Findings Of Fact Respondent, Anthony G. Acito, holds and at all times material hereto held, Teacher's Certificate No. 529895 issued by the State of Florida, Department of Education. Petitioner is certified to teach social studies and elementary education. At all times material hereto Mr. Acito was employed as a teacher with the School Board of Palm Beach County. For the 1982-83 school year Mr. Acito was assigned to Crestwood Middle School where he taught social studies. His teacher's evaluation for that school year reflects an above-satisfactory to outstanding performance. For the 1983-84 school year, Mr. Acito was again assigned to Crestwood Middle School to teach social studies. At this time, due to increased enrollment, additional teacher units were mandated at Crestwood, which included additional physical education classes. Mr. Acito requested and was assigned to teach three physical education classes scheduled for the third, fifth, and seventh periods. The four counts lodged against Mr. Acito in this case deal with corporal punishment and/or excessive use of force by Respondent upon the persons of Scott Collins, Danny Urbaniak, Keith Cojocar, and Norman Bishop, then students in Mr. Acito's seventh hour physical education class, and the incidents complained of all occurred on December 1, 1983, during that class period. At the time of the incidents in question Collins, Urbaniak, Cojocar, and Bishop were, respectively, 13, 12, 12, and 13 years of age. By the complainants' own testimony, it is clear that the students in Mr. Acito's seventh hour physical education class, including the four complainants, were not marvels of decorum and that the class as a whole was quite disruptive. On December 1, 1983, as on other school days, the students changed into their physical education clothing and awaited Mr. Acito on the athletic field until he, also, had the opportunity to change. When Mr. Acito exited the locker room and blew his whistle to signify the commencement of class, the students, ideally, were to form into squads and pay attention. On December 1, 1983, as on other occasions when Mr. Acito blew his whistle and asked for their attention, the students did not quiet down or stop talking, but rather, continued "horsing around" and being disruptive. Scott Collins, although directed to get in his squad, left the formation to get a ball from behind Mr. Acito. Mr. Acito grabbed Collins by the arm and put him back in line. Mr. Acito told Collins, and the rest of the class, to sit down. By Collins' own testimony he was not grabbed hard by Mr. Acito or hurt. He was simply "put back in line." Danny Urbaniak, upon Mr. Acito's direction had formed up into his squad but continued talking to the student in front of him even though he admits Mr. Acito was at that very moment blowing his whistle at another squad trying to get them quiet. Mr. Acito grabbed Urbaniak by the arm, pulled him out of line because of his continued talking, and pushed him back behind the line of squads. Mr. Acito then kicked Urbaniak in the shin and pushed him away. Keith Cojocar entered the seventh hour class late and heard r. Acito arguing with Urbaniak. Even at this point the students were still "fooling around." Consequently, because they were "bad," the students were directed to do exercises rather than play soccer. Mr. Acito directed everyone to do push- ups but Cojocar did not do any, he just "lay there." Mr. Acito took Cojocar by the ear and led him away, put a loose neck hold on him from behind, and asked "if he'd ever do it again,"--to which Cojocar replied "No." Mr. Acito did not harm Cojocar. Norman Bishop, at the conclusion of the seventh hour physical education class, was in the locker room changing into his school clothes. At that time Bishop was speaking with a classmate and opined, regarding the events of that day, that "If he would of hit me, I would of hit him back." Unbeknownst to Bishop, Mr. Acito was standing behind him at the time he made his statement. Mr. Acito grabbed Bishop, turned him around, and pushed him against the lockers with his hand at Bishop's throat and advised Bishop not to tell anyone about what had happened that day. Mr. Acito used such force in pushing Bishop against the locker that Bishop experienced pain in his jaw, swelling in his neck, and headaches. Bishop was examined by Drs. Jerry Tankersley and Douglas J. Phillips. Dr. Phillips' initial diagnosis was that Bishop's temporomandibular joints were dislocated and that he would require orthodontic and therapeutic care estimated to cost approximately $5,000. An investigation into the incidents of December 1, 1983, was commenced December 2, 1983, after the parents of Norman Bishop complained to the principal at Crestwood Middle School. The investigation was abruptly terminated when Mr. Acito submitted his letter of resignation dated December 4, 1983. Prior to the events of December 1, 1983, Mr. Acito was well liked and effective as a teacher. As a consequence of the events of that day, however, he was no longer so regarded. As a consequence of his actions toward Collins, Urbaniak, Cojocar, and Bishop, criminal battery charges were filed against Mr. Acito, in the County Court of the Fifteenth Judicial Circuit, Criminal Division, in and for Palm Beach County, Florida, Case No. 84-699 MMA02. On September 12, 1984, a not guilty verdict was entered.
Findings Of Fact At all times pertinent to this hearing, Respondent, Jay S. Markley, was employed as a teacher of mathematics at Osceola High School (OHS) , Kissimmee, Florida, under a continuing contract. A continuing contract conveys tenure status upon the teacher holding it. Mr. Markley had been employed at OHS for approximately nine years. During that period, in addition to being a teacher, he has held the positions of swimming coach, director of athletics, and chairman of the faculty council. Mr. Floyd J. Scott, Jr., was principal of OHS during the 1982-83 school year and had served as such for four years. When he first arrived at OHS, he found a poor environment. Students were scoring low on the achievement tests, a small percentage of graduates was going on to college; discipline was poor, student participation in sports and other extracurricular activities was low, and the teams fielded by the school did poorly. His charter, upon assuming the principal's position, was to bring up the school standards and performance. Among the several things he did to create a favorable change was to, during the 1982-83 school year, place emphasis on the need for teachers to file lesson plans, something that had not been done for quite a while in the past. During the first week of school, he began his programs of emphasis with a low key approach. He would mention the need for them to be filed at faculty meetings, included the requirement that they be filed in the teachers' handbook given to each teacher at the beginning of the school year, and hired a coordinator to work the problem, Ms. Shirley S. Phillips. As time went on throughout the year, more and more emphasis was placed on the subject. Lesson plans are used by teachers to coordinate the information to be passed on to the students. They are a continuity document to be used by substitute teachers to work from in the event the regular teacher is absent. They are used by administrators to insure that required topics are covered, as verification of compliance with the county's scope and sequence plan, as part of the evaluation of teacher performance. Of great importance is the fact that they are considered as an evaluation factor by the Southern Association of Colleges and Universities in its evaluation of high schools for certification. An absence of certification makes it extremely difficult for a graduate of the unaccredited school to gain admission to a college or university outside the State of Florida. The term "scope and sequence" is used to show that curriculum materials are tied together, the order and relationship of topics. The lesson plans are to insure that the daily activities of the teachers fulfill the scope and sequence goals. They are like a road map -- the ways to achieve the tasks set out in the scope and sequence. Rule 5.4.6 of the Osceola County School Board requires teachers to follow a system of unit and lesson planning and specifically provides that the mere citation of text and workbook pages is not considered an adequate lesson plan. Repeated mention is made of lesson plans in the teachers' handbook supplied to each teacher at the beginning of each school year. Respondent recalls receiving his in August or September, 1982, and was also aware of the requirements of Rule 5.4.6. The handbook, at Page 6, requires detailed lesson plans to be in the substitute folder and, at Page 44, states that required "lesson plans will be submitted for review each Friday for the next week" to the curriculum coordinator, at first Ms. Zey, and later Ms. Phillips. Respondent knew of these requirements and knew that, except for two lesson plans submitted at the beginning of the 1982-83 school year, he failed to file any more for the rest of the school year, though he contends he was preparing lesson plans, his style, throughout the school year. Ms. Shirley Phillips became curriculum coordinator at Osceola High School on February 1, 1983. One of the jobs given to her was to collect and coordinate lesson plans which she monitored through a check-off system originally used by her predecessor. Prior to that, however, on November 30, 1982, Assistant Principal Tommy Tate notified Respondent, in