The Issue The issue posed for decision herein is whether or not the Respondent's teaching certificate should be revoked based upon conduct which will be set forth hereinafter in detail, as contained in the Petition for Revocation filed by Petitioner on or about May 11, 1979. During the course of the hearing, Petitioner withdrew allegations B, E and J, which are set forth in the Petition. Pursuant to the Stipulation, the parties waived the thirty-day period prescribed in Subsection 120.56(3), Florida Statutes, requiring the undersigned to file a Recommended Order within the prescribed thirty-day period.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the legal memoranda submitted by counsel for the parties and the entire record compiled herein, the following relevant facts are found. Respondent, Michael S. Park, has been employed by the Broward County School System as an instructor in art at Plantation High School since 1970. He was continuously employed until his suspension on April 19, 1979. Respondent holds Florida Teacher's Certificate No. 274996, Post Graduate, Rank III, valid through June 30, 1985, covering the areas of art and junior college. Respondent currently enjoys continuing contract status. While employed by the Broward County School System, Respondent taught several courses, including design, drawing, craft, sculpture and ceramics. Pursuant to a probable cause determination made by the Commissioner of Education on May 11, 1979, the Petitioner, pursuant to authority contained in Chapter 6A-4.37, Florida Administrative Code, filed a Petition seeking revocation of Respondent's teaching certificate based upon the following allegations: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom office, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. During the school year 1977-78, MICHAEL PARK asked a female student to go 'bumming' with him and to meet him at the night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from Plantation was calling. During the school year 1977-78, MICHAEL PARK stated to a female art student that he knew for a fact that the she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. During the month of February, 1979, MICHAEL S. PARK asked a female student who was not under his supervision as a teacher to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked this student whether or not she participated in or agreed with the practice of oral sex. During the spring of 1978, MICHAEL S. PARK hugged one or more female students, grabbed one female student from behind and pushed himself up against her buttocks. During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. Based thereon, it is alleged that the Respondent violated Sections 231.09 and 231.28, Florida Statutes, and rules 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code. As such, the Petition concludes that the Respondent's alleged conduct seriously reduced his effectiveness as a school board employee. It is alleged in paragraph 1, subparagraph A. of the Petition that: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. The Respondent denied the allegation. Darlene Wilcox is the female student referred to in the allegation (TR 96-98). The thrust of student Wilcox's testimony is that Respondent invited her to stay after class one day and when her classmates left, he handed her a psychology magazine opened to an article on sex and asked her if she had ever read a magazine like that before (TR 97). Student Wilcox, who was a ninth-grade student of Respondent, testified that Respondent sat down across from her in a chair and asked her questions about how she was that day. They were interrupted by another student, whereupon Respondent immediately got up, opened the door, and told her he would see her in class the following day (TR 98). Respecting this allegation, the evidence reveals that it was impossible for Respondent to secure the lock on his classroom door from the inside, as alleged (TR 243-244 and 359). The evidence reveals that student Wilcox could have left the room by turning the doorknob. Student Wilcox told her parents about her encounter with Respondent, whereupon her parents replied that she should keep clear of Respondent and not be over-friendly with him. Paragraph C of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK asked a female student to go 'bumming' with him and to meet him at a night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from the Plantation was calling. The female student referred to in the above-described allegation is Cathy Weber. The evidence respecting the above allegation reveals that during the fall of 1977, while a twelfth-grade student, Cathy Weber, was at a local establishment called the "Crown" bar with other students one evening. Student Weber was not a student of Respondent, although Respondent joined Weber and a group of her friends and started conversing with her at the "Crown" bar. During the conversation, Respondent took student Weber's wrists, stated that he could read her mind and proceeded to tell her birth date. On another occasion, Respondent telephoned student Weber at her home although she declined to talk to him. Additionally, during late November or early December, Respondent entered Linda Whealin's class and asked permission from instructor Whealin to excuse Cathy Weber when she finished her work in order that she could help in the office. Ms. Whealin agreed, but Cathy testified that she was afraid of Respondent and, therefore, took as much time as she could to complete her work because of the "too personal attitude" the Respondent evidenced toward her. The matter was brought to the attention of the Principal and Assistant Principal, which resulted in a counselling of Respondent by the Principal. During these counselling sessions, Respondent admitted that he told student Weber that he could read minds; that he called student Weber at her home because she wanted to talk to him and that he had asked for her to help him inventory an art order. Respondent was warned of his conduct by school officials and advised to restrict his student contact to classroom situations. A summary of the warning is embodied in a memorandum dated December 5, 1977, which Respondent signed acknowledging that he had read the warning contained therein. Respondent also submitted a rebuttal reciting his version of circumstances involving the student (Petitioner's Exhibit 3 and the testimony of Respondent and witnesses Lawton, Weber, Whealin and Hanes). The Respondent acknowledged talking to student Weber at the Crown bar; however, he testified that he was merely attempting to joke with the student, rather than, as contended by Petitioner, to advance a sexual topic to achieve a lustful objective. Paragraph D of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK stated to a female student that he knew for a fact that she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. The student referred to in the above paragraph is Susan Clement. During the 1977-78 school year, student Susan Clement was a student of Respondent. Student Clement testified that during the school year, she smoked marijuana approximately three times a week and was sometimes under the influence of marijuana while attending classes. However, she testified that her ability or memory was not impaired and that she was able to concentrate in her art classes. She testified that on several occasions, Respondent grabbed her neck with his hand, pinched her buttocks, and pushed up against her buttocks with his body from behind while she was washing her hands at a sink in the classroom. Student Clement testified that Respondent told her that there were rumors going around that she was going to bars and meeting male teachers there. Following one of these incidents, student Clement complained to the school's Principal about Respondent's conduct. The Respondent denied making such statements to student Clement and testified further that Clement confided in him without any prompting on his part with respect to her relationship with males. Additionally, the Respondent urges that student Clement generally spoke to others about her personal life in an unguarded manner (testimony of Dan Van Fleet)(TR 134 and 236). Paragraph F of the Petition alleges that: During the month of February, 1979, MICHAEL S. PARK asked a female student, who was not under his supervision as a teacher, to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked the student whether or not she participated in or agreed with the practice of oral sex. The student with whom the Respondent allegedly addressed the above remarks is Tammy DeCarlo. In this regard, the evidence reveals that the Respondent had four conversations with student DeCarlo. Respondent acknowledged that he initiated the first conversation with DeCarlo. Evidence reveals that the above-referenced conversations occurred during February of 1979 while student DeCarlo was a senior at Plantation High School. DeCarlo was not a student of Respondent. While DeCarlo was conversing loudly with another student in a school corridor, Respondent joined the conversation based on DeCarlo's "frantic