The Issue Whether Respondent violated Florida Administrative Code Rules 6B-1.001, 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(3)(g), and 6B-1.006(3)(h), and, if so, whether such conduct is just cause for dismissal of Respondent pursuant to Subsection 1012.33(6)(a), Florida Statutes (2003).
Findings Of Fact During the 2002-2003 school year, Gary was employed by the School Board as a band and orchestra director at James Madison Middle School (Madison). Gary had been employed by the School Board for two years previous to the 2002-2003 school year. Prior to the incidents which are at issue in this case, Gary had been thought of by the Madison school administrators, students, and parents as an excellent teacher, who was able to inspire and motivate students. Gary taught C.J., a ninth-grader, advanced band and intermediate band during the 2002-2003 school year. Sometime during that school year, Gary noticed a dead dragonfly on a window in the band classroom. The dragonfly was removed from the window and placed in a trash receptacle. C.J. said that he would eat the dragonfly for a dollar. Another student said that he would give C.J. a dollar, and Gary said, "Okay." C.J. retrieved the dead dragonfly from the trash can and ate the insect. Gary gave C.J. a dollar. C.J.'s parents learned of the dragonfly incident through a younger cousin of C.J., who also attended Madison. C.J.'s mother went to see Gary to discuss the incident. Gary indicated to the mother that he was sorry for what had happened and that it was poor judgment on his part. C.J.'s mother felt that they had addressed the issue during their conversation and left the meeting satisfied about the issue. Gary did not advise school administration about C.J. and the dragonfly. After the dragonfly incident another situation arose involving Gary and C.J.'s eating an inappropriate item. Gary and some students, including C.J., were eating lunch in the cafeteria. Gary was eating baked ziti and began chewing on a particularly hard piece of ziti. He removed the ziti from his mouth and placed it on the side of his plate. Gary offered C.J. 12 dollars to eat the ziti, saying, "I bet you won't eat this piece of baked ziti." C.J. replied, "Oh, yes, I will." Gary then told C.J. not to eat the chewed food. Other students were egging C.J. on to eat the ziti, and C.J. picked the food off Gary's plate and ate it. One of C.J.'s cousins related the ziti incident to C.J.'s mother, and C.J.'s mother paid Gary another visit. The mother was not happy about the ziti episode and spent more time discussing the issue with Gary than she did when she visited him concerning the dragonfly. Gary told C.J.'s mother that he had bet C.J. 12 dollars to eat the ziti. The mother told Gary not to pay C.J. the money. Before she left the school on the day of the ziti discussion, she went to see Gary a second time to inquire about the status of his health because C.J. had eaten food that had previously been in Gary's mouth. Gary assured her that he was in good health. Gary did not advise school administration about the ziti incident. Gary was provided a copy of the school district's "Code of Ethics" which contained a section entitled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." On of the admonishments in this section was "[k]eep your hands and other parts of your body to yourself." During the 2002-2003 school year, Gary put his hands inside students' pockets and searched for candy, chewing gum, notes, and money. He admitted searching the pockets of D.B., S.D., M.R., N.M., D.R., and L.B. Such actions were inappropriate and caused some of the students to feel uncomfortable. If a teacher suspects that a child has candy, chewing gum, or notes in his pocket, the correct procedure is to have the child empty his pockets so that the contents can be viewed. The teacher is not to put his hands in the student's pockets. L.D. was a student at Madison during the 2002-2003 school year, and Gary was her band instructor. L.D. considered Gary to be a "really good friend" as well as a teacher. During the 2002-2003 school year, L.D. was sitting on the stairs in the band room playing her band instrument. She played incorrectly, Gary came up to her, aggressively grabbed her neck, and said "urrr." She told him to stop, and he did. She did not think that his actions were sexual in nature, but did feel that they were inappropriate for a teacher. During the 2002-2003 school year, J.W. attended seventh grade at Madison. Gary was her band teacher. J.W. has hugged Gary, and he has hugged her back. J.W. has seen Gary hug other students at Madison. D.B. was a honor roll student at Madison. During the 2002-2003 school year, she was in Gary's first period orchestra class. She played the violin, and, during a two-week period when her violin was broken, she helped Gary in his office. Gary's office was located within the band room. The office had a door with a glass window, which took up at least three-quarters of the upper half of the door. Adjacent to the door, there was a large picture window which was on approximately the same level with the door window, but which was almost twice the size of the door window. A desk with a computer on it was located underneath the picture window. The top of the computer monitor came just below the bottom of the picture window. Occupants of the office could be seen from the band room; however, the evidence does not establish that the occupants could be seen fully from the band room. Gary made inappropriate comments to D.B., including telling her that she had sexy lips and telling her that she smelled good. These comments made D.B. feel uncomfortable. Gary also inappropriately touched D.B. While she and Gary were in his office, Gary "touched her inner thigh" and "rubbed it" and asked her if she knew how beautiful she was. In a second incident, Gary held her hand and rubbed her arm while she in his office to file papers during first period orchestra. During a third incident, Gary put his fingers inside her shorts at her waist, pulled her toward him, and asked her what she wanted. This incident took place when the door to the office was open. In another incident, D.B. asked Gary to tune her violin, and he put his hand up the bottom of her shirt. All the incidents happened during first period orchestra class when students were in the band room. Gary argues that D.B.'s testimony is not credible because of a conversation D.B. had with some fellow classmates. J.D., a classmate of D.B., was talking with D.B. and another classmate K.S. during fifth period of the 2002-2003 school year while Gary was still teaching at Madison. K.S. said, "You know what's being said about Mr. Gary is not true," and D.B. said, "Yeah, it's not true, don't say anything." The evidence did not establish what was being said about Gary and whether it concerned D.B.'s allegations against Gary. Thus, the evidence does not establish that D.B. was fabricating her allegations about Gary. Gary admits that he may have touched D.B. on occasion, but that the touching was not sexual in nature or inappropriate. M.R. was enrolled in Gary's second period and sixth period band classes during the 2002-2003 school year. She alleged that beginning in January 2003, Gary inappropriately touched her person. M.R. alleged that on two occasions when she was in Gary's office with the office door open and other students were present in the band room, Gary touched the outside of her clothing in her vaginal area. She also alleged that in a third incident that Gary placed his hand inside her pants underneath her underwear and rubbed her vagina. The third incident allegedly took place in the office with the door open and while other students were present in the band room. On a fourth occasion, M.R. alleged that Gary came up behind her in the filing room, placed his hands inside her shirt, and touched her breasts. The alleged incidents supposedly happened during third period lunch when other students were in the band room eating lunch or practicing. Of the students who testified at the final hearing and spent most of their lunch periods in the band room, none saw any inappropriate contact between Gary and M.R. M.R. had wanted to be first chair flute in her band class, but Gary made another student first chair. M.R. was angry about Gary's selection for first chair and told her friend J.W. sometime after Christmas 2002 that she was going to get even with Gary for not making her first chair. K.M., who was a student at Madison, overheard M.R. tell another student that the allegations and problems facing Gary were "what he deserves for not promoting me up in chair." M.R. does not have a good reputation in the community for truth and veracity. Her testimony concerning inappropriate touching by Gary is not credible, and it is found that those incidents did not happen. The School Board established other incidents of inappropriate behavior by Gary. Such behavior included telling a student that he could not wait until she was 21 so that he could be all over her and that it was a good thing that she was pretty because her brains would not get her anywhere; tickling her at the end of class; pulling her against her will onto his lap, and placing his arms around her arms and waist. Gary would also sit with students in the same chair in his office. Gary failed to tell school administrators of possible sexual misconduct between two students in the student restroom, when he became aware that some misconduct probably occurred between the two students. Although, the School Board proved these incidents, the School Board failed to allege the incidents in the Petition for Dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order dismissing Benjamin Leon Gary for just cause from his employment as a teacher with the School Board. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 24th day of June, 2004. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Mark S. Levine, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Benjamin B. Garagozlo, Esquire 3585 Murrell Road Rockledge, Florida 32955 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether the Respondent committed the violations alleged in the Notice of Specific Charges and, if so, a determination of the appropriate penalty for such violations.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The School Board is responsible for the operation of the public schools within the school district of Miami-Dade County, Florida. At all times material to the facts of this case, the Respondent was a teacher employed by the School Board and was assigned to a public school within the district, Hialeah Senior High School (Hialeah High). The Respondent has been a teacher employed by the School Board for years. Respondent possesses a professional service contract pursuant to Section 1012.33, Florida Statutes. The Respondent is a business education teacher. Prior to the incident giving rise to this case, the Respondent had not been the subject of any disciplinary action by his employer. Prior to teaching at Hialeah High, the Respondent had been teaching adult students at another school. The adult students were highly motivated to learn and provided little in the way of classroom discipline problems. In December of 2003, the Respondent was assigned to teach English for Speakers of Other Languages (ESOL) classes to high school age students at Hialeah High. At Hialeah High the Respondent's classes were populated primarily by students who had very limited proficiency in the English language and who, for the most part, had very limited experience in an American classroom setting. Many of the students had only recently arrived from a variety of Spanish-speaking countries, including Mexico and many Central and South American countries. These students, both because of their limited English language skills and their limited exposure to an American classroom, presented more than the usual discipline challenges. At the time of the incident giving rise to this case, the Respondent had been teaching the ESOL classes at Hialeah High for only a few weeks. A frequently recurring problem in the Respondent's classroom was that some of the students would use the classroom computers to play music CDs and would interrupt the rest of the class by turning up the volume through the external speakers on the computers. This problem apparently came to a head on January 27, 2004, when an honor student asked the Respondent if it was necessary for the class to be interrupted by the students who were playing music CDs on the classroom computers. After school on January 27, 2004, the Respondent decided to solve the music problem by cutting the audio wires that ran from the monitor to the external speakers on each of the classroom computers. The Respondent chose to cut the audio wires because the wires were hardwired into the computer monitors and could not readily be unplugged. He cut the speaker wires on at least 25 of the computers in his classroom. The Respondent's conduct in this regard was not for the purpose of damaging school equipment, but was a misguided and poorly thought out effort to prevent further music playing by the misbehaving students. The cutting of the speaker wires was an inappropriate way in which to address student misconduct in the classroom. More appropriate ways to have prevented such misconduct or to have addressed such misconduct after it occurred would have been to take such measures as implementing and enforcing classroom rules when he first began teaching the ESOL classes, making disciplinary referrals, seeking assistance from the school administration, or assigning misbehaving students to indoor suspension. Although the computers are operable, they have no external speakers and, therefore, cannot make loud sounds. The inability to make loud sounds compromises the extent to which the computers can be used for certain applications. The Respondent's acts of cutting the speaker wires were intentional acts that damaged the computers. Damage to the computers caused by intentional acts is not covered by the warranties on the computers. A representative of the Dell computer company examined the damage to the computers and stated that Dell did not make repairs to that type of damage. The best solution the Dell representative could propose was to replace all of the monitors with cut speaker wires with new monitors that had new external speakers attached. The Dell representative stated that such replacement would cost $129.00 per computer. The damage caused by the Respondent's cutting of the computer wires can be readily and inexpensively repaired. The parts necessary to repair the computers cost about $2.00 for each computer. The time necessary to repair the damaged computers is approximately five minutes per computer. The Respondent has already purchased with his own funds the parts necessary to repair all of the computers in his classroom, and he has delivered those parts to the principal at Hialeah High. The Respondent volunteered on several occasions to perform the work necessary to repair the computers he damaged. The Respondent's offers to perform the repair work were declined. For reasons not adequately explained in the record in this case, the computer technicians at Hialeah High have not yet repaired the subject computers. It would take approximately two hours of technician time to repair all of the computers in the Respondent's classroom. The damage to the computers caused by the Respondent could have been repaired within a very few days of the date on which the damage occurred. When asked about the damage to the computer wires, the Respondent readily admitted what he had done and readily acknowledged that it was a foolish and inappropriate thing for him to have done. He did not hesitate to accept responsibility for the consequences of his conduct and, as mentioned above, bought the necessary parts and offered to do the necessary repair work. Respondent’s intentional destruction of School Board property failed to reflect credit upon himself and on the school system, and showed a lack of professional judgment. On September 21, 2004, the Respondent’s principal and the assistant superintendent who had authority over Hialeah High recommended a 30-work day suspension without pay. The School Board, at its regularly scheduled meeting of December 15, 2004, took action to suspend the Respondent without pay for 30 workdays.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be issued in this case suspending the Respondent without pay for one week and requiring the Respondent to pay for the cost of the repairs made necessary by his foolish conduct. DONE AND ENTERED this 12th day of April, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 12th day of April, 2005. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Honorable John Winn Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Daniel Woodring, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Except for the matters at issue, the Petitioner is full qualified for licensure as an agent and to obtain an agency license. The Petitioner served twenty (20) years in the US Army, retiring as a sergeant-major in 1973. His last ten (10) years in service were involved directly with work which the agency concedes is the equivalent of the work done by an employment clerk. The Petitioner, since retiring from the US Army, has been employed as a teacher/career counselor in the Detroit school system at the high school level. There he instructed high school ROTC six (6) to seven (7) hours per week. The remainder of his time was spent in counseling and duties associated with administration of the ROTC department of which he was head. The Petitioner has counseled more than 200 students regarding careers to include helping them fill out applications, helping to place them in programs, and encouraging them to develop job skills. He held this position until applying for this license. The petitioner also served for more than three (3) years immediately preceding his application on the Harper Woods School Board. As a member of the school board he had to approve the hiring, firing and granting of tenure to school board employees, and review negotiated contracts for employees of the school board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application of Ralph E. Young for an employment agency/agent license be granted. DONE and ORDERED this 21st day of December, 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1979. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Ralph E. Young 2117 South East Erwin Road Port St. Lucie, Florida
The Issue Whether just cause exists for the Petitioner's proposed non-renewal of the professional services contract under which the Respondent is employed.
