The Issue The issue in this case is whether Petitioner returned Respondent to annual contract from continuing contract for good and sufficient reasons.
Findings Of Fact Through the 1992-93 school year, Respondent held a continuing contract with Petitioner. She has been the music teacher at Spring Creek Elementary School for 12 years. She has taught music for Petitioner for 27 years, including 26 years in elementary school. Prior to coming to Lee County, she taught for five years in Missouri and Illinois. Respondent earned a bachelor's degree in music education in 1962 from Murray State University. She has a master's degree in music education from Murray State as well. Respondent has had extensive training in music, especially chorus. She took a summer course at Westminster Choir College, where one of her instructors was Mary of Peter, Paul, and Mary. There is no question concerning Respondent's substantive knowledge of music. The factual issues in this case concern her ability to deliver this knowledge effectively to all of her students. Until three years ago, the principal of Spring Creek Elementary School was Thomas Halgrim, who was the first principal at Spring Creek. Mr. Halgrim and Respondent are on good terms. During Mr. Halgrim's ten-year tenure at Spring Creek, Respondent's performance was marginally acceptable. However, while Mr. Halgrim was principal at Spring Creek, he found it necessary to refer Respondent to the Intensive Assistance Program. This program helps teachers with major teaching problems. In Respondent's case, she needed additional work in the areas of facilitating student self-esteem and creating an environment in which students wanted to participate in music. Teachers typically remain in the program for 3-9 months; Respondent remained in the program for two school years. Patty van der Have succeeded Mr. Halgrim as principal of Spring Creek at the start of the 1991-92 school year. During the school year, she received complaints and expressions of concern from students, teachers, and parents regarding Respondent. The problems generally involved poor student morale in Respondent's classroom. Ms. van der Have discussed the possibility of the Intensive Assistance Program with the District personnel office, but they disfavored this option because Respondent had already been through the program. Instead, Ms. van der Have decided to begin the school year with observations in the hope that Respondent would make the recommended changes. On September 4, 1992, Kathleen Stephens (a/k/a Kathleen Rooker) observed Respondent. Ms. Stevens was an assistant principal. She saw that Respondent called each student individually to her desk to tell her his or her name, which she then wrote down. This task consumed 20 minutes. Afterward, Respondent reviewed class rules, which took the remaining ten minutes of the 30- minute class. Respondent was not responsible for checking attendance, but Respondent was expected to learn the names of the students. She taught 25-30 classes during the week. And the September 4 class was the first time that this class met. However, many of the children were returning from prior years, and Respondent wasted considerable time on an inefficient means of acquainting or reacquainting herself with her students. The written observation of September 4 targets two behaviors for further development: "begin work with students promptly [and] provide instructional objectives." On September 11, 1992, Ms. Stephens conducted another observation of one of Respondent's classes. The first 20 minutes of class were devoted to students individually coming up to Respondent's desk and getting a seat assignment. The last 10 minutes of class were spent passing out books and singing along with a record. Although there was little interaction between Respondent and the students, she responded several times to wrong answers by saying, "you're not looking," "pay closer attention," "you're not listening," or "your mind is elsewhere." The targeted behaviors for further development are the same as in the last observation, but add that Respondent should correct a student's mistake in a positive manner by providing cues and assistance. On September 28, Ms. Stephens conducted a third observation of Respondent. This time, Respondent was more effective in class. She had an appropriate lesson plan and followed it. However, she remained in her seat and used a pointer to direct students to items written on the chalkboard. Moving among the students can be an effective means of keeping the children on task. By late September, Ms. van der Have had received numerous complaints from parents, teachers, and students concerning Respondent. The complaints centered upon inadequate discipline among Respondent's students and a lack of focus of her music class. On October 16, 1992, Ms. van der Have observed Respondent. This was a class consisting of 12 students from the English Speakers of Other Languages (ESOL) program and four students from the Exceptional Student Education (ESE) program. The class consisted of a lecture by Respondent as to how to behave at a concert, followed by a display of posters of various musical instruments. There was little student-teacher interaction. The unsuitability of the lecture format was heightened by the classifications of the children. The ESOL students often have trouble with spoken English, and music can be an opportunity for them to learn without an emphasis on what is for them a foreign language. The ESE students were severely physically and mentally handicapped, and they too could have profited from another approach that that taken by Respondent. By the end of the class, three of the ESE students were asleep. Ms. van der Have's observation contains numerous recommendations. They include the need for student interaction initiated by asking the children questions and listening to their answers, circulating among the students, beginning each lesson with a short review, concluding each lesson with a short review, developing and following appropriate lesson plans for ESOL and ESE students, and increasing teacher awareness so as to deal with situations such as the three ESE students sleeping in the class. On October 23, 1992, Ms. Stephens observed Respondent, who again did not circulate among the students. When a child answered a question correctly, Respondent would call the child up to her desk and give him or her some stickers or passes, which tended to destroy any instructional momentum she could build up with the class. When a child answered a question incorrectly, Respondent would ignore the child rather than explore the area with the child. Again, Respondent did not follow her lesson plan. The observation form notes under targeted behaviors: Serious deficiencies continue to persist. INCREASE TEACHER MOBILITY AND CIRCULA MAINTAIN MOMENTUM. PRESENT MATERIAL CLEAR AND LIVELY MANNER, VARY INTENSITY, AND VOLUME OF VOICE, USE EYE CONTACT, SMILE, LIVELY BODY language and movement, accept positively student responses, probe for correct answer or amplify student response, use teacher withitness [i.e., awareness of all students in the classroom] to correct student behavior. The observation form requires Respondent to correct the ineffective teaching behaviors by November 13, 1992. On November 13, 1992, Charlotte Rafferty conducted the observation of Respondent. Ms. Rafferty is a principal of a fine arts magnet school in the district. She has taught music education in an elementary school elsewhere in Florida and in Texas. Ms. van der Have selected Ms. Rafferty for the observation because Ms. van der Have wanted someone with some musical background. Ms. Rafferty observed two classes of Respondent. Under "behaviors to maintain," Ms. Rafferty stated in the observation form, "nothing you are presently doing." The observation form describes in detail two classes in which the students were bored about the material being presented by Respondent. Ms. Rafferty concluded that Respondent needed to target the following behaviors for further development: Excitement, creativity, movement, proper use of instruments in classroom, challenging rhythm work for the children, interesting songs that children like, grade appropriate materials and instruments and positive interaction with the children. Ms. Rafferty listed 17 detailed recommended activities. These include adding some excitement to the class, having the district music coordinator observe and provide suggestions, use available instruments rather than just rhythm sticks, consider