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
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY 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 22d day of November, 1994.
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 At all times material hereto, Respondent was employed by Petitioner on a continuing contract as a physical education teacher at North Ward Elementary School in the Pinellas County school system. Respondent holds a professional teaching certificate number 495697, issued by the State of Florida, Department of Education. On April 6, 1988, Respondent was conducting a physical education class at North Ward Elementary School. The students were playing "T-ball" outdoors, and during the game, one student, Michelle Washington, became upset with Respondent when she told the teams to change sides in order to allow all students to have a turn at bat. The student ran up to Respondent and began screaming in her face. Respondent asked her several times to stop and to calm down, but the screaming continued for between thirty and forty-five seconds. When it became apparent that Washington would not calm down, and after trying to verbally quiet her, Respondent slapped Washington on the cheek. No marks or bruises resulted, and at the end of the class period Respondent and Washington hugged and apologized to each other. Respondent reported the incident immediately to her principal, and also called the student's mother to apologize. During December, 1987 and January, 1988, Respondent grabbed Amudin (Deenie) Tzekas by the jaw, and Jason Owens by the arm in order to discipline and quiet them. These actions caused no physical injury to either student, and were not reported by Respondent or the students at the time. Based upon the testimony of students involved in these incidents, as well as Respondent's own testimony, the testimony of her principal, Marcia Morgan, and a written summary prepared by Steven Crosby of a conference held within a week of the incident involving Michelle Washington, it is found that Respondent slapped Washington on the face on April 6, 1988, after having grabbed Tzekas by the jaw and Owens by the arm earlier in the school year. These actions were taken by Respondent as forms of discipline, and to maintain control in her classes. Based upon the testimony of Marcia Morgan and Steven Crosby, who were accepted as experts in education, Respondent's actions involving these three students impair her effectiveness as a teacher due to the loss of respect among students and parents which has resulted. She failed to exercise good profession judgment, and instead her actions caused embarrassment to her students. This conduct by a teacher impairs the teaching profession as a whole. According to school board policy, teachers should never touch students in a punitive manner. By proper notice to Respondent, Petitioner sought to impose a three day suspension without pay as a result of these incidents, and Respondent has timely sought review of this proposed action. In August, 1987, prior to these incidents, Respondent was counseled by Marcia Morgan, her principal, about getting angry with people. Morgan told Respondent that if she violated school board policy, she could not help her.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a three day suspension without pay upon Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of October, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2291 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. Rejected as a finding of fact since this is a conclusion of law. Adopted in Finding of Fact 6. Rejected as not based on competent substantial evidence in the record. 6-8. Rejected since these are conclusions of law. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. 11-13. Adopted in Findings of Fact 3 and s. 14-15. Rejected as irrelevant and unnecessary. 16-17. Adopted in Finding of Fact 4. 18. Rejected as unnecessary. 19-20. Adopted in Finding of Fact 6. Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 6. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2 and 7. Adopted in Finding of Fact 7. Adopted and Rejected, in part, in Findings of Fact 3, 5. Rejected in Findings of Fact 4 and 5. Rejected as irrelevant and unnecessary. Rejected in Findings of Fact 4 and 5. Rejected in Finding of Fact 8. COPIES FURNISHED: Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Charleen C. Ramus, Esquire Post Office Box 75638 Tampa, Florida 33675
The Issue Whether Petitioner established “just cause” to discipline Respondent as a teacher.