Findings Of Fact From school year 1987-88 to school year 1990-91, and at all times material to this case, Respondent Aaron Ellis was employed as a guidance counselor by the School Board of Hendry County pursuant to a professional service contract. The professional services contract under which the Respondent was employed specifically provides that the Respondent may not be dismissed except for just cause as provided in Section 231.36(1)(a), Florida Statutes. Richard K. Shearer has been the Principal at Westside Elementary School since July 1989. At the time Shearer was assigned to Westside, the Respondent was on staff as a guidance counselor, but did not have regular classroom duties and was to respond to referrals from teachers of troubled students. Between August 7 and December 12, 1989, the Respondent placed 44 long distance telephone calls from his school office telephone. The calls, totaling 64.81 in tolls, were not school related. Westside Elementary School's Teacher Handbook specifically provides that long distance calls made from and charged to the school should be school related, and that permission must be obtained prior to such calls being made. On January 23, 1990, Principal Shearer discussed the inappropriate telephone use with the Respondent and informed him that reimbursement was required. Prior to this conversation, the Respondent had made no attempt to reimburse the school for the cost of the calls. By letter of January 26, 1990, Principal Shearer confirmed the conversation and stated that reimbursement was required by February 9, 1990. The letter, a copy of which was placed in the Respondent's personnel file, further states that, "[i]n the future, all long distance calls must be directly related to Westside Elementary school students, and must be logged completely and accurately with specific information as to who was called, what student it was in reference to, and the reason for the call." On April 4, 1990, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. Mr. Shearer discussed the evaluation with the Respondent who refused to sign the evaluation, but instead filed a separate response. Prior to completing the form, Mr. Shearer had observed the Respondent on an informal basis at least three times and had performed one documented formal observation. He also observed the Respondent in casual meetings with numerous students. In the evaluation, Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", "interpersonal relationships", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has some excellent qualities in the way he communicates with students. He also has some glaring weaknesses in making the most effective use of school time, in relating to fellow staff members including those in authority over him, in following generally understood office procedures. Improvement is necessary in these areas during the 1990-91 school years. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were unsatisfactory, the Respondent's employment contract could be non-renewed. Mr. Shearer was concern that the Respondent did not follow through on referrals by teachers of troubled students. He also believed the Respondent to be difficult to talk to and was somewhat distant from other staff. As to desired improvements in interpersonal relationships, the notice of desired improvement provided: Mr. Ellis does not work as effectively with other staff members as might be possible or desirable. He seems to have trouble or resent answering to those in authority over him.... Mr. Ellis needs to stay in closer contact with teachers and administrators as together they decide on strategies to help students needing counseling or referrals for possible E.S.E. staffing....Staff or small group meetings will be set up upon request to discuss staff relations and counseling procedures. Expectations of the Counselor will be fully discussed at the beginning of the new school year....Better staff relations will hopefully develop by the end of the 1990-91 school year. Mr. Shearer believed that the Respondent failed to spend adequate time assisting referred students. As to desired improvements in utilization of time, the notice of desired improvement provided: Mr. Ellis does not use his time as efficiently or as effectively as he might during the school day....Mr. Ellis needs to show more initiative in scheduling his time appropriately during the school day....Schedules may be provided or developed and/or a classroom assigned to help him achieve more contact with students in need of counseling. A log of counseling sessions may be put to use....Improvements are expected during the 1990-91 school year. Mr. Shearer was sometimes unable to locate the Respondent on-campus, sometimes due to the Respondent's alleged illness (notice of which was not timely provided), other times because the Respondent would leave the Westside Elementary campus or would walk to another school located on the same property with Westside. As to desired improvements in routine office procedures, the notice of desired improvement provided: Mr. Ellis does not follow normally accepted office procedures. He does not always call in when he is to be out for the day, does not discuss extended absences with his supervisor, misses too much time from work, and has had a problem with unauthorized long distance phone calls....Mr. Ellis will conform to normal office procedures that are expected of all staff members.... A full explanation of what is expected of Mr. Ellis will be given by the Principal during the week of pre-planning....These problems should be corrected immediately, but for certain by the end of the 1990-91 school year. By memorandum of April 19, 1990, the Respondent replied to Principal Shearer's April 4th assessment. The Respondent stated that he believed he worked effectively with other staff members and did not have trouble in working or answering to those in authority. He noted that there were no complaints from teachers related to him and that he had never refused to perform assigned tasks. He wrote that he believed his time to have been utilized efficiently, that he had not been made aware of any related problems prior to the evaluation, and that he was amenable to suggestions related to more effective use of time. The Respondent insisted that he followed routine office procedures, although he acknowledged one instance of absence without notifying superiors. He noted that the matter of the inappropriate telephone calls had been handled through the letter of January 26, 1990 (a copy of which had been placed in the Respondent's personnel file) and through the reimbursement for such calls. He concluded, "I believe that your formal assessment of my performance should have, for reasons cited above, rated me as "satisfactory" in all areas. I will, however, do all you find necessary in order to demonstrate my better-than-satisfactory performance as a counselor at Westside Elementary School." By letter dated April 20, 1990, Hendry County School Superintendent William C. Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being charged with unsatisfactory performance for the 1989-90 school year. The letter stated, "As provided in F.S. 231.36, you may request to meet with me or my designee for an informal review of the determination of unsatisfactory performance and/or request an opportunity to be considered for a transfer to another appropriate position, with a different supervising administrator, for the 1990-91 school year." The letter also stated that during the 1990-91 school year, the Respondent would "be provided assistance and inservice training opportunities to help correct the noted deficiencies" and that he would "be evaluated periodically to keep you apprised of progress." Although Principal Shearer was available to offer assistance or additional information related to the performance deficiencies, the Respondent demonstrated no interest in taking advantage of the available assistance, apparently because he did not agree with the evaluation. There is no evidence that the Respondent requested transfer to another position with a different supervising administrator. Thereafter, Mr. Shearer determined it necessary to provide a structured setting for the Respondent to perform his responsibilities. By letter dated June 21, 1990, Principal Shearer provided and outline of the guidance program he expected the Respondent to implement during the 1990-91 school year. The Respondent was assigned a permanent classroom for the school year which was designated as the "time-out or in-school suspension room" which was a part of the school's discipline program. "Disruptive" and "disinterested" students were to be referred to the Respondent's classroom. Such students would "benefit from more direct contact with the Guidance Counselor than we have been able to give in the past years." The Respondent was assigned three tasks related to the permanent classroom setting. He was to develop and maintain a record-keeping system for each child that included basic information, the reason for the referral to time- out, and "any notes on types of counseling or any progress made...." He was to "supervise and hopefully motivate students to keep up with their classwork while in time-out." Finally, he was to "use whatever opportunities that arise, individually or collectively, to counsel with students about the feelings or attitudes that led to their disruptive behavior or lack or (sic) classroom performance and ways to deal more appropriately with these feelings." The June 21 letter provided that the Respondent would "have a good deal of autonomy within your classroom, but it should be understood...that this is not a 'reward' or play time, or something to be looked forward to. The students will have no 'special area' privileges while in your room....The idea is total isolation from other students until dismissal time." The letter indicated that this job description was unusual for a school counselor, but that the program would permit the Respondent to have "much more direct contact with students who are having trouble succeeding in school." Concluding, the principal wrote that the plans were "subject to fine-tuning" as the year progressed, and that he welcomed the Respondent's input in the program. A memorandum from the principal went to all Westside Elementary teachers on or about August 22, 1990 which provided information on the Respondent's "time-out" classroom. The information in the memorandum was essentially similar to that in the June 21 letter to the Respondent. Between August 6 and August 17, 1990, the Respondent placed 7 long distance telephone calls from his school office telephone. The calls, totaling $17.25 in tolls, were not school related. By letter to the Respondent dated October 11, 1990, Principal Shearer wrote that, "...once again, in spite of my clear instructions to the contrary, you have charged personal telephone calls on our school telephone." The letter stated that "NO MORE personal calls are to be charged, by you, to our school phone! This is not a service available to you, or any other staff member." The Principal required immediate reimbursement and placed a copy of the letter in the Respondent's personnel file. The letter noted that continued noncompliance would result in more serious discipline being imposed. During the 1990-91 school year, Mr. Shearer often relieved the Respondent from the Time-Out room during lunch and planning periods, and had frequent contact with the Respondent. The Respondent was often observed sitting at the desk, his feet up on the desktop, reading a newspaper or book. Occasionally, the Respondent would be eating in the classroom. Additionally, there were complaints from the adjoining school that the Respondent took Time- Out students on walking tours around the other school campus, allowing them to purchase and eat snacks. Mr. Shearer believed the situation to be inappropriate, given that the Time-Out room was directed towards correcting inappropriate behavior, and spoke to the Respondent on several occasions about the situation, but the Respondent apparently did not believe the matter to be a problem. Mr. Shearer also encouraged the Respondent to discuss counseling concerns with highly-regarded staff from other schools and to attend relevant conferences, but the evidence fails to establish that the Respondent took advantage of such opportunities. On January 8, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The evaluation was reviewed by Shearer and the Respondent on January 18, 1991. The Respondent signed the evaluation. The Respondent's evaluation in the area of "interpersonal relationships" had improved to satisfactory. Mr. Shearer noted that the Respondent still required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was not noted. The comments section provided that: Some improvement noted in interpersonal relationships. Paperwork is very weak. Personal phone calls were made again this year on school phone and on school time against my direct instructions. Does not make use of available time with problem students in Time-out or with other students when counseling could be beneficial. Continues to miss entirely too much time from school. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were required by March 15, 1991 or that the principal would recommend non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Does not make best use of extended time with problem kids in Time-Out. Does not actively seek out students or opportunities to counsel. Does not adequately follow-up on students referred for counseling....Make school attendance a higher priority. Take the initiative in scheduling students for counseling, those in Time-Out, as well as others who are in need....Keep an active log of students counseled in Time-Out and at other times. Keep a daily "diary" of activities done and students worked with....All necessary forms and papers will be made available. An F.P.M.S. package on "Using Time Efficiently" will be provided. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork is very weak, and record-keeping is almost non-existent. Long-distance personal phone calls have been made on school phones and on school time after direct instructions to the contrary....Record-keeping must be more accurate and more detailed to document work done with and for students. Compliance with directives is mandatory. All calls on school phones will be school related!....Progress will be monitored closely....Assistance will be provided as needed and/or as requested....Notebook with updated forms to be filled out on each student in Time-Out and those counseled otherwise will be provided. Mr. Shearer provided the Respondent with materials appropriate to maintain records on counseling activities. There is no evidence that such materials were utilized or that the Respondent made any effort to address the performance deficiencies noted by Mr. Shearer. On March 26, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The Respondent refused to sign the evaluation. Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has made some improvements in his general attitude and has begun to have a little more student contact, but there is still much room for improvement. There are several major areas that are still unsatisfactory. At this time I am recommending that his contract not be renewed for the 1991-92 school year. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that the principal was recommending non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Still spends too much of his school day without direct contact with students. Has not been consistent enough on his follow-up of many of the children referred to him for counseling.... Must make school attendance a higher priority. Must show more initiative in meeting with students having problems. Initial contacts must be followed up and documented on a regular basis....Should meet with teachers on a regular basis to see what students are experiencing difficulties that he might be able to help with....Every consideration will be given to working out student schedules to allow maximum contact time with the Guidance Counselor. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork remains very poorly and sloppily done. Record-keeping is still very sketchy. Record-keeping must be more accurate and more detailed to document work done with students....Assistance will be provided as needed or as requested....Will continue to supply record books, calendars, files, etc. as may be needed to help keep organized and documented. By letter to Respondent dated April 11, 1991, Hendry County School Superintendent Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being notified that "your performance deficiencies have not been corrected. Further I am notifying you that you shall not be issued a new professional service contract for the next school year." The Time-Out program was continued through the remainder of the 1990- 91 school year, but was thereafter discontinued. Mr. Shearer assessed the program as having been unsuccessful, at least in part due to the lack of interest and negative attitude regarding the program by the Respondent, who believed the program to have been a punitive measure against him by Mr. Shearer. Guidance counselors in the Hendry County Schools are asked to "volunteer" 1/ to assist school officials in obtaining psychological and social histories of students who may be emotionally or environmentally handicapped. The practice is to seek out a counselor who is assigned to the same school as the student. The counselor interviews the child and family, and completes appropriate paperwork containing the relevant information. The forms are not complicated and do not require special expertise to complete. The counselor receives $20 for each complete history taken and $10 to update a previously taken history. The Respondent was asked and agreed to take the history of a specific Westside Elementary School student. Neither the student nor the family spoke English to the extent that the Respondent, speaking only English, would be able to conduct the interview. In such situations, interpreters may be used, but the interview is to be conducted by the counselor. The Respondent did not ask if he could use an interpreter and did not seek approval to give the interview assignment to another teacher. The Respondent asked Rosa M. Santana, a Spanish speaking second grade teacher at Westside Elementary, to perform the interview. He did not offer to compensate her prior to her performing the interview. On or about April 28, 1991, Ms. Santana interviewed the child and family. Ms. Santana took her mother, who speaks Spanish fluently, with her to the interview. The Respondent was not present when the interview was done. Ms. Santana completed the interview form and listed herself as the interviewer. Ms. Santana thereafter returned the interview form to the Respondent. He altered the interview form to identify himself as the interviewer and Ms. Santana as an interpreter. He then submitted the completed form and the bill for $20 to school officials as his charge for taking the student's social history. School officials became aware of the fact that the Respondent did not complete the interview, and paid the money to Ms. Santana rather than to the Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Hendry County School Board enter a Final Order terminating the professional services contract of Aaron Ellis at the end of the 1990-91 school year. DONE and RECOMMENDED this 22nd day of November, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1991.