behavior" and the fact that she was shouting that "I'm going to kill him", referring to Mr. Kinder, the yearbook advisor, in a tone which was loud enough for Respondent and others to overhear the conversation (TR 76, 77 and 376). DeCarlo was the school yearbook editor and had been having problems with its publication. The thrust of the problem appeared to be that DeCarlo was of the opinion that although she was exerting all the effort towards the publication of the yearbook, advisor Kinder was receiving or attempting to receive all credit for her work. While the Respondent initially injected himself into the conversation with DeCarlo and another student concerning differences that DeCarlo was having with the yearbook advisor, Kinder, she later conversed with Respondent about various problems that she was having with the yearbook in the following weeks. During the third of approximately four conversations with Respondent, the evidence reveals that the Respondent told another student (Chris Sarko) that he wanted to speak with DeCarlo, whereupon Sarko summoned student DeCarlo to go to his office where he later joined her, bringing a paper flower with him to give her. In Respondent's office, they discussed the yearbook deadline and Respondent mentioned that he had "ESP". Respondent gave student DeCarlo several examples in that regard. Respondent requested DeCarlo to keep their conversations between the two of them, although DeCarlo later mentioned the conversations to her parents. DeCarlo's parents later spoke with the Assistant Principal about Respondent. Within a few days, DeCarlo received a note telling her that Respondent wanted to see her and again Respondent took her into his office. During this conversation, Respondent told DeCarlo that she did not trust him because she had been hurt by her boyfriend. Respondent later told her to close her eyes and concentrate and told her that the boy just took her out so that she could make love with him and that he had tried to make her do something she did not want to. DeCarlo replied that she did not know what he was talking about, and Respondent inquired "What is it, oral sex?". According to DeCarlo, Respondent asked her to give him something personal, whereupon she took her necklace off and gave it to him. Respondent also inquired of her the type birth control pill she used and DeCarlo told him. Approximately one week later, student DeCarlo saw Respondent again. He asked her to come to see him during her lunch hour, but she declined. DeCarlo later asked a friend (Sarko) to get her necklace from Respondent, which was returned by the student, together with Respondent's picture. DeCarlo's parents made a written complaint to school authorities concerning Respondent's conduct. Respondent testified that he was regarded as a confidant among the students and that they frequently conversed with him about personal matters. He testified that the DeCarlo relationship, which was initiated by him, was motivated by a normal concern for a student who was visibly upset, and he felt that he could offer some assistance to student DeCarlo in resolving a crisis. Paragraph G of the Petition alleges that: During the spring of 1978, MICHAEL S. PARK hugged one or more female students from behind and pushed himself up against their buttocks. The primary incident in which Respondent is alleged to have gone beyond a mere touching of the shoulder is when he grabbed student Clement from behind and touched his lower torso against his buttocks. As stated earlier, Respondent denied this allegation. In this regard, several of Respondent's former students testified that they had never seen him act improperly in class or inquire into the personal lives of students. These students considered Respondent to be a warm, friendly teacher who occasionally would pat a student on the back or put his arm around a student's shoulders. In this regard, Van Fleet testified that the Respondent was a "touching, feeling type of friendly" person (TR 254). Other students testified that the Respondent often placed his arms around the shoulders of various students. During the period 1971 through 1979, Respondent's Principal warned him approximately four or five times concerning his involvement with female students (testimony of witnesses Graff, Wilcox, Landers, Cirillo, Larkin, DeCarlo, Evans, Jackson, Hanes and Van Fleet). Paragraph H of the Petition alleges that: During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. The two students involved in this allegation are Susan Clement and Lori Evans. The Respondent testified and denied that he pinched students Evans and Clement on the buttocks; however, he conceded that he might have grabbed Clement's neck when she did not "clean up her mess" in the classroom. Student Clement was not sure of the time when the Respondent allegedly pinched her or of the number of times when such acts were allegedly committed by Respondent. Instructors Dan Van Fleet and Gail Altman testified that students Clement and Evans both complained and were upset that the Respondent gave them failing grades. Noteworthy, also, was the fact that student Evans testified that there were students present at the time that the Respondent pinched her, although no corroborating student witnesses were called upon to verify said acts. Paragraph I of the Petition alleges that: During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. During the hearing, the only student who claimed to have been pinched by Respondent was Lori Evans. Again, the Respondent denied that any such conduct occurred on his part. Although Evans testified that there were student witnesses to the incident, no witnesses were called upon to testify during the hearing. RESPONDENT'S DEFENSE Respondent, for the most part, denied that he engaged in any conduct which could be considered grossly immoral or inconsistent with good morals and the public conscience or conduct which would not be a proper example for students. He further denied that such conduct was sufficiently notorious to bring him and the educational profession into public disgrace and respect, or that it otherwise reduced his effectiveness as a School Board employee. He testified that students confided in him and that he was an instructor who was overly concerned about the plight and well-being of students. In that regard, he testified that he interjected himself into conversations in situations wherein students appeared to have needed his counsel and guidance. Respondent denied pinching Lori Evans above the breast or on the buttocks or slapping her on the buttocks with a ruler. He testified that Evans' motive for giving testimony supportive of the charges is that she was a problem student who was unreliable when assigned a task. Additionally, Respondent denied pushing against student Susan Clement at the classroom sink or pinching her buttocks; however, he conceded that he might have grabbed her neck inadvertently as stated earlier, when she failed to "clean up her mess". Respondent's stated reason for visiting the "Crown" bar to join students with whom he taught was merely an effort to socialize with students and that respecting the Cathy Weber allegation, he was merely trying to assist her to resolve the problem that she was having with her boyfriend. He testified that the fact that he asked her to go shopping in a public shopping center indicates that he had no ulterior motive in making such request. Respondent voiced his opinion that student Weber was probably drinking due to that problem and that he wanted to inspire confidence in her to prevent her from drinking to resolve problems. Respondent's version of the incident surrounding the Tammy DeCarlo incident is much the same as his involvement with student Weber. That is, that he was simply trying to console her, which was prompted, in part, by counselling from the Assistant Principal to the effect that students and parents complained that he was not consoling enough to students. However, Respondent's testimony and inquiries, admittedly, as they related to his giving of flowers to student DeCarlo and inquiring into her sexual activity, missed the mark of a proper teacher-student relationship. Respondent's denial of the incidents involving student Wilcox, Evans and Clement as they related to his alleged physical contact is denied based upon the entire record, including other admissions by Respondent, including his inquiries into students' personal/social lives. In this regard, Respondent's inquiries relative to students' birth control pills, talks about oral sex, the giving of paper flowers to students and the embracing of students are considered immoral in a student-teacher setting and certainly does not inspire or set a proper example for students, as required in Chapter 6B-1, Florida Administrative Code.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's teaching certificate, No. 274996, be suspended for a period of three (3) years. DONE and ENTERED this 18th day of January, 1980, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a classroom teacher for the conduct alleged in the Amended Notice of Specific Charges.
