returned to the regular school program. Respondent's mother requested a hearing on that placement. On December 5 1985, a "withdrawal card" from the Dade County public schools was executed. At the hearing in this cause on March 17, 1986, Respondent testified that he has never attended the Jan Mann Opportunity School-North while waiting for review of that placement and in fact has been attending no school since he was administratively assigned. In response to questioning as to what he has been doing since his administrative reassignment of November 22, 1985, Respondent replied, "Nothing." Although Respondent's mother agreed during the formal hearing in this cause that she would place her son back into the school system and would send him to the opportunity school while awaiting the outcome of this proceeding, she has not done so. Pursuant to instructions from the undersigned, on March 31, 1986, Petitioner filed a Certification advising that as of March 27, 1986, Respondent was still not in attendance within the Dade County school system. Respondent was born on August 14, 1970.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent's request for an administrative review for lack of subject matter jurisdiction. DONE and RECOMMENDED this 15th day of May, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer, Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 486-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2780 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 James M. Ratliff Esquire Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami Florida 33147-4796 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
The Issue Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida. At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS). At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes. Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years. During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average. Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983. On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS. During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year. By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications. As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing. As a result of the investigation and hearing, John V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file; Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year. By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High School. This letter also advised Respondent of his right to contest the Superintendent's decision. By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter. Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment. When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School. On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days. Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment. On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination. McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?" McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet." On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong. Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr. Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999. None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system. Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks. After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated. Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine. After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School. Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's remarks or behavior caused fear or disruption in the work environment within the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent. DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Harry A. Blair, Esquire 2180 West First Street, Suite 401 Fort Myers, Florida 33901
Findings Of Fact Respondent attends Thomas Jefferson Junior High School. With the exception of band class which he attends regularly and achieves high marks, his absentee rate (unexcused) is approaching 50 percent and he is receiving failing grades. He is frequently disruptive in class and disrespectful to his instructors. He regularly comes late to his classes or leaves before being excused. Petitioner has made frequent attempts to assist Respondent. All available counseling and disciplining techniques have been used without success. Respondent will be 16 years old in September and intends to withdraw from school at that time. Respondent and his mother seek his release from mandatory school attendance now so that he may begin vocational training. School officials agree that this is appropriate, but the application has not been completed due to communication problems between Mrs. Perez and Thomas Jefferson Junior High School.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Respondent to its opportunity school pending release from mandatory school attendance. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER, 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 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Sylvia Perez 460 Northwest 125 Street Miami, Florida 33168 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, 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 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact M.G., as he is now known, was born on May 30, 1966. He attended kindergarten at Rainbow Park Elementary School. After beginning first grade in the fall of 1972, at Miami Baptist Temple, a private school, he entered Westview Elementary, one of Respondent's schools, in 1973. On May 3, 1974, he transferred to South Miami Elementary, another public school. Even before the transfer, his mother realized M.G. could not read, but she approached his teachers only after the family had moved and M.G. was settled in his new school. Ms. Mitchell, the second grade teacher with whom Mrs. G. conferred in the spring of 1974, told her that the school system would arrange various tests and interviews that might shed some light on M.G.'s academic difficulties. Among Respondent's records is a note from Ms. Mitchell