an observation report acknowledged by him, that two areas in his performance needed improvement because of no lesson plans. This was followed up by the evaluation report submitted on Respondent by Mr. Scott, the principal, on December 15, 1982, and acknowledged by Respondent on December 17, 1982, that he was to keep lesson plans updated. The time line specified for achieving this improvement was "this marking period," or, in other words, right away. On February 18, 1983, Ms. Phillips, fulfilling her duties pursuant to Mr. Scott's instructions, prepared a letter to a certain 20 faculty members, including Respondent 1/ . This letter, which was approved by Mr. Scott before being sent out, notified the recipients that they were delinquent in filing lesson plans and warned them they would be evaluated "unsatisfactory" unless they turned them in. Respondent received his copy of that letter. Somewhat later, when Ms. Phillips checked on who had still not filed their lesson plans, she found that several, including Respondent, were still delinquent. Most of these, however, except Respondent, did submit their lesson plans within a month and a half; and those who were delinquent, except for one teacher, Mr. Reeder, were not nearly so delinquent as Respondent either in number delinquent or time. Even Reeder, however, ultimately brought his plans up to date. On March 18, 1983, a second letter was sent out, drafted by Ms. Phillips, but signed by the principal, again reminding some nine or ten teachers who had not as yet complied with the previous letter, including Respondent, that he expected each teacher to file the lesson plans and that those who did not would not only be rated unsatisfactory, but would also be considered insubordinate. Respondent and several other teachers who testified in his behalf, and to whom the letter was directed, indicated they did not get it. It is, therefore, quite possible that this particular letter did not get the wide dissemination Mr. Scott thought it did. However, its follow-up, on April 11, 1983, sent to those who did not respond to the March 18 letter, was received by Respondent, as he submitted the letter called for in specific response to this April letter which, it is noted, also advised of the consequences for noncompliance. In his letter of response, dated April 14, 1983, Respondent clearly stated his position in opposition to preparing and submitting lesson plans and, while not specifically stating he would not comply with Mr. Scott's previously expressed requirements, clearly indicated he would not be doing so. No other conclusion can reasonably be drawn from his willingness to accept an evaluation of unsatisfactory and a classification of insubordinate. The principal displayed an inordinate amount of maturity and patience in his response to Respondent of April 19, 1983. Again restating his reasons for requesting lesson plans, he then graciously requested Respondent to reconsider and comply. Though couched in terms far less than directive, under the circumstances, it is clear this was an official request which was the force and effect of a direction. Notwithstanding this latitude he was given, Respondent again failed to comply with the requirement to submit lesson plans and, on April 27, 1983, both the principal and vice principal, Messrs. Scott and Tate, rated him unsatisfactory in the one area on the observation and evaluation forms dealing with lesson plans. All other areas were rated satisfactory. Mr. Tate indicated that at this second observation, Respondent told him he would photocopy lesson plans if they wanted them. From Respondent's words and the tone of voice in which they were said, Mr. Tate inferred that Respondent thought it was stupid to do lesson plans and he did not see why he should have to. Finally, on May 6, 1983, Mr. Scott sent a memo directly to Respondent only, recounting in summary from the prior history of this dispute and the authority for the requirement. Respondent was also ordered and directed, in writing, to turn in all lesson plans for the 1982-83 school year, including those due for the week of May 9 through 13 2/ , to Mr. Scott's office before 8:35 a.m. on Monday, May 9, 1983. He was also warned that his failure to comply would be deemed gross insubordination and willful neglect of duty and would subject him to disciplinary action. At the meeting between the two, in Mr. Scott's office on May 6, when this letter was given to him, Respondent indicates he was told he was the only one in the whole school who had not turned in lesson plans. At this point, he agreed to do them, but told Scott then that he could not get them done by 8:35 a.m. on May 9. By 9 a.m. or so on May 9, when Respondent still had not brought any lesson plans to the office or contacted Mr. Scott for an extension, Mr. Scott sent his secretary, Barbara Rousch, to Respondent's room to pick them up. When she arrived there, Respondent did not offer her any plans. When she asked for the plans, Respondent said he was working on them. Specifically, he said, "I'll have them for you. Maybe not today, but I'm cooking on them." When he said this, Respondent was sitting at his desk working on the lesson plans while the students were in the room. 3/ Ms. Rousch was standing by his desk, and he neither showed her nor offered to show her the plans he had completed, though he contends that he showed her, from his desk book, what he had done. He states that he had completed at that time a complete set of plans for one of three classes of Algebra I and some plans for his class in consumer math. He admits he still had remaining to do two sets for the remaining Algebra I classes and one set for his class in Algebra II. After Ms. Rousch left Respondent's office, there was no further discussion regarding the lesson plans. Respondent finished out the school day and after school went to his place of business off campus. It was then, about 5:30 p.m. on May 9, that Mr. Vogel, Assistant Superintendent of Schools, told him that he had been suspended and was not to come to school the next day. Nonetheless, he completed the lesson plans and himself turned in 31 weeks' worth to Barbara Rousch on May 12, 1983. His daughter turned in three more plans to Ms. Phillips the same day. Respondent has remained suspended without pay since May 9, 1983. Respondent has been employed at OHS under five different principals since January, 1975. During all this time, he does not recall the rules requiring lesson plans to have been enforced prior to the 1982-83 school year. Since the beginning of this year, the enforcement has become stricter as the year went on. After Mr. Scott had been principal for a year, he removed Respondent as athletic director without stating a reason. However, when it appeared that there was thereafter a shortage on the books of the athletic department, Respondent reported the matter to Mr. Scott, who said he would look into it. When Respondent told Scott he wanted to look at the books kept on several sports programs, he was denied access. When he asked Scott about it somewhat later and Scott said he had not done anything about it, Respondent went to the bookkeeper, who told him Scott had the books. There have been other conflicts between the two individuals, as well. When Scott first came to the school, the principal ran the faculty council meetings. When Respondent took over as chairman of the council, he advised Mr. Scott that he, Respondent, would run the meetings, and he dictated to the principal how things would be done. According to Respondent, Scott neither resisted nor made comment about this. Though these conflicts existed, they appear to Respondent to be the result of a lack of communication. Even though there was no outward animosity from Scott to him, he feels it must have been hidden within Scott, who, he now feels, is singling him out for discipline. He has never heard of any action this severe for lesson plans, so he feels there must be another reason. There is a clear pattern of resistance and disobedience demonstrated, however, by the above-cited evidence and Respondent's reaction throughout the year. For example, he states he turned in two weeks of plans in October, 1982, and until the remainder were turned in on May 12, 1983, no more, regardless of how many times he was reminded of the requirement. He got all the notices and memos except that of March 18, 1983, and was aware of the technical requirement to turn the plans in. Still, he did not, nor did he take any of the memos until May 6 as an order to turn them in. When, on that date, he got what he perceives as the first direction to turn the plans in, he did comply, although not on time even then, nor did he evidence any concern about not doing so. He contends that on the weekend of May 7 and 8, 1983, he worked 14 hours on the plans, but also admits he spent a reasonable portion of that weekend pursuing his off-campus swimming pool business. He interpreted the April 11 memo as an either/or proposition, either turn in the lesson plans, or say why you did not. He chose to write the letter and was willing to receive an unsatisfactory rating because he did not consider that had any effect on him -- a tenured teacher. It was not until the May 6 meeting with Scott that the administration was serious and that he had better turn the lesson plans in. Prior to that day, he did not know what gross insubordination meant. Scott told him he might be returned to annual contract status, but did not tell him he would be dismissed. From the beginning to now, he does