The Issue Whether Respondent's teaching certificate should be suspended or revoked, or whether other appropriate action should be taken for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code.
Findings Of Fact The Respondent, Jimmy L. Parker, holds Florida Teaching Certificate #165142, Graduate, Rank 3, valid through June 30, 1901, covering the area of music education. Respondent has been employed in the public schools of Polk County at Winter Haven High School as the band director. A petition for the revocation of teaching certificate was filed by the Chairman of the Petitioner Council on April 6, 1979. Homer K. Addair, the Superintendent of Schools, by letter dated May 21, 1979, advised Respondent Parker that he was "charged with falsifying an accident report and subsequently wrongfully collecting workmen's compensation funds, i.e. immorality," and that he was suspended from his employment effective May 23, 1979. Respondent has not been employed since that date by the School Board of Polk County, Florida. Respondent Parker filed a response through his attorney on May 1, 1979, and the pleadings were filed with the Division of Administrative Hearings with a request that a hearing officer be assigned. After the hearing was called to order, a stipulation as to some facts was filed by the parties: On or about May 8, 1975, while returning home during the evening hours from a band meeting at the school and driving a 1975 Ford van leased to the Board of Public Instruction of Polk County, Florida, Respondent Parker pulled to the side of the road at a location approximately one house from his home at the signal of James A. Partain, an employee of the Board of Public Instruction of Polk County, Florida as a coach of Winter Haven High School. Partain got into the van with Respondent, wherein a discussion ensued concerning an illicit relationship occurring between Respondent and Partain's wife, also an employee of the Board of Public Instruction of Polk County. A fight ensued in the van wherein Respondent suffered physical injuries. Respondent Parker drove himself home and told his sick wife that two black people had beaten him at the school. Respondent's wife called a neighbor, who came to Respondent's home and called the police. Respondent told the police that two black boys had beaten him. On the morning of May 9, 1975, Respondent Parker reported to his supervisor, Principal Herman Lofton, that be was attacked by two youths while on the school grounds on official school business and beaten badly. The beating incident was investigated by the local police and later by William J. Duncan, Deputy Superintendent of Schools. On June 3, 1975, Respondent Parker submitted a "claim of instructional personnel for illness in line of duty compensation" form to the principal, Herman Lofton. This claim stated that Respondent was beaten while on official school business with the band on the school grounds by two youths. Ultimately, the claim was approved, and Respondent received workmen's compensation payments of approximately $3,400.00 as a result of said claim. The morning after the incident of the beating and the call to the police station, the headlines of an article in the Winter Haven newspaper noted that two black youths had beaten the band director, the Respondent, the night before. From that time to date of hearing there have been news items about the episode in the paper and on the radio. William J. Duncan, Deputy Superintendent of Schools, talked to the police chief about the fighting incident. He received telephone calls from the black community informing him that some black people did not believe black youths were involved and wanted the investigation to continue. There was controversy within the black group, some believing Respondent Parker had not told the truth and some believing he had. Later, a dispute arose between two school employees as a result of the incident which created a disturbance in the lunchroom. The incident was reported to Duncan. Subsequently, the investigation was dropped by the police and the school authorities for the good of the school and the community. Sometime later, however, Homer Addair, Superintendent of Schools, requested Duncan to make an investigation to determine whether students had been involved in the incident, whether the altercation had actually taken place on the school grounds, and whether records had been falsified. Duncan said that the investigation had been dropped to keep the peace between the black and the white communities and to further the interests of the school band. He had heard the incident mentioned occasionally from the time it occurred by people in the community, band members and Band Boosters, and read short reports about it in the newspapers. Herman Lofton, Principal of Winter Haven High School, had been called by the police and questioned about the incident. Shortly thereafter, he received a written report from Respondent. He signed a county form for instructional personnel for illness and received an employee's accident and report claim. Lofton processed the claim in due course by sending the form to the county office. Subsequently, Lofton talked to the two employees, one black and one white, who had been creating a disturbance in the lunchroom, about the incident. Lofton has heard others mention the incident from time to time and occasionally read a short account regarding it in the newspaper. Homer Addair, Superintendent of Schools, learned of the incident from the news media, from members of his staff, and from the community. He instructed Duncan, his deputy superintendent, to investigate. It was Addair's opinion that the Respondent is a good band director and is supported by the band students and Band Boosters, but that because of the altercation and falsification of records his effectiveness as a teacher in the school system as a whole has diminished. It is Addair's opinion that the conduct of Respondent Parker sets a bad example for the students. His opinion is based upon the conduct that led to the altercation and to Respondent's falsification of the workmen's compensation claim. James R. Partain, Coach at Winter Haven High School, substantiated the facts relating to the fighting incident but stated he did not want Respondent Parker to lose his job and was sorry for his involvement in the fight. He said the fight began after he threatened to tell Respondent's wife about the affair, and that Respondent threatened him if he did tell her. Partain did not realize he had beaten Respondent to such an extent and later apologized to him. James Ernest Reese, Assistant Band Director, stated that Respondent Parker is a hard-working and effective band director, and that it is his opinion that the altercation between the Respondent and Partain did not cause Respondent to lose his effectiveness as a teacher. When asked the question whether he felt "the receipt of money from the false claim as an act of morality for an educator, is that act a moral act or an immoral act?", he reluctantly stated, "I suppose it could be classified as an immoral act." Roy V. Wood, a retired supervisor of music in Polk County schools and an investigator for the Petitioner Council, testified that the people of Polk County knew of the altercation and of the allegations of falsified reports, and that they still wanted Respondent as a band director. Reverend D. Dewey Wise, Pastor of the First Church of the Nazarene, knew of the altercation and testified he could see no difference in the effectiveness of the Respondent as a teacher now as compared to before the subject problems. He testified that the majority of the people in the community support the Respondent. He also stated that falsification is not a good example and "anytime we commit wrong, it would be an immoral act." Respondent Parker stated that he lied to his wife and to the police about the beating incident, stating that two black youths had beaten him, because he did not want his wife to know that he had had an illicit affair with the wife of another teacher in the school system. Respondent stated that he also did not want to embarrass the school, and that he was afraid of his paramour's husband, Partain. There was no explanation from Respondent as to why he falsely stated the incident took place on the school grounds while he was on official school business, whereas in fact the incident took place only a short distance from his home and inside the school van. Respondent Parker filled out several forms after the first form for the workmen's compensation claim, and each time he made false statements as to whom he had been beaten by and where the incident had taken place. Respondent Parker has the reputation of being an excellent band director and has brought honor to the school through his talent in directing the school band. His employment evaluations have been good. The band students and the parents and friends who comprise the Band Boosters admire his ability. The band students and many people in the community would not like to lose his services in the music department. Both parties submitted proposed findings of fact, memoranda of law, and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the teaching certificate of the Respondent, Jimmy L. Parker, be revoked for a period of three (3) years. DONE and ORDERED this 8th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301 Lee S. Damsker, Esquire 2919 First Florida Tower Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: JIMMY L. PARKER DOAH CASE NO. 79-1026 /
The Issue Whether Respondent engaged in the conduct alleged in the Statement of Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:5 The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in St. Lucie County, Florida, (including, among others, Parkway Elementary School, Woodland Academy, Westwood High School, Centennial High School, and Port St. Lucie High School) and for otherwise providing public instruction to school-aged children in the county. Among the School Board's instructional programs is its Hospitalized/Homebound Services Program (Program), which serves "students who are hospitalized [in St. Lucie County] or [otherwise] not able to come to school for at least three weeks." Instructional services are provided to students in the Program in out-of-school settings within the jurisdictional boundaries of St. Lucie County: at the hospital (if the student is hospitalized6) or at the student's home (if the student is homebound). These services are furnished through certified teachers who go to where the students are confined to provide them with instruction. "[M]ost [but not all] of the teachers . . . providing services in [the Program] are teachers who teach during the course of the [regular school] day . . . at [the School Board's] schools." In addition to receiving their regular salaries, these teachers are compensated at an hourly rate of $17.00 per hour for the time that they spend with the hospitalized or homebound students to whom they are assigned. They are also paid at that same rate ($17.00 per hour) for the time that they spend engaging in hospitalized/homebound "pre-planning" (up to a maximum of one hour per student assignment) and hospitalized/homebound "post-planning" (up to a maximum of one hour per student assignment). During "pre-planning," the hospitalized/homebound teacher (H/H teacher) engages in the preparations necessary for providing instructional services to the hospitalized or homebound student. These preparations include meeting with the guidance counselor and teachers at the student's home school to determine what instruction the student will be receiving and to ascertain the role, if any, the home school will play in the instructional process. "[O]btaining [needed] books and materials and creating [any necessary] lesson plans" are among the other things that an H/H teacher is expected to take care of during his or her "pre-planning" time. "Post-planning" time is for the H/H teacher to complete the "dismissal process," which involves turning in paperwork and "meet[ing] with the secretary in the [P]rogram." In addition to the compensation they receive for the actual contact they have with their assigned students and for their "pre-planning" and "post-planning" time, H/H teachers also get paid ($8.50, or one half of their hourly rate) "for their inconvenience" each time they make a scheduled visit to a student's home to provide instruction and no one is there (which happens infrequently). H/H teachers are to "reinitiate services" following such a student "no show" only "after contact ha[s] been made with the home to be certain that the student w[ill] be present." To get paid, H/H teachers must submit completed Hospitalized/Homebound Service Logs (H/H Service Logs) for each assigned student, documenting the dates and times they spent with the student, as well as their "pre-planning" and "post- planning" time and any student "no shows." On each occasion that they visit with a student, H/H teachers must enter on the H/H Service Log for that student the date and the starting and ending times of the visit7 and obtain (on the "Parent Signature" line next to these entries) the signature of the student's parent or other responsible adult present (as verification that the visit was made as indicated by the teacher). Because "pre-planning," "post-planning," and student "no shows" do not involve actual student contact, there is no requirement that (nor reason for) the H/H teacher to obtain the signature of the student's parent or the parent's surrogate to verify that the teacher's entries on the H/H Service Log of "pre-planning" and "post-planning" time and student "no shows" are accurate. H/H teachers are not compensated for the time that they spend traveling in connection with the discharge of their duties, but they are reimbursed for such travel, on a per trip basis, for their mileage in excess of ten miles. To receive such reimbursement, they must submit a completed Monthly Travel and Request for Reimbursement Form reflecting the dates of travel and, for each trip, "from where to where" they traveled, the trip's purpose, and the total number of miles traveled. The foregoing Program policies are of a long-standing nature and were in effect at all times material to the instant case. H/H teachers report to a Program Specialist, who oversees "the day-to-day operations of the Program." Billy Tomlinson was the Program Specialist from 1989 to 1994. Mr. Tomlinson's successor was Bennet Buckles, Jr., who remained in the position until the beginning of the 1999-2000 school year, when Brenda Washington became the Program Specialist. Ms. Washington was the Program Specialist during the 1999-2000 and 2000-2001 school years. Ms. Washington was replaced by Talecia Jones. Karen Clover is the current Program Specialist. Immediately above the Program Specialist in the chain of command is the School Board's Director of Exceptional Student Education,8 whose immediate supervisor is the School Board's Executive Director of Student Services. The Director of Exceptional Student Education and the Executive Director of Student Services are administrators who have the authority to establish and modify Program policies. Sandra Akre is now, and has been since approximately 1998, the School Board's Director of Exceptional Student Education. Barbara Slaga is now, and has been since 1992, the School Board's Executive Director of Student Services. It is expected that any questions that an H/H teacher has regarding the Program will first be directed to the Program Specialist; however, H/H teachers are free to consult with Ms. Akre and Ms. Slaga, particularly if the teachers are told something by the Program Specialist that "seem[s] to be in conflict with past practice or what they have done before."9 The Program Specialist is a not an administrator, but rather is a "teacher on special assignment" responsible for seeing to it that Program policies are followed. The Program Specialist lacks the authority to permit an H/H teacher to receive compensation for more than one hour of "pre-planning" time per student (the maximum allowed under Program policy), even where "extraordinary circumstances" exist. Such a deviation from Program policy must be approved by an administrator. Among the duties of the Program Specialist is to train H/H teachers. A prerequisite to becoming and remaining an H/H teacher is participating in an annual training session conducted by the Program Specialist. This required training is "typically . . . provided at the beginning of the [school] year" and is "extensive." Each training session lasts "two to two-an-a-half hours [and] all the [Program] procedures and the rules" are covered, including the long-standing Program policies regarding H/H teacher compensation and reimbursement discussed above.10 The Program Specialist uses a training manual to facilitate training. The contents of the manual for H/H teachers are reviewed during training. A copy of the manual is given to each H/H teacher to keep and "use . . . as a reference." Training at the beginning of the 1999-2000 school year was jointly conducted by Ms. Washington, the new Program Specialist, and Mr. Buckles, her predecessor. The following school year, Ms. Washington conducted the training herself, using a new training manual that she had put together (2000-01 Manual or Manual). The 2000-01 Manual contained "more detail" on some subjects than the version it replaced. The following "Hospitalized/Homebound Procedures" were set forth in the 2000-01 Manual: Upon admission to the Hospitalized/Homebound Program, the referral form is generated from the Doctor and submitted to the Homebound office where it will be processed. A staffing will be held to determine eligibility for the program. As prescribed by rule 6A-6.03020(3) the IEP will be developed on an informal basis unless they are enrolled in ESE. If enrolled in ESE, then a school based staffing MUST take place. At this point a teacher will be assigned to provide the educational program. The assignment of the teacher will be determined by the ESE office. The number of hours for the student will be determined on an individual basis. The teacher is responsible for developing the Individual Education Plan as outlined in the flow chart. Our responsibility is for the delivery of subjects that are required in the educational program NOT necessarily the elective subjects. Elective instruction should be correlated between the school and homebound teacher. Elective subjects that are required for graduation will be given consideration.