dated June 13, 1974, saying, "M.G.'s Mother has requested a psychological evaluation. She is very much concerned as to why M. [h]as not been able to make more academic progress (and so am I)." Respondent caused psychological testing to be done in the middle of the following school year. On January 27, 1975, Elizabeth I. Smith, a psychologist in Respondent's employ, finished her psychological evaluation of M.G. Ms. Smith decided that M.G. had "a poor self-concept", "dependency needs", and "paranoid tendencies"; and that he was "a rather lonely child" and "ha[d] too strong a tendency to delay emotional satisfaction." Joint Exhibit No. 7. At this time, administration of Wechsler Intelligence Scale for children indicated that M.G. had normal "full scale" intelligence (101), with subtest scores ranging from 5 (coding) to 16 (object assembly). Contemporaneous Wide Range Achievement Test (WRAT) scores put him a year or more behind the average child at his grade level, with scores ranging from 1.8 (spelling) to 2.1 (reading) to 2.4 (arithmetic). On the WRAT, he mistook "41" for "14". Errors on the Wepman Auditory Discrimination Test indicated inadequate auditory discrimination. Ms. Smith concluded that M.G. had perceptual difficulties that should be evaluated, but decided that his main problems were emotional. Inter alia, she recommended "[r]esource into an Emotionally Disturbed Class . . . [and a]dministration of the Illinois Test of Psycholinguistic Abilities" (ITPA). Joint Exhibit No. 7. The ITPA is administered to children (up to ten years old) in an effort to measure auditory and visual process deficits, among other things. After talking to Ms. Smith, Mrs. G. signed a form on February 21, 1975, authorizing Respondent to place M.G. in a class for emotionality disturbed children for part of the day. At the time, she was unaware that Respondent had full-time classes for children with specific learning disabilities. The teacher of the class for emotionally disturbed children told M.G.'s parents that "she would be working with him with his LD problem." (T. 153.) Respondent never administered the ITPA to M.G.. Dr. Ronald I. Cantwell, a pediatrician who limits his practice to developmental disabilities, first examined M.G. in January of 1975. He found that M.G. confused left with right, had difficulty copying foot patterns, was unable to distinguish between "12" and "21" or between "b" and "d", and could not remember a sequence of five numbers or letters. Codeine acted to excite rather than to sedate M.G. Dr. Cantwell felt M.G.'s principal problems were academic rather than emotional, and recommended tutoring. With tutoring during the summer of 1975, M.G. learned multiplication tables, which he forgot after school began that fall, even though his tutoring continued. In the middle of the following school year, H.U. Puryear, a psychologist in Respondent's employ, concluded, on a psychological referral form dated February 3, 1976, that M.G.'s tutoring should be rescheduled so as not to conflict with school hours, if tutoring was really needed, and that "assignment to another E.D. setting requires no additional professional [psychological] procedures." Joint Exhibit No. 8. M.G. spent the latter part of the fourth grade in a varying exceptionalities class at South Miami Elementary. M.G. is tutored at Dr. Cantwell's Pediatric Achievement Center the summer following fourth grade, just as he had been the summer before. In addition to this tutoring, M.G. had the help of his mother and an uncle, who between them spent four hours a night with M.G., during the first semester of the fifth grade. M.G. and his mother grew increasingly disturbed about his slow progress in school, especially in light of his performance at home. In December of 1976, Mrs. G. attended a conference which Dr. Marshall, head of Respondent's Southwest Area office, Mr. Torano, principal of South Miami Elementary, Lenora Hays, M.G.'s "regular fifth grade teacher," and Ms. Jackson, who had begun two weeks earlier as the teacher of M.G.'s varying exceptionalities class, also attended. At the conference, Ms. Hays undertook to locate either a science or a social studies textbook on a more appropriate level. Mrs. G. sought to persuade the school authorities to transfer M.G. to Ms. Patterson's "continuing LD class," but she was unable to. (T. 168.) After Christmas vacation, in January of 1977, M.G. began at Gables Academy, a private school for children with learning disabilities, where he finished fifth grade and spent sixth and seventh grades. At Gables Academy, M.G. won "an award for advancing two years in every subject . . . an award for reading" (T. 93) , and other awards. The evidence did not reveal the qualifications of Gables Academy's staff, what its school day and school year are, whether it maintains current sanitation, health, or fire inspection certificates, what its procedures to protect the confidentiality of student records are, what written policies it has, if any, and whether it has filed required assurances or reports. Ms. Evelyn Orkney, who was certified as a school psychologist in Connecticut before she moved to Miami, saw M.G. on April 22 and May 13, 1977, before she prepared her initial "psychoeducational evaluation." Joint Exhibit No. 2. She reported WRAT scores of 2.9 (spelling), 3.5 (reading recognition), and 3.9 (arithmetic), and full scale I.Q. of 106. Ms. Orkney observed that M.G.'s "dialogue revealed bitter memories of public school." Joint Exhibit No. 2. She concluded that M.G. "Possesses average aptitude . . . [with] residuals of visual motor problems . . . [and] a significant problem in auditory sequential memory." Joint Exhibit No. 2. Ms. Orkney again evaluated M.G. on August 9, 1979, at which time she observed that he "virtually never experiences depression or bitterness." In the 1979 "psychoeducational re-evaluation," Ms. Orkney reported WRAT scores of 3.5 (spelling), and 6.3 (arithmetic). The Detroit Tests of Learning Aptitude, the ITPA, the Slosson Drawing Coordination, Bender Visual-Motor Gestalt, and other tests were also administered. Ms. Orkney concluded