Findings Of Fact Since 2004, Ms. Gardner has been employed by the Glades County School District as a teacher. During the 2009-2010 school year, she taught language arts to middle school students at West Glades School. During the relevant time period, Ms. Gardner worked under a professional service contract. A teacher's professional service contract automatically renews each year, and the contract can be terminated only by a showing of “just cause” or by performance deficiencies outlined in section 1012.34, Florida Statues. On April 16, 2010, Ms. Gardner was teaching language arts to seventh grade students. The students were supposed to be working on the language arts assignment. However, as Ms. Gardner walked around the class, she found some students working on their math homework. Frustrated by students doing math homework during her language arts class, Ms. Gardner confiscated the students' math work. In one instance, Ms. Gardner tore a student's math homework in half. One of the students whose math work Ms. Gardner confiscated was C.H. C.H. was generally described as a "good student." Ms. Gardner placed C.H.'s math workbook on a table near Gardner's desk at the front of the room, and redirected C.H. to the language arts assignment. At some point in the class, C.H. walked up to the front of the classroom and removed her math workbook from the table without Ms. Gardner's permission. As C.H. turned to walk back with her book, Ms. Gardner forcefully grabbed C.H.'s arm from behind. C.H. credibly testified that Ms. Gardner "grabbed my arm and turned me around and pushed me, and my books fell." C.H. started crying, and walked out of the classroom. As C.H. was leaving the classroom, Ms. Gardner told C.H. to return to her desk. C.H. stated that she was crying because she was "shocked." C.H. walked to the School's office, which is in the same hallway as Ms. Gardner's class. When she arrived at the office, C.H. was crying and visibly upset. The school guidance counselor took C.H. to speak with Principal Davis. Principal Davis found C.H. to be "distraught, crying, [and] shaking." Principal Davis spoke with C.H. to determine why the student was upset. C.H. informed Principal Davis that Ms. Gardner had become angry with C.H., and that Ms. Gardner had snatched C.H.'s books, grabbed her arm and pushed her. Based on the seriousness of the allegation, Principal Davis decided to immediately investigate C.H.'s claims by obtaining statements from C.H.'s classmates. After the language arts class, the next class for C.H. and her classmates was math taught by Ms. Wills. Before the math class began, Ms. Gardner came to Ms. Wills' class and gave her C.H.'s workbook and other students' papers. Ms. Gardner informed Ms. Wills that several of the students had been doing math homework when the students should have been doing their language arts work. Ms. Wills credibly testified that Ms. Gardner was "really upset" with students doing their math homework in her class, and appeared agitated. Shortly after Ms. Wills' class began, Principal Davis came to speak with the students. Principal Davis released Ms. Wills to take an early lunch, and then asked the students to write down anything "bothersome" that has happened in Ms. Gardner's class during the prior period. A majority of the students provided written statements that, in essence, corroborated C.H.'s story. After reviewing the students' statements, Principal Davis decided she needed to investigate further. Principal Davis met with Ms. Gardner and advised her about C.H.'s allegation that Ms. Gardner had inappropriately touched C.H. Because the investigation could result in discipline, Ms. Gardner decided to have a union representative present when she gave her statement. Further, Principal Davis informed Ms. Gardner that Ms. Gardner should go home until the investigation was completed. On April 21, 2010, Ms. Gardner gave her statement to Principal Davis. Ms. Gardner admitted to confiscating C.H.'s math notebook and calculator. Ms. Gardner indicated that later in the class C.H. walked across the room and retrieved her math notebook without permission. Ms. Gardner stated that she merely "touched" C.H.'s arm to redirect the student, and to put the math notebook back on the table. C.H. dropped the math notebook, and left the class. According to Ms. Gardner's interview, she did not forcefully grab C.H.'s arm. Ms. Gardner's testimony that she merely "touched" C.H.'s arm was consistent with the interview given to Principal Davis. The undersigned finds Ms. Gardner's characterization that she only "touched" C.H.'s arm without force not to be credible. Ms. Gardner's testimony concerning the events was often evasive on key points. For example, when asked if she recalled that C.H. was crying when leaving the classroom, Ms. Gardner indicated that she did not. Yet, in her deposition, taken just a week earlier, she testified that C.H. was crying when she left the classroom. Similarly, Ms. Gardner was evasive concerning questions about whether or not she acted in frustration or her understanding that the change in her contract status was the result of her touching C.H. As a result of Ms. Gardner's evasiveness, the undersigned found her credibility damaged. C.H. did not receive any physical injury from the incident on April 16, 2010. After completing her investigation on April 21, 2010, Principal Davis provided Wayne Aldrich, superintendent for Glades County School Board, with the following recommendation: As a result of a battery allegation