not know why so much fuss is being made of lesson plans in light of the fact that as late as May 10, 1983, some teachers were delinquent in their lesson plans. Respondent contends that he does lesson plans his way. He writes out what he plans to cover on a yellow sheet and spends his time teaching rather than filling out forms. However, teachers are given at least one period out of each school day for planning. During this planning period, no students are there to be taught. Though some books have lesson plans prepared for the teacher in the instructor's workbook, those being used by Respondent this year did not have those plans included. Even if they had, the mere photocopy of book plans was deemed by this administration to be inadequate. Respondent, having first said he did plan his way, also says he has worked as a teacher for years without lesson plans. Lesson plans, even when submitted, are merely placed in a file and not used. Consequently, he could see no need for lesson plans. Though, by his own testimony, he knew of the requirement in the law and that it had been there for years, he felt it was a choice item, and he did not have the obligation to follow it. He contends that other than the requirements of scope and sequence and what is in the teachers' handbook, there is no direction as to what is a sufficient lesson plan. Numerous teachers who were employed at OHS during the 1982-83 school year confirmed Respondent's testimony as to the prior laxity in enforcing the requirement for lesson plans up until that year. There was also evidence from these teachers of an authoritarian atmosphere at OHS during the 1982-83 school year. Testimony revealed rumors being spread that Mr. Scott had a list of teachers he wanted to get rid of that included Respondent, among others. Yet, not one individual, except Respondent, including several who moved voluntarily to St. Cloud High School this year, testified that any threats were made to them or suggestions that they move by Mr. Scott or anyone in the administration of OHS. Those who moved voluntarily because they were "advised" they were on the "hit list" and should move testified they did so not at the instigation of the administration, but upon the advice of the teachers' union representative. The incidence of rumor and innuendo on the part of one side, attempting to paint the principal and the administration in a bad light, while ignoring the defiance of legitimate authority by Respondent, is clearly shown in the testimony of one teacher that the attitude among the faculty that year was "Hitler was alive and well at OHS." Yet, she admits she had no problem personally with Mr. Scott. He was very supportive of her. Even another teacher who was questioned by Mr. Scott regarding a leak of information to the press during the year and who transferred at the end of the school year, stated she had received no pressure from Mr. Scott, had been thinking of transferring anyway, and was also advised to do so by the teachers' union. One other teacher who was also interviewed by Mr. Scott regarding the press leak was approached afterwards by a union representative and asked if he wanted to meet with other teachers about this. The union representative told them it would be unhealthy for them to remain at OHS, and they should request to transfer out. This particular teacher, however, though he testified on behalf of Respondent, nonetheless desired to remain at OHS. Several teachers testified that Mr. Scott had said that the 1982-83 school year was going to be Mr. Markley's last year at OHS. Scott categorically denied ever having made that threat. The comment in question was made to him by someone else in the context that Respondent was leaving voluntarily to go into another business. Respondent is, in fact, engaged in the conduct of his own swimming pool business, which he started after being relieved as athletic director.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Jay S. Markley be found not guilty of misconduct in office, but guilty of gross insubordination; that his suspension effective May 9, 1983, be sustained; that he be dismissed from employment with the Osceola County School Board; and that he be denied pay from May 9, 1983. RECOMMENDED this 20th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983.
Findings Of Fact Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy. DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, 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 2nd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464 The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why: Petitioner's Findings: 1 through 3. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. Conclusion of Law.- COPIES FURNISHED: Cecil E. Howard, Esquire 320 Williams Street Tallahassee, Florida 32303 Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Board of Physical Therapy Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0789
Findings Of Fact Petitioner and her husband, Dr. Henry S. Pennypacker developed a precision teaching process designed to facilitate learning by the students exposed to this process. It was first used at the University of Florida in 1972 under contract between the corporation formed by the Pennypackers, viz, Precision Teaching, Inc. of Florida, and the University of Florida Athletic Association. This contract with the Athletic Association continued through fiscal year 1973-74. By 1974 the system had acquired wider acclaim and the University of Florida decided to try this process on entering students who were below the academic average. Since the project was expected to grow it was decided that Susanne Pennypacker would be employed full time to manage the activities of Precision Teaching, Inc. of Florida. The University of Florida entered into a contract with Precision Teaching, Inc. to conduct the program in fiscal year 1974-75 and Petitioner served as Director on the staff of, and was paid by, Precision Teaching, Inc. During this contract period the University determined that it would prefer to operate the program as a university project rather than under a contractual arrangement with Precision Teaching, Inc. Negotiations were conducted with the Pennypackers and it was agreed that Petitioner would be employed by the University to run the project which would be called the Personalized Learning Center. Several letters passed between Dr. Webb and Petitioner and her husband as the negotiations respecting the budget for fiscal year 1975-76 progressed. On June 3, 1974 Dr. Webb submitted a proposed budget for the fiscal year commencing July 1, 1975 to the Pennypackers. A copy of this letter was not offered into evidence. By letter of June 19, 1975 the Pennypackers reminded Dr. Webb that the contract with Precision Teaching would expire on June 30, 1975 and a management contract to continue the opera-tion of the Personalized Learning Center had not been executed. It was further stated that they had agreed to operate the center at the budget figure presented on June 3, 1975, but it appears that the University was unable to commit $7,000 of the proposed far amount. Dr. Webb was advised that the Pennypackers' continued participation in the project was dependent upon written assurance that the shorted funds become available by January 1, 1976, and that "we will regard failure to provide (at least written assurance) the full amount requested and agreed to as a signal that our services are not longer desired and, accordingly, will, with great reluctance, terminate completely our association with the center on July 1, 1975." By letter dated June 30, 1975 (Exhibit 15) Dr. Webb submitted the budget for the operation of the Center for the FY 75-76 to Dr. Pennypacker. Therein the full amount for salaries contained in Petitioner's proposed budget of June 5, 1975 (Exhibit 13) was approved. No formal contract was entered into between Ms. Penny-packer and the University, but the discussions were memorialized in a letter from the University representative, Dr. Jeanne Webb, to the Pennypackers dated June 30, 1975 (Exhibit 4). Petitioner became an employee of the University on July 1, 1975. The terms and conditions of this employment are contained in the University' s Notice of Appointment (Exhibit 18) dated November 25, 1975 which was executed by Petitioner on December 15, 1975. In late November or early December, 1975 Petitioner was notified that her contract with the University would not be extended beyond June 30, 1976. Within ten days of receipt of that letter Petitioner requested reasons for not being reappointed for the forthcoming year. Neither of these letters was offered into evidence. Response to Petitioner's request for reasons were contained in Dr. Webb's letter of December 17, 1975 (Exhibit 16). Although reasons indicating dissatisfaction with Petitioner's performance as Director of the Personalized Learning Center are contained in Exhibit 16, Respondent took the position that satisfactory performance of duty by Petitioner was not an issue in this case, and offered no evidence to support the bare allegations contained in Exhibit 16. Upon completion of Petitioner's case Respondent submitted a motion for directed verdict, and an argument on said motion. Petitioner replied thereto and thereafter Respondent rested without presenting evidence.
The Issue Should the State of Florida, Education Practices Commission (EPC), impose discipline against Respondent, who holds Florida Educator's Certificate No. 292611, for the alleged violations set forth in EPC Case No. 001-0121-A?