the needs of the children such as by including some Hispanic songs, desist from doing beat for 45 minutes as that "would bore anyone to death," use dance as a form of body movement to allow the students to feel beat, use "much more complex rhythm patterns" with fourth graders, do away with books for the entire class time, act like teaching is enjoyable, allow the children to interact more, and allow the children to use more improvisations, movement, and instruments to learn the feel of rhythm. Ms. Rafferty did not mince words in concluding the observation narrative. She stated: I would have a very difficult time holding up my head in front of these children if I gave them what you are giving them. In the best interest of the children I would hope that you would either make a drastic change immediately or retire from teaching. You are truly doing a dis-service to children. When you consider what these children say about their music experience, the poor teaching practices and poor presentations are a prostitution to the field that you a teaching. The ability to remain current takes commitment and dedication and the poor teaching that I saw is a deterrent to the advancement of music in our schools. Ms. Rafferty's allusion to what the children were saying is based on informal interviews that she conducted with them following class. On November 30, 1992, Ms. van der Have conducted a summative observation of Respondent. The previous observations were formative and intended to constitute part of a process by which Respondent and the assessor construct an assessment. The summative observation was the culmination of formative observations and represented a more comprehensive assessment of Respondent's performance. The problems that Ms. van der Have observed on November 30 were the same that had been observed previously. Respondent did not immediately begin teaching the material. Her failure to engage the children again led to misconduct. Before long, the majority of the students were disengaged and off task, even though Respondent was circulating to some degree through the class. On December 9, 1992, the district music coordinator, Jim Hinman, observed Respondent. He found that Respondent had trouble orienting the students toward classwork, maintaining instructional momentum, and keeping control of the classroom. She started class late and relied excessively on a lecture/response teaching strategy. Over time, the students' interest waned, and Respondent was reverting excessively to warnings about behavior, which further impeded any momentum. On February 18, 1993, Mr. Hinman conducted a second observation of Respondent. Although she did better in giving appropriate feedback, other problems continued from his previous observation and new problems emerged, such as spending classtime assigning seats. In general, Respondent was again unsuccessful in maintaining her instructional momentum and exciting the students. Respondent's teaching did not improve for the remainder of the school year. Her relations with administrators, some teachers, and even some students deteriorated. At one point, she confronted several children and demanded why they had complained about her. On March 23, 1993, Joseph Vetter, an assistant principal at Spring Creek, observed Respondent. He noted that Respondent was not circulating through the classroom, failed to use praise on the students, and failed to maintain effective control of the class. On March 25, 1993, Ms. van der Have gave Respondent a memorandum and performance assessment. The assessment finds that Respondent's effectiveness was, in all but one category, inconsistently practiced or unacceptable. The assessment notes that Respondent has consistently refused to meet with Ms. van der Have to discuss the areas of concern and suffers from a poor relationship with students and staff. The memorandum, a copy of which went to the superintendent, states that Ms. van der Have is recommending that Respondent be returned to annual contract for the 1993-94 school year. The memorandum adds that Respondent has one year to improve in all areas marked Unsatisfactory or Inconsistently practiced. I will be happy to schedule any assistance you may desire, such as visiting another classroom, having a teacher or Coordinator model an effective music lesson for you, providing video tapes of effective teachers teaching, selecting additional readings and/or videos for your use, discussing effective lesson plans, reviewing your discipline plan and so on. The memorandum concludes: I believe you need to reevaluate and implement the suggestions made by observers this year and reconsider accepting the assistance that you have continually refused this year. I need the students, parents and staff of Spring Creek Elementary School to receive an effective Music program. By letter dated March 30, 1993, and received by Respondent on the following day, the deputy superintendent notified Respondent that the superintendent would be recommending to the school board that Respondent be removed from continuing contract and placed on annual contract for the 1993-94 school year. The letter explains the basis for the action as inadequate performance and unwillingness to try to improve. On April 1, 1993, the superintendent filed a petition with the school board to return Respondent to annual contract for a continuing failure or refusal to use important instructional techniques. On April 13, the school board approved the action, effective July 1, 1993. By letter dated April 20, 1993, the superintendent informed Respondent of the action and advised her of her right to demand a hearing. On May 3, 1993, Respondent demanded a formal hearing. Petitioner proved good and sufficient reasons for returning Respondent to annual contract from continuing contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a final order reducing Respondent to annual contract for the 1993-94 school year. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 18, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1 (except last sentence): adopted or adopted in substance. 1 (last sentence): rejected as irrelevant. 2-4: adopted or adopted in substance. 5-10: rejected as irrelevant and subordinate. 11: adopted or adopted in substance. 12-20: rejected as irrelevant and subordinate. 21 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Mr. Halgrim did try to get Respondent to focus on problem areas. 21 (remainder): rejected as irrelevant and subordinate. The issue in this case is the effectiveness of Respondent for all of her students, not just those who are already motivated when they come to class and possess exceptional musical talents. 22-24: rejected as irrelevant and subordinate. 25: adopted or adopted in substance. 26: rejected as irrelevant and subordinate. 27: rejected as unsupported by the appropriate weight of the evidence except as to substantive knowledge of music. 28-30: rejected as irrelevant and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32-45: rejected as irrelevant, and subordinate, and unsupported by the appropriate weight of the evidence. 46: adopted or adopted in substance except as to the last clause, which is rejected as unsupported by the appropriate weight of the evidence. 47-48: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Daniel H. Kunkel Kunkel & Hament Suite 785, 1800 Second St. Sarasota, FL 34236 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Office of the Superintendent 2055 Central Ave. Ft. Myers, FL 33901-3916 Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band 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 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. 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. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
The Issue Whether just cause exists to suspend Respondent without pay for a total of ten days, based on two separate incidents.