* (*This does not mean that we will not provide instruction in elective subjects.) The guidance counselor must be an active participant in determination of the subjects to be covered. All Hospital[ized]/Homebound teachers must use the Hospital[ized]/Homebound Conference Form. It is the responsibility of all homebound teachers to meet with all of a student's classroom teachers and document how information will be transferred. After the conference a copy must be forwarded to the principal of the school. NEVER leave the school without obtaining a signature on the form from either the guidance counselor or principal. During the conference stress the fact that grades will improve because of one-on- one instruction. If they do not improve someone is not doing something correct[ly]. . . . 12. Assignments are to be returned on a weekly basis with communication reports going to the school along with a copy of the communication report forwarded to the Hospital[ized]/Homebound office. The "Hospital[ized]/Homebound Staff Responsibilities" section of the 2000-01 Manual provided as follows: Upon admission to the Hospital Homebound Program, each student will be assigned to a teacher. The teacher is responsible for: -Attend inservice and workshops as required. -Attend staffings at ESE office or home school as assigned. -Setting up appointments with guidance counselors, teachers and parents. -Completing necessary paperwork, including writing short-term objectives. Contacting home schools to determine courses/concerns as necessary. Act as liaison between subject area teachers and parents when needed; if a concern arises for a student in a particular class or subject area, the subject area teacher should first contact the parent. If the issue is not resolved, the Homebound teacher should be contacted for input. The specialist should be notified following the resolution by the subject area [teacher] and Homebound teacher. -Preparing and maintaining grade sheets. -Scheduling instructional time periods. -Keeping accurate attendance records. -Delivering and returning materials, textbooks, units, or tests. -Filling out FTE individual student schedules for FTE count. -Maintaining papers for school/parents to be mailed. -Administering state, local, and teacher developed test/assessments. -Completing Hospital[ized]/Homebound grade sheets. Conferring with student, parents, and school guidance counselors on course changes or adaptations. -Providing information to other subject area teachers about a student's medical problem, limitations, and education background. However, if student is in a hospital, all information is confidential. -Maintaining accurate weekly schedules and travel logs. Completing weekly Communications logs between Hospital[ized]/Homebound and regular education teacher. -In order for a teacher to claim pay for 1 (one) hour of pre-planning, it will be necessary to submit to us the Homebound Conference Form which shows actual attendance at school based meeting. -In order for a teacher to obtain pay for 1 (one) hour of post-planning, it will be necessary to sign off on Homebound dismissal with Janet Cooper. At the dismissal time, all paperwork must be submitted and at the close-out staffing it will be disseminated to the appropriate school. You have 24 hours after dismissal to have all paperwork turned in to the ESE Homebound Office. You must call and make an appointment with Janet Cooper. The "Guidelines [for] Hospitalized/Homebound Teachers" section of the 2000-01 Manual provided as follows: Welcome to the Hospitalized/Homebound Program of St. Lucie County. Your interest and willingness to help are appreciated, and we feel sure that you will enjoy the work you do with our students. You probably have many questions concerning this program, and we hope that these few guidelines will be of some help. Call the school counselor to schedule a meeting. Call the student's home and inform the parent/guardian of the meeting with the guidance counselor. It is best if the parent can meet with both of you. If they cannot, however, you can make an appointment with the parent to review the plan. Remind the parent or guardian that a responsible adult must be present at all times while you are in the home. This may be a relative or neighbor if the parents are unable to be there. It is recommended that an average of 3-5 hours per week be spent with elementary students, 4-8 hours per week with middle school students and 7-12 hours per week with high school students, but some situations may require more or less time. (Flexibility is the name of the game in this program.) In your initial conversation with the parent, you may find out whether the student has books and/or assignments and what he/she needs from school. Each time you visit the student, ask the adult who is there to sign your contracted teacher log. If the student is in the hospital, ask a nurse to sign it for you. Please follow the payroll schedule to assure proper payment for your services. You will be paid for actual student contact hours. Mileage is included in your stipend for the first ten (10) miles traveled on any visit to the student residence or place of instruction. We will try to assign students within a reasonable distance from your home. Please work with the students on regular school days, not on holidays or weekends. The School Board considers only those school days according to the official school calendar as appropriate teaching days. When you accept a student, you will be given a packet containing all forms and information that you will need. There will always be questions so please feel free to call. Our number at the ESE office is . . . . The 2000-01 Manual also contained the following "Hospitalized/Homebound Program Procedures for Completing Travel Forms": The following procedures have been established for completing travel forms: Contracted teachers are required to submit the travel form that coincides with the time sheet. Accounting has requested this requirement. Stipend teachers' travel can be accumulated and then submitted after the form is completed for the month. In the column "From Where - To Where" write from where you are leaving (ex: School Name or your home), then write the student's address (not name), next, where you returned to (ex: School Name or your home). You may write "home" because your address appears at the bottom of the form. As noted on the form "indicate clearly if round trip." You may submit trips to the student's school to pick up homework, meetings, etc. for the student. Indicate the mileage from point of departure to the destination, then point of return. In the column "Purpose" write the reason for the trip, such as tutor homebound student. If other than tutoring, please indicate the reason. When calculating mileage the following steps are necessary: Enter the total miles from your point of departure to the student's home then to your point of return. Write on the form under "Miles" the total miles for this round trip. Then, write the subtraction of 10 miles from the total. This will be the figure allowed for reimbursement. You must write round trip total per trip minus 10 miles for each day. If this is not indicated on your form that you subtracted 10 miles for each trip, then we will subtract 10 from the daily totals to calculate your reimbursement. At the bottom of the form, write the date you completed the form, your social security number, print your name and address, and be sure to sign. This form cannot be submitted without your signature and will be returned to you if omitted. If you have any question, please call Janet for further assistance at . . . . In addition, the 2000-01 Manual included copies of the following forms, among others: the Hospitalized/Homebound Conference Form, the Hospitalized/Homebound Program Record Weekly Communication Record, the H/H Service Log, and the Monthly Travel and Request for Reimbursement Form. On the top of the Hospitalized/Homebound Conference Form in the Manual was the following statement: The Hospital[ized]/Homebound Program is coordinating the education services for the student listed. To maintain parity with the quality education provided by the classroom teacher, the program will require a copy of course syllabi, appropriate textbooks, weekly assignments and evaluations. *If the Hospital[ized]/Homebound teacher is responsible for grading assignment and evaluations an answer key is required. The Guidance Department must determine if the existing course schedule is appropriate for Hospital[ized]/Homebound instruction. Appropriate modifications to course offering or content must be determined prior to plan implementation. The form had spaces for the student's name, address, school, grade, guidance counselor, and H/H teacher, the "date of meeting," the "subjects to be taught" by the H/H teacher, the signatures of the "classroom teachers" who would otherwise be teaching the student those subjects, and the signatures of the guidance counselor and the H/H teacher. There were also spaces to indicate, for each subject, whether assignments and examinations would be "transferred" by "PONY," the student's parent, or the H/H teacher and whether these assignments and examinations would be graded by the classroom teacher or the H/H teacher. The Hospitalized/Homebound Program Weekly Communication Record in the Manual had spaces for the H/H teacher to indicate the student's "academic average for the week by subject." The H/H Service Log in the Manual indicated on its face that it was a "record of hospitalized/homebound teacher services." It had spaces for the H/H teacher to indicate the "[d]ays(s) and time(s) of the week [the] student [in question] was served." In all caps and boldface type on the log was the reminder, "Parent/Guardian signature required daily," and there were spaces on the log for such signatures. The log also contained the following certification to be signed and dated by the H/H teacher: "I hereby certify that the above services were provided by me as indicated." Underneath the signature line for the H/H teacher were signature lines for the Program Specialist and the "administrator [giving] approval." The Monthly Travel and Request for Reimbursement Form in the Manual had four columns with the following headings, reading from left to right: "Date of Travel," "From Where - To Where (Indicate clearly if round trip)," "Purpose," and "Miles." On the bottom left hand corner of the form was the following "Note": Miles to and from school centers must agree with approved school mileage chart. Each date of travel must be reported separately. Respondent was among the H/H teachers who were trained and supervised by Ms. Washington during the 2000-01 school year.11 This was not the first year that she had taught in the Program.12 At all times that she served as an H/H teacher, Respondent was also under contract with the School Board to provide school-based instruction during the regular school day. Although she has been employed by the School Board since approximately 1981, she has not been a teacher for this entire period of time. From the commencement of her employment with the School Board until the 1994-95 school year, she held various noninstructional positions. During the 1994-95 school year, Respondent graduated from Nova Southeastern University with a degree in exceptional education. She obtained, and still holds, Florida certification in the areas of emotionally handicapped and severely emotionally disturbed. It has only been since the 1994-95 school year, when she taught a varying exceptionalities class at Parkway Elementary School, that Respondent has worked as a teacher for the School Board. At the beginning of the 2000-01 school year, Respondent taught at Westwood High School. In or around September 20, 2000, she was transferred to Woodland Academy, where she remained for the rest of the school year. Respondent returned to Westwood High School the next school year. S. S. is one of the students served by the Program. She is a sixteen-year-old girl who has Cystic Fibrosis. Because of her illness, S. S. "runs infections quite a bit" and often needs to be hospitalized for ten days to two weeks or more at a time. As a result, "she doesn't get much time home." J. S. is S. S.'s mother. J. S. "work[s] a tremendously demanding job" with long hours that often prevents her from being home before evening. Sometime after the beginning of the 2000-01 school year, in or around late September or early October of 2000, Respondent (who had already undergone the required annual training for H/H teachers) was assigned by Ms. Washington to be S. S.'s H/H teacher. The assignment continued until the end of the school year. During the 2000-01 school year, S. S. was a ninth grade student taking, among other subjects, English, algebra, biology and global studies. Her home school that year was Centennial High School. S. S. was hospitalized at St. Mary's Medical Center in West Palm Beach, Florida, on seven different occasions during the 2000-01 school year. The shortest of these hospital stays was ten days. The longest was 19 days. Before each of these hospitalizations, J. S. gave the School Board notice (by telephoning either Respondent or the School Board's Exceptional Student Education office) that S. S. would be going into the hospital. At no time during the 2000-01 school year did S. S. have access to a functioning computer (either at the hospital or at home) that she used for schoolwork.13 The School Board provided S. S. with a computer that Respondent tried to set up in S. S.'s home, but the computer "never worked." During the period that Respondent was S. S.'s H/H teacher (and S. S. was at home and not hospitalized), Respondent did not visit S. S. every school day; rather, she visited once or twice a week. J. S. was present for only a "few" of these visits. She was under the impression that she did not need to be there when Respondent visited inasmuch as S. S. had "hit high school age." The longest Respondent ever stayed with S. S. during a visit was one and half to two hours. There were only one or two visits of this length. They occurred "at the beginning" when Respondent was attempting to set up the computer in S. S.'s home. The other visits were "short" and, for the most part, involved Respondent "just dropping off work" for S. S. When S. S. completed the work that Respondent had dropped off for her, she gave it to her mother or her sister to give to Respondent. Respondent provided S. S. with no instruction during her visits with S. S. except for "a little bit" of instruction in algebra.14 Respondent submitted completed H/H Service Logs (using the form contained in the Manual) on which she knowingly made false representations, with the intent to defraud the School Board,15 concerning the "services [she] provided" S. S. She did so to obtain compensation to which she knew she was not entitled.16 On many of the occasions that Respondent claimed, on the logs, she had been with S. S. providing "services," she, in fact, had not provided the "services" claimed. Respondent made these false claims knowing that they were not true and anticipating that the School Board would rely upon them in determining the amount of pay she would receive. J. S. was an unwitting participant in Respondent's scheme. J. S. signed H/H Service Logs presented to her by Respondent after being told by Respondent that Respondent "had been coming" to visit S. S. when J. S. was not home and that J. S. needed to sign the logs to indicate that such visits had been made. J. S. took Respondent at her word about these alleged visits and followed Respondent's directions. Some of the H/H Service Logs that Respondent gave J. S. to sign had the dates and times of these alleged unsupervised visits already filled in. Others did not. The evidentiary record contains twelve H/H Service Logs (collectively covering the period from September 25, 2000 to May 25, 2001) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher. On each, Respondent "certif[ied]" (by her signature) that she had "served" S. S. on the dates and times indicated