Findings Of Fact At all times material hereto, Petitioner has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Both West Hialeah and Aventura are public schools in Miami-Dade County, Florida. During the 2011-12 school year, Respondent was employed as a teacher assigned to West Hialeah. Respondent's teaching assignment during the 2014-2015 school year was as a teacher at Aventura. Respondent's employment is governed by the collective bargaining agreement between Petitioner and the United Teachers of Dade ("UTD Contract"), Florida Statutes, the regulations issued by the Florida State Board of Education as set forth in the Florida Administrative Code, and the School Board's policies and procedures. Respondent's Prior Discipline During the 2011-2012 school year, Respondent was investigated for hitting an exceptional student education (ESE) student at West Hialeah. The investigation concluded that there was probable cause to charge Respondent with violating School Board Policies 3210 and 3210.01. As a result, a conference-for- the-record (CFR) was held on December 15, 2011, wherein OPS District Director, Dr. Brown, issued Respondent directives to: adhere to all School Board policies, specifically 3210, Standards of Ethical Conduct; 3210.01, the Code of Ethics; and 5630, Corporal Punishment and the Use of Reasonable Force; refrain from contacting in person or by any other means any of the parties involved in the investigation; refrain from using physical means as a form of discipline; and [] conduct [herself], both in [her] employment and in the community, in a manner that reflects credit upon [herself] and the district. Respondent signed on January 3, 2012, that she was in receipt of these directives. Although the charges against Respondent relating to physical aggression against a student merited a recommendation from the School Board that Respondent be terminated, the School Board took into consideration Respondent's length of service with the School Board and the fact that she had not received any prior discipline. As such, it was recommended that Respondent be suspended for 25 workdays without pay. Respondent contested this recommendation. Following a final hearing on September 24, 2012, Administrative Law Judge Stuart M. Lerner found that Respondent used physical aggression toward an ESE student and recommended that the School Board uphold Respondent's 25-workday suspension. Ultimately, Respondent was suspended for 25 workdays without pay. The September 2011 incident was reported to the Florida Department of Education (Florida DOE), and a hearing was held on October 15, 2014, to determine whether any disciplinary measures should be taken on Respondent's educator certificate. Following that hearing, conducted by the undersigned, it was recommended to the Florida DOE that "Respondent be placed on probation for 90 days with a letter or reprimand to be placed in her certification file." The Recommended Order provided that, "[t]his penalty takes into account that Respondent's conduct, in striking the student, was inappropriate under any circumstances, but also places the conduct in perspective in relation to Respondent's otherwise incident-free teaching career." The September 17, 2014, Incident Respondent later began working as a teacher with ESE students at Aventura beginning in the 2012-2013 school year. During the 2014-2015 school year, Respondent worked as an Autism Spectrum Disorder (ASD) teacher. M.C., who suffers from ASD, was a student in Respondent's class during the 2014-2015 school year. M.C. and his family are from Argentina and the 2014-2015 school year was the first year M.C. attended a public school in the United States. Initially, M.C. could not take instruction in class. Respondent worked with him to develop the skills to take instruction by demonstrating actions, repeating instruction and praising the student for doing things correctly. Respondent taught M.C. how to write his name, catch a ball, and hold a pencil. Respondent shared a classroom with fellow teacher, Ms. Stubbs. Ms. Stubbs had her own set of students with varying exceptionalities. Ms. Stubbs had six middle school students and Respondent had six elementary school students. Ms. Pollard acted as Respondent's paraprofessional, helping Respondent with her students. Additionally, Ms. Charles would assist Respondent with M.C. for a few hours each day. Respondent's planning period was during the time her students went to art once a week on Wednesday. Respondent voluntarily gave up her planning period to assist the art teacher, Ms. Garcia, with the students. Ms. Garcia worked as an art teacher at Aventura for six (6) years. On September 17, 2014, Ms. Garcia was teaching art to Respondent's students. After Ms. Garcia had provided instructions for the class, she began walking around the room while the students worked on their assignment. M.C. was seated at his desk coloring with crayons. M.C. began throwing crayons on the floor and Respondent, who had been standing behind M.C. with her hands on his shoulders, grabbed M.C.'s hands and wrists and pulled him down to the floor, causing M.C. to fall down to his knees. Respondent told M.C. to pick up the crayons in a loud tone that conveyed she was annoyed. Once Respondent had M.C. on the floor, she held M.C.'s wrists, forcing him to pick up the crayons off the floor. All the while, M.C., who is non-verbal, was making noises like he was not happy. Ms. Garcia tried to help, but Respondent did not allow her, insisting that M.C. had to clean up by himself. M.C. eventually returned to his seat and then began spitting on the floor. Once again, Respondent pulled M.C. to the floor by his wrists, causing him to land on his knees. Respondent again appeared annoyed as she was forcing M.C. to wipe up the spit. Ms. Garcia attempted once more to assist in the clean-up, but Respondent did not allow her, stating that M.C. had to clean up his own mess. Although Ms. Garcia has seen other ESE students being restrained, she has never seen a teacher treat a student like Respondent treated M.C. by forcefully pulling him to the floor. There was no indication that M.C. was going to hurt himself or other students. Although Ms. Pollard did not see the interaction between Respondent and M.C., because she was busy helping the students with their assignment, she did hear Respondent yell, "Pick it up!" in a tone loud enough to be heard over the noise of the classroom. At the end of the art class, M.C. pinched another student with ASD, K., in front of Respondent. Respondent responded by instructing K. to pinch M.C. back. Ms. Garcia was only three feet away from Respondent when she heard Respondent say this. K. is a very obedient student. When Respondent told him to pinch M.C. back, K. looked confused, shrugged his shoulders and reluctantly pinched M.C. back. Ms. Garcia was shocked by what she witnessed. She verbally intervened by telling Respondent that she would not tolerate Respondent's behavior in her classroom. Ms. Garcia admonished Respondent that the students should not be taught to retaliate against each other. Respondent just stood silent and stunned during the confrontation. Meanwhile, M.C., upset at K.'s retaliation, ran off and pinched another student, R., who retaliated by repeatedly hitting M.C. back. The situation Respondent created was total chaos. Two children, K. and R., who are otherwise well-behaved, were acting aggressively towards each other. Ms. Garcia then had to physically intervene by separating the fighting children because Respondent just stood by. Ms. Pollard, who had been outside Ms. Garcia's classroom with the rest of the class, began to wonder what was taking the other students so long. When Ms. Pollard peered back into the classroom, the expression on Ms. Garcia's face startled her. Ms. Pollard asked Ms. Garcia what was wrong, to which Ms. Garcia responded, "Do you believe she [Respondent] told K. to hit M.C.?!" Ms. Pollard looked over to Respondent, but Respondent remained silent. Ms. Garcia informed Principal Bello that she witnessed Respondent handle M.C. in an inappropriate manner and that Respondent instructed another student to pinch M.C. in retaliation. Respondent denied these allegations. Ms. Garcia did not have any issues with Respondent prior to Ms. Garcia reporting the incident to Principal Bello. After the incident, Respondent stopped coming into Ms. Garcia's classroom with her students. Respondent's Post-Incident Conduct On September 29, 2014, Mr. Bello issued Respondent