Findings Of Fact Stipulated Facts: Respondent holds a Florida Educators Certificate (FEC), number 292611, in the areas of General Science, Physical Education, and Middle Grades. Respondent's FEC is valid through June 30, 2005. At all times relevant to this proceeding, Respondent was employed as Physical Education Teacher at Sante Fe High School (Sante Fe) in the Alachua County School District. Additional Facts: During his career Respondent has been employed by the Alachua County School Board as part of the instructional staff. His career spans 33 years. Respondent taught physical education at Sante Fe from 1974 through 2001. In the last two years he has taught at Bucholz High School in drivers education. The physical education curriculum at Sante Fe, to include the spring of 2000, emphasized physical activity for the students three days a week. Two days a week were devoted to classroom instruction. The physical fitness instruction emphasized cardio vascular conditioning and building endurance in the participants' muscles. The physical activity took place both inside the gymnasium and outside on the school grounds. The physical activity involved stretching before engaging in the prescribed activity. A typical physical fitness class taught by Respondent would have had 35 to 48 students. In the spring of 2000 two of the students taught physical education by the Respondent were E.C. and L.B., who were ninth graders. On the whole, the proof is not clear and convincing that Respondent inappropriately stared at the students E.C. and L.B. when they were doing their exercises in the physical education class in the spring of 2000, as they claim. During the spring of 2000 E.C. and L.B. went to Respondent's office to exchange a basketball which was flat for one that was not. After the students asked for a new basketball Respondent replied "well that's not the only thing that's flat" while looking in the direction of the students. The students took this remark to be intended as sexual innuendo concerning the chest of the student E.C. but their impression was gained outside the context of another remark made at that time directed to those students referring to them as a "bunch'a airheads." When the set of remarks are considered together they do not constitute remarks that are perceived as sexual harassment or sexual innuendo as alleged in the Administrative Complaint. To refer to students as "airheads" is not appropriate, however that remark is not the subject of the Administrative Complaint. The comments made by Respondent directed to E.C. and L.B. were overheard by a male student, F.T.B. M.H., whom one can infer was a student at Sante Fe, showed Respondent her midriff where she had been sunburned. Respondent commented "M., you need to put sunscreen on. You're going to get burnt up." No other facts were established concerning Respondent and the student M.H. Contrary to the material allegations in the Administrative Complaint, no proof was presented concerning the allegation that Respondent told female students in his class that the shorter their shorts were, the higher their grades would be.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint in all its counts. DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 23rd day of April, 2003.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment based on the determination by a licensed psychologist that Respondent was not fit to perform his duties as a classroom teacher.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. Petitioner has continuously employed Respondent since 1998 as a classroom teacher. At the times material to this proceeding, Respondent has held a professional services contract. The School Board has adopted Policy 4004, which provides for mandatory physical and/or psychological examinations for employees, as follows: AT ANY TIME DURING THE COURSE OF EMPLOYMENT WHEN IT SHALL BE DEEMED ADVISABLE BY THE SUPERINTENDENT/DESIGNEE, AN EMPLOYEE MAY BE REQUIRED TO TAKE A PHYSICAL OR PSYCHOLOGICAL EXAMINATION. RULES The Board authorizes the Superintendent to establish procedures to carry out the intent of this policy. The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Division of Personnel, Policies, Government and Community Relations. Where the employee is found to be unable to function satisfactorily, the Division of Personnel, Policies, Government and Community Relations shall take appropriate action. At all times relevant to this proceeding, the Superintendent of Schools had in effect the following procedures (Policy 4004 procedures) relating to fitness for duty determinations: Fit for Duty Determination Procedures The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home or at an alternate site with pay, depending on circumstances (i.e. active case file/investigation). The affected employee shall select the name of a medical doctor psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 24 hours. SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation. Letter is sent to the doctor explaining billing instructions, and ‘Fit for Duty Evaluation’ report of findings. The doctor as delineated in the policy will conduct Pre [sic] evaluation at District expense. Note: a 2nd Opinion will be at the employee’s expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. [Emphasis is in the orginal.] A third evaluation will be mandated if previous two (Pre & 2nd Opinion) are contradicting and will be at District expense and will be binding by [sic] all parties. [Emphasis is in the original.] Doctor determines if employee is ‘Fit for Duty’ or [is] not [fit] for duty. Where the employee is found ‘unfit for duty’ the Executive Director of Professional Standards & Special Investigative Unit shall take appropriate action per the recommendation of the doctor, subjecting employee to a Post-evaluation by the same doctor making the initial evaluation. The Post-evaluation ought to occur within 90 days of the initial evaluation. If a doctor determines that the employee is ‘Unfit for Duty’, an administrative reassignment letter is prepared changing the employee’s pay status to ‘at home without pay (PLV)’. The employee is given information to call the Leave Department to apply for any paid leave accrued, and/or any other leave types per SBBC Policies that they are eligible for. Also, a Formal Referral to EAP is prepared for follow-up. Based on the progress and/or compliance with EAP’s recommendations, a Post Evaluation is scheduled within the 90- day reassessment period. If employee is unfit to return to work in the Post Evaluation, then the employee is recommended for termination (School Board Agenda is prepared for the next Board Meeting). Note: 2nd Opinions on the Post evaluation will be at the employee’s expense, if requested. Third evaluation, if required will be at District expense and will be binding by [sic] all parties. [Emphasis is in the original.] Employee and school/work site are notified of doctor’s fit for duty status via certified mail. (Note: Confidential Doctor’s report will only be distributed to the employee). The immediate supervisor is notified as well. However if the doctor has follow-up recommendations, then a Formal Referral to Employee Assistant Program (EAP) is prepared by SIU (i.e. mental health follow-up or other referrals as appropriate. If employee is found Fit for Duty, a certified letter is sent to the employee with instructions to return to work. The immediate supervisor is notified as well. Respondent was employed as a science teacher at Piper High School (Piper High) from 1999 until September of 2003. After two of Respondent’s students alleged in September 2003 that Respondent had battered them, Petitioner’s Professional Standards and Special Investigative Unit (SIU) conducted an investigation of the alleged incident. Petitioner submitted the results of the investigation to a Probable Cause Committee, which, in March of 2004, found probable cause of battery. A Pre-Disciplinary Hearing was held on June 10, 2004. The Committee recommended that Respondent's employment be terminated. Subsequently, in July of 2004, after his review of Respondent’s case, Dr. Frank Till (the Superintendent of Schools), recommended to the School Board that Respondent be reprimanded and returned to his teaching duties. The School Board followed Dr. Till’s recommendation. Respondent was notified of Petitioner’s action and the fact that he would be returned to the classroom by letter dated July 12, 2004. The letter was signed by Dr. Melita. Respondent responded to the July 12, 2004, letter with a letter to Dr. Melita dated July 15, 2004 (Petitioner’s Exhibit 8). This letter was copied to then President Bush, then Governor Bush, then Commissioner of Education Horne, Dr. Till, members of the School Board, and others. The letter consisted of two paragraphs. The first paragraph, which inexplicably contains a complaint by Respondent that he was being returned to the classroom, is set forth below. The second paragraph is not reproduced here because it pertained to an alleged leak of the SIU report to a newspaper reporter. The entire letter should be read if there is