thereon. There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each date of "service[]" entered on each log.17 With one exception (the log covering the period from April 23, 2001, to May 11, 2001), each log also bears what purports to be Ms. Washington's signature on the "Program Specialist" signature line directly underneath Respondent's "certif[ication]." On the first log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from September 25, 2000, to October 13, 2000: Monday, September 25, 2000, for an hour, from 8:30 to 9:3018; Tuesday, September 26, 2000, for two hours, from 7:30 to 9:30; Wednesday, September 27, 2000, for one hour, from 8:30 to 9:30; Thursday, September 28, 2000, for one hour, from 8:30 to 9:30; Friday, September 29, 2000, for three hours, from 6:30 to 9:30; Monday October 2, 2000, for two hours, from 9:00 to 11:00; Tuesday, October 3, 2000, for two hours, from 9:00 to 11:00; Wednesday, October 4, 2000, for two hours, from 9:00 to 11:00; Thursday, October 5, 2000, for three hours, from 8:00 to 11:00; Friday, October 6, 2000, for three hours, from 5:30 to 8:30; Tuesday, October 10, 2000, for three hours, from 6:00 to 9:00; Wednesday, October 11, 2000, for three hours, from 6:00 to 9:00; and Thursday, October 12, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that October 9, 2000, was Yom Kippur and that October 13, 2000, was an "inservice day." On the second log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from October 16, 2000, to November 3, 2000: Monday, October 16, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 17, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 18, 2000, for two hours, from 6:00 to 8:00; Thursday, October 19, 2000, for two hours, from 6:00 to 8:00; Friday, October, 20, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 24, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 25, 2000, for two hours, from 6:00 to 8:00; Thursday, October 26, 2000, for two hours, from 6:00 to 8:00; Friday, October 27, 2000, for two hours, from 6:00 to 8:00; Monday, October 30, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 31, 2000, for two hours, from 6:00 to 8:00; Wednesday, November 1, 2000, for two hours from 6:00 to 8:00; Thursday, November 2, 2000, for two hours, from 6:00 to 8:00; and Friday, November 3, 2000, for one hour, from 6:00 to 7:00. On the third log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 6, 2000, to November 24, 2000: Monday, November 6, 2000, for three hours, from 6:00 to 9:00; and Tuesday, November 7, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period. On the fourth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 27, 2000, to December 15, 2000: Wednesday, November 29, 2000, for three hours, from 6:00 to 9:00; Thursday, November 30, 2000, for three hours, from 6:00 to 9:00; Friday, December 1, 2000, for three hours, from 6:00 to 9:00; and Monday, December 4, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period. On the fifth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 3, 2001, to January 12, 2001: Wednesday, January 3, 2001, for two hours, from 6:00 to 8:00; Thursday, January 4, 2001, for two hours, from 6:00 to 8:00; Friday, January 5, 2001, for two hours, from 6:00 to 8:00; Monday, January 8, 2001, for two and a half hours, from 6:00 to 8:30; Tuesday, January 9, 2001, for two and a half hours, from 6:00 to 8:30; Wednesday, January 10, 2001, for two and a half hours, from 6:00 to 8:30; Thursday, January 11, 2001, for two and a half hours, from 6:00 to 8:30; and Friday, January 12, 2001, for two hours, from 6:00 to 8:00. On the sixth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 15, 2001, to February 2, 2001: Tuesday, January 16, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 17, 2001, for two hours, from 3:00 to 5:00; Thursday, January 18, 2001, for two hours, from 3:00 to 5:00; Monday, January 22, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 23, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 24, 2001, for two hours, from 3:00 to 5:00; Thursday, January 25, 2001, for two hours, from 3:00 to 5:00; Friday, January 26, 2001, for two hours, from 3:00 to 5:00; Monday, January 29, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 30, 2001, for two hours, from 3:00 to 5:00; and Wednesday, January 31, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 1 and 2, 2001) during the period. On the seventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 5, 2001, to February 16, 2001: Wednesday, February 7, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 8, 2001, for three and half hours, from 3:00 to 6:30; Friday, February 9, 2001, for four hours, from 3:00 to 7:00; Monday February 12, 2001, for one hour, from 3:00 to 4:00; Tuesday, February 13, 2001, for three and half hours, from 3:00 to 6:30; Wednesday, February 14, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 15, 2001, for three and half hours, from 3:00 to 6:30; and February 16, 2001, for a half hour, from 3:00 to 3:30. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 5 and 6, 2001) during the period. On the eighth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 19, 2001, to March 2, 2001: Monday, February 19, 2001, for two hours, from 3:00 to 5:00; Tuesday, February 20, 2001, for two hours, from 3:00 to 5:00; Wednesday, February 21, 2001, for two hours, from 3:00 to 5:00; Thursday, February 22, 2001, for two hours, from 3:00 to 5:00; Friday, February 23, 2001, for one hour, from 3:00 to 4:00; Monday, February 26, 2001, for two hours, from 3:00 to 5:00; Tuesday, February 27, 2001, for two hours, from 3:00 to 5:00; Wednesday, February 28, 2001, for two hours, from 3:00 to 5:00; Thursday, March 1, 2001, for two hours, from 3:00 to 5:00; and Friday, March 2, 2001, for one hour, from 3:00 to 4:00. On the ninth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from March 5, 2001, to March 16, 2001: Monday, March 5, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, March 6, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, March 7, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, March 8, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, March 9, 2001, for an hour, from 3:00 to 4:00. It was noted on the log that S. S. was not provided any "services" the week of March 12, 2001, and that she was "hospitalized" for the last three days of that week. On the tenth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 2, 2001, to April 20, 2001: Monday, April 2, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 3, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, April 4, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, April 5, 2001, for an hour and a half, from 3:00 to 4:30; Friday, April 6, 2001, for two hours, from 3:00 to 5:00; Monday, April 16, 2001, for two and a half hours, from 2:30 to 5:00; Tuesday, April 17, 2001, for two hours, from 2:30 to 4:30; Wednesday, April 18, 2001, for two hours, from 2:30 to 4:30; Thursday, April 19, 2001, for two hours, from 2:30 to 4:30; and Friday, April 20, 2001, for two and a half hours, from 2:30 to 5:00. It was noted on the log that the week of April 9, 2001, was "spring break." On the eleventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 23, 2001, to May 11, 2001: Monday, April 23, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 24, 2001, for two hours, from 3:00 to 5:00; Wednesday, April 25, 2001, for two hours, from 3:00 to 5:00; Thursday, April 26, 2001, for two hours, from 3:00 to 5:00; Friday, April 27, 2001, for two hours, from 3:00 to 5:00; Monday, April 30, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 1, 2001, for two hours, from 3:00 to 5:00; Monday, May 7, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 8, 2001, for two hours, from 3:00 to 5:00; Wednesday, May 9, 2001, for two hours, from 3:00 to 5:00; Thursday, May 10, 2001, for two hours, from 3:00 to 5:00; and Friday, May 11, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was "hospitalized" on the remaining regular school days (May 2, 3, and 4, 2001) during the period. On the twelfth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from May 14, 2001, to May 25, 2001: Monday, May 14, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 15, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 16, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 17, 2001, for an hour and a half, from 3:00 to 4:30; Friday, May 18, 2001, for an hour and a half, from 3:00 to 4:30; Monday, May 21, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 22, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 23, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 24, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, May 25, 2001, for an hour and a half, from 3:00 to 4:30. On an area of the log where there were no printed words or lines was the following notation: "One hour planning." No date or times were given, nor was there any signature next to this notation.19 The evidentiary record also contains four Monthly Travel and Request for Reimbursement Forms (Travel Reimbursement Forms) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher.20 The first of these Travel Reimbursement Forms covered the period from September 25, 2000, to October 13, 2000, the same period covered by the first service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back (a round trip of 33.5 miles) on each of the days that, according to the first service log, she "served" S. S.21 No other travel was reflected on the form. The second of these Travel Reimbursement Forms covered the period from January 15, 2001, to February 9, 2001. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the sixth service log, she represented she "served" S. S. She further claimed, on this Travel Reimbursement Form, that she made the same round trip on February 7, 8, and 9, 2001 (days that, on the seventh service log, she represented she "served" S. S). No other travel was reflected on the form. The third of these Travel Reimbursement Forms covered the period from February 19, 2001, to March 2, 2001, the same period covered by the eighth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the eighth service log, she represented she "served" S. S. No other travel was reflected on the form. The fourth and last of these Travel Reimbursement Forms covered the period from March 5, 2001, to March 16, 2001, the same period covered by the ninth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the ninth service log, she represented she "served" S. S. No other travel was reflected on the form. The evidentiary record also contains one H/H Service Log on which Ms. Washington "certif[ied]" that she "served" S. S. (as S. S.'s H/H teacher) on September 18, 2000, for four hours, from 5:00 to 9:0022; September 20, 2000, for four hours, from 5:00 to 9:00; September 22, 2000, for four hours, from 5:00 to 9:00; September 24, 2000,23 for four hours, from 5:00 to 9:00; September 25, 2000, for four hours, from 5:00 to 9:00; and September 26, 2000, for four hours, from 5:00 to 9:00.24 There is no "Parent Signature" to the right of either the September 18, 21, 24, or 26, 2000, entry. There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each of the other alleged dates of "service[]." There is a notation on the log (together with an arrow) indicating that S. S. was "[r]e-assigned [to] Celestine Baker" on the Thursday of the school week beginning Monday, September 25, 2000 (that is, on September 28, 2000).25 The administrator who signed the log was someone other than Ms. Slaga or Ms. Akre. It was not until after the end of the school year that it "c[a]me to [Ms. Slaga's] attention that Ms. Washington had some service logs[26] related to [S. S.]." Ms. Slaga found it "very unusual to see" an H/H Service Log submitted by a Program Specialist. At the suggestion of Susan Ranew, the School Board's Director of Personnel, Ms. Slaga visited J. S. and showed her the service logs in question. J. S. told Ms. Slaga, after examining the logs, that "no services" were provided on some of the alleged dates of "service[]," including dates on which S. S. "was in the hospital in West Palm Beach." J. S. added that not all of the signatures on the "Parent Signature" lines on the logs were hers. When Ms. Slaga returned from her visit with J. S., she "pulled out all of [S. S.'s] logs," including those submitted by Respondent, and reviewed them. Ms. Slaga noticed that "some of the dates that were on [Respondent's] log were the same dates that Ms. Washington had [claimed] that she [had] provided services to [S. S.]."27 These were dates on which, according to what J. S. "had already shared" with Ms. Slaga, S. S. "was in the hospital in West Palm [Beach]." After obtaining information from St. Mary's Medical Center concerning S. S.'s hospitalizations, Ms. Slaga re- examined the service logs and confirmed "that there were days of service indicated by both Ms. Washington and [Respondent] that [S. S] had been in the hospital." Ms. Slaga "turned the information over to the [School Board's] Personnel [Office]." Russell Anderson, the School Board's Assistant Superintendent for Human Resources, after consulting with the School Board's Superintendent of Schools, called in the law firm of Richeson and Associates to engage in "formal fact finding." During the "formal fact finding," Respondent was provided the opportunity to give "a statement of her side of the story." Through her attorney, she declined to give such a statement.28 At some point in time, Respondent telephoned S. S. and told S. S., if S. S. "were contacted by the School [Board] regarding [Respondent's] services," to lie and say that Respondent "came every day."29 Ms. Washington, unlike Respondent, did give a statement, which "was eventually turned into an affidavit." In her affidavit (which was received into evidence as Respondent's Exhibit 3, over the School Board's objection), after discussing the Program and procedures relating to the completion and approval of H/H Service Logs and Travel Reimbursement Forms, Ms. Washington went on to describe those "activities . . . related to [S. S.'s] involvement in the hospitalized/homebound program" in which she claimed she engaged on the dates of "service[]" indicated on her "service logs for the time periods of 8/22/00-8/30/00; 8/31/00-9/13/00; and 9/18/00-9/27/00." Some of the "activities" she described did not involve "actual student contact," such as "visiting different locations in St. Lucie and Martin Counties . . . in attempts to acquire a needed adapter for [an] Apple laptop computer so that [she] could provide the laptop to S. S." and attending "meetings at Port St. Lucie High School [S. S.'s home school at the time] concerning providing hospitalized/homebound services to [S. S.]." Ms. Washington further stated that, "[o]n 8/30/00, [she] went the [S. S.'s] home and installed a desktop computer and password" and that "[t]his desktop computer had the computer program 'Plato' installed on it so that [S. S.] could utilize computerized instruction." Ms. Washington added that, "since [she] had Plato installed on [her] laptop, [she] was able to monitor [S. S.] while [S. S.] worked on the desktop computer." Ms. Washington went on to claim that she did such "monitor[ing]" on the following dates: August 31, 2000; September 2, 2000; September 6, 2000; September 7, 2000; September 8, 2000; September 11, 2000; September 12, 2000; September 13, 2000; September 18, 2000; September 20, 2000; September 22, 2000; September 24, 2000; September 25, 2000; and September 26, 2000. These representations were false. There was no "computerized instruction." There was no "monitoring." Indeed, there was not even a "desktop computer" set up in S. S.'s home. These were all things that Ms. Washington had made up.30 Having described in the preceding portions of her affidavit the non-"actual student contact" activities in which she claimed to have engaged on the dates of "service[]" reported on the service logs she submitted, Ms. Washington made the following self-serving statements in paragraphs 21, 22 and 23 of the affidavit:31 I wrote the training manual for teachers in relation to the ESE Hospitalized/Homebound Program. Although page 9 of this training manual (#6) states "you will be paid for actual student contact hours" this does not prevent a hospitalized/homebound teacher or program specialist from submitting time on their service log for any activity related to a student in the hospitalized/homebound program. The Training Manual does not address all possible scenarios and is only intended to be a guide for teachers. The reference on page 9 of this training manual, which states "you will be paid for actual student contact hours" refers only to teachers/program specialists being reimbursed for mileage. I believe that it is proper for a teacher or program specialist to record on their service log any time that the teacher or program specialist spends performing any activity related to a student in the hospitalized/homebound program if that activity is performed outside the teacher's or program specialist's normal workday. Page 8 of this training manual provides that in order for teachers and program specialists to claim payment for 1 hour of pre-planning, actual attendance at a school based meeting[] is required. However, I believe that a teacher or program specialist is allowed to perform this pre-planning