a letter, directing her to refrain "from contacting any complainant(s) and/or witnesses, with the intent to interfere with the investigation of the above listed allegation." In November of 2014, M.C.'s mother, S.C., received a telephone call from Respondent on a Saturday night at around 8:00 p.m. Respondent proceeded to tell S.C. that she was going to lose her job and teaching license because of S.C.'s son, M.C. Respondent asked S.C. to have her ex-husband, M.C.'s father, write a letter and backdate it to the first day of school in August 2014. Respondent's call made S.C. feel "extremely horrible" and "guilty." S.C. did not want anyone losing their job because of her son. Subsequently, Respondent repeatedly took advantage of the fact that S.C. picked up M.C. in the classroom to talk to S.C. about the allegations. Respondent cried to S.C., telling her that M.C. had behaved well on the last day of school before the Thanksgiving break because M.C. must have known it would be Respondent's last day as his teacher. Respondent's words and actions towards S.C. made S.C. question why the school was investigating or targeting Respondent and she wanted to ask the school to stop their investigation. The effect that Respondent's words and actions had on S.C. is precisely what Petitioner tries to avoid by issuing standard directives that employees being investigated may not contact witnesses with the intent to interfere with the investigation.1/ Respondent was afforded her employee and due process rights, including the opportunity to file exceptions to the investigative report and request a superintendent's review. At its regularly scheduled meeting on December 10, 2014, the Petitioner took action to suspend Respondent without pay and initiated dismissal proceedings against her. Respondent claims that allegations against her are falsified, that Ms. Garcia was "coached" for reasons Respondent could not articulate, and that her co-teacher, Ms. Stubbs, is out to get her. She also believes "the principal and his agents" conspired against her. Notably, Ms. Stubbs was not the individual who reported the incident. She did not provide a statement in support of the allegations nor did she testify at the final hearing. Respondent could not identify the alleged agents of the principal. Respondent's denial of the allegations and conspiracy theory are identical to the defenses she asserted in response to her prior incident of inappropriately touching a child for which she received a 25-day suspension and probation.2/ Respondent presented no credible evidence in support of these defenses. Respondent also claims that M.C.'s father gave her verbal permission at the beginning of the school year to teach his son "life skills" and put physical limits on his son. The father did not testify, there was no corroboration, and it was denied by S.C. Even assuming this was true, it is implausible that M.C.'s father, or any parent, would envision a scenario in which his child would be pulled to the ground forcibly by his teacher, or another student would be encouraged by a teacher to physically retaliate against his child, to teach "life skills." Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent engaged in misconduct in office, gross insubordination, and violated School Board rules 3210 and 3213.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, including Respondent's prior 25-day suspension for similar conduct (inappropriate physical contact with a student) and the seriousness of these violations, it is RECOMMENDED that the School Board enter a Final Order terminating Respondent's employment. DONE AND ENTERED this 26th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 26th day of June, 2015.
Findings Of Fact This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident. The sexual assault was initiated by another male student, John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to removed her clothing and she was fondled and touched by several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred, the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels and Vernon Clark. He didn't see Horne. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident. At no time did she name Borne in her statements. Nettie Thomas testified that Bennie Horne was one of the students who held her arms while she was being held on top of the teacher's desk. At hearing was the first time Thomas named Horne as having been present or involved in the incident. Robinson thought Horne was involved because one of the other boys said Horne was there. No evidence was presented which established Horne's presence and involvement except the victim's testimony. In resolving this apparent conflict between the testimony of the victim and her failure to name Horne previously, substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report does not specifically name Bennie Horne. In light of this written statement and lack of direct or corroborative evidence of Horne's presence, and having judged the demeanor of the various witnesses, it is found that Bennie Horne did not hold the arms of the victim in order to restrain her on the desk during the sexual assault and was not shown to have been present at all. Bennie Horne had no record of misconduct at Brownsville Junior High School prior to this incident. He was not a disruptive student and his academic performance was satisfactory.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County enter a Final Order returning Bennie Horne to the regular school program and reversing the determination that Horne be placed or retained in an educational alternative program. DONE and ENTERED this 11th day April, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of April, 1985. COPIES FURNISHED: Ms. Gloria Horne Parent of Bennie Horne 2631 N. W. 49th Street Miami, Florida 33142 Frank R. Harder, Esquire Assistant School Board Attorney Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Ms. Maeva Hipps School Board Clerk School Hoard of Dade County 1450 N. E. Second Avenue Suite 301 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N. E. Second Avenue Miami Florida 33132
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)1, 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes (2002-2005),2 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i), and, if so, what discipline should be imposed.
Findings Of Fact Ms. West holds Florida Educator’s Certificate 666407, which covers the area of physical education and is valid through June 30, 2012. She began her teaching career in 1990. At all times pertinent to this case, Ms. West was employed as a physical education teacher at Azalea Middle School in the Pinellas County School District. By Final Order dated February 20, 2004, the Education Practices Commission found Ms. West guilty of violating Subsection 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), by, among other things, making derogatory remarks to students and disclosing students’ grades without their permission. The Education Practices Commission suspended Ms. West’s educator certificate for the summer session for 2004 and placed her on probation for two years, effective February 20, 2004. The violations for which Ms. West was disciplined occurred while Ms. West was a teacher at Gibbs High School. In an effort to give Ms. West a fresh start, she was administratively transferred from Gibbs High School to Azalea Middle School beginning August 2001. Ms. West was assigned to teach seventh-grade physical education. Connie Kolosey was the seventh-grade assistant principal at Azalea Middle School who was responsible for supervising everything having to do with the seventh grade, including the seventh-grade teachers. The principal at Azalea Middle School received an anonymous letter early in the 2001- 2002 school year complaining that Ms. West was using offensive language and making derogatory remarks to students. About the same time as the arrival of the anonymous letter, Ms. Kolosey became aware that Ms. West was using her cell phone in class to call parents to talk about students’ behavior. Ms. Kolosey met with Ms. West on September 7, 2001, to discuss these issues. Ms. West felt that the anonymous letter came from individuals who were involved in Ms. West’s problems at Gibbs High School. The use of the cell phone was discussed during the conference. Ms. West stated that when she was at Bay Pointe Middle School she had used the cell phone to call parents during class and found it to be an effective