Findings Of Fact Mr. Marshall has been a teacher in Broward County for approximately 20 years. At all times pertinent to the instant case, Mr. Marshall was employed as a math teacher at McArthur High School. Prior to working at McArthur High School he had taught math at Hollywood Hills High School, and then at Flanagan High School. During his tenure at Hollywood Hills High School, Mr. Marshall was placed on a Performance Development Plan (PDP), which required Mr. Marshall to remediate and reteach math lessons in an effort to obtain 70 percent comprehension in his classes. During his tenure at Flanagan High School, Mr. Marshall was once again placed on a PDP, which included the same requirements as the previous PDP at Hollywood Hills. Mr. Marshall was next transferred to McArthur High School for the 2007-2008 school year. Because Mr. Marshall had not completed the second PDP while at Flanagan High School, he was placed on a PDP and 90-day probationary period to start his tenure at McArthur High School. He successfully completed the PDP. During the fall of 2010, Mr. Marshall complained about Mr. Jose Gonzalez, the assistant principal who supervised the math department at the time. Mr. Marshall was then permitted to choose which assistant principal would supervise him. He chose Shawn Aycock, who at the time worked as the assistant principal for the language arts department. On November 5, 2010, Ms. Aycock observed Mr. Marshall in his classroom. Ms. Aycock noticed the following deficiencies: Mr. Marshall did not have the students start an activity as soon as the students entered the room, he had the students perform a task that had no educational value and was not tied to the day's activity, he gave inappropriate responses to students' questions, the students were confused with the lesson, he did not provide proper feedback to the students, he did not provide complete answers to student questions, he used vocabulary that was beyond the students' ability, he gave the students a sample problem but did not work through the problem with the students, and he made no attempt to re-teach the lesson or remediate in any way. On November 16, 2012, Ms. Aycock met with Mr. Marshall to discuss the observation. Mr. Marshall was confrontational, denied that the observation of hers was accurate, and accused Ms. Aycock of lying. Ms. Aycock had observed many teachers before she observed Mr. Marshall, but had never seen the need to write up notes after a meeting with a teacher. But after her meeting with Mr. Marshall, she did. Since then, she has not seen the need to write notes arising from a meeting with any other teacher. During the meeting, Mr. Marshall indicated that he would not water down his instruction for any student, and that he would have no problem with observations that were done ethically and did not consist of lies that were made by unqualified individuals. On November 19, 2010, Ms. Aycock provided Mr. Marshall with a memo detailing her concerns and expectations: Concerns: Students were asked upon entering the class to copy the day's objective. Students did not understand all of the math vocabulary used to explain the lesson. A student seeking further explanation on a problem was told,"If you didn't get it not to worry. It will not be on the quiz." Students were referred back to their notes when they questioned the lesson. Only two math problems were worked during a half an hour review. Expectations: All student activities should be of value and tied to the day's activity. Teacher will use math vocabulary consistent with student ability level and explain lessons in multiple ways. Insinuating that lessons are learned only for a test is inappropriate. All student questions will be answered and explained in full. During a review a minimum of five review problems will be worked per concept. Additionally, we discussed the importance of you checking your email. I am directing you to check your email prior to the conclusion of first period and again prior to the conclusion of fourth period. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received hours upon hours of assistance in these areas. My expectation is that you will follow the directives listed above immediately. If you feel you need assistance, please see me. Next, Ms. Aycock requested that Principal LaPace, who had an extensive math background, observe Mr. Marshall. He did so on January 7, 2011. Mr. LaPace's extensive notes regarding the observation detail Mr. Marshall's failure to have a proper lesson plan, his scattered presentation manner, and his ineffective management of the classroom. Mr. LaPace prepared a memo detailing his concerns and expectations: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. The objective on the board did not match the lesson being taught. Modeling sample problems were ineffective. Expectations: Always give clear and concise directions to students. Plan and deliver lessons so that are presented in sequential order. The lesson presented in class will align with the objective posted for the day. During a lesson a minimum of three sample problems will be worked per concept. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. When Mr. LaPace met with Mr. Marshall regarding his observation, Mr. Marshall disagreed with Mr. La Pace's observations, but did not indicate why he did. Mr. Marshall also declined all types of support from other staff members. The administration asked Mr. Marshall to provide documentation of remediation and retesting of students if he had over 35% of his students earning Ds or Fs. The documentation needed to be specific information regarding times that Mr. Marshall sat down with students in small group settings, or phone logs regarding communication with parents, or any type of specific information regarding steps that Mr. Marshall was taking to raise the level of success of his students. Mr. Marshall was never observed remediating or re-teaching, despite the fact that all teachers were asked to allot the final 30 minutes of a class to these activities. On February 17, 2011, Ms. Aycock, Mr. Gonzalez, and Mr. Marshall met for a Pre-Disciplinary Meeting. Mr. Marshall was given a verbal reprimand for insubordination. In the memorandum which documented the verbal reprimand, Ms. Aycock directed Mr. Marshall to: Reduce the number of students in your class receiving D's [sic] and F's [sic] to at or below thirty-five percent through re-teaching and remediating of those students. Check your school email throughout the day, a minimum of twice per day. Follow all directives given by and with proper authority. Failure or refusal to follow the above directives will result in further disciplinary action. On September 20, 2011, Ms. Aycock again met with Mr. Marshall to discuss concerns and expectations, and also to conduct a Pre-Disciplinary Meeting, wherein Mr. Marshall was issued a second verbal reprimand for insubordination. On September 22, 2011, Ms. Aycock wrote a memorandum detailing the conversation during the meeting, and reminding Mr. Marshall that from June 2010 through September 2011, he had attended seven meetings regarding the high percentage of students in his classes that were receiving Ds and Fs. At each meeting, he had been directed to reduce the number of students receiving Ds and Fs to at or below 35 percent, through remediation and re-teaching. Because Mr. Marshall had failed to comply with these directives, and had failed to provide a reason why he should not be disciplined, he was issued the second verbal reprimand. He was also directed to: Reduce the number of students in your class receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Follow all directives given by and with proper authority. Stemming from the same meeting, Ms. Aycock documented her concerns and expectations: Concerns: You are receiving a large number of student and parental complaints in relation to your teaching practices. Students are not being graded in a fair and consistent manner. The department grading policy is not being followed. Meaningful assignments are not being given to students. Students are not receiving corrective and immediate feedback as it relates to their assignments. Expectations: You will model lessons for students. You will differentiate instruction to meet the needs of all the students. You will develop and implement rubrics so students have clear expectations of class participation and effort requirements. All assignments will correlate to the standards as tested by the Geometry EOC. Students will receive corrective feedback within seventy-two hours. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. Around December 2011, Ms. Aycock was promoted to the position of Principal for a middle school, and Ms. Arnita Williams became Mr. Marshall's supervising Assistant Principal. Ms. Williams and Ms. Aycock once again conducted a classroom observation of Mr. Marshall, and Ms. Williams documented her concerns and expectations as follows: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. You did not address students' questions and concerns. Modeling sample problems was ineffective. You did not provide and use the correct mathematical vocabulary. Expectations: Always give clear and concise directions to students and check for understanding. Plan and deliver lessons so they are presented in sequential order. Students' questions and concerns need to be addressed. Mathematical vocabulary on student's level should be used. In previous memos additional directives were given. Below were the following expectations: You will develop and implement rubrics so students have clear expectations of class participation and effort. Provide a copy of your participation rubric to Ms. Aycock by the close of business on Friday, September 26, 2011. Differentiate instruction every day the last 30 minutes of class the [sic] meet the needs of ask [sic] your students. Student will receive corrective feedback within seventy-two hours on all graded work. Reduce the number of students receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Daily indicate in your lesson plans interventions and strategies used to differentiate instruction. A minimum of two grades each week must be entered into pinnacle per student. Vocabulary used in class must be consistent with student's ability. Check your school email throughout the day, a minimum of twice daily (before and after school). During a lesson a minimum of three sample problems will be worked per concept. Follow all directives given by and with proper authority. You have been given the above directions numerous times in the past. It is my expectation that all directives will be implemented immediately. On December 12, 2011, Ms. Williams issued a written reprimand for failing to meet the performance standards required of his position as a math teacher. As grounds for the written reprimand, Ms. Williams focused on Mr. Marshall's repeated failure to reduce the number of students receiving Ds and Fs to at or below 35 percent through remediation and re-teaching, and his failure to follow all other directives given by and with proper authority. School administration consistently directed Mr. Marshall to remediate and re-teach daily; he advised the administration that he would do so on one particular day of the week. The administration denied that request. As a result of Mr. Marshall's non-compliance, students were moved from Mr. Marshall's class to other classes, which resulted in a disparate amount of students in other classes. While most math teachers had from 30-35 students in their classes, Mr. Marshall's class was reduced to about 17 students. On January 5, 2012, Ms. Williams conducted a pre-disciplinary meeting with Mr. Marshall, for failure to provide daily re-teaching and remediation for students the last 30 minutes of class, as he had been instructed to do numerous times. He was informed by letter that he was being recommended to the School Board for a three-day suspension. On October 10, 2012, approximately nine weeks into the next school year, Ms. Williams sent Mr. Marshall a memorandum that stated: Due to the large number of complaints, schedule changes, high failure rate and conferences, you are hereby directed to provide the following documentation for each of the 93 students (Juniors) who presently have a grade of F in your class at interims by October 15, 2012. Please provide copies to Ms. Williams and Ms. DiPaolo by 2:45 p.m. Interventions and strategies for each student Parent phone contact log On that same date, Mr. Marshall responded to this request by giving Ms. Williams a document that read as follows: MATHEMATICAL RUBRIC Tests/Quizzes Correct Problems 10pts. Completely Wrong 0pts. Total is 100% Please note that the total number of questions can affect the outcome. Since the reply by Mr. Marshall was completely lacking in usefulness and did not supply the information requested by Ms. Williams, she attempted once again to solicit the proper information from Mr. Marshall by sending an e-mail to him on October 15, 2012, at 6:03 a.m., giving him a second notice that the deadline for production of the requested information was that same day. Mr. Marshall never complied with the directive to provide information on each student who was failing his class. He never asked for more time to collect the information, and despite that fact that he admitted it would have been easy to retrieve his phone log and submit it, he never did so. Ms. Williams met with Mr. Marshall, informing him that he would be recommended to the School Board for a seven-day suspension. The greater weight of the evidence established that Mr. Marshall is guilty of gross insubordination for his conduct before and after July 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order suspending Mr. Marshall without pay for a total of ten days, based on his conduct before and after July 2012. DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 28th day of August, 2013.
The Issue The issue in this cause is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 418505 in the area of Music. The certificate was valid through June 30, 2002. There was no evidence that Respondent had renewed his certificate. During the 1997-1998 school year, Respondent was employed with the Sumter County School District as the band director at Central High School. Elizabeth Pooley was born on August 9, 1983. She attended West Hernando Middle School in the 1996-1997 school year. She attended Central High School as a ninth-grade student in the 1997-1998 school year. She was a member of the Central High School band directed by Respondent. Respondent met Ms. Pooley during her eighth-grade year at West Hernando Middle School. During her ninth-grade year (1997-1998) at Central High School, Respondent became aware that Ms. Pooley had a crush on him. Ms. Pooley was 14 years old. At the time he met Ms. Pooley in the 1996-1997 school year Respondent was 45 years old, married and had two minor children, one girl and one boy. Both children were around Ms. Pooley's age. In April 1998, at Central High School, Respondent wrote a note containing inappropriate sexual innuendo about Respondent having a sexual encounter with Ms. Pooley on a boating excursion with her family. The note, while somewhat hard to follow, described Ms. Pooley as a virgin, acts of masturbation by Ms. Pooley, and referenced something about a burp. Respondent gave the note to a minor female student, H.P., and told her to give the note to her sister, C.P., another minor female student in the band at Respondent's school. When the girls' mother overheard her daughters talking about the note, she took it from them and read it. Realizing how inappropriate the content of the note was for a male teacher to be writing about a minor female student, she kept the note. The next day, she turned the note over to the principal of Central High School. When the principal, Dennis McGeehan, questioned Respondent about the note, Respondent admitted writing it. However, he did not remember writing the note and could not fathom why he had written the note. At hearing Respondent claimed that he believed he had been slipped a drug in a cupcake by some students. However, he offered no credible evidence of such. Based upon this admitted misconduct, Mr. McGeehan recommended that Respondent be suspended with pay. On April 23, 1998, Respondent was advised that he would not be recommended for renewal of his employment contract with the district. Respondent resigned his position of employment on April 25, 1998, after he received the notice of his non-renewal. A copy of the note written by Respondent and an article about it were published in the St. Petersburg Times newspaper on April 30, 1998. Other news articles about the matter were also published. Ms. Pooley and her father were both interviewed about the incident and quoted in one of the newspaper articles. Both denied the incident described in the note ever occurred. After this incident, Ms. Pooley was teased at school. She was unhappy because of the teasing. Respondent continued to meet with Ms. Pooley and talk with her. At some point, the relationship evolved from mentoring to one of romance. However, other than kissing and caressing, no sexual intercourse occurred. Ms. Pooley's parents were very concerned about Respondent's involvement with their daughter. They requested he have no further contact with her. Their request was not honored by Respondent or Ms. Pooley. Eventually they moved with her approximately 2 1/2 to 3 hours away to New Port Richey, Pasco County, in order to avoid further contact between their child and Respondent and to remove her from teasing at school about the incident. Respondent, however, did not leave