by a student against Ms. Gardner, I have conducted a thorough investigation and found the allegation to be substantial. Ms. Gardner has been suspended with pay since the incident occurred on Friday, April 16. As a result, I have followed protocol required by the Florida Department of Education Office of Professional Practices and I am recommending the following action: Placement of a narrative of my investigation in her personnel file. Change of her contractual status to fourth year annual for 2010-2011 school year. Recommendation of termination if any further substantiated incidents of intentional physical contact with a student occur. I am requesting that she return to the classroom on Friday, April 23, 2010. Principal Davis testified that she considered the recommended change in Ms. Gardner's contract status from a professional service contract to a "fourth year annual contract" as less severe than termination or suspension. A "fourth year annual contract" would allow Ms. Gardner to return to professional service contract after being on an annual contract for one year. Principal Davis explained that Ms. Gardner had been evaluated as a high-performing teacher in the past, and it was hoped that she would return to that level after this discipline. At the end of the 2009-2010 school year, Principal Davis evaluated Ms. Gardner as "needs improvement." Under the comments section, Principal Davis noted "offer to wait for 2010 FCAT declined." There was no evidence tying this "needs improvement" evaluation to the incident that occurred on April 16, 2010. Superintendent Aldrich reviewed Principal Davis' investigation and recommendation. Based on his review, Superintendent Aldrich recommended that the School Board follow Principal Davis' recommendation, including the change in Ms. Gardner's contract status. Similar to Principal Davis, Superintendent Aldrich believed that the change in Ms. Gardner's contract status was less severe than a suspension. Superintendent Aldrich testified that a teacher should use physical force only "if the student was out of control and would be in a position to do physical harm to another student or themselves." However, no School Board Policy concerning the use of physical force was offered into evidence. The School Board, without notice to Ms. Gardner concerning her rights to an administrative hearing, adopted Principal Davis' recommendations. Ms. Gardner, subsequently, requested a formal administrative hearing and reconsideration of the School Board's decision. The School Board denied her request, finding that Ms. Gardner had waived her right to a hearing. Ms. Gardner filed an appeal. The Second District Court of Appeal found the following: It is undisputed that the Board did not give Ms. Gardner written notice of her right to seek administrative review and the time limits for requesting a hearing. Under these circumstances, the Board failed to provide Ms. Gardner with a point of entry into the administrative process before taking adverse action on her contract status. It follows that Ms. Gardner did not waive her right to request a formal hearing. Consequently, the appellate court reversed the School Board's decision, and remanded the case for further proceedings. Gardner v. Sch. Bd. of Glades Cnty., 73 So. 3d 314 (Fla. 2d DCA 2011). While Ms. Gardner's appeal was pending before the Second District Court of Appeal, Ms. Gardner worked under the fourth year annual contract for 2010-2011 school year. At the end of the 2010-2011 school year, Ms. Gardner's annual contract was not renewed. On remand, the School Board issued a May 16, 2012, letter, notifying Ms. Gardner of her rights to an administrative hearing. The School Board framed the issue as “to challenge the change in her contract status from a professional service contract for fourth year annual contract.” In the Joint Pre- Hearing Stipulation, the parties identified a factual issue for resolution as “[w]hether Gardner's physical contact with the student, C.H., constitutes “just cause” for discipline.” Further, the parties’ stipulation identified three disputed issues of law: 1) Whether the disciplinary options available to Petitioner included placement of Ms. Gardner on a fourth year annual contract status; 2) whether the placement of Ms. Gardner on fourth-year annual contract status was the appropriate discipline; and 3) whether the School Board's action in denying Ms. Gardner's request for a formal hearing in July 2010 renders the placement of Gardner on a fourth-year annual contract status for the 2010-2011 school year, and the non-renewal of her annual contract at the end of the 2010-2011 school year void ab initio. Before considering the legal issues identified by the parties, it is clear that the factual dispute of whether or not “just cause” exists must be addressed first. If “just cause” does not exist, then the issue of the penalty becomes moot. At the hearing, the parties presented testimony concerning the facts underlying the School Board's action here, and whether or not “just cause” existed to sanction Ms. Gardner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Glades County School Board enter a final order finding: The record contains insufficient evidence of "just cause" in order to discipline Ms. Gardner; and Pursuant to section 1012.33(6)(a), Florida Statutes (2010), immediately reinstate Ms. Gardner under her professional service contract and pay her back salary. DONE AND ENTERED this 11th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2013.