at [his or her] home, and that any time that the teacher or program specialist spends performing any activity at a school (outside [his or her] normal work hours) in relation to a student in the hospitalized/homebound program may be recorded on the service log. I performed the pre-planning for [S. S.] while I was in my office, during normal working hours. By mid-October of 2001, Ms. Washington had been suspended from her Program Specialist position and Ms. Jones had been assigned to take her place. While Ms. Jones was "in training," Mr. Tomlinson was asked to review and sign the completed H/H Service Logs submitted by the H/H teachers. Among the completed service logs Mr. Tomlinson reviewed was one submitted by Respondent, on which Respondent "certif[ied]" (by her signature) that she "served" J. A., a hospitalized/homebound student to whom she had been assigned, on the following dates and times during the period from October 1, 2001, to October 16, 2001: Monday, October 1, 2001, for two hours, from 3:15 to 5:15; Tuesday, October 2, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 3, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 4, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 5, 2001, for two and a half hours, from 3:15 to 5:45; Monday, October 8, 2001, for two and a half hours, from 3:15 to 5:45; Tuesday, October 9, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 10, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 11, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 12, 2001, for two hours, from 3:15 to 5:15; Monday, October 15, 2001, for two hours, from 3:15 to 5:15; and Tuesday, October 16, 2001, for two and a half hours, from 3:15 to 5:45. When Mr. Tomlinson received the log, there was a signature purporting to be that of J. A.'s mother on the "Parent Signature" line to the right of each date of "service[]" entered on the log.32 These signatures were forgeries (as evidenced by the misspelling, in each case, of J. A.'s mother's last name33). They had been placed on the log by Respondent, who did so because she knew that there needed to be a signature on the "Parent Signature" line next to each date of "service[]" in order for her to get paid for the hours of "service[]" she reported having provided on that date.34 Respondent was subsequently, like Ms. Washington, suspended without pay and recommended for termination. No showing has been made that, in being suspended without pay and recommended for termination, Respondent was treated differently and less favorably than any similarly situated teacher suspected by the School Board of having deceptively falsified documents for his or her own personal gain;35 nor has it been shown that she has been targeted for prosecution for any invidious or unlawful reason, such as her race.36
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for having engaged in the deceptive and fraudulent conduct described above. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 31st day of December, 2002.
The Issue The issue in this case is whether Petitioner returned Respondent to annual contract from continuing contract for good and sufficient reasons.
Findings Of Fact Through the 1992-93 school year, Respondent held a continuing contract with Petitioner. She has been the music teacher at Spring Creek Elementary School for 12 years. She has taught music for Petitioner for 27 years, including 26 years in elementary school. Prior to coming to Lee County, she taught for five years in Missouri and Illinois. Respondent earned a bachelor's degree in music education in 1962 from Murray State University. She has a master's degree in music education from Murray State as well. Respondent has had extensive training in music, especially chorus. She took a summer course at Westminster Choir College, where one of her instructors was Mary of Peter, Paul, and Mary. There is no question concerning Respondent's substantive knowledge of music. The factual issues in this case concern her ability to deliver this knowledge effectively to all of her students. Until three years ago, the principal of Spring Creek Elementary School was Thomas Halgrim, who was the first principal at Spring Creek. Mr. Halgrim and Respondent are on good terms. During Mr. Halgrim's ten-year tenure at Spring Creek, Respondent's performance was marginally acceptable. However, while Mr. Halgrim was principal at Spring Creek, he found it necessary to refer Respondent to the Intensive Assistance Program. This program helps teachers with major teaching problems. In Respondent's case, she needed additional work in the areas of facilitating student self-esteem and creating an environment in which students wanted to participate in music. Teachers typically remain in the program for 3-9 months; Respondent remained in the program for two school years. Patty van der Have succeeded Mr. Halgrim as principal of Spring Creek at the start of the 1991-92 school year. During the school year, she received complaints and expressions of concern from students, teachers, and parents regarding Respondent. The problems generally involved poor student morale in Respondent's classroom. Ms. van der Have discussed the possibility of the Intensive Assistance Program with the District personnel office, but they disfavored this option because Respondent had already been through the program. Instead, Ms. van der Have decided to begin the school year with observations in the hope that Respondent would make the recommended changes. On September 4, 1992, Kathleen Stephens (a/k/a Kathleen Rooker) observed Respondent. Ms. Stevens was an assistant principal. She saw that Respondent called each student individually to her desk to tell her his or her name, which she then wrote down. This task consumed 20 minutes. Afterward, Respondent reviewed class rules, which took the remaining ten minutes of the 30- minute class. Respondent was not responsible for checking attendance, but Respondent was expected to learn the names of the students. She taught 25-30 classes during the week. And the September 4 class was the first time that this class met. However, many of the children were returning from prior years, and Respondent wasted considerable time on an inefficient means of acquainting or reacquainting herself with her students. The written observation of September 4 targets two behaviors for further development: "begin work with students promptly [and] provide instructional objectives." On September 11, 1992, Ms. Stephens conducted another observation of one of Respondent's classes. The first 20 minutes of class were devoted to students individually coming up to Respondent's desk and getting a seat assignment. The last 10 minutes of class were spent passing out books and singing along with a record. Although there was little interaction between Respondent and the students, she responded several times to wrong answers by saying, "you're not looking," "pay closer attention," "you're not listening," or "your mind is elsewhere." The targeted behaviors for further development are the same as in the last observation, but add that Respondent should correct a student's mistake in a positive manner by providing cues and assistance. On September 28, Ms. Stephens conducted a third observation of Respondent. This time, Respondent was more effective in class. She had an appropriate lesson plan and followed it. However, she remained in her seat and used a pointer to direct students to items written on the chalkboard. Moving among the students can be an effective means of keeping the children on task. By late September, Ms. van der Have had received numerous complaints from parents, teachers, and students concerning Respondent. The complaints centered upon inadequate discipline among Respondent's students and a lack of focus of her music class. On October 16, 1992, Ms. van der Have observed Respondent. This was a class consisting of 12 students from the English Speakers of Other Languages (ESOL) program and four students from the Exceptional Student Education (ESE) program. The class consisted of a lecture by Respondent as to how to behave at a concert, followed by a display of posters of various musical instruments. There was little student-teacher interaction. The unsuitability of the lecture format was heightened by the classifications of the children. The ESOL students often have trouble with spoken English, and music can be an opportunity for them to learn without an emphasis on what is for them a foreign language. The ESE students were severely physically and mentally handicapped, and they too could have profited from another approach that that taken by Respondent. By the end of the class, three of the ESE students were asleep. Ms. van der Have's observation contains numerous recommendations. They include the need for student interaction initiated by asking the children questions and listening to their answers, circulating among the students, beginning each lesson with a short review, concluding each lesson with a short review, developing and following appropriate lesson plans for ESOL and ESE students, and increasing teacher awareness so as to deal with situations such as the three ESE students sleeping in the class. On October 23, 1992, Ms. Stephens observed Respondent, who again did not circulate among the students. When a child answered a question correctly, Respondent would call the child up to her desk and give him or her some stickers or passes, which tended to destroy any instructional momentum she could build up with the class. When a child answered a question incorrectly, Respondent would ignore the child rather than explore the area with the child. Again, Respondent did not follow her lesson plan. The observation form notes under targeted behaviors: Serious deficiencies continue to persist. INCREASE TEACHER MOBILITY AND CIRCULA MAINTAIN MOMENTUM. PRESENT MATERIAL CLEAR AND LIVELY MANNER, VARY INTENSITY, AND VOLUME OF VOICE, USE EYE CONTACT, SMILE, LIVELY BODY language and movement, accept positively student responses, probe for correct answer or amplify student response, use teacher withitness [i.e., awareness of all students in the classroom] to correct student behavior. The observation form requires Respondent to correct the ineffective teaching behaviors by November 13, 1992. On November 13, 1992, Charlotte Rafferty conducted the observation of Respondent. Ms. Rafferty is a principal of a fine arts magnet school in the district. She has taught music education in an elementary school elsewhere in Florida and in Texas. Ms. van der Have selected Ms. Rafferty for the observation because Ms. van der Have wanted someone with some musical background. Ms. Rafferty observed two classes of Respondent. Under "behaviors to maintain," Ms. Rafferty stated in the observation form, "nothing you are presently doing." The observation form describes in detail two classes in which the students were bored about the material being presented by Respondent. Ms. Rafferty concluded that Respondent needed to target the following behaviors for further development: Excitement, creativity, movement, proper use of instruments in classroom, challenging rhythm work for the children, interesting songs that children like, grade appropriate materials and instruments and positive interaction with the children. Ms. Rafferty listed 17 detailed recommended activities. These include adding some excitement to the class, having the district music coordinator observe and provide suggestions, use available instruments rather than just rhythm sticks, consider the needs of the children such as by including some Hispanic songs, desist from doing beat for 45 minutes as that "would bore anyone to death," use dance as a form of body movement to allow the students to feel beat, use "much more complex rhythm patterns" with fourth graders, do away with books for the entire class time, act like teaching is enjoyable, allow the children to interact more, and allow the children to use more improvisations, movement, and instruments to learn the feel of rhythm. Ms. Rafferty did not mince words in concluding the observation narrative. She stated: I would have a very difficult time holding up my head in front of these children if I gave them what you are giving them. In the best interest of the children I would hope that you would either make a drastic change immediately or retire from teaching. You are truly doing a dis-service to children. When you consider what these children say about their music experience, the poor teaching practices and poor presentations are a prostitution to the field that you a teaching. The ability to remain current takes commitment and dedication and the poor teaching that I saw is a deterrent to the advancement of music in our schools. Ms. Rafferty's allusion to what the children were saying is based on informal interviews that she conducted with them following class. On November 30, 1992, Ms. van der Have conducted a summative observation of Respondent. The previous observations were formative and intended to constitute part of a process by which Respondent and the assessor construct an assessment. The summative observation was the culmination of formative observations and represented a more comprehensive assessment of Respondent's performance. The problems that Ms. van der Have observed on November 30 were the same that had been observed previously. Respondent did not immediately begin teaching the material. Her failure to engage the children again led to misconduct. Before long, the majority of the students were disengaged and off task, even though Respondent was circulating to some degree through the class. On December 9, 1992, the district music coordinator, Jim Hinman, observed Respondent. He found that Respondent had trouble orienting the students toward classwork, maintaining instructional momentum, and keeping control of the classroom. She started class late and relied excessively on a lecture/response teaching strategy. Over time, the students' interest waned, and Respondent was reverting excessively to warnings about behavior, which further impeded any momentum. On February 18, 1993, Mr. Hinman conducted a second observation of Respondent. Although she did better in giving appropriate feedback, other problems continued from his previous observation and new problems emerged, such as spending classtime assigning seats. In general, Respondent was again unsuccessful in maintaining her instructional momentum and exciting the students. Respondent's teaching did not improve for the remainder of the school year. Her relations with administrators, some teachers, and even some students deteriorated. At one point, she confronted several children and demanded why they had complained about her. On March 23, 1993, Joseph Vetter, an assistant principal at Spring Creek, observed Respondent. He noted that Respondent was not circulating through the classroom, failed to use praise on the students, and failed to maintain effective control of the class. On March 25, 1993, Ms. van der Have gave Respondent a memorandum and performance assessment. The assessment finds that Respondent's effectiveness was, in all but one category, inconsistently practiced or unacceptable. The assessment notes that Respondent has consistently refused to meet with Ms. van der Have to discuss the areas of concern and suffers from a poor relationship with students and staff. The memorandum, a copy of which went to the superintendent, states that Ms. van der Have is recommending that Respondent be returned to annual contract for the 1993-94 school year. The memorandum adds that Respondent has one year to improve in all areas marked Unsatisfactory or Inconsistently practiced. I will be happy to schedule any assistance you may desire, such as visiting another classroom, having a teacher or Coordinator model an effective music lesson for you, providing video tapes of effective teachers teaching, selecting additional readings and/or videos for your use, discussing effective lesson plans, reviewing your discipline plan and so on. The memorandum concludes: I believe you need to reevaluate and implement the suggestions made by observers this year and reconsider accepting the assistance that you have continually refused this year. I need the students, parents and staff of Spring Creek Elementary School to receive an effective Music program. By letter dated March 30, 1993, and received by Respondent on the following day, the deputy superintendent notified Respondent that the superintendent would be recommending to the school board that Respondent be removed from continuing contract and placed on annual contract for the 1993-94 school year. The letter explains the basis for the action as inadequate performance and unwillingness to try to improve. On April 1, 1993, the superintendent filed a petition with the school board to return Respondent to annual contract for a continuing failure or refusal to use important instructional techniques. On April 13, the school board approved the action, effective July 1, 1993. By letter dated April 20, 1993, the superintendent informed Respondent of the action and advised her of her right to demand a hearing. On May 3, 1993, Respondent demanded a formal hearing. Petitioner proved good and sufficient reasons for returning Respondent to annual contract from continuing contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a final order reducing Respondent to annual contract for the 1993-94 school year. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 18, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1 (except last sentence): adopted or adopted in substance. 1 (last sentence): rejected as irrelevant. 2-4: adopted or adopted in substance. 5-10: rejected as irrelevant and subordinate. 11: adopted or adopted in substance. 12-20: rejected as irrelevant and subordinate. 21 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Mr. Halgrim did try to get Respondent to focus on problem areas. 21 (remainder): rejected as irrelevant and subordinate. The issue in this case is the effectiveness of Respondent for all of her students, not just those who are already motivated when they come to class and possess exceptional musical talents. 22-24: rejected as irrelevant and subordinate. 25: adopted or adopted in substance. 26: rejected as irrelevant and subordinate. 27: rejected as unsupported by the appropriate weight of the evidence except as to substantive knowledge of music. 28-30: rejected as irrelevant and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32-45: rejected as irrelevant, and subordinate, and unsupported by the appropriate weight of the evidence. 46: adopted or adopted in substance except as to the last clause, which is rejected as unsupported by the appropriate weight of the evidence. 47-48: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Daniel H. Kunkel Kunkel & Hament Suite 785, 1800 Second St. Sarasota, FL 34236 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Office of the Superintendent 2055 Central Ave. Ft. Myers, FL 33901-3916 Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issues in this case are whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent as an weight training instructor at Hallandale Adult Community School (Hallandale Adult). He taught in that position from August 30, 1993, through November 2, 1993. The summer before, Respondent taught photography in a summer school program at another Broward County school. As a class instructor, one of Respondent's duties was to record the attendance of the students on student attendance rosters or adult student attendance registers which Petitioner maintained as legal documents. In the fall of 1993, Respondent taught two (2) weight training classes for students listed on adult student attendance registers. At all times material to this proceeding, the first class for these students was scheduled to begin at 3:45 p.m. and end at 5:15 p.m. The second class was scheduled to begin at 6:00 p.m. and end at 7:30 p.m. The students listed on these registers were taking weight training for academic credit. They were high school students or adults working towards a General Education Degree (GED). In the fall of 1993, Respondent taught two (2) weight training classes for students listed on adult, vocational, and community education student attendance rosters. At all times material to this proceeding, the first of these classes was scheduled to begin at 3:45 p.m. and end at 5:15 p.m. The second class was scheduled to begin at 6:00 p.m. and end at 7:30 p.m. The students listed on these rosters were adults taking the course for recreational purposes. Respondent recruited these students who paid a fee for the course. The fee supported or justified Respondent's salary for teaching that course. Regardless of whether students were officially enrolled for the first or second class or both classes, Respondent allowed the students to attend the class or classes of their choice. Because of this flexibility in attendance patterns, the undersigned does not find the attendance registers and rosters totally reliable as to the days and times that any student was or was not in his or her scheduled class. In the fall of 1993, S. G., then an eleventh grade student at Hallandale High School (Hallandale High), signed up for biology and weight training classes at Hallandale Adult. The attendance register indicates that she attended Respondent's class on October 12, 14, 19, 21, 26, and 28, 1993. She was scheduled to attend weight training classes on Tuesdays and Thursdays from 6:00 p.m. to 7:30 p.m. However, she sometimes attended the first class depending on whether she attended her biology class. Respondent performed two skin fold tests on S. G. in the fall of 1993 to determine the amount of fat in her body. On one of those occasions, she was alone with Respondent in the weight room. At that time, Respondent touched her inappropriately near her vaginal area while performing the test on her lower abdomen and buttocks. She did not immediately tell anyone that either of the tests made her feel uncomfortable because she felt Respondent's actions were part of the test and she trusted him. After Respondent performed the offensive skin fold test, S. G. claims she discussed the test with another student, Lydia (last name unknown). S. G. stated that Lydia was in her biology class and sometimes attended Respondent's classes even though she was not enrolled. She described Lydia as being 5'8'' with long hair pulled up in a pony tail and Hispanic with dark skin. According to S. G., Lydia claimed that Respondent also performed a skin fold test on Lydia and made her feel uncomfortable. Lydia did not testify at the hearing nor did any witness testifying, other than S. G., remember Lydia ever being present in the weight training classes. Under these facts, the undersigned finds that S. G.'s testimony concerning any conversation with Lydia is uncorroborated heresay and therefore insufficient in itself to support a finding of fact. At the hearing, Respondent denied performing a skin fold test on S. G. However, the undersigned finds S. G.'s testimony in this regard more persuasive than Respondent's testimony. In the fall of 1993, N. A. G., then a twenty-five (25) year old female adult, signed up for a G.E.D. course and Respondent's weight training class at Hallandale Adult. She attended Respondent's classes on September 13, 14, 15, and 21, 1993. She was scheduled to attend class from 6:00 p.m. to 7:30 p.m. On the last day N. A. G. attended Respondent's class, he asked to perform a skin fold test on her after the first class ended at 6:00 p.m. N. A. G. was familiar with the test, which is usually performed on women by another woman because she had experience as an aerobics instructor. When N. A. G. agreed to permit the test, Respondent asked Jason Forentes, N. A. G's nephew, to step out of the weight room. No other students were present during the test. Respondent first tested N. A. G.'s underarms, back and chest. Next, Respondent asked N. A. G. to take off her leotards so he could perform the test on her legs. N. A. G. went into the bathroom, took off her tights, and put her shorts and shirt back on. While Respondent was performing the test on the front of N. A. G.'s legs, she complained that Respondent was performing the test too high. Respondent explained that testing the legs in this manner "was a new thing." When N. A. G. felt Respondent's touch against her front vaginal area, she objected again. Respondent told her to turn around so he could test her legs in the back. N. A. G. turned around and Respondent sat in a chair. Once again Respondent performed the test so high on N. A. G.'s legs that she felt him touching her vaginal area. At that point, she told him to "forget it." She went back into the bathroom to put her leotards on under her shorts. When N. A. G. returned from the bathroom, she was very nervous. Respondent wanted to know if she would be coming back to class. He stated that he wanted to buy her a bathing suit and take pictures of her. N. A. G. never returned to Respondent's classes. She did not immediately tell anyone about the incident because she had trusted Respondent and was embarrassed. Respondent performed the skin fold test on N. A. G. in an unwarranted and inappropriate manner. Respondent admits that he performed a skin fold test on N. A. G. at Hallandale Adult. However, he denies touching her inappropriately. The undersigned does not find Respondent's testimony persuasive to the extent it conflicts with the testimony of N. A. G. There is no persuasive record evidence that S. G. and N. A. G. ever met each other before the hearing or that they ever discussed their testimony concerning the skin fold tests with each other. Additionally, there is no persuasive record evidence that S. G. ever knew N. A. G. as Lydia. Sometime prior to October 28, 1993, S. G. told Respondent and other people in the class that she wanted to have some pictures taken in order to get a job modeling at the local flea market. Respondent told S. G. he would take the pictures between classes on October 28, 1993 and directed her to bring some clothes, including a bathing suit, to class. When S. G. showed up for the photography session, Respondent had two cameras, a .35 millimeter. and a 110 camera. No one else was present in the weight room. When Respondent first took pictures of S. G. in her bathing suit, he adjusted the top of her two piece suit to make her chest look big. He also adjusted the bottom of the suit to make the sides higher. Respondent's behavior was unwarranted and made S. G. feel uncomfortable. Respondent next took pictures of S. G. in a sundress. Eventually Respondent told S. G. to change back into her bathing suit. He told S. G. to go into the interior office and lay down on a towel he had placed on the floor. After taking some pictures, Respondent told S. G. that her pubic hair was showing on the sides at the bottom of her suit. Respondent put his hand underneath S. G.'s suit and touched her near her vaginal area making her feel very uncomfortable. When S. G. pulled back, Respondent asked if he was hurting her. Respondent then told S. G. "I'm a photographer, I don't think like that. You don't have to tell your friends, you don't have to tell your parents." Respondent's denial of this unwarranted, inappropriate conduct is contrary to S. G.'s more persuasive testimony. While S. G. changed her clothes, Respondent opened the door for the second period students to come into the weight area. D. S., then an eleventh grade student at Miramar High School, enrolled for both of Respondent's classes in the fall of 1993. Depending on his work schedule, D. S. attended one or both of the classes. On October 28, 1993, D. S. attended the first class. After the break between the classes, D. S. went back into the classroom to tell Respondent that he would not stay for the second class because he had to pick up his paycheck at Publix. When D. S. came into the classroom, S. G. asked him how he got to school. D. S. told S. G. that he drove his car. S. G. then asked D. S. if he would give her a ride to her boyfriend's place of employment. D. S. agreed to give S. G. a ride. On the way to the parking lot, S. G. repeatedly told D. S. that Respondent had taken the pictures of her for her portfolio and had touched her in the wrong way. S. G. was very upset. D. S. went back into the classroom with S. G. to get her book bag. S. G.'s boyfriend was not at work on the evening of October 28, 1993. S. G. told him about the incident on Friday, October 29, 1993. She told her mother on Saturday, October 30, 1993. On Monday, November 1, 1993, the incident was reported to the school resource officer at Hallandale High. Kathleen Doody, Assistant Principal at Hallandale Adult, became aware of allegations concerning Respondent's inappropriate behavior towards S. G. on November 2, 1993. She met with Respondent and a Hallandale police officer in her office at about 3:15 p.m. During the meeting, Respondent stated that he had been to dinner with Frank Gaines, another adult student, during the break between classes on October 28, 1993. Respondent was visibly shaken during this meeting and denied all allegations. On November 3, 1993, Mr. Kent (the Principal), Ms. Doody, and Respondent met again. At that time, the school was aware of allegations made by a second student. Mr. Kent told Respondent he was being removed from his position as weight training instructor. Frank Gaines, a teacher at another Broward County school, attended Respondent's classes from the beginning of September through October of 1993, depending on his work schedule. On Mondays and Wednesdays, Mr. Gaines usually attended Respondent's first class then left to teach his own class at another school. Mr. Gaines usually attended both of Respondent's classes on Tuesdays and Thursdays. On the days that Mr. Gaines attended both classes, he normally ate dinner with Respondent between the classes. However, on Thursday, October 28, 1993, Mr. Gaines departed from his normal routine and left before 5:00 p.m. in order to teach a class at another school. Johnny Thornton, an adult working towards his G.E.D., attended Respondent's classes in the fall of 1993. The attendance register indicates that he attended Respondent's 6:00 p.m. to 7:30 p.m. class beginning September 1, 1993 and that he withdrew from that class on September 27, 1993, in order to transfer to another class. The class registers and rosters do not reflect which class Mr. Thornton transferred into. Regardless of what the attendance records show, it is evident from Mr. Thornton's testimony and the testimony of other witnesses that Mr. Thornton frequently attended one or both of the classes. Mr. Thornton could not remember whether he was present in class on October 28, 1993, but stated that Respondent never was alone with a student during the break between classes. He does remember being present when the police came to question Respondent on November 2, 1993. The undersigned does not find Mr. Thornton's testimony persuasive because of his inability to remember people's names, dates, and times. Jenny Casillas, an adult, was scheduled to attend Respondent's 6:00 p.m. to 7:30 p.m. class on Tuesdays and Thursdays beginning on September 9, 1993, through October 26, 1993. Respondent marked Ms. Casillas absent on October 28, 1993. Ms. Casillas testified that some days before October 28, 1993, S. G. asked Respondent if he knew anybody who could take some pictures of her. According to Ms. Casillas, Respondent told S. G. that he did. Respondent's testimony that S. G. first inquired about someone who could take pictures of her on October 28, 1993, is less persuasive than the testimony of Ms. Casillas and S. G. that the conversation took place prior to October 28, 1993. Ms. Casillas testified that she called Respondent on October 28, 1993, around 4:15 p.m. to tell him she would be late. She also testified that she arrived in class at 4:45 p.m. According to Ms. Casillas, October 28, 1993, was the day she asked Respondent to give her a diet plan to help her gain weight. She claims she was the last one to leave with Respondent after the first class ended at 5:25 p.m. At the hearing, Respondent testified before Ms. Casillas gave her testimony. Respondent claims he left the classroom on October 28, 1993, in the company of Ms. Casillas, Mr. Thornton, and a few other students, and that he was never alone with any student. Respondent's testimony contradicts Ms. Casillas's testimony that she was alone with Respondent as they left the classroom on October 28, 1995. Respondent and Ms. Casillas testified that after leaving the classroom on October 28, 1993, she and Respondent sat on a patio for about ten (10) minutes while he wrote out a diet plan. Their testimony that Ms. Casillas was late but attended the first class on October 28, 1993, and was with Respondent until approximately 5:53 p.m. is contrary to S. G.'s more persuasive testimony. On November 2, 1993, Ms. Casillas warned Respondent that he should be careful because S. G. was trying to get a lot of attention by raising her hand and asking for a lot of help. Ms. Casillas's testimony that she felt S. G. had a crush on Respondent is unpersuasive. Respondent's brother, Michael Singleton, was S. G.'s classmate in the fall of 1993 at Hallandale High. He testified that one day in the fall of 1993, S. G. told him Respondent was "fine" and wanted Respondent's telephone number. Respondent's brother claims he told S. G. to get the phone number herself. The testimony of Michael Singleton is contrary to S. G.'s more persuasive testimony. S. G. admits that one day in weight training class, she told Respondent that his brother was "mean." She was not serious when she made this statement. She said it because of the way Respondent's brother "played around" and she said it just "to joke around." The testimony of Ms. Casillas and Respondent's brother is rejected to the extent their testimony attempts to establish a motive for S. G. fabricating the facts of the photography session. 43. On November 1, 1993, George L. Davis, a detective from the Hallandale Police Department, began an investigation into the allegations against Respondent. He interviewed N. A. G. on or before November 3, 1993. Prior to that time, N. A. G. had not discussed her concern over the improper skin fold test with anyone. During the hearing, Respondent attempted to demonstrate the proper way to administer a skin fold test. However, this demonstration does not change the fact that Respondent administered the tests to S. G. and N. A. G. improperly and in the process, inappropriately touched both students.