Ms. Pooley alone. Respondent made numerous trips from his residence in Cross City, Florida, to New Port Richey, Florida, to see her during the summer of 1998. Again her parents requested that Respondent not see their daughter. Respondent again did not comply. As a result of Respondent's contacts with Ms. Pooley in June and July 1998, her parents filed a criminal complaint with the Pasco County Sheriff's Office against Respondent. Respondent's involvement with Ms. Pooley in New Port Richey involved love notes and letters to Ms. Pooley, furtively meeting with Ms. Pooley on a number of occasions without her parents' knowledge or consent, and engaging in kissing, hand- holding, hugging, and fondling of Ms. Pooley's breasts. No sexual intercourse occurred. Several of their secret meetings took place in the parking lot of a bar called the Pasco Pussycat. In February 1999, at age 15, Ms. Pooley's parents placed her in a short-term residential run-away crisis center called the RAP House in New Port Richey. They did so because their relationship with Ms. Pooley had deteriorated due to her ongoing relationship with Respondent. While enrolled there, staff of the RAP House initiated a lewd and lascivious report to the Pasco County Sheriff's Office concerning Respondent's involvement with Ms. Pooley. In her statement to the Pasco County Sheriff's investigators, Ms. Pooley told them that beginning in June 1998, Respondent picked her up in his truck on several occasions and drove her into some woods where they kissed and held hands. After Ms. Pooley moved to Pasco County, Respondent stayed in touch with her by telephone and letters. Respondent would meet her at convenience stores and a mall. They would park and engage in kissing and petting. On one occasion, Respondent rubbed her breasts and inner thighs. Respondent would tell Ms. Pooley that he could not wait to put a ring on her finger and that they could make love. Ms. Pooley testified that she told the police officer this story because the officer had told her Respondent had been romantically involved with other students and the thought angered her. Ms. Pooley's recanting of her earlier statements is not credible. In a further effort to keep Respondent away from their daughter, Ms. Pooley's parents decided to send her to live with relatives in Kentucky. Respondent found out where she was and visited her there. Ms. Pooley eventually returned to Florida in March 2000. The day after her return to Florida she and Respondent were married. The marriage took place on March 17, 2000. Ms. Pooley was 16 years old and Respondent was 47 years old at the time of their marriage. Ms. Pooley's parents gave their legal consent to the marriage because they had finally given up on keeping Respondent away from their daughter. They did not want to lose her forever over the relationship between Respondent and her. Ms. Pooley, who could easily have graduated from high school, did not finish high school. She has since obtained her GED. To date, Ms. Pooley and Respondent remain married. She is employed at the post office. Other than her failure to graduate from high school, her poor relationship with her parents, and inability to develop free of a romantic involvement with an adult, the evidence did not demonstrate any physical or mental harm to Ms. Pooley by Respondent's actions since most of the harm, if any, is of the type that will only manifest itself in the future. The evidence was clear and convincing that by his involvement with Ms. Pooley, Respondent inappropriately gained from his status as a teacher in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. The evidence also demonstrated that Ms. Pooley was unnecessarily exposed to embarrassment and disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. Indeed, her parents moved to remove her from such embarrassment. Finally and most seriously, through his actions Respondent harmed Ms. Pooley in violation of Rule 6B-1.006(3)(a), Florida Administrative Code. Ms. Pooley did not finish high school and did not enjoy a normal or harmonious family relationship due to Respondent's actions. She was deprived of a normal high school experience and subjected to advances from a 45-year-old man who was infatuated with her. Such behavior is anathema to the professional requirements and primary duty of a teacher. After his resignation from Central High School, Respondent was employed as a band director at Dixie County High School in 1999-2000 school year. After marrying Ms. Pooley, he began bringing her to school with him to assure her and demonstrate that he was not romantically involved with other students. At times, Respondent allowed Ms. Pooley, who was a talented music and band student and who had helped choreograph the band's routine, to supervise and discipline his band students. Some of these students were the same age or older than Ms. Pooley. Ms. Pooley's participation in the class caused resentment in some of the students. The school's principal received complaints from both parents and students about Respondent permitting his 16-year-old wife to assume teaching responsibilities and discipline of his band students. Some students quit the band. The evidence did not show that the students who quit did so because of Respondent's actions. The principal instructed Respondent not to allow his wife to participate in his class and that his wife should not be present at the school. He received a reprimand for permitting his wife to help with his class. Respondent complied with these instructions. The evidence was not clear that Respondent lost effectiveness by permitting his wife to help with his class. However, it was incredibly poor professional judgment on Respondent's part. Respondent also allowed Ms. Pooley to use the school computer located in his office at Dixie County High School. Ms. Pooley used Respondent's school computer on May 9, 2000, to send an inappropriate email to Respondent's ex-wife at the school where she was employed. However, the evidence was unclear whether Respondent knew that his wife had used the school's computer to send his ex-wife an email. Nor was it clear that such use was against school policy, since occasional personal use was permitted by the school. Respondent again complied with the principal's instructions not to permit his wife to use the school computer. Therefore, no violation has been established with regard to the use of the school's computer, if such activity can ever amount to a violation of the licensure statutes and rules which would subject a licensee to discipline. Respondent was not recommended for renewal of his employment in Dixie County for the 2001-2002 school year. Respondent takes the position that he has not done anything wrong regarding his romance with Ms. Pooley. It does not appear that Respondent will engage in similar conduct in the future.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Florida Educator's Certificate No. 418505 be revoked for a minimum of three years. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Richard Averill 420 Northwest 257th Street Newberry, Florida 32669 J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact At all times material to this proceeding, Respondent was a music teacher at Lehigh. His primary areas of interest and teaching responsibility were vocals and keyboard, and he taught varying levels and types of chorus and piano/keyboard classes. Respondent also was very proactive in initiating and coordinating extra-curricular music programs and competitions for the benefit of his music students. Respondent received a bachelor's degree in music education, with a choral emphasis, from Florida A & M University (FAMU) in 2002. He completed a summer master's program at the University of Florida and received his master's degree in music education in 2010. Respondent is a certified educator in music, K through 12, meaning that he is qualified to teach music at all levels from kindergarten through 12th grade. Respondent has been employed by Petitioner since August 5, 2002, but has only been at Lehigh since the 2008-2009 school year. Respondent was the choral director at Dunbar High School for three years; music teacher at Orange River Elementary for one year; and music teacher at Orangewood Elementary for two years. Respondent testified that these frequent transfers were his idea, and there was no evidence to the contrary. Respondent testified that he left Dunbar High School because that school's music program downsized, and the school wanted to hire a music teacher whose