Findings Of Fact Goodman holds Florida teaching certificate number 295031, post-graduate rank III, valid through June 30, 1983 covering the areas of physical education and junior college. At all times pertinent hereto, Goodman was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Goodman was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Goodman prepared a student attendance register for the summer school of 1978 physical education class beginning June 16, 1978, and ending July 28, 1979. That register reflects 28 enrolled students in the course. Goodman also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 29, 1978, and shows 28 students enrolled in physical education. The second is dated July 10, 1978, and reflects 27 full-time students enrolled in physical education. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Goodman. Jacquelyn Merritt enrolled in the summer school physical education course but never attended. Nonetheless, the attendance register shows Ms. Merritt as having attended 28 days. Ms. Merritt was awarded the grade of "B" for the course. Lorretta Roundtree neither enrolled nor attended physical education class. Nonetheless, the attendance register reflects 30 days attendance and Ms. Roundtree received a grade of "A" for the physical education course. Patricia Willis never attended the physical education class although she did enroll. The student attendance register reflects that Ms. Willis attended 30 days and received a grade of "B" for the physical education course. Cimmie McBride attended the physical education class for about a week. However, the class attendance register reflects 30 days attendance for Ms. McBride and she ultimately received a grade of "A" for the physical education course. Shelia Jackson attended one day of physical education during the summer school session but the student attendance register reflects 28 days attendance. Ms. Jackson received a grade of "B" for the physical education course. Carla Todd did not enroll in nor attend the summer school physical education class but the student attendance register shows Carla Todd being present for 30 days. Ms. Todd received a grade of "A" for the physical education class. Raymond Riley did not attend the summer school but the student attendance register reflects 28 days attendance and Mr. Riley received a grade of "B" for the physical education course. Steve Simon never attended summer school but the student attendance register reflects 29 days attendance and Mr. Simon received a grade of "B" for the physical education course. Deidra Sampson enrolled in the physical education course for the summer school session and attended three or four days. However the student attendance register reflects 30 days attendance and Ms. Sampson was awarded a grade of "A" for the physical education course. Claudia Tyson never enrolled in nor attended physical education during the summer school session hut the student attendance register reflects 28 days of attendance and Ms. Tyson received a grade of "B" for the physical education course. Martin Vaughn attended one day of physical education during the summer school session but the student attendance register reflects 30 days of attendance. Mr. Vaughn received a grade of "B" for the physical education class. Sharon Williams enrolled in the physical education course but never attended any classes. Nonetheless, the student attendance register reflects 30 days attendance and Ms. Williams received a grade of "A" for the physical education course. Hellen Pinkney enrolled in the physical education course for the summer school session but never attended. Nonetheless, the student attendance register reflects 30 days attendance and Ms. Pinkney received a grade of "A" for the physical education class. Willie Ward attended the physical education class during summer school for approximately one week. The student attendance register reflects 29 days attendance and Mr. Ward received a grade of "B" for the physical education class. It was Goodman's responsibility to prepare the student attendance registers and grade reporting forms for her class. The evidence establishes that Goodman's signature appears on those forms which reflect inaccurate attendance data and the award of undeserved grades. Goodman signed her name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the physical education class. Had the class been cancelled, Goodman would not have received remuneration for her services as a physical education instructor during that summer session of school. The evidence does not establish Goodman's motivation as being that of protecting her income or insuring that the course was made available to those students who did attend. Goodman's efficiency ratings reflect that she is an otherwise effective teacher.