a question as to the context of the statements. Due to the fact that the students deliberately deceived in their irrefutably asinine assertion of battery, because they were failing Mr. Black’s science class, indeed, Mr. Black was wrongfully removed from his teacher position at Piper High School in the first place. It is fiercely urgent that you, Dr. Melita, and the School Board of Broward County, Florida, be aware that the students’ sickening battery hoax, which has been wantonly compounded by the draconian intimidating threat to terminate Mr. Black, has unfortunately caused Mr. Black’s family and himself exceptionally grave pain and suffering. This horrific suffering Mr. Black has been unnecessarily forced to go through since October 3, 2003, has rendered him psychologically, emotionally, physically and professionally harmed. Mr. Black immutably practiced the highest professional and ethical standards in his committed teaching duties at Piper High. Now, it is egregiously unfair to negligently dump Mr. Black back in a teacher position after his character clearly has been irreparably defamed by the mendacious students and the unjust Professional Standards Committee. Respondent’s correspondence caused Dr. Melita to be concerned as to Respondent’s emotional and mental stability. Before the commencement of the next school year (2004- 2005), Petitioner transferred Respondent from Piper High to Boyd Anderson High School (Anderson High). Respondent strenuously objected to the transfer. The decision to transfer him was made by the appropriate area office, based on a determination that his return to Piper High might disrupt the instructional program. Respondent made his objections to the transfer known by writing letters to School Board supervisory level employees, and others. Frances Bolden, the area director, communicated with Respondent about his transfer to Anderson High, and explained that she would meet him at the school to help him get acclimated. On Tuesday, August 10, 2004, Respondent reported to Anderson High. He met with Principal Timothy Gadson and Ms. Bolden twice on that day, with a faculty meeting intervening between the two meetings. Ms. Bolden described Respondent as being very anxious and nervous, despite the fact that it was a planning day before the school year commenced and no students were on campus that day. Following their meetings with Respondent on August 10, 2004, Dr. Gadson and Ms. Bolden referred Mr. Black to SIU based on the following statements he made: He was not comfortable in teaching students; He feared for the safety of the students; He had a condition that prevented him from going in the classroom; He had been out of the classroom since October 2003; and If he were forced to go into the classroom, he would leave Boyd Anderson within one week. He could not teach as he was under a doctor's care through EAP; He could not be at this school; His doctor told him that he could not work with students; and He needed help. Based on these concerns, Dr. Melita required Respondent to submit to a fitness for duty assessment pursuant to Policy 4004. Respondent was provided with a copy of the policy and procedures.1 On August 23, 2004, Respondent selected and met with Dr. Mendoza, who was on the School Board approved list. Dr. Mendoza found that Respondent was not fit for duty at that time. Respondent was formally referred to the Employee Assistance Program (EAP) and advised to follow up with Dr. Mendoza within 90 days. Respondent returned for a follow-up evaluation with Dr. Mendoza on November 10, 2004, after which Dr. Mendoza recommended that he be returned to work "in low stress settings while continuing to receive therapeutic treatment." Respondent was returned to work effective November 22, 2004, but Petitioner transferred Respondent from Anderson High to Rickards Middle School, in an attempt to comply with Dr. Mendoza’s recommendation that he be placed in a low stress setting.2 Prior to December 8, 2004, the Florida Department of Education (DOE) started an investigation into the 2003 incident at Piper High. As a consequence of that investigation, Respondent hired certain college students who, along with Respondent and some others, reenacted Respondent’s version of the events that had led to the charges of battery. Respondent videotaped the reenactment and forwarded a copy of the videotape to the DOE investigator. The DOE investigator became concerned that Respondent may have violated the Principles of Professional Conduct for the Education Profession by using high school students as part of the reenactment. On or before December 8, 2004, the DOE investigator made contact with Respondent. Respondent became distraught after that contact. On December 8, 2004, a school based administrator from Rickards Middle School contacted SIU because of concerns about Respondent. Charles Rawls (a SIU supervisor) and Richard Mijon responded to Rickards Middle School and met with Respondent. Respondent admitted that he was concerned about a possible new investigation by DOE. Respondent stated that he was too upset to be at the school and too upset to be around children and he was sent home for the day. The next day, December 9, 2004, Dr. Melita requested a second fitness for duty assessment pursuant to Policy 4004. Again, Petitioner provided Respondent a copy of the pertinent policy and procedures. Of the School Board approved psychologists, Respondent chose Dr. Forman to provide his initial evaluation. On December 15, 2004, Respondent met with Dr. Forman for the initial evaluation. Dr. Forman prepared a report (Petitioner Exhibit 32) which, together with his testimony at the formal hearing, detailed the manner in which he conducted the evaluation, the tests he administered, the reasons he selected the tests he utilized, the results of the tests, and his interpretation of his results. Dr. Forman found that Respondent was not fit for duty. Respondent was again referred to the EAP and advised to follow up with Dr. Forman within 90 days. Respondent objected to Dr. Forman's initial evaluation because, Respondent alleged, Dr. Forman's behavior was inappropriate, and Respondent asked for a new evaluation. Respondent’s objections were made both orally and in writing. On December 15, 2004, Respondent wrote Mr. Mijon the following letter: As instructed by you I did in fact promptly report to my 1:00 p.m. appointment with [Dr. Forman] for the purpose of submitting to a Fit For Duty Psychological Exam. However, I quickly became extremely uncomfortable with Dr. Forman’s deportment when he began articulating extremely graphic and indecent profanity during his evaluation session with me. Dr. Forman even questioned whether or not racism was a motivating factor in my circumstances for being ordered to take the Fit For Duty Psychological Exam. I specifically told Dr. Forman that I did not feel comfortable with his conversation and kindly asked him to please change the subject. Dr. Forman continued the besetting conversation for a while longer. Considering Dr. Forman’s clearly inappropriate conduct unbecoming a psychologist, I understandably, feel highly uncomfortable entrusting the unwavering integrity and irrefutably unbiased interpretation of my Fit For Duty Psychological Exam results in Dr. Forman’s questionable care. Moreover, my vital employment wherewithal depends on the strict accuracy and reliability of the Fit For Duty Psychological Exam, which Dr. Forman administered with suspect. Naturally, due to the immensely inappropriate conditions in which I was unfairly subjected to take the required Fit For Duty Psychological Exam, which in and of it self [sic] in part of a terribly stressful 400-question test, I am certainly poised to vigorously challenge the exam results. As such, I respectfully request that you immediately abrogate Dr. Forman’s exam results and allow me a fair opportunity to select a professional and competent psychologist to properly administer the Fit For Duty Psychological Exam. Pursuant to the School Board's Policy 4004, Respondent was entitled to seek a second opinion by being evaluated by a separate School Board approved psychologist of his choosing, but at Respondent’s expense. Respondent chose psychologist Steven Shiendling, Ph.D., for the second opinion. Dr. Shiendling met with Respondent on March 14 and 15, 2005. His evaluation consisted of face-to-face interviews lasting a total of 2.5 hours. Dr. Shiendling did not administer any standardized testing in his evaluation. Dr. Shiendling found that Respondent was fit for duty. In accordance with Policy 4004, Dr. Hohnecker was selected to provide the third evaluation of Respondent (with Dr. Forman and Dr. Shiendling having provided the first two evaluations) at Petitioner’s expense. This evaluation occurred April 1, 2005. Dr. Hohnecker’s thorough report (Petitioner’s Exhibit 36) and her testimony at the formal hearing established that Respondent was not fit for duty as of the date of the evaluation "by reason of inappropriate outbursts of anger and intense anxiety." As of April 1, 2005, Respondent was not fit for duty as a classroom teacher. Dr. Hohnecker