that the "Detroit and ITPA tests confirm severe deficit in the auditory memory area and recommended "special instruction in spelling, as well as auditory sequential memory training and design integration exercises." On the basis of second-hand information, some of which was erroneous, Ms. Orkney recommended that M.G. remain at Gables Academy rather than return to public school. M.G. was evaluated at Respondent's Diagnostic and Resource Center on August 29 and 30, 1979, and a report dated September 27, 1979, was prepared. A number of tests were administered, including the Stanford-Binet Intelligence Scale, various psychological projective tests, the Peabody Individual Achievement Test, Durrell Analysis of Reading Difficulty and Woodcock Johnson Psycho-Educational Battery: Test of Cognitive Ability, Memory for Sentences. M.G.'s vision and hearing were also tested. The diagnostic team concluded that M.G. was "somewhat rigid hut d[id] not have a primary emotional handicap for educational programming purposes." They recommended a specific learning disability program with "primary emphasis in the auditory and visual attention skill areas," and conferences with the school counselor. In their view, his weakest skills were reading and spelling, reflecting "specific process deficits in the visual aid auditory attention areas," as well as in visual memory of words, while arithmetic and general information were strengths. The team made detailed recommendations regarding teaching techniques. Richard Maisel, a clinical psychologist, evaluated M.G. on January 14 and 23 and February 5 and 14, 1980. Joint Exhibit No. 5. He reported WRAT scores of 2.7 (spelling), 4.1 (reading) and 5.6 (arithmetic). Dr. Maisel concluded that M.G. has average intelligence with "very significant auditory and visual attention, memory and sequencing problems." Joint Exhibit No. 5. Dr. Maisel reported "emotional difficulties . . . superimposed upon the underlying learning disability" for which he recommended "psychotherapeutic intervention." He recommended "full-time placement in a learning disabilities program." Joint Exhibit No. 5. M.G. himself wanted, at the time of the hearing, to go to Gables Academy. He remembered assignments at public school that he felt were insultingly simple; and the taunts of children in regular classes; and he did not get along with one of his teachers in public school. He did not want to go to South Miami Junior High because he had "seen injection needles and pill bottles" (T. 91) there as he rode home from Gables Academy. He wanted to "look over a learning disabilities program at Ponce de Leon Junior High School, another public school, but felt he would "really like to go back to Gables Academy]." (T. 92) On November 7, 1979, public school officials, in conjunction with M.G. and his parents, drew up an IEP for the 1979-1980 school year, recommending a full-time learning disabilities placement. Joint Exhibit No. 6. By that time, however, the G.s were obligated for tuition for the 1979-1980 school year, so M.G. stayed the school year there. No IEP had been prepared for the 1980-1981 school year, at the time of the hearing, but Myra Silverstein, a placement specialist in Respondent's employ, testified that a full-time learning disabilities placement would still be appropriate. Such a program is available at Ponce de Leon Junior High. It would include four hours of specific learning disabilities instruction daily by use more teachers along with "mainstream" classes in physical education and shop, art, or some other elective. At Ponce de Leon Junior High School, there is a counselor who works only with student in special education classes.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue Whether Respondent committed the offenses alleged in the Amended Notice of Specific Charges and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. The Petitioner has rule making authority and the authority to enter into collective bargaining agreements. At all times pertinent to this proceeding, the parties were bound by the provisions of the collective bargaining agreement between the United Teachers of Dade and the School Board. Pursuant to Section 1 of Article V, Petitioner has the exclusive right to suspend, dismiss, or terminate an employee for "just cause." The term "just cause" as defined by Section 3(D) of Article XXI of the contract: . . . includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009 (Florida Administrative Code). Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4A-1.21, which sets forth the expected conduct of employees as follows: All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4C-1.02, which sets forth the expected conduct of non-instructional personnel as follows: The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur. One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms the wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state. Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4-1.08, which prohibits violence in the workplace as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public School employees have a right to work in a safe environment. Violence or threats of violence by or against students and employees will not be tolerated. Article VIII of the collective bargaining agreement addresses the subject of a “Safe Learning Environment.” Section 1(A) of Article VIII provides, in pertinent part, as follows: “A safe and orderly learning environment is a major priority of the parties. ” At all times pertinent to this proceeding, Respondent was employed by Petitioner as a school security monitor. The job description of a school security monitor provides the following basic objectives and responsibilities: BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures the appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school administration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the presence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gatherings (before, during, and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Respondent was initially employed by Petitioner as a temporary