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent left a kindergarten student, K.M., alone in her classroom on April 2, 2018, as alleged in Petitioner’s Administrative Complaint.
Findings Of Fact Based on the record and evidence presented at the hearing, the undersigned makes the following findings of relevant and material fact: Stipulated Facts Respondent holds Educator Certificate 1168653, covering the areas of Elementary Education, English for Speakers of Foreign Languages, and Exceptional Student Education (“ESE”), valid through June 30, 2021. At all relevant times, Respondent was employed as a kindergarten teacher at Sunland Park Academy, in the school district of Broward County, Florida. Evidence Presented at the Hearing Samiyeh Nasser During the 2017-2018 school year, Samiyeh Nasser (“Nasser”) was employed as a Teacher’s Assistant at Sunland Park Academy in the Broward County School district. She worked with the kindergarten classes. Nasser “pulled out” students, removing them from a teacher’s class and bringing them to her own room to provide extra help with reading, spelling, and word pronunciation. She regularly went to Leger’s classroom during first period each day, at approximately 9:00 a.m., and would take four or five students to her own classroom. She would then bring them back to their regular class to attend “specials,” which are elective classes. On April 2, 2018, when Nasser returned children to Leger’s classroom, at 10:05 a.m. that day, she noticed that the other students had already left the room, but that there was one student, K.M., there alone. When Nasser found her, K.M. was crying. When Nasser asked her why she was alone, K.M. said that her classmates had gone to physical education class (“P.E.”), and that she had been told by her teacher, Respondent, to stay in the classroom. Based on other credible evidence, K.M.’s comment to Nasser regarding having to “stay in the classroom” referred to a counseling conversation which Leger had with K.M. earlier in the morning, prior to the class leaving for P.E. She did not mention anything to Nasser about Steven Bynes (“Bynes”), a pool substitute who had assumed responsibility for the class in Respondent’s absence. Nasser opened the back door to the classroom, saw the other students at P.E., and instructed the small group of students she brought back to the classroom to join them outside. She did not see either Leger or Bynes with the students at P.E. when she found K.M. Nasser remained with K.M. briefly, hugged her to calm her down, and then left her in the room as she went on to assume her other duties. She was in Leger’s classroom a total of approximately five to seven minutes. Steven Bynes, Jr. Steven Bynes, Jr., was employed as a pool substitute at Sunland Park Academy during the 2017-2018 school year. He provided coverage when teachers were absent or out, and no outside substitute was hired for the day. On April 2, 2018, he was instructed to cover Leger’s class while Leger attended a meeting.1 Bynes was in Respondent’s classroom for approximately 20 minutes. Leger returned to the classroom while Bynes was still there and advised him that the class had “specials.” Bynes claimed that he advised Leger that it was two minutes before the class was to go to P.E., and advised her that she “still had time” to take them there. 1 This was a meeting between Leger, the guidance counselor, and a parent mentioned later in this Recommended Order, paragraph 60 infra. He claimed that Leger did not say anything to him, and he left the classroom to return to the front office. After the fact, Bynes was told that a student had been left in the classroom, but he denied knowledge of it and denied responsibility for leaving K.M. in the classroom. He claimed he left the class with Leger. He also denied having any conversation with K.M. in the classroom. Bynes denied taking the class to P.E. and stated that when he left the classroom, he left the students with Leger.2 Nikia Ragin Nikia Ragin (“Ragin”) was the Assistant Principal at Sunland Park Academy during the 2017-2018 school year. She was told by the Principal that Nasser had reported an incident concerning a student, K.M. After speaking to Nasser, she spoke to K.M. Ragin spoke to K.M. approximately two hours after the event took place, and then reported to the Principal. Ragin was also present when Leger explained to the Principal that Bynes, not she, had taken the students to P.E. Other than Leger’s statement, Ragin found no other evidence to conclude that Bynes had taken the students to P.E. Ragin’s conclusion regarding the evidence, at that point, was misguided and affected because the school surveillance cameras that would likely show who took the students to P.E. were not operating properly.3 Leger elaborated and explained to Ragin that she was in a meeting with the guidance counselor when the students went to specials. 