way to curb student misbehavior. Ms. West indicated that she would leave the gymnasium and make the cell phone calls in the hallway. Ms. Kolosey explained to Ms. West that the use of cell phones to call parents during class was not appropriate. Students could be embarrassed by having Ms. West discuss their discipline issues in front of the class or in the hallways. Additionally, it was not a safe practice to leave the students in the gymnasium while she went into the hall to make telephone calls. On February 8, 2002, Ms. Kolosey had another conference with Ms. West to discuss accusations which had been made by several students that Ms. West had been making derogatory remarks to them about their physical appearance. Ms. West denied making the comments. During the spring of 2002, the parents of one of Ms. West’s students demanded that their child be removed from Ms. West’s class for comments which Ms. West allegedly made to their child, S.B. Ms. Kolosey investigated the matter and could find no one to corroborate the allegations made by S.B. and her parents. Thus, Ms. Kolosey refused to remove the student from Ms. West’s class. The parents of S.B. continued to request that their child be removed from Ms. West’s class because S.B. had skipped Ms. West’s class, and they felt it was a result of the child having been traumatized by Ms. West’s actions. Ms. Kolosey discussed the issues concerning S.B. She specifically told Ms. West not to bring the issues up to S.B. in a negative way but to attempt to mend her relationship with S.B. On March 12, 2002, Ms. Kolosey received a telephone call from S.B.’s mother again demanding that S.B. be removed from Ms. West’s class. Ms. West had told S.B. in front of S.B.’s classmates that S.B. could not run to Ms. Kolosey about things that were said in private because she was saying it in front of the whole class. Ms. West admitted to Ms. Kolosey that she had made the remarks to S.B. Ms. Kolosey agreed to remove S.B. from Ms. West’s class. On May 16, 2002, Ms. Kolosey; Ms. West; Ms. Andrews, the principal at Azalea Middle School; and Mr. McNeil, a union representative, had a conference to discuss more allegations that Ms. West had made belittling remarks to some of her students. It was suggested to Ms. West that if she needed to discuss a student’s performance or behavior that she take the student aside rather than do it in front of other students. Ms. West was warned that her attitude needed to change and that she could not always say the first thing that came to her mind. During the last semester of the 2001-2002 school year, Ms. West’s daughter was seriously ill, and Ms. West missed a great deal of work because of her parenting responsibilities. The first semester of the 2002-2003 school year, Ms. West was absent most of the time because of her daughter’s illness. Ms. West returned to teach at Azalea Middle School in January 2003. After Ms. West’s return, complaints began to be made to the administration about inappropriate comments that Ms. West was alleged to have made during class. Ms. West denied making the comments. Again, Ms. West was cautioned to think about what she says to the students before she says it. Ms. West was under a great deal of stress during the early part of the second semester of the 2002-2003 school year because of her daughter’s illness. Her daughter passed away in March 2003. In March 2003, Ms. West received a written reprimand from the principal at Azalea Middle School for “failing to interact appropriately with students and making inappropriate remarks to students, and for insubordination in failing to follow a previous directive to refrain from such remarks.” Again, Ms. West was directed to refrain from making inappropriate remarks to students. Ms. Kolosey evaluated Ms. West for the 2002-2003 school year. Ms. West was rated ineffective for her instructional and non-instructional performance. It was noted that Ms. West’s judgment was a serious concern and that the numerous complaints which had been received regarding Ms. West’s negative interactions with students overshadowed an otherwise knowledgeable and organized classroom presentation. Ms. West appealed the evaluation, but the evaluation was upheld. Ms. West felt that Ms. Kolosey was being unfair to her and that she was taking the word of students over Ms. West’s denials. Ms. West felt that because Ms. Kolosey believed the allegations of some of the students, the students somehow felt they were empowered and made even more accusations. In order to give Ms. West another fresh start, Ms. West was transferred to sixth-grade classes for the 2003- 2004 school year. Dan Stevens was assigned as her supervisor, and Ms. Kolosey had no further dealings with complaints regarding Ms. West. Because of the evaluation which Ms. West received at the end of the 2002-2003 school year, she was given a performance improvement plan on August 12, 2003. Among other things, the plan called for Ms. West to “[a]void use of inappropriate comments to students that they may find humiliating or demeaning in nature.” Ms. West was told to “[u]se wait time before responding to students[’] inappropriate behavior” and to “[r]emember to always praise student publicly and to correct them privately.” On August 25, 2003, Mr. Stevens received an email from the Azalea Middle School sixth-grade guidance counselor, advising him that there had been a complaint by a student that Ms. West had disclosed his grade in class without his permission and that the parent of another student, E.M., had called to complain that her daughter’s grade had been revealed to the other students. E.M.’s mother also wrote a letter to Mr. Stevens regarding her allegations that Ms. West was disclosing her daughter’s grades to the class. Because E.M.’s mother felt that Ms. West was acting inappropriately, she refused to allow E.M. to attend Ms. West’s class. On October 7, 2003, a conference was held with Ms. West to discuss the allegations made by E.M.’s mother. Ms. West denied disclosing E.M.’s grade. E.M. was transferred from Ms. West’s class to another class. In late August 2005, J.T., a sixth-grader at Azalea Middle School, was transferred to Ms. West’s health class. On September 2, 2005, J.T. called his stepmother during class and handed the telephone to Ms. West so that she could talk to his stepmother. Ms. West discussed with the stepmother that J.T. had failed a test and that he had not returned the test to her with a signature of one of his parents. This conversation was held during class time and in a manner that the other students could hear Ms. West. Ms. West called L.D. about her son, T.D., during class hours to complain that T.D. was making a failing grade. L.D. could hear students in the background. Ms. West made remarks to students which were disparaging and embarrassing. One remark made by Ms. West to T.J. was, “You must have studied in the dark.” Ms. West had been talking to T.J. about his low grade on a test. T.J. said that he had studied for the test, and Ms. West responded that he must have studied in the dark. Ms. West has also made this comment to other students who had made low grades on tests. Ms. West also told T.J. in front of other classmates to “Take your grow-up pill.” T.J. is small in stature and sensitive about his size. Ms. West denied that she was making a reference to his small size and contends that she was just trying to tell him that he was acting immaturely. Although Ms. West did not intend to make fun of T.J.’s small size, she should have known that such comments could embarrass him. Ms. West made the comment, “Dumb boys make dumb babies” during her health class in the fall of 2005. She contends that she was trying to make the students aware that they should think about the consequences of the decisions that they make in life. Although Ms. West was trying to convey an appropriate message, she chose an inappropriate means to do so. At the final hearing, Ms. West stated that she had made the remark to two girls, who were discussing a particular student. In essence, she referred to the young man as being dumb, which was not appropriate. Based on the numerous complaints that the administration received about Ms. West’s behavior, the Pinellas County School Board made investigations and terminated Ms. West’s employment with the Pinellas County School Board. Both administrators and parents found that Ms. West was an ineffective teacher. Based on the numerous complaints from parents and the necessity to transfer students from Ms. West’s classes to other classes, Ms. West was an ineffective teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. West guilty of violating Subsections 1012.795(1)(f), 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i) and suspending Ms. West’s educator’s certificate for three years, followed by a two-year probationary period under terms and conditions set by the Education Practices Commission. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of October, 2009.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. Respondent, who has no prior disciplinary history, holds Florida Educator's Certificate 709850, covering the area of mathematics, which is valid through June 30, 2014. The Events The incident that gives rise to this proceeding occurred during the morning of April 8, 2011, at Dillard High School ("Dillard"), where Respondent has taught mathematics since 2004. At that time, Respondent was lecturing to his Algebra I honors class, which comprised approximately 15 students. During the lecture, one of the male students, 15-year- old D.P., took out his cell phone and viewed it, contrary to one of Respondent's classroom rules. Respondent immediately directed D.P. to put the phone away, and the student complied; a few moments later, however, D.P. again took out his phone, which resulted in the same reaction from Respondent. For reasons known only to D.P., he took out his phone a third time——conduct that prompted Respondent to confiscate the item. Later, during the same class period, D.P. inquired of Respondent as to when his phone would be returned. Respondent replied that the phone could be retrieved at the end of the day from Mr. Levinsky, one of Dillard's assistant principals. None too happy with this turn of events, D.P. stewed for several minutes, at which point he got up from his table and approached the front of the room, where Respondent was seated behind his desk. Suspecting that D.P. might attempt to recover the phone (which lay on Respondent's desk), Respondent picked it up. At that point, and in an audacious move, D.P. grabbed Respondent's cell phone off the desk and stated, in an angry tone, that he would return Respondent's phone when Respondent relinquished possession of his (D.P.'s). Understandably disinclined to negotiate, Respondent calmly directed D.P. to return his property. D.P. refused. Respondent again asked, to no avail, that D.P. place the phone on the desk. After a third request, which, like the others, went entirely unheeded, Respondent stood up, walked around his desk, positioned himself near D.P., and instructed D.P.——for the fourth time——to put down the phone. D.P. complied, only to pick up the phone once again just seconds later. (While doing so, D.P. remarked that he was not going to return Respondent's "mother-fucking phone.") It is at this point that the witness' accounts diverge: D.P. and student S.H. contend that Respondent reached out with one hand and, in an unprovoked act of violence, grabbed D.P. by the throat and pushed him backwards, which resulted in D.P. falling over several desks that had been placed together; students A.A., R.B., and A.P. claim that Respondent, without provocation, slammed D.P. onto the desks after taking hold of the student's throat; finally, Respondent asserts——as corroborated by student T.F.——that D.P. moved toward him in a threatening manner and that he (Respondent) simply defended himself5/ by extending his arm, which made contact with D.P.'s upper chest or neck area. Respondent and T.F. further testified that, as a result of the defensive contact, D.P. moved backward and either tripped or fell over the desks. Before the undersigned resolves the question of how D.P. wound up on the floor, a brief rehearsal of the relevant subsequent events is in order. Moments after the physical encounter, Respondent informed D.P., who was uninjured, that he intended to escort him to one of Dillard's administrators. Enraged, D.P. removed his shirt and followed Respondent into the hallway; as D.P. did so, he directed several vulgar threats toward Respondent, such as, "I'm going to fuck you up" and "I'm going to kill you." Moments later, Respondent encountered one of Dillard's security guards, Noel Buhagiar, from whom Respondent requested assistance. Mr. Buhagiar proceeded to restrain D.P., at which point Respondent made his way to school administration. Once in the front office, Respondent provided a brief description to Mr. Levinsky (as noted previously, an assistant principal) concerning his incident with D.P. Mr. Levinsky instructed Respondent to return to class and issue D.P. a referral. While en route to his classroom, Respondent walked by D.P., who, still restrained, repeated his earlier crude threats. From what can be gleaned from the record, D.P.'s behavior ultimately earned him a five-day suspension from school. Shortly after the incident, Respondent was questioned by Edward Jackson, a school resource officer assigned to Dillard. During the interview, Respondent explained that D.P. had approached him in a "fighter's stance" and that, as a result of this aggressive behavior, he feared for his safety and used an open hand (which made contact with D.P.'s neck) to ward D.P. away. Subsequently, Officer Jackson conducted an interview of D.P. in the presence of Mr. Levinsky and the student's father, during which D.P. provided a description of the incident that largely coincided with Respondent's version of events. These statements were credibly recounted during the final hearing by Officer Jackson, who testified: The child told me, in front of his father, and A.P. [Levinsky], that there was a conversation about a cell phone. He went to get his cell phone back, in an aggressive manner, and that's when [Respondent], fearing for his safety, extended his arms out, and I guess in such force, that he caused the student to fall over some chairs. I then asked, well, Mr. [Levinsky] asked the student, did at any time, did [Respondent] use his hand to choke, choke you. And D.P. answered, to the question, indicating that [Respondent] did not use his hands to choke him. And that was said in front of his father, and in front of Mr. Levinsky, so, there was no choke at all. Final Hearing Transcript, p. 173 (emphasis added). Upon the conclusion of his investigation, Officer Jackson charged D.P. with misdemeanor assault,6/ at which time the matter was forwarded to the State Attorney's Office.7/ Ultimate Findings It is determined, as a matter of ultimate fact, that Petitioner has failed to adduce clear and convincing evidence of the Amended Administrative Complaint's principal allegation—— namely, that Respondent grabbed D.P. in a "choking manner and pushed him onto [a] desk." In so finding, the undersigned rejects the testimony of Petitioner's witnesses on this issue, which, for several reasons, is less persuasive than that of Respondent and T.F. First, had Respondent committed the act alleged, it is reasonable to expect that D.P. would have suffered some form of harm, particularly since Respondent, a football coach, outweighed D.P. by at least 608/ pounds. Yet, and as D.P. conceded during the final hearing, he sustained no marks, bruises, or injuries of any kind.9/ In addition, D.P.'s present description of the event is highly dubious in light of Officer Jackson's credible testimony, which establishes D.P.'s admission during the police interview that he (D.P.) had moved toward Respondent aggressively and that Respondent had merely extended his arm for protection. Finally, D.P.'s wholly outrageous conduct, both before and after the incident——taking Respondent's property and refusing to return it, removing his shirt, and threatening to "kill" Respondent——is far more suggestive of his culpability as the aggressor. Owing to the undersigned's crediting of Respondent's final-hearing testimony, it necessarily follows that Respondent's report of the incident to law enforcement, in which he claimed self-defense, was in no manner false or dishonest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the Amended Administrative Complaint. DONE AND ENTERED this 30th day of May, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2013.
The Issue The issue is whether Petitioner may terminate Respondent's contract for immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code; misconduct in office, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code; and incompetency, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1), Florida Administrative Code.