made recommendations that, if satisfied, would warrant Respondent’s return to work. Dr. Hohnecker further recommended that Respondent not be returned to Piper High School, which Respondent still wanted to do, until the students involved in the September 2003 incident had graduated. Respondent was, again, recommended to the Employee Assistance Program and advised to follow up with Dr. Forman. On April 20, 2005, John P. Molinari, a psychotherapist who worked with Respondent through Petitioner’s EAP, sent the following letter to Michelle Moore of Petitioner’s EAP: I met with Mr. Clinton Black today as part of our ongoing treatment. Mr. Black appears much less anxious with a high degree of motivation to return to work. In view of this, I recommend that Mr. Black return to Dr. Forman to be reevaluated for his fit for duty status. Mr. Mijon advised Respondent to report to Dr. Forman on May 12, 2005, for his reevaluation. Respondent objected to returning to Dr. Forman. On April 28, 2005, Mr. Mijon informed Respondent that he would be guilty of insubordination if he did not keep the appointment with Dr. Forman. Dr. Forman was selected to provide the reevaluation pursuant to the Policy 4004 procedures. Between Dr. Forman’s initial evaluation of Respondent and his reevaluation, Mr. Mijon told Dr. Forman that Respondent had lodged complaints about the manner in which the initial evaluation had been conducted. Mr. Mijon told Dr. Forman that Respondent considered the initial evaluation to have been unprofessional and invalid. Mr. Mijon did not go into the specifics of Respondent’s complaints. Mr. Mijon had also told Dr. Melita about the complaints Respondent had as to Dr. Forman’s initial evaluation. At some undetermined point, Respondent lodged complaints against Dr. Forman with the American Psychological Association (APA) and the Florida Department of Health, Board of Psychology (DOH). On May 4, 2005, Respondent hand delivered the following letter to Mr. Mijon with copies to Dr. Till, Dr. Melita, and Michelle Moore: Due to the egregious harassment and verbal abuse Dr. Bruce Forman wrongfully inflicted upon me during my initial fit for duty session, I respectfully urge you to immediately rescind your intimidating treat [sic] to terminate me should I not report to Dr. Forman, due to my resulting genuine fear and discomfort, for the second appointment you have scheduled for me on May 12, 2005. As I previously formally documented to you, Dr. Joe Melita, Mr. Charles Rawls and Ms. Michelle Moore via letter, I factually suffered excruciating and debilitating harassment and verbal abuse while under the care of Dr. Bruce Forman during my initial fit for duty assessment on December 15, 2004. However, my authentic complaint was apparently inappropriately ignored. Furthermore, due to the fact that I have appropriately filed two investigative complaints against Dr. Forman for the abject harassment and verbal abuse he inflicted upon me during my initial fit for duty exam, it clearly would be overwhelmingly inappropriate for me to return to Dr. Forman for a second fit for duty assessment under these brutal circumstances Dr. Forman has inappropriately forced upon me. Naturally, I feel extremely afraid and uncomfortable returning to Dr. Forman for a second fit for duty assessment under his inappropriate care and thus would be incapable of relaxing and focusing for proper testing as I rightfully deserve and should have the fair and equal opportunity to do so during a valid fit for duty exam. Therefore, I unambiguously urge you to withdraw at once your intimidating treat [sic] to terminate me and cancel your scheduled May 12, 2005 appointment for me with Dr. Forman due to the exceptionally grave harassment and verbal abuse Dr. Forman wrongfully inflicted upon me. Mr. Mijon ordered Respondent to be reevaluated by Dr. Forman because he believed that paragraph 12 of the Policy 4004 procedures provided no other option than to require Respondent to be re-evaluated by the same psychologist (Dr. Forman) who performed the initial evaluation. Dr. Melita interprets paragraph 12 more liberally than Mr. Mijon. Dr. Melita testified beginning at page 47 of Volume I of the Transcript as follows: Q. Were you made aware that Mr. Mijon was sending Mr. Black back to see Dr. Forman for re-evaluation? A. Yes. If I remember correctly, because I asked why, from what I understand it was that Mr. Black said it was okay. Q. Now, did you understand that Mr. Black initially refused to go back to see Dr. Forman? Were you made aware of that? A. Yes. Q. Were you aware that Mr. Mijon then told him that if he did not go back to see Dr. Forman that he would be terminated for insubordination? A. That’s not what I was aware of, because I questioned why he was going back to Forman if there was an issue. According to what I believe to be what Mr. Mijon told me was that that was Mr. Black’s decision. Q. So you think it was Mr. Black’s decision to go back to see Dr. Forman? A. Yes, as odd as I thought it was. Q. So if Mr. Black had, in fact, had some problem with Dr. Forman, from your perspective, he should have gone to see a different doctor other than Dr. Forman, correct? A. Yes. If I remember correctly, my normal process is, Why would he go back to somebody who he has an issue with? Mr. Mijon’s response, if I remember correctly, was that Mr. Black said he had no problems going back to Mr. Forman. That’s the best of recollection. Q. So if Mr. Mijon, in fact, threatened Mr. Black with termination if he refused to go back to see Dr. Forman, that would not be consistent with your view of what should happen? A. That’s absolutely correct. I would not like to see anybody threatened. Dr. Forman was unaware of the complaints Respondent had lodged with the APA or the DOH until after Petitioner took action to terminate Respondent’s employment. Consequently, these complaints had no influence on the report Dr. Forman filed following his May 12, 2005, evaluation of the Respondent.3 Respondent agreed, under protest, to be reevaluated by Dr. Forman, but only on the condition that Dr. Forman would allow him to record the session. Dr. Forman agreed to have the session recorded on the condition that Respondent would provide Petitioner with a copy of the taped session. Respondent agreed to that condition. Respondent recorded the reevaluation session of May 12, 2005. Despite numerous requests, no tape was ever provided. Respondent testified that the tape was destroyed during Hurricane Wilma, which, according to the National Hurricane website, hit South Florida in October 2005. Dr. Forman testified at the hearing as to both the evaluation and the reevaluation. Reports as to his evaluation and his reevaluation were admitted into evidence. Dr. Forman again found that Respondent was not fit for duty on his reevaluation. The undersigned finds Dr. Forman’s testimony to be clear, professional, and persuasive. There was insufficient evidence to establish that the complaints Respondent lodged against Dr. Forman to Mr. Mijon had any bearing on Dr. Forman’s reevaluation. There was also insufficient evidence to establish that Dr. Forman should have been disqualified from providing the reevaluation. Dr. Forman’s Reevaluation Report (Petitioner’s Exhibit 43), provides, in relevant part, a recap of Dr. Forman’s findings as follows: . . . As I expressed to you by phone, Mr. Black appears to have deteriorated emotionally over the past five months and I am concerned that Mr. Black may be acutely psychotic. I can say unequivocally that Mr. Black is not ready to return to the classroom at this time. He was not fit to return to teaching duties the first time I evaluated him and given that his current emotional state is worsened, he is less able to function in an instructional capacity. I also believe an effort should be made to get Mr. Black psychiatric care as I am concerned about his wellbeing. . . . Petitioner established by a preponderance of the evidence that Respondent was not fit for duty as a classroom teacher as of May 12, 2005. On June 10, 2005, Respondent was notified that he would be recommended for termination from employment based on the finding that he was not fit for duty as a teacher. At its June 21, 2005 meeting, the School Board voted to terminate Respondent's employment pursuant to Policy 4004. The action to terminate Respondent’s employment was part of the consent agenda.4 In accordance with paragraph 12 of Policy 4004 procedures, Respondent could have requested a second opinion, following the reevaluation by Dr. Forman. Respondent did not request another evaluation. He no longer trusted the process, and stated that he could not obtain another evaluation for financial reasons. Subsequent to the School Board’s vote in June 2005, Respondent went off of the School Board approved list, looked in the yellow pages, and retained some other therapists, psychologists and/or psychiatrists to perform evaluations. Those subsequent evaluations were not offered into evidence.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent’s employment. DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2009.