2 Notably, Bynes said he didn’t really remember what Leger said or did after he advised her that she still had time to take the class to specials. Curiously, after he said this, he testified that he simply “walked out of the classroom.” This description by Bynes was significantly at odds with Leger’s testimony and recollection of the same discussion. Bynes seemed vague and uncertain at times regarding the incident. Leger’s description of her encounter and discussion with Bynes when she returned, is more persuasive and credible, and is adopted. 3 The camera tapes had been reviewed by Ragin because of Leger’s claim about not taking the students to P.E. Had the surveillance cameras been working, there would have been clear images of the kindergarten hallways and other relevant areas. There were also other inoperative cameras, that if working properly, would have shown relevant views of the hallway leading to and from the office of the guidance counselor. Sharonda Bailey Sunland Park Academy Principal, Sharonda Bailey (“Bailey”), received a report from Nasser about a student in Leger’s class. She referred the matter to Ragin, and saw her speaking with Nasser and also with K.M. Bailey recalled that Bynes had been in the classroom that day to cover the class. She asked him if anything had occurred when he was in the classroom. Bynes told Bailey that Leger had returned to the classroom and said something about the students being late for specials. Bynes recounted to Bailey that he explained to Leger that they weren’t that late, that she should take them herself, and that he then walked out the front door. When she spoke with Respondent, Leger stated to her that she did not leave a student in the classroom and that Bynes was the person who took the students to P.E. Bailey also attempted to verify who took the students to P.E. through the school’s security cameras. However, because the camera system was antiquated, it had not captured or recorded what she needed to see. The security cameras glitched and froze, and the time stamp was off. In short, the cameras were not capable of adequately displaying Respondent’s location or movement in the hallways because its quality was so poor.4 4 The security videos of the kindergarten hallway and the area outside the office of the guidance counselor were requested by Leger during discovery. However, they were not provided to her and were not used or shown at the final hearing. Bailey contacted K.M.’s mother and told her that her child was left alone in the classroom while the rest of the class was taken to specials. She explained that she would investigate the incident. Because Bailey was not able to find anyone during the investigation to validate Respondent’s position that she did not leave the student behind, she issued a written reprimand to Leger. Bailey did not speak at length with K.M. about the incident, but merely asked if she was okay. Private Investigator William Miller William Miller (“Miller”) was retained by Leger’s counsel to attempt to locate K.M. He ultimately located her in Gulfport, Mississippi. He telephoned K.M.’s mother, Shirelle M. He reached her in her car on her way to pick up K.M. from school. Later that day, Miller was also able to speak directly to K.M.5 Miller asked K.M. if she remembered the incident. K.M. explained that Respondent went to a meeting, and that the class had been turned over to a substitute teacher by the name of Mr. Bynes. She told him Bynes took the class to P.E. outside the classroom. K.M. related to Miller that she told Bynes she had been bad, and that Respondent had told her she could not go outside for P.E. K.M. stated that Bynes then told her to “wait in the classroom” and he took the rest of the class to P.E. Miller testified that neither he nor K.M.’s mother provided her with any background, mentioned Bynes, or in any way suggested what information they wanted from her. Miller had work experience interviewing juvenile witnesses and testified that he “assiduously avoided” leading K.M., because they are so prone to being improperly led when questioned. 