emphasis was on band, instead of chorus, so he requested a transfer elsewhere and Orange River Elementary was what was available. Respondent testified that things did not work out there between the administration and him, so he transferred to Orangewood Elementary. However, Respondent did not feel challenged teaching music to elementary school students, and so he requested a transfer to Lehigh when the music teaching position opened up. Respondent testified that he believes his talents are best used in a high school setting, where he can work with talented singers and pianists to prepare them for college and professional careers. By all accounts, Respondent is a very talented musician. His performance evaluations show that he was generally considered a satisfactory teacher throughout his years in Petitioner's employ; some areas needing improvement tended to balance out with other areas in which his performance was above average. Petitioner's performance as a teacher is not in question in this proceeding. Instead, what is in question in this proceeding is Respondent's conduct with several female students. This matter first came to Petitioner's attention when Douglas McKeever, assistant principal at Lehigh, contacted Petitioner's Department of Professional Standards and Equity (DPS), which is responsible for investigating allegations of misconduct by school district employees and making recommendations to the superintendent as to discipline. Mr. McKeever informed the DPS that he had received information regarding possible inappropriate physical contact by Respondent with several female students. At DPS' direction, on November 3, 2011, Mr. McKeever conducted interviews of two students, P.P. and B.G., who alleged they were subjected to Respondent's inappropriate physical contacts, and one student, M.M., who was a witness to one student's encounter with Respondent. Mr. McKeever had these three students summarize what they told him in written statements. He provided this information to DPS. The students' statements were reviewed by DPS, and based on the seriousness of the allegations, Respondent was suspended with pay and benefits on November 7, 2011. Thereafter, the allegations were investigated by DPS' chief investigator, Craig Baker. Mr. Baker took the written statement of an additional student, C.R., who had been identified as someone who had allegedly been subjected to Respondent's inappropriate contacts, but who had not been present when Mr. McKeever conducted the initial student interviews. As part of his investigation, Mr. Baker made inquiries to identify any other alleged victims or witnesses. After the investigation was completed, a pre- determination conference was held on December 7, 2011, at which Respondent was given an opportunity to present his side of the matters described in the student statements, which were provided to him. Respondent was represented by counsel at that conference. The results of the investigation and pre-determination conference were then reviewed and discussed by the school district's chief human resources officer, the head of the DPS, other human resources staff, and counsel for the school district, to formulate a recommendation. The recommendation was to terminate Respondent. Respondent was informed of the recommendation and was advised that he was suspended without pay or benefits, effective December 19, 2011, pending a final determination as to whether Respondent would be terminated. The Petition for Termination of Employment sets forth the alleged conduct by Respondent on which Petitioner relies to establish the charges of misconduct in office and policy violations. The alleged misconduct involves three different students; the findings with respect to the allegations for each student are addressed in turn below. P.P. P.P. is a 15-year-old female. In the 2011-2012 school year, P.P. was in the tenth grade at Lehigh. Respondent testified that P.P. was "one of the best singers." As a ninth- grade freshman during the 2010-2011 school year, P.P. took Respondent's beginning chorus class. There were approximately 20, mostly-freshmen, students in this class, about three-quarters of whom were female. During that first year in Respondent's chorus class, P.P. sometimes would feel like she was being watched and would notice Respondent staring at her. She also observed him "checking out" other girls. The manner in which P.P. saw Respondent looking at other girls gave her discomfort, because she thought Respondent should not be conducting himself that way. As the 2010-2011 year progressed, when P.P. would get that feeling that she was being stared at, she would look up and catch Respondent looking down the v-neck of her shirt; P.P. always wore v-neck style shirts and blouses. When P.P. looked up at Respondent, he would look away. This bothered her. Respondent denied ever trying to look down P.P.'s shirt or blouse; however, he specifically recalled that she would wear v-neck type shirts and blouses. P.P. is a friendly, outgoing young lady, and as she acknowledged, it is not unheard of for her to hug a teacher. Respondent testified that while he may have hugged P.P. during her first year, there were not hugs every day, like the frequency of hugs between them in P.P.'s sophomore year. Consistent with that testimony, P.P. testified that when she began her sophomore year at Lehigh, she noticed a difference with Respondent. As she described it, she would get hugs from Respondent, but those hugs were not like other hugs. When Respondent hugged her when they were both standing, he would grab at a lower altitude than normal, considering he is taller than her, with his hands dropping down from her lower waist to the edge of her pants. These low-altitude hugs made P.P. feel uncomfortable. The hugging between P.P. and Respondent took place in his office, in the big classroom at the piano or the projector, or at the classroom doorway. There were other students around most of these times, but not for those hugs taking place in Respondent's office. P.P. described the hugs Respondent would give her in his office when he was seated and she was standing. According to P.P., Respondent would put his arm around her at a relaxed stance, "over my butt," instead of reaching his arm upward to account for their differing heights with him seated and her standing next to him. Then, when he would release back out of the hug, she would feel his hands brushing over her buttocks. Though the impropriety of these "hugs" is obvious from P.P.'s description of them, P.P. said that she was not sure if Respondent was "intentionally improperly touching" her. Respondent freely admitted hugging P.P. and others. As Respondent put it, he is "a hugger." Though there was some disagreement as to whether Respondent always initiated the hugs with P.P. (as P.P. testified) or whether Respondent only sometimes initiated the hugs with P.P. (as Respondent admitted), it was clear that there was frequent hugging going on between P.P. and Respondent during the few months of P.P.'s sophomore year prior to Respondent's suspension in November. Additionally, though there was some disagreement as to where Respondent placed his arms and hands during all of these hugs, Respondent acknowledged that he could have made "coincidental contact" with lower waists, buttocks, or other parts while releasing from hugs. P.P. described an incident that took place in October 2011, at school, in the evening after she attended a performance of The Fantasticks. Respondent was also at school after hours, as were many others, because Respondent was coordinating an all-county music competition that took place on the same evening as The Fantasticks. According to P.P., she had seen Respondent earlier that evening when she and others were milling about at intermission. There were concession stands set up by parents and other volunteers, but P.P. did not have any money. Respondent was walking by with some chips in his hands and asked P.P. if she was hungry. She said no, she was going home for dinner later. After the show, she left the "Black Box Theater," where The Fantasticks show was performed, and parted ways with her friend so she could go down the outside corridor to the parking lot where her grandmother was picking her up. P.P. ran into Respondent, and he again asked her if she was hungry and if she needed a ride home. She said that she had a ride and was going home to dinner. At that point, he hugged her in a way that she felt was even more out of the ordinary than his other hugs. He