custodian in February 1988, and assigned to Madison Middle School (Madison). In June 1988, Respondent was employed as a school security monitor at Madison, where he remained until December 1993. At all times pertinent to this proceeding, Thelma Davis was the principal of Madison. In December 1993, Respondent's assigned post was near a gate in close proximity to the chorus room. J. B. and K. A. were female students at Madison during the school year 1993-94. J. B. was born March 8, 1981. In December 1993, J. B. was a twelve year-old seventh grader and a member of the chorus class taught by Edward G. Robinson. In early December 1993, Respondent made a series of inappropriate comments and gestures of a sexual nature to J. B. when she passed his assigned post. Respondent winked at J. B. as she passed his post and blew her kisses. On one occasion, he asked if she was a virgin. On another occasion he asked her the color of her underwear. On another occasion, he made a statement as to how warm they would be under covers together. K. A. overheard Respondent say to J. B. that he and she would be warm under the covers together. J. B. became visibly upset the day Respondent asked her the color of her underwear. Mr. Robinson observed J. B. crying. J. B. thereafter told Mr. Robinson about Respondent's comments and behavior. Mr. Robinson reported the information to the principal. A day or two later, J. B., accompanied by K. A., again complained to Mr. Robinson about Respondent's comments and behavior. Mr. Robinson again reported the information to the principal, and an investigation was instigated. The investigation was conducted under the supervision of Captain Arnie Weatherington, an experienced law enforcement officer employed by the Dade County School Police. In December 1993, Respondent was removed from the school campus and reassigned to the Region III office. The investigation was closed in May 1994 as being substantiated. In light of the substantiated findings, Ms. Davis recommended that Respondent's employment with the Petitioner be terminated. Louise Harms of the Petitioner' Office of Professional Standards conducted a Conference for the Record (CFR) with Respondent on May 3, 1994. During the CFR, Ms. Harms advised Respondent as to the findings of the investigation. Respondent remained assigned to the Region III office until February 1995, when he was involuntarily transferred to Westview Middle School. The investigation into this incident was closed by Respondent’s reassignment to Westview. There was no formal recommendation at that time by the Superintendent or by the Office of Professional Standards that Respondent’s employment be terminated for his misconduct at Madison. At Westview, Respondent had the responsibility to patrol the outdoor areas of the campus. He was given a walkie- talkie and a golf cart to assist him in performing his duties. Respondent’s instructions as to the cautious and safe use of the golf carts included the explicit instructions that children were not permitted to ride in a golf cart or to sit in a parked golf cart. During the school year 1996-97, Respondent's assigned responsibilities included patrolling the physical education area. During the 1996-97 school year, John McHale was a physical education teacher at Westview. His responsibilities included taking attendance, maintaining control of the class, and following the district curriculum. In November 1996, Mr. McHale's physical education class and three other classes that were taught by a Ms. Roque, Patricia NewKirk, and Nathaniel Stephens were held on an outdoor basketball court. On November 13, 1996, Mr. McHale was in charge of his own class and, in her absence, Ms. Roque's class. Mr. McHale's class and Ms. Roque's class were assembled on the basketball court so Mr. McHale could take roll. In addition, Mr. Stephens' class was assembled on the basketball court so Mr. Stephens could take roll. While Mr. McHale was in the process of taking roll, Respondent began joy riding in his golf cart. He rode onto the basketball court around and between the two classes under Mr. McHale's supervision. Students jumped on the golf cart. Respondent talked to students. Mr. McHale approached Respondent, told Respondent that he needed to get the classes under control, and asked Respondent to get the golf cart off the basketball court so he could do his job. In response, Respondent stated: "Take your ass back to your class. No bald-headed white man telling me what to do."2 Tempers flared, Respondent got off the golf cart, and the two men approached one another. Mr. Stephens, who is larger than either Respondent or Mr. McHale, stepped between the two men with his back facing Respondent. Respondent struck out at Mr. McHale with a closed fist, making contact with Mr. McHale’s shoulder. Mr. Stephens separated the two men and took Mr. McHale to the locker room. Respondent did not have any justification for driving the golf cart onto the basketball courts while the physical education classes were using the courts. That conduct disrupted the classes that were using the courts. Mr. McHale reported the incident to Darrel Berteaux, the school principal. Mr. Berteaux requested that the DCSP conduct an investigation. The investigation into this incident was conducted by Lieutenant Oryntha Crumity, an experienced law enforcement officer employed by the Dade County School Police. During the course of the investigation, Respondent contacted several of the student witnesses and asked each student whether the student was on his side. By making such contact, Respondent attempted to intimidate these student witnesses. Approximately a month after the incident, Mr. Berteaux received reports that Respondent had approached several student witnesses. He immediately requested that Respondent be transferred from Westview. Respondent was thereafter transferred from Westview. Proceedings to terminate his employment were initiated following a review of these matters by the Petitioner's legal staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's employment. DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1998