Findings Of Fact James D. Alford, III, was initially employed by the Board of Education in the Public Schools of Duval County, Florida during January of 1973. Respondent holds teacher's certificate no. 333009, graduate, rank 3 and is a graduate of Tuskegee Institute where he received a B.S. Degree in Industrial Arts. For approximately two and one-half years subsequent to January, 1973, he was assigned to southside Junior High School as an Industrial Arts Special Education Teacher in a pilot program. It appears that there is no difference in the qualification required for teachers of industrial arts in special education programs as opposed to other industrial arts teachers that are certified in industrial arts. In addition to his employment with the Duval County School Board, Respondent served in a student teacher training program for nine weeks in Montgomery, Alabama. Respondent, during his assigned duties for the Duval County School Board, taught a special education industrial arts class consisting of seventh, eighth and ninth grade students. He trained students how to safely use tools and to perform projects requiring the use of industrial arts tools. He assigned students projects based on their manipulative skills. He noted that "special ed" students had to be trained to use even the simplest tools such as hand saws. Respondent testified that discipline was a major problem in teaching "special ed" students and that for the first and/or minor offense, he attempted to discipline students by verbal commands and that when that failed he sent students to the Dean's Office. He denied ever using physical force to punish students for unruly conduct. His testimony is that his only physical contact with students was to restrain them from physical acts and it suffices to say that he denied all of the allegations filed by the Council in its petition to revoke his teaching certificate. Respondent was aware of the Board's policy respecting discipline and testified that he never administered corporal punishment to students. Following altercations with two students during late 1974, Respondent was offered transfers on at least two occasions which he declined because he "had recently received approximately $5,000.00 of new shop equipment" and further that he wanted to remain at Southside for a sufficient period in order to administer in a smooth and efficient manner the special ed industrial arts program at Southside. The first significant incident involving the Respondent occurred during December of 1974 during an altercation with one of his students i.e., Gary Roary. According to Respondent, Roary initially hit him whereupon he retaliated by striking him back. Roary then left the room, picked up a two by four and returned to the classroom where Roary attempted to hit Respondent. Respondent, in an effort to snatch the two by four from Roary, shoved him causing him to fall on a saw. Roary sustained an injury which required three sutures at the emergency room at a local hospital. Respondent states that he did not know that Roary had injured himself until he was later called to the office where he was told to meet with Mr. Buford Galloway. The Principal, J. R. McDaniel, investigated the incident involving Gary Roary and concluded that Respondent was "rather rough with Gary". See Petitioner's Exhibit #1. Respondent testified that the incident occurred during a demonstration of a "boomerang" that he had constructed to motivate students to make one. He first threw the boomerang and then a student threw it. When the student threw the boomerang, it struck a teacher's car which resulted in a scratch. One of the students relayed this information to the teacher involved, Ms. Williams, whose car was parked near the shop area. A brief uproar resulted when the boomerang struck Ms. William's car and Respondent grabbed Willie Critton, another student by the front of his shirt. Roary yelled for Critton to hit Respondent and evidence revealed that Respondent retorted by saying "hit me, hit me," when Roary said "hit him". Respondent released Critton and grabbed Roary and this brought about the above incident in which Roary sustained the cut. Respondent admits to pushing Roary and striking him on the right shoulder stating that this was done in self- defense. He acknowledged that it was probably a mistake for him to hit Roary. Following this incident, Respondent was transferred to another school for the remainder of the school term. Marilyn Bagby, a program coordinator for mentally retarded for the Duval County School Board testified that she has known Respondent since 1972, and that during a visit to one of his classes, she saw a student roaming the hallway in front of his class. She testified generally that she was able to determine that students had been left out in the hall for periods up to approximately three weeks. However Mrs. Bagby was not specific in her testimony respecting these incidents and for these reasons, little weight can be attached to her testimony. Lowell T. Hudson, Industrial Arts Superintendent for the Duval County School Board, testified that the Respondent's class was properly equipped and that during his visits to Respondent's class, he noticed discipline problems. Mr. Hudson was involved in one conference concerning the disciplinary procedures utilized by Respondent and during a subsequent incident, Respondent was transferred. Joseph R. McDaniels, the Prinicpal at Southside High for approximately four years and an employee for approximately 19 years testified respecting approximately five conferences concerning Respondent and his disciplinary techniques. On three of these conferences, he wrote memos respecting the details of such conferences. He explained the City wide disciplinary policy to Respondent and cautioned him against using corporal punishment to discipline students. He recalled that two conferences occurred during May of 1974 and a third conference occurred during December of 1974. Ms. Eleanor Williams, the instructor whose car was struck by the boomerang which was thrown by one of Respondent's students, testified that Respondent assisted her on one occasion in a dispute with a student who was fighting another student. Respondent requested that Ms. Williams go to his office to obtain his stick which she refused and thereafter he asked the students to go get his stick. She testified that one student who was involved in the altercation had a paring knife. Respondent, in an effort to break up the students, swung at one student and missed striking a refrigerator and a bread box resulting in a dent in the refrigerator of approximately eight inches. Respondent, according to Ms. Williams, never requested that the students stop fighting. Instead Respondent kicked one of the students, Tim Walden, and Don Jones, the other student who was involved was struck in his face. At that time, several instructors were summoned who restrained Respondent from further hitting the students. 1/ Willie J. Critton, a 16 year old eleventh grade student attended shop classes with Respondent during his eighth grade school year. He testified that on numerous occasions, Respondent bent his fingers back and twisted his fingers. He further testified that it was common practice for Respondent to expel students from his class room and force them to stand outside in the hallway. Gary Roary was called and testified substantially as other witnesses who gave testimony on the boomerang incident during December of 1974. Specifically, he testified that Respondent hit Willie Critton and thereafter grabbed him. During the above incident, he was shook by Respondent and struck in the mouth. When he broke away from Respondent, he left the classroom, obtained a stick and entered the room. Upon his return, he swung at Respondent and fell when Respondent shoved him and his head struck a saw. This resulted in the cut referred to above which required three stitches. Betty Allison, a qualified expert in mental retardation, testified that while discipline is a problem in teaching EMR students (Educable Mentally Retarded), she objected to the disciplinary procedures utilized by Respondent calling them inappropriate in EMR situations. She testified that to be effective, EMR instructors must devise well organized lesson plans and that classroom instruction must be motivating in order to secure and retain the students' attention. Other witnesses testified that EMR students cause more discipline problems than others and generally testified that Respondent was effective as most instructors in teaching EMR students. Section 231.28, Florida Statutes, 1975, empowers the Department of Education to suspend or revoke a valid Florida Teaching Certificate held by an individual who is committing or has committed certain acts or omissions which justify revocation or suspension on grounds enumerated in the statute. One of the grounds as provided in the statute exist when the teacher, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board. Here the Petitioner seeks revocation of the Respondent's teacher's certificate based on the fact that he has allegedly engaged in numerous offensive activities, which has seriously impaired and reduced his effectiveness as an employee. After careful consideration of all the evidence adduced herein, the testimony of witnesses and the arguments of counsel, I conclude that the disciplinary measures used by the Respondent departed from the county's established procedure for disciplining students and despite repeated warnings that he refrain from corporally punishing students, he continued to do so. His conduct in the Gary Roary and Willie J. Critton incident on December 3, 1974, is exemplary of his disciplinary methods. Based thereon and the entire record herein, I find that Respondent's usefulness as a teacher-employee has been reduced within the meaning of Section 231.28, Florida Statutes.