Recommendation Based and the foregoing findings of fact and conclusions of law, the undersigned RECOMMENDS that Petitioner enter a Final Order dismissing Respondent from his employment as an instructor in the public schools of Broward County. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of April, 1995. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of facts submitted by the parties to this case. Petitioner's Proposed Findings of Facts 1.-2. Accepted in paragraph 6. 3.-4. Accepted in paragraph 7. 5.-6. Accepted in paragraph 18-20. Accepted in paragraph 22. Accepted in paragraphs 18, 19, & 23. Accepted in paragraphs 24-26. Accepted in paragraph 27. Accepted in paragraph 17. Accepted in paragraph 10. 13.-14. Accepted but irrelevant and immaterial. 15. Accepted in paragraph 10. 16.-18. Accepted in paragraph 11. Accepted in paragraph 12. Accepted in paragraph 13-14. 21.-23. Accepted in paragraph 15. 24. Accepted in paragraph 17. 25.-29. Accepted in paragraphs 24-26. Accepted in paragraphs 28. Accepted in paragraph 6. Accepted in paragraph 2 but see paragraphs 3-5. Accepted to the extent necessary in paragraph 10. Accepted as modified in paragraphs 3-4. Accepted in paragraph 34. 36.-37. Accepted in paragraph 28. Accepted as to the substance of Kathleen Doody's testimony, but not included in findings of fact to the extent it constitutes conclusions of law. See paragraphs 7, 15, 20, & 22. Accepted in paragraph 34. 40.-43. Accepted as to the substance of Ronald Wright's expert testimony. Not included in findings of facts to the extent his testimony constitutes conclusions of law. See paragraphs 7, 15, 20, & 22. 44.-49. Accepted in paragraphs 35-38. Respondent's Proposed Findings of Fact Respondent did not number his proposed findings of fact. Consequently, the undersigned has numbered Respondent's paragraphs in order to specifically address each proposed fact. 1. Accept the substance of Kathleen Doody's testimony. See paragraphs 28- Irrelevant whether Respondent knew S. G. before she enrolled in his class. Accept that S. G. testified concerning an alleged conversation with another student named "Lydia" (last name unknown) who was not identified as N. A. G. Reject any finding of fact based on S. G.'s unpersuasive and uncorroborated testimony concerning the substance of that conversation with "Lydia." See paragraph 8. Accept that George Davis interviewed N. A. G. on or before November 3, 1993. See paragraph 43. S. G. testified that she talked to another student, Lydia (last name unknown), and gave a description of her. See paragraph 8. Reject any finding of fact based on S. G.'s unpersuasive and uncorroborated testimony concerning the substance of that alleged conversation with "Lydia." See paragraph 8. Accept that N. A. G. and S. G. never knew each other before the hearing. See paragraph 17. Accept that on November 2, 1993, Jennie Casillas warned Respondent about S. G. trying to get a lot of attention from Respondent. However, Ms. Casillas's testimony that she felt S. G. had a crush on Respondent is unpersuasive and rejected. See paragraph 39. Rejected. See paragraph 40. Rejected. See paragraph 38. S. G. admitted telling Respondent that his brother was "mean." See paragraph 41. S. G. and Michael Singleton knew each other as former classmates. See paragraph 40. Reject Respondent's testimony that he never inappropriately touched either S. G. or N. A. G. and that he never took pictures of S. G. See paragraphs 9, 16, 28, 37, 38. Reject that the mechanics of performing the skin fold test shows the impossibility of Respondent using his fingers in the manner alleged by S. G. and N. A. G. The balance of Respondent's paragraph 6 is rejected as repetitive, argumentative, irrelevant or unsupported by persuasive competent substantial evidence. Not a finding of fact. COPIES FURNISHED: Eugene K Pettis, Esquire Cooney, Haliczer, Mattson, Lance, et al. Post Office Box 14546 Fort Lauderdale, Florida 33302 W. George Allen, Esquire Law Offices of W. George Allen Post Office Box 14738 Fort Lauderdale, Florida 33302 Dr. Frank R. Petruzielo Superintendent of Schools Broward County Schools 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 The Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent is the holder of a teacher's certificate, number 617425, for the area of social studies. Such certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed by the Orange County School District as a teacher at Union Park Middle School (Union Park). All allegations material to the case against Respondent occurred during his employment at Union Park and involved female students who were either enrolled in his class or members of the social studies club Respondent sponsored. During 1990-91 school year, Respondent placed telephone calls to female students. The purpose of such calls was to convey school-related or social studies club information to the student; however, Respondent frequently allowed the subject matter of the telephone conversations to extend to private, non- school topics. These private topics included discussions regarding who liked who for boyfriends and girlfriends as well as the personal appearance and conduct of various students. Additionally, the length of time involved in such conversations varied from a matter of minutes to almost an hour in length. Also during the school year, Respondent participated in the completion of a "slam book." A "slam book" is an unauthorized school activity in which students are not to participate. In general, a "slam book" is a book wherein students make comments about others. In many instances such comments may be unflattering or uncomplimentary. If discovered, teachers generally confiscate such books and admonish students regarding them. In Respondent's case, when he was asked to sign a "slam book" belonging to Karen McCue, Respondent completed many of the headings with personal comments about others known to the students completing the book. The completion of the book by a student, much less a teacher, was against school policy. On one occasion, Respondent wrote on a student's hand by drawing an eyeball, a heart, followed by the letter U. The student interpreted, and Respondent intended, the message to mean "I love you." As a result, the student became self-conscious and went to the restroom to wash the message off. While Respondent did not intend the message to embarrass the student, such action, nevertheless, made her uncomfortable. On several occasions, Respondent made female students uncomfortable by touching them. None of the touches were intended or interpreted by the students as sexual in nature. None of the touches involved inappropriate parts of the body. All such touches occurred in full view of the class or others. None of the touches made the students uncomfortable at the time they were made; only later, in retrospect, did the students feel uncomfortable. Such touches included playing with a female student's hair, holding a female student's hand, or a side-to-side hug. After Respondent confiscated a Gloria Estefan concert program book from one of the female student leaders, the allegations of impropriety at issue in these proceedings were raised. Prior to that incident, Respondent had enjoyed considerable popularity with the students in his classes and the social studies club. Rumors of improper touchings, not substantiated or alleged in this case, were rampant. Understandably, parent concern and administrator involvement as a result of the complaints followed. On March 28, 1991, the Orange County School District issued a letter of reprimand to the Respondent based upon the alleged inappropriate verbal and written comments to students. Additionally, at the conclusion of the school year, Respondent's teaching contract was not renewed for the 1991-92 school year. Because he engaged in behaviors that interfered with the student/teacher relationship, Respondent's effectiveness as a teacher was substantially reduced. Respondent failed to maintain a proper, professional distance between himself, as the teacher, and the female students. By engaging in personal telephone conversations and the "slam book," Respondent failed to establish his role as the disciplinarian and authority figure inherent in being their teacher. Respondent enjoyed a good teaching reputation among his fellow teachers and received favorable recommendations and evaluations from his principal. Respondent did not commit any act reflecting gross immorality or an act involving moral turpitude. Respondent did not commit any act that resulted in a failure to make reasonable effort to protect students from conditions harmful to learning or to health or safety. Respondent did not intentionally expose students to unnecessary embarrassment or disparagement. Respondent did not intentionally exploit his professional relationship with students for personal gain or advantage.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission enter a final order reprimanding the Respondent for the conduct set forth above. DONE and ENTERED this 20th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992. APPENDIX TO CASE NO. 92-0175 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, the last sentence is accepted; otherwise rejected as argumentative or contrary to the weight of credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of credible evidence or argument. The first sentence of paragraph 9 is accepted; the remainder is rejected as recitation of testimony or unnecessary. It is accepted that a slam book is an inappropriate activity for students as well as teachers. Paragraph 10 is accepted. Paragraph 11 is rejected as recitation of testimony, irrelevant or unnecessary to the resolution of the issues of this case. Paragraph 12 is rejected as recitation of testimony and/or argument. Paragraph 13 is rejected as repetitive, irrelevant, or contrary to the weight of credible evidence (except as addressed in the foregoing findings of fact). Paragraph 14 is rejected as repetitive and irrelevant. It is accepted that Respondent's informal conversations with students did not maintain an appropriate level of professional distance; otherwise rejected as indicated. Paragraph 15 is rejected as contrary to the weight of evidence or irrelevant to the extent not addressed in the findings of fact. Paragraph 16 is rejected as repetitive and irrelevant. Paragraph 17 is rejected as recitation of testimony, irrelevant, or unnecessary. To the extent not addressed in the findings of fact, paragraphs 18 through 32 are rejected as unnecessary, irrelevant, contrary to the weight of the evidence, or recitation of testimony. For the most part, the allegations suggested by the findings proposed constitute much ado about little. Respondent clearly did not maintain an appropriate distance from students; however, his conduct did not rise to a level to reflect a lack of moral character or be grossly immoral. In essence, Respondent's error was to try to be the student's friend more than their teacher. As a result, his role as their teacher was compromised. Paragraph 33 is accepted with the deletion of the word "embarrassment." Respondent experienced a breakdown in the student/teacher relationship, he did not intend to embarrass the students. The first sentence of paragraph 34 is accepted; otherwise rejected as contrary to the weight of the evidence. The first sentence of paragraph 35 is accepted; the remainder rejected as contrary to the weight of the evidence. Paragraph 36 is rejected as irrelevant. With regard to paragraph 37 it is accepted that Respondent's behaviors seriously undermined his effectiveness at Union Park; otherwise rejected as contrary to the weight of the evidence. Further, it has not been shown that such behaviors were widely known in the community or that his effectiveness in another location would be compromised. Clearly, the incidents of this case were fairly minor, isolated, and impacted but one school. Since the Respondent has been appropriately disciplined, such prior conduct should not prohibit the Respondent from teaching in another location where his effectiveness has not been questioned. It might be concluded that Respondent has learned from the errors of his past. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent not accepted and addressed by the findings of fact above, Respondent's proposed findings of fact are rejected as irrelevant, repetitive, contrary to the weight of the evidence, argumentative, or unnecessary. Respondent was well-liked and considered a "good teacher" by many of his students. In that his principal did not know of Respondent's informal relationships with students, he considered Respondent a "good teacher." Respondent's ability to maintain an appropriate professional distance from his students is the only violation established by this record. COPIES FURNISHED: John F. Gilroy, Esquire Attorney Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph Egan, Jr. P.O. Box 2231 Orlando, Florida 32802 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