5 Shirelle M. had called back about 30 minutes later and Miller spoke to K.M. on her mother’s speaker phone while they were in the car together. Miller recounted that K.M.’s mother expressed surprise that K.M. recalled the name of Bynes, and assured Miller that she had not coached K.M. in any way.6 Based on his interviews over the phone, affidavits were prepared for K.M. and her mother, which documented the verbal information they had provided to Miller. The affidavits were given to K.M.’s mother. Miller explained to her that the affidavits should be their testimony, and not the testimony of either Miller or the attorney in the case. He also explained that if there were any changes that needed to be made, she should make the changes, send the affidavit back to him, and that the affidavits could be redone, if necessary. Miller asked the mother to read and go over the affidavit that K.M. was being asked to sign. Miller arranged to have a notary go to their apartment in Mississippi to have the mother and the child execute the affidavits. Before this occurred, he was able to reach Shirelle M. by telephone. She apologized and told him that the delay in executing the affidavit stemmed from the fact that she had changed jobs, and that the Gulf Coast had experienced three separate hurricanes since he had last spoken to her. Miller explained to her that he did not want it to be inconvenient and that he would make the arrangements necessary to get a notary to her to be able to notarize the affidavits. The notary was given specific instructions to tell Shirelle M. and K.M. that they did not have to sign the affidavits, and could make any changes to them that they wanted. Despite the delay in securing her signature, Miller still felt that the mother did not have any hesitation signing her affidavit. 6 K.M.’s mother had been told of the incident, but had not been told about Bynes at the time of the incident. Ruth Galliard Leger Respondent was K.M.’s kindergarten teacher at Sunland Park Academy during the 2017-2018 school year. She recalled that K.M. was a good student and they got along well. Sometime during the morning of April 2, 2018, Respondent requested an emergency meeting with the school’s guidance counselor and the parent of a male student. The male student had come in late to class that day. He became disruptive, knocking teaching items, like posters and magnets, to the floor.7 The meeting was scheduled by the guidance counselor. Respondent left for the meeting when Bynes arrived at her classroom to provide coverage. Earlier that morning, K.M. had also been disruptive. Respondent counseled her and told her that if she did it again, Respondent would take some time from her P.E., consistent with the class rules, and that she would have to stay behind in the classroom with Respondent for a few minutes of her P.E. time.8 On the day of the incident, the class had P.E. scheduled at 10:10 a.m. When Respondent left for her meeting, the class had not yet gone to P.E. During the meeting with the guidance counselor, Respondent excused herself and returned briefly to her classroom to retrieve a form that needed to be signed by those in attendance at the conference. Resp. Ex. 1. When she entered the room to get the form, Bynes was there with her students. Respondent explained to Bynes that she forgot the form, and that her meeting with the counselor and parent was not over. Respondent asked Bynes what time it was and when he told her that it was approximately 10:15 a.m., she reminded him that the class had specials at 10:10 a.m. 7 This was out character for him, prompting Respondent to request the emergency meeting. 8 Four other students had also been counseled that morning about their conduct and the consequences before Respondent went to her meeting with the counselor. Bynes said that they had only missed five minutes, and the class could still go to P.E. Respondent retrieved the form she needed, went out the front door into the kindergarten hallway, and back to her meeting. The class was in the room with Bynes when Respondent departed to go back to the meeting. However, she did not see Bynes take the students to P.E. After the meeting with the counselor and the parent, Respondent left the counselor’s office. Respondent and the student’s parent stood in the first- grade hallway talking for several minutes.9 Respondent then walked the mother to the front door of the school, where there are more cameras, and parted company with her. Leger then proceeded down the hallway back to her classroom. When she got back, she was shocked to find K.M. standing in the room by herself. When she asked K.M. why she was in the room, K.M. explained that she had remembered that Leger previously told her that she owed time from P.E. for misbehaving. As a result, she decided to stay behind in the room when the others went to P.E. Respondent did not recall telling K.M. to “stay back” from P.E. Leger told K.M. that she did not have to remain behind, that she wasn’t upset with her, and that she should have gone to P.E. with the rest of the kids. Since there were five minutes left in the P.E. class, Respondent took K.M. out to P.E. When Respondent picked up her students from P.E. five minutes later, K.M. was fine and the class went to lunch. The next day, at the end of school, Principal Bailey handed Respondent a letter advising her that she was under investigation for leaving a child unattended. 