Recommendation Based on the foregoing finding of facts and conclusions, I hereby RECOMMEND: 1. That the Respondent's teaching certificate be suspended for a period of one year. DONE AND ENTERED this 10th day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent, Miami Fitness, Inc. (Miami Fitness), advised Petitioner, the Department of Agriculture and Consumer Services (Department), by letter dated October 30, 1993, that Miami had purchased the assets of Body Mystique, a health studio, and would honor all of its memberships. Miami Fitness was to begin operations as of November 1, 1994. Miami Fitness registered with the Department as a health studio and posted an irrevocable standby letter of credit for $50,000. The letter of credit was amended on July 26, 1994, to extend the expiration date to October 29, 1995. The purpose of the letter of credit is to protect the members of the health studio. Money would be available to compensate members if Miami Fitness went out of business or the members' contracts were not assigned to a facility of equal quality within a five mile radius of Miami Fitness. Refunds would be made on a pro rata basis. Body Mystique had been a women's only health studio as was it predecessor My Fair Lady. At one time Body Mystique had requested permission from the Department to turn the all women's facility into a coed health studio, but the Department denied the request. When Miami Fitness purchased Body Mystique, it continued to operate the facility as an all women health studio. The facilities occupied by Miami Fitness had been an all women's health studio for 23 years. Miami Fitness advertised and promoted the health studio as the "total fitness studio for women." It also advertised that its weight room was for women by stating: "Our weight training area is unique in that it is specifically designed for women." Miami also promoted its wet area. One advertisement stated: "We have all the amenities that a woman needs: sauna, steamroom, eucalyptus room, showers, dressing area; and great aerobic classes on a suspended wood floor, with a fully equipped weight room and cardiovascular area specifically designed for women." The contracts between Miami Fitness and its members included a provision that the member may cancel and receive a refund if Miami Fitness closes and does not provide the member with "similar facilities of equal quality" within a five mile radius of the closed facility. On February 10, 1995, Joe Alexionok, a consumer services consultant with the Department, was notified that Miami Fitness had closed its doors. By letter dated February 26, 1995, Mr. Alexionok requested Miami Fitness to advise the Department whether Miami Fitness was going to provide services or make pro- rata refunds. By letter dated March 10, 1995, Patty Kinast, President of Miami Fitness, notified the Department that Miami Fitness had made an agreement with U.S. 1 Fitness to assume Miami Fitness memberships. Having determined that U.S. 1 Fitness was not a facility of equal quality, the Department sent certified letters to the bank holding the letter of credit and to Patty Kinast that the Department would make a demand upon the letter of credit to refund members who filed a complaint against Miami Fitness because U.S. 1 Fitness was not of equal quality. A notice was also published in the Miami Post advising that anyone having a claim against Miami Fitness must file the claim with the Department by September 30, 1995. U.S. 1 Fitness is a coed health studio which is located within a five mile radius of Miami Fitness. U.S. 1 Fitness does not have a sauna, steamroom or eucalyptus room. U.S. 1 Fitness has approximately 2,500 members with approximately 900 active members. Miami Fitness had a membership of about 1,000 with approximately 400 members who were active. U.S. 1 Fitness' facility has approximately 11,000 square feet. Miami Fitness' facility had approximately 4,600 square feet. Miami Fitness was open during the following hours: Monday and Tuesday, 7:00 a.m. - 9:30 p.m.; Wednesday-Friday, 7:00 a.m - 9:00 p.m.; Saturday, 9:00 a.m. - 5:00 a.m.; and Sunday 10:00 a.m. - 5:00 p.m. U.S. 1 Fitness is open during the following hours: Monday-Friday, 5:00 a.m. - 11:00 p.m. and Saturday and Sunday, 7:00 a.m. - 8:00 p.m. U.S. 1 Fitness offers 38 exercise-type classes each week, including a yoga class on Tuesday and Thursday mornings. Miami Fitness offered 32 exercise- type classes each week with a yoga class on Tuesday and Thursday mornings and on Wednesday evening. The yoga classes at U.S. 1 Fitness are taught by the same instructor who taught morning yoga classes at Miami Fitness. U.S. 1 Fitness has exercise classes which are equal in quality to those provided by Miami Fitness. As part of the agreement with U.S. 1 Fitness, Miami Fitness transferred some of its equipment to U.S. 1 Fitness. U.S. 1 has equipment which is newer than the Miami Fitness' equipment. U.S. 1 Fitness has as good or better equipment than Miami Fitness did. U.S. 1 Fitness has babysitting services as did Miami Fitness. U.S. 1 Fitness' babysitting services are as good as or better than the babysitting services at Miami Fitness. U.S. 1 Fitness is located in well-lighted shopping center area and has as good or better security as Miami Fitness. After Miami Fitness closed, the Department received 12 written complaints from Miami Fitness members. The majority of the complaints were based on a lack of wet facilities at U.S. 1 Fitness and U.S. 1 Fitness not being an all women's facility. Most of the complainants had joined Miami Fitness because it was a women's only facility. They felt uncomfortable and self conscious exercising in a coed facility. They liked the facility because it was small, not crowded, and had a friendly, intimate atmosphere. At least two of the complainants had visited U.S. 1 Fitness before signing up with Miami Fitness and preferred Miami Fitness over U.S. 1 Fitness. While Miami Fitness was operating, between 25 and 50 members regularly used the wet facilities each week. U.S. Fitness 1 is not a facility of equal quality to Miami Fitness as it relates to the wet area and the membership being exclusively women.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Miami Fitness, Inc. did not provide its members with a facility of equal quality and that the twelve written claims made by the members of Miami Fitness, Inc., because it was not a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit given to the Department of Agriculture and Consumer Services by Miami Fitness, Inc., and that any written claims filed on or before September 30, 1995 by members on the basis their contracts were not assigned to a facility of equal quality be certified as valid claims against the irrevocable standby letter of credit. DONE AND ENTERED this 25th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 25th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2964 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: Rejected as unnecessary detail. Paragraphs 16-21: Accepted in substance. Paragraph 22: The first, fifth, sixth, seventh, ninth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 23: The first, fourth, and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 24: The first, fourth, fifth and sixth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 25: The first, second, third, sixth, and eleventh sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 26: Rejected as unnecessary. Paragraph 27: Accepted in substance. Paragraph 28: The first, third, sixth, and seventh sentences are accepted in substance. The eighth sentence is rejected as not supported by the greater weight of the evidence. The remaining is rejected as unnecessary detail. Paragraph 29: The first, third, fourth, fifth, seventh, eighth, and fourteenth sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 30: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 31: Accepted in substance. Paragraph 32: The first and third sentences are accepted in substance. The remaining is rejected as unnecessary detail. Paragraph 33: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 34: Rejected as unnecessary. Paragraph 35: Accepted in substance. Paragraph 36: The fourth sentence is accepted in substance. The remaining is rejected as unnecessary detail. Paragraphs 37-40: Rejected as subordinate to the facts found. Paragraph 41: The third, fourth, eighth, ninth and tenth sentences are accepted in substance. The fifth sentence is accepted in substance as it relates to equipment and number of classes but not as to atmosphere. The remainder is rejected as unnecessary. Paragraphs 42-43: Rejected as unnecessary. Paragraph 44: The fifth sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 45: The first, fourth, sixth, seventh, eighth, eleventh, and twelfth sentences are accepted in substance. The ninth sentence is rejected as it relates to those women who filed complaints because U.S. 1 Fitness was coed. The remainder is rejected as unnecessary detail. Paragraph 46: Rejected that the facilities were comparable. Paragraph 47: Accepted in substance except U.S. 1 Fitness had 38 classes. 26. Paragraph 48: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-14: Accepted in substance. Paragraph 15: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the wet facility at Miami Fitness was not a reason for choosing Miami Fitness and was not used or enjoyed by it members. Paragraphs 16-17: Accepted in substance. Paragraph 18: Rejected as subordinate to the facts found. COPIES FURNISHED: Lawrence J. Davis, Esquire Office of the General Counsel Florida Department of Agriculture & Consumer Services The Capital, Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Lloyd B. Silverman, Esquire 2800 West Oakland Park Boulevard, Suite 201 Oakland Park, Florida 33311 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