had his arms around her waist and then he moved his hands to her belt area and gripped her tightly. This hug lasted for five-to- ten seconds, until someone came out of another door and then he released her. Respondent admitted the core facts of this encounter, but disputed some of the details. According to Respondent, he was under the misimpression that P.P. had been helping him with the all-county music competition, which is why, he said, that he went up to her to hug her when he saw her leaving. Thus, he admitted to having initiated this hug, but claims it was a simple "thank-you" hug. Respondent denied any belt-gripping or tight grabbing. He thought that the hug lasted for more like two-to- three seconds, not five-to-ten seconds. Whether the hug lasted two, three, four, or five seconds, that is a long hug that could fairly be described as more of an embrace than the sort of split-second pat-hug that might be viewed as a handshake equivalent and that one could arguably accept as not beyond the bounds for a teacher. Between the time of his pre-determination conference and the final hearing, Respondent added a few details that would have been material, but inexplicably were missing from his early version of events. One new detail added by Respondent at the final hearing, which he did not offer at the pre-determination conference was that there were a lot of other people around when he hugged P.P. on the evening of The Fantasticks. He admitted that this fact was important and had no explanation for why he would not have offered this information at the pre-determination conference. Moreover, despite offering the testimony of several supportive witnesses, including two who confirmed they were concession volunteers that evening, there was no witness to testify that he or she was one of the "many people" around to see Respondent hugging P.P. The other embellishment of this incident at the final hearing was Respondent's new claim that his hug with P.P. on the night of The Fantasticks was the last time they hugged, because he "told her that it wouldn't look appropriate."2/ Respondent testified that "it concerned me that P.P. would think it was more than--more to our interaction than was there." Respondent's only explanation for failing to mention this detail at his pre-determination conference was: "I thought about it, but I didn't think, you know, I needed to go into more detail. I would go into more detail here, if we had come to it." Respondent's testimony, offering new details about this incident that he did not provide in December 2011, was not credible. It is not credible that Respondent would have held back material details at the pre-determination conference, which was his opportunity to tell his side of the story before the decision was made whether to initiate disciplinary action. Respondent's failure to provide what would have been material details at a point when those details may have affected the decision regarding disciplinary action, suggests that those new details are not true and were made up to bolster Respondent's story. Respondent urges that P.P.'s allegations should not be believed, because she never told Respondent that she was uncomfortable with their hugs. Respondent suggests that if P.P. were truly uncomfortable after her freshman year, she never would have enrolled for advanced chorus for the 2011-2012 school year because his class is an elective.3/ P.P. never told Respondent that she did not want him to hug her and never expressed her discomfort to him. P.P. explained that she felt like she was supposed to trust her teacher, and she would feel uncomfortable saying something to him because she would feel even more uncomfortable every time she saw him after that. Acknowledging, as Respondent does, that P.P. was one of the best singers at Lehigh, it is understandable that after her freshman year, P.P. would have enrolled in Respondent's advanced chorus class, despite her discomfort. While chorus may have been technically an elective, there were no other options besides taking Respondent's classes for talented singers wanting to pursue their area of interest and talent. M.M., a 15-year-old female sophomore who was a friend of P.P.'s, was an eyewitness to one of Respondent's improper hugs with P.P. M.M. is a quiet, soft-spoken student who took Respondent's chorus classes as a freshman and as a sophomore. M.M. testified that she saw Respondent hug P.P. with his hand on her buttocks. She did not think much about that until, in conversation with P.P. and B.G, P.P. was describing an incident outside the classroom when Respondent had pulled her close and grabbed her buttocks, when B.G. piped up that that had happened to her, too. That is when M.M. told P.P. and B.G. that she had seen Respondent hugging P.P. and grabbing her buttocks. M.M. also said that C.R., a senior, told M.M. that she also had something happen with Respondent. After this discussion, M.M. went home and told her stepmother what P.P. and B.G. had said about Respondent, what M.M. had observed, and what C.R. had told her about Respondent. M.M.'s stepmother contacted Lehigh to report the matter. Immediately thereafter, on November 3, 2011, M.M., P.P., B.G., and C.R. were called down to the assistant principal's office. The assistant principal, Mr. McKeever, separately interviewed M.M., P.P., and B.G.; C.R. was not in the class when she was called. Mr. McKeever had the three girls write down what they told him in the interviews. The students were separated throughout this interview-statement process. M.M.'s written statement is consistent with her testimony, that she witnessed Respondent hugging P.P. in Respondent's office about two weeks earlier (i.e., approximately October 20, 2011), and that she saw "Mr. Sparrow growp [sic] P[.]'s butt while hugging her."4/ M.M. testified that Respondent never hugged her or made any other overtures toward her. M.M. said that she and Respondent were not close at all. In his pre-determination conference, Respondent characterized M.M. as "noble." By this, he meant that M.M. may have offered to support the allegations of P.P. and B.G. to help them out and be their friend after seeing the other students treating P.P. and B.G. badly after their allegations against Respondent came to light. However, M.M.'s statement came before any allegations against Respondent came to light; indeed, M.M. was the catalyst for the information coming to light by telling her stepmother, who reported the matter to the school. Trying another tack to cast doubt on M.M.'s testimony, Respondent suggested that perhaps M.M. was just looking to share in the spotlight by testifying against him. He added that M.M. had academic troubles in his keyboard class and was not a very good student. However, M.M. transferred to a different school shortly after Respondent was suspended and was not at Lehigh any longer when she testified in this case. Respondent's attempts to discredit M.M. were ineffective. B.G. B.G. is a 15-year-old female, who was P.P.'s best friend and a fellow sophomore at Lehigh in the 2011-2012 school year. From the first time B.G. met Respondent in her freshman year taking his beginning chorus class, B.G. observed that Respondent looked at girls in ways she thought were inappropriate for a teacher, such as "checking them out" when they turned away or staring at girls' chests when standing together talking. B.G. did not discuss her observations with P.P. that year. However, she did tell her mother. Besides B.G.'s observations of Respondent looking at female students inappropriately, there was nothing else about Respondent's conduct that caused B.G. concern that first year. B.G. described an incident with Respondent occurring on October 31, 2011, that made her extremely uncomfortable. Since this incident was so recent at the time B.G. and the others were interviewed and wrote statements on November 3, 2011, B.G. was able to provide a very detailed description and repeated the same details in her testimony in this case. Respondent acknowledged the incident and admitted many of the details. B.G. had to see Respondent after class to obtain a signed pass authorizing her absence from class a day or two earlier. The bell had rung, and B.G. was waiting at his office while he finished up with other students. After everyone else had left the classroom, Respondent went into his office and sat at his desk. B.G. stood in the doorway while he signed the pass. Respondent then told B.G. to "come here," directing her to stand next to him while he remained