Findings Of Fact Respondent came to the United States from British Guyana in 1977. In 1988, Respondent obtained an educator's certificate and began teaching in Dade County. Petitioner hired him in 1992 and assigned him to Silver Lakes Middle School. For several years, Respondent taught language arts, which is the area in which he is certified, to all grades. Petitioner later assigned Respondent to teach students in the dropout prevention program at Silver Lakes Middle School. The students in the dropout prevention program typically represent greater academic challenges to a teacher than do their counterparts in regular education. For the past five or six years, Respondent taught dropout prevention at Silver Lakes Middle School. His teaching approach is to try to develop rapport with the students during the first nine weeks of the school year while, at the same time, identify specific areas of weakness within each student that may require attention during the school year. On October 17, 2001, Respondent administered a diagnostic test to identify areas in which students needed work. Unable to answer some of the questions, some students asked Respondent for help. Respondent declined to help because his assistance would destroy the purpose of the test. Some of the students began to misbehave. After several attempts by Respondent to control these students, they threatened to go to the office and complain about Respondent. Respondent invited the students to go to the office and complain about him. He wrote passes for several students, and several more students joined the others to visit the office, rather than take the test, and complain to an administrator about Respondent. The principal received the students in her office and listened to their complaints, which appear to have been the source of the allegations in this case. The principal took statements from the students and then returned with them to Respondent's classroom. While in the classroom, the principal helped the students with the diagnostic test that Respondent had been administering. Recognizing that the diagnostic value of his test was lost, Respondent then joined the principal in helping the students with their diagnostic test. Prominent among the students' complaints to the principal was that Respondent had struck a student, J. H. Petitioner produced little direct evidence supporting this allegation. Twice, J. H. ignored subpoenas to testify in this case. Respondent testified that J. H. later admitted to him that other boys in the class made him lie and say that Respondent hit him. J. H.'s failure to comply with subpoenas is consistent with Respondent's testimony. Absent J. H.'s testimony, it is difficult to determine exactly what, if anything, happened with him and Respondent. The most likely scenario is that J. H. succumbed to the pressures of other students in the class and lied that Respondent had hit him, knowing that the only contact that had taken place between Respondent and J. H. was incidental contact during a minor incident of horseplay. Three of the four student witnesses whom Petitioner called to substantiate the charges were unconvincing. The fourth--J. G.--was vague and unable or unwilling to supply evidence against Respondent, whom he described as "the nicest man." Student D. S. testified at the hearing that Respondent ignored the students' questions in class about classroom material, called J. H. "peanut head," called "Jarvis" "bumbleclot," told D. S. that he lacked motivation and was lazy, and told other students that they came to school looking like a "bum." "Bumbleclot" appears to be a derogatory term in a Jamaican patois, although the record does not establish the intended or actual effect that any use of the word would have in Respondent's class. When handed a previous statement, D. S. added to his complaints that Respondent often said "bloody" in class and would . . . like nudge [J. H.], like, hit him in the arm." D. S. also recalled that Respondent said "cock-eyed" in class. D. S. admitted that he never heard Respondent threaten to "pop" a student. Discrepancies exist between D. S.'s testimony and his prior statements. First, he initially omitted the most significant allegation--that Respondent struck J. H.--and, when he later mentioned it, he downplayed it to a "nudge." Likewise, D. S. initially omitted any mention of Respondent's use of "bloody." Also, D. S. never mentioned Respondent's use of "bumbleclot" in his previous statements. D. S.'s testimony establishes the unlikelihood that Respondent actually hit J. H. or that he ever threatened to "pop" a student in class. Student J. P. testified that she heard other students say that Respondent pushed D. V. out the door of the portable classroom after ejecting him from class. Due to J. P.'s admitted failure to have observed the incident, the Administrative Law Judge struck the testimony. However, despite admitting that she did not see this incident, J. P. stated that she went to the office with other students and informed the principal of the incident. J. P. also testified that Respondent often said "bloody" and refused to explain all of an assignment to her after she missed school, which she admitted happened frequently. Lastly, J. P. complained that Respondent issued her a referral for going to the bathroom. In addition to missing school, J. P. was often tardy when returning from various errands, and many times she did not do her work. J. P.'s testimony establishes only that Respondent may have said "bloody" a few times in class. Student J. G. testified that he recalled Respondent using "hell or damn" in class, although, on cross-examination, he denied any recollection of any use of either of these words. J. G. testified that he heard Respondent say something about knocking a student into next week, although he could not recall whether the latter comment was made in jest. J. G. added that he saw Respondent give J. H. "a little hit." Student D. V. testified that he saw Respondent hit J. H., although his description of the conversation accompanying the incident was materially different at the hearing than in a previous statement. D. V. testified that Respondent threatened to "pop" students and told them to "shut [their] bloody mouths." D. V. added that he asked Respondent one time if he could call his mother to bring his medication for attention deficit disorder, and Respondent denied him permission to make the call. D. V. also testified that Respondent, while sitting beside the door, pushed D. V. on the shoulder to get him out of the classroom, and D. V. responded by warning that he would get his sister to "kick [Respondent's] ass." Although D. V.'s testimony is not undermined by the inconsistencies plaguing the testimony of D. S. and J. P., D. V. shares the antipathy of these other two students for Respondent. Each of these students resented Respondent's efforts to discipline and teach them. Each of these students betrayed a desire to act in concert to get Respondent in trouble, as they felt he had gotten them into trouble. Respondent called as a witness one student, W. L., who testified forcefully that she heard the other students coercing J. H. to say falsely that Respondent had hit him. W. L. testified that the only improper word that she heard Respondent use was "bloody" and that Respondent and J. H. engaged in some horseplay in class. Perhaps the most useful witness was an assistant principal at Silver Lakes Middle School. At the end of the 2001-02 school year, the assistant principal completed an evaluation of Respondent in which he assigned him a satisfactory rating, which is the highest, in all categories, including classroom management. It is clear from the testimony of the assistant principal that he gave the complaints of Respondent's students exactly the weight that they deserved. Respondent admitted that he used "bloody" in class, but the record fails to develop the appreciation of his students for the intensity of this word in certain non-American cultures. Respondent admitted that he once used the phrase, "pop you one," but the record fails to develop the context so as to preclude the likelihood that Respondent said these words in jest. Respondent admitted that he used "cock-eyed," "skinny boy," and "bony boy," but, again, the record fails to establish a context as to permit a finding that these terms were abusive or disparaging. Respondent, who is black, mentioned that he had been called "black nugget" and "kiwi," but only as part of an effort to develop tolerance for names among students eager to take offense. Respondent ejected D. V. from the classroom for legitimate reasons. According to D. V. himself, any followup contact was with Respondent in the seated position, so as not likely to have been significant. According to another student, D. V. grabbed Respondent. At most, the record depicts an angry, disruptive student who has stubbornly refused to comply with his teacher's ejection of him from the classroom, so that other students have a chance to learn. Likewise, D. V.'s complaint that Respondent denied him the chance to call his mother for his attention deficit medication suffers for the lack of context. Undoubtedly, D. V. joined in ongoing efforts to disrupt the class and avoid receiving instruction. The only context for this request provided by the record is that D. V. asked for permission immediately after returning from lunch, when he would have had ample opportunity to call his mother. Although it is possible that D. V. first thought of the missing medication after lunch, it is at least as likely that he thought of the missing medication as a convenient excuse to extend his mid-day respite from learning. For the foregoing reasons, Petitioner has failed to prove that Respondent was guilty of misconduct in office, incompetency, or immorality.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Carmen M. Rodriguez Law Offices of Carmen Rodriguez, P.A. 9245 Southwest 157th Street Suite 209 Miami, Florida 33157 Mark F. Kelly Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 Tampa, Florida 33675-0638