9 This hallway was covered by the same faulty security cameras previously mentioned. At her disciplinary meeting, Respondent told Bailey that she did not leave K.M. in the classroom, and that she was at a meeting with the guidance counselor and a parent at the time. To support her defense, Respondent asked Bailey for the school videos which would show her in different hallways, entering the counselor’s office, and speaking with and walking the mother to the front door when her students went to P.E. Leger later asked her first lawyer on two separate occasions to obtain the relevant videos from the Broward County School District through a Freedom of Information Act request. Resp. Exs. 12a and 12b. She wanted the security videos to be subpoenaed for this case.10 K.M. remained in Respondent’s class for the balance of the year and Respondent had a good year with her. Leger never spoke to K.M. or her mother about the incident. Shirelle M. Shirelle M. is the mother of K.M. She recalled Miller calling and speaking to her and K.M. on the speaker phone. She heard K.M. tell Miller that it was Bynes that had left her in the classroom. She heard K.M.’s entire conversation with Miller. The affidavit that K.M. signed was an accurate recitation of the phone conversation she heard between Miller and her daughter in the car. She also signed her own affidavit that accurately set forth her conversation with Miller. Resp. Ex. 8. She knew that she could make any changes to her affidavit before signing it. 10 The undersigned took administrative notice of the DOAH file, which included Respondent’s subpoena to the Broward County School District seeking the videos, the District’s response, and Respondent’s Motion to Compel seeking access to the videos. Shirelle M. was there when K.M. signed her affidavit, and read it with her beforehand. She testified that no person forced her daughter to sign the affidavit. She explained the long period of time that elapsed between the time that she got the affidavit and the time that she signed. The delay was due to her work schedule, which involved four or five jobs, since the COVID-19 pandemic. She testified that she had no hesitation executing her affidavit, and did so freely and voluntarily, since it was accurate and correct. Concerning the day of the classroom incident, she saw her daughter before speaking with the Principal when she picked K.M. up from aftercare. She did not get much detail from the Principal, who said that the matter was still under investigation. The Principal never told her that it was Respondent who left K.M. in the room. She never overheard K.M. tell anyone that Respondent had left her in the classroom. K.M. Before beginning her testimony, eight-year-old K.M. was questioned by the undersigned. She was polite, alert, and calm. She understood the oath and the importance of telling the truth. She remembered when she lived in Florida. She also recalled Respondent as her kindergarten teacher and the incident of being left in the classroom. K.M. testified that it was Bynes who left her in the classroom when Respondent was at a meeting. 11 She recalled that when Bynes arrived at the classroom, Respondent then left for a meeting. 11 The Transcript mistakenly phonetically wrote Barnes. It should have been Bynes. K.M. stayed behind when the rest of the class went to P.E. She did so because Respondent had told her earlier that morning to stay behind because of minor discipline issues with her. More specifically, as the class left to go to P.E., K.M. told Bynes that she was supposed to remain in the classroom, and Bynes said “okay” and took the remainder of the class to P.E. K.M. remained in the classroom while the class was at P.E., until Respondent returned from her meeting. When asked by Leger why she was there alone, K.M. reminded Respondent that she had previously told her to stay in the class. K.M. executed an affidavit that she read and that her mother read to her. It accurately reflected what happened. Resp. Ex. 13b. K.M. recalled speaking to a man on the phone (Investigator Miller), and told him the same thing as what she testified to in court. K.M. unequivocally stated twice during the hearing that she never told anyone that Respondent, Leger, had left her in the classroom. Nobody told K.M. what to say in the hearing, and she remembered on her own that to which she testified. K.M. liked Respondent and stated that she was “a pretty good teacher.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Administrative Complaint and the charges contained therein. DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. COPIES FURNISHED: Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Lisa M. Forbess Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
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.