Findings Of Fact Based upon Respondent's plea of nolo contendere to the Administrative Complaint, the following facts are deemed admitted: While employed as a teacher at Northeast Senior High School, the Respondent, ELLEN APPENFELDER, allowed two (2) male students to stay overnight with her in her apartment on one or more occasions during June and early July of 1978. The Respondent, ELLEN APPENFELDER, permitted students to consume alcoholic beverages at her apartment and in her presence on one or more occasions during the last spring (sic) and/or early summer of 1978. The Respondent, ELLEN APPENFELDER, was counseled on two (2) or more occasions by the Principal and Athletic Director of Northeast Senior High School about her relationship with a male student in the school, and that the relationship was causing problems in the school and in the community, and that it should be terminated. These conferences occurred during the 1977-78 school year. The Respondent submitted testimony and evidence in mitigation which show that she was considered by her colleagues to be a good disciplinarian. She was not considered by other teachers to be soft on student misbehavior. Respondent did have a history of personal involvement with students and their activities. She was a faculty advisor to the cheerleading squad at Northeast Senior High School. She and her husband sponsored social events for the high school's cheerleading and basketball teams, to include dinners at her parents' house. As a result of these activities, she and her husband became aware of the personal and academic problems of a male student, who was an outstanding athlete on the basketball team. Both the Respondent and her husband attempted to assist this student with his problems. The Respondent's father and husband employed this student for a period of time to assist him. This student spent the weekend with the Respondent and her husband on more than one occasion. The relationship and interest with this student was not unique. The Respondent had also extended herself to assist a member of the cheerleading team, who was having personal difficulties as a result of her parents' divorce. In another instance, the Respondent took a former student to Miami in order that she could enroll in one of the area's airline stewardess programs. This depth of interest continued her family's interest and involvement in the school system and students for which her father had received several civic awards. In January of 1978, the Respondent and her husband experienced marital problems, which resulted in their abrupt separation. This separation continued until after July 4, 1978. During their separation, the Respondent continued her interest and involvement with the student whom she and her husband had befriended. This student and a companion were permitted to spend the night at the Respondent's residence. This student also visited the Respondent's husband in an adjoining community during the period of their separation. The Respondent does not drink. She admitted in her testimony that alcoholic beverages were consumed in her presence, but stated that to her knowledge no one who was not of legal age ever consumed alcoholic beverages in her presence. Further, the Respondent had no personal knowledge of the status as a student of one of the two (2) individuals involved. The material allegations of Paragraph 3 of the Administrative Complaint do not constitute a violation of any of the statutes or rules cited in the Administrative Complaint. The Respondent's testimony shows that the "counseling" which she received was an informal suggestion that she lessen her involvement with a particular student because of student jealousies. There is no evidence that the Respondent failed to follow the lawful orders and directions of any of her superiors within the school system. The Respondent is now aware that her activities gave the appearance of impropriety, subjecting her to potential criticism and notoriety and thereby diminishing her effectiveness as an instructor. She is further aware that her tendency to become a counselor to students as opposed to a teacher resulted in the situation which formed the basis for the allegations in the Administrative Complaint.
Recommendation Based upon the Stipulation, the facts submitted in mitigation, and consideration of the proposed findings of fact, the Hearing Officer recommends that the certificate of the Respondent be suspended for a period of one (1) year. DONE and ORDERED this 7th day of September, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Ben Kay, Esquire 30 Sixth Street North Suite 307 St. Petersburg, Florida 33701 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: ELLEN APPENFELDER DOAH CASE NO. 79-809 /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Richard Stephens is a tenured instructional employee of the Leon County School Board, and has been a science teacher at Nims Middle School for seven years. On October 31, 1980, an incident occurred on the Nims Middle School premises during the lunch hour. A female student, Loretta Brown, called a male student, Johnny Bryant, an offensive name inside the school cafeteria. As she was standing on the outside of the double doors near the back entrance to the cafeteria, Johnny Bryant jumped out of his seat at the lunch table, ran outside and either jumped on Miss Brown's back or pushed her. Miss Brown flipped Bryant over, he landed on the cement sidewalk, got up and they began to fight. As respondent Stephens was leaving the cafeteria with his students, he noticed that a male student (Bryant) had jumped up from his chair and run out the door. As respondent walked out the door, he saw a male and a female student fighting. Student Bryant had student Brown pinned up against a railing, was holding her by the collar with his left hand and was violently swinging at her with his fisted right hand. The students were hitting each other about the face and the stomach. When the respondent initially encountered the two fighting students, he told them to stop fighting. They continued to fight. Being unable to verbally stop the altercation or to get between the students, and feeling that serious damage to the students could result, respondent reached under student Bryant's left arm and around his chest and tried to grasp Bryant's swinging right hand. Respondent was attempting to pull the students apart, but Bryant continued to hold on to Brown's collar. When respondent grabbed Bryant, Bryant gave no indication of control and respondent felt that Bryant needed further restraint. Respondent was eventually able to get Bryant's right arm down by his side. Bryant twice attempted to elbow respondent in the groin area. In order to avoid this attack, respondent turned his body. When he did so, it appeared that Bryant would get away from him. Respondent then lost his balance, and having made the decision to fall to the ground rather than to let Bryant go, both respondent and Bryant fell to the concrete walkway. When this occurred, respondent put Bryant's arm behind his back and squatted over Bryant's back with his knees on the ground. While on the ground, Bryant continued to kick his feet, move his head up and down and yell. Respondent told him on several occasions that he would allow Bryant to get up when Bryant calmed down. When two other teachers, Richard White and Gerald Chandler, came to the scene, Bryant was still struggling with respondent on the ground. Mr. White helped respondent and Bryant up and White and respondent continued to hold on to Bryant's arms. When Mr. Humphries, the Assistant Principal for Administration, came, Bryant was not calmed down and was continuing to try to get away. Mr. Humphries shook Bryant by the arm and told him to stop. At that time, Bryant did calm down and the students were taken to Mr. Humphries' office. Throughout the incident, respondent was of the opinion that if he let Bryant go, Bryant would have injured him or someone else. The two fighting students testified that they would have continued fighting if respondent had not stopped them. Bryant admitted that while he was on the ground with respondent, he was still mad, was yelling and that after respondent let him get up, he was still attempting to get free. Another teacher who witnessed a part of the incident stated that Bryant was not in control and that it was difficult to determine what Bryant would do if he were released. Other witnesses who observed portions of the incident testified that respondent had Bryant under control, was holding his arm in a "hammerlock" or "chicken wing" position and that Bryant was complaining that respondent was hurting his arm. When Assistant Principal Humphries investigated the incident, Bryant complained of bumping his knee, but made no remark concerning his arm. During the preplanning period prior to the 1980-81 school year, teachers at Nims Middle School were not given specific instructions or guidelines as to how to break up a fight between two or more students. Subsequent to the October 31, 1980, incident described herein, teachers were instructed that in cases of student fightings, they may use whatever force is necessary to break up the fight and that they have a right to defend themselves and protect other students. Generally, the amount of force to be used will be a judgment call on the part of the teacher dependent upon the specific situation. On November 30, 1979, a letter written by Devurn H. Glenn, the former Principal of Nims Middle School, concerning respondent's actions when stopping a fight between two students on November 8, 1979, was placed in respondent's personnel file. This letter states that ". . . while you were carrying out your duty in stopping the fight, the amount of force used by you was in excess of the minimum necessary to bring the fight to a conclusion. In light of the above finding, I instruct you to use more restraint in dealing with similar situations in the future."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Notice of Charges filed against the respondent Richard Stephens be DISMISSED. Respectfully submitted and entered this 6th day of May, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1981. COPIES FURNISHED: Charles Johnson 2757 West Pensacola Street Tallahassee, Florida 32304 Pamela L. Cooper Staff Counsel Florida Teaching Profession-NEA 213 South Adams Street Tallahassee, Florida 32301 Charles Couch, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32312