seated. B.G. had a large book bag hanging from her right shoulder, and she stood next to Respondent's left side. Respondent then reached his arm under her book bag and touched her buttocks on the way to stretching his arm under her book bag to encircle her around her lower waist area. That made her very uncomfortable. She thought maybe Respondent touched her buttocks by accident; however, that was somewhat difficult to accept because as she made clear, "it was not a brush past. It was like reaching around and like touching as you're going." Respondent, with his arm around B.G., started talking to her about a piano performance she had that morning at which she had gotten nervous. With Respondent's arm around B.G., he told her that she needed to get over that if she wanted to be a performer some day. Then Respondent retracted his arm, pulling it back under her book bag. This time, he "kind of grabbed as he went"--"it was pretty much a firm grasp all the way back around." This made her extremely uncomfortable and she did not know what to do, so she gave a nervous laugh. As she noted at that point, if it had been an accident, she would have expected him to quickly apologize and back away, but that did not happen. As she stated, "But if you think about it, most people, most teachers wouldn't hug a student anyways." Nonetheless, like P.P., B.G. testified that she honestly could not say that Respondent's intention was to do something inappropriate. B.G. left to go to her next class, but was preoccupied thinking about what had happened, worrying about what she was supposed to do, and talking to a boy sitting next to her about what had happened and what he thought she should do. She was concerned about whether she should report the incident to an administrator, because, as she put it, she did not want to ruin Respondent's life. B.G. told her mother about this incident that night or the next night. They discussed whether B.G. should report the incident and that it was a big deal that could ruin his life. B.G. also told M.M. about the incident and M.M. told her stepmother, who reported the matter to assistant principal McKeever, triggering the investigation that led to this proceeding. Respondent acknowledged the October 31, 2011, encounter in his office, alone, with B.G. He admitted that he was the one who asked her to come stand next to him while he was seated and that he put his arm around her despite the fact that his arm would have been aligned with her hips and rear end. His rationale was that he thought she needed comforting while he talked with her about getting nervous at her piano performance. However, it was not as if she came to see him about the performance or said anything to indicate she was upset about it when she came to his office--she just needed him to sign her absentee pass. Respondent initiated the proximity, then brought up the subject of the piano performance after he had already engaged B.G. in the "comfort" grip that did anything but comfort her. At Respondent's pre-determination conference, he admitted that B.G.'s statement describing the setting was accurate, including the fact that he was seated at his desk and beckoned her to come stand next to him, the fact that she had a book bag on her shoulder, and the fact that he reached under her book bag to put his arm around her waist. While Respondent did not admit to having purposely grabbed or touched her buttocks, he admitted that he had to get his hand back, and in pulling his hand down from B.G.'s waist and out from under her book bag, he could have brushed or touched her buttocks. Indeed, it may have been physically impossible for Respondent to retrieve his arm from across B.G.'s body and under a large book bag without his hand sliding across her buttocks. At the final hearing, four months after the pre- determination conference, Respondent modified his story regarding the October 31, 2011, incident with B.G. Respondent testified at hearing that he did not put his arm around B.G.'s waist; instead, he said that his hand was perhaps at the small of her back. Of course, from B.G.'s description, with which Respondent agreed at the pre-determination conference, the small of B.G.'s back was probably covered by her book bag. Therefore, Respondent also changed the part of his story where he had agreed with B.G.'s description that Respondent snaked his arm under her book bag. At the final hearing, he claimed that he did not reach under the book bag, because he remembered that her book bag was on her left side. Respondent reiterated that "[i]f there was any incidental contact [with her buttocks], that's what it was, in passing." Respondent's changed story was not credible. As described three days after the incident by B.G., confirmed in her testimony and confirmed in all salient respects by Respondent's admissions in the pre-determination conference, Respondent's physical contact with B.G. on October 31, 2011, was intentional and clearly inappropriate. Respondent's attempt to change the story supports the finding that he acted intentionally. Respondent attempted to eliminate the facts showing that he put himself in a position that virtually assured that his hand would have to slide across B.G.'s buttocks at least twice, once on the way out to the left side of her waist and once on the way back. Respondent's improper touching was distressing to B.G. and understandably so. B.G. described one other time earlier in the 2011-2012 school year when Respondent touched her in a way that made her uncomfortable. This incident occurred while B.G. was sitting at a piano practicing, alone, in one of the small piano practice rooms. Respondent came in and reached over her shoulders to put his hands on the keys, which he had done several times before, to demonstrate how to correctly play the piece she was practicing. In this position, his upper arms were touching her shoulders. After about ten seconds of demonstrating on the piano keys, he brought both arms back, and while doing so, his left hand touched the area of her chest right above her left breast and then continued up onto her shoulder. B.G. said that Respondent did not actually touch her breast, but it was close enough to make her feel uncomfortable, especially in such a small room with him standing right behind her and no one else there. The door to the piano practice room was open, and Respondent's hand encounter with the area above B.G.'s left breast was witnessed by C.R., who had walked by and looked in the room because she was looking for Respondent. B.G. told her mother about this incident in the piano practice room, but did not tell anyone else. B.G. did not mention this incident in her written statement, because her focus was on what she considered the more significant incident, when Respondent did not just come close to touching a private body part; he actually grabbed her buttocks, not once, but twice. When asked if she had witnessed any conduct of Respondent's with another student that she considered inappropriate, B.G. referred to the way he would always hug P.P. B.G. testified that she never saw Respondent hug other students. B.G. did not ever witness any inappropriate interaction between C.R. and Respondent, but C.R. told her about things. Lehigh has been an uncomfortable place for B.G. since Respondent was suspended in November 2011. A group of students have banded together to support Respondent, even going so far as to discuss making up "Free Sparrow" tee-shirts to wear in protest of his suspension, but they abandoned that idea when Respondent told them that they could get in trouble if they did that. There has been a lot of animosity directed to the three girls--P.P., B.G., and C.R.--who gave the interviews and statements reporting incidents of Respondent's inappropriate conduct with each of them. B.G. testified that she and the others have been accused of lying, and she cannot understand why. Even though apparently everyone knows the details of what Respondent was accused of, B.G. has not discussed the details with others, and if asked by others about the details, she has denied them because she was told she should not discuss the subject with anyone. C.R. C.R. was a 17-year-old female senior at Lehigh for the 2011-2012 school year; by now, she has graduated. She was a vocal major and took many classes over the years in chorus and piano, which were her musical areas of interest. C.R. did not attend Lehigh as a freshman, but has been there for three years and took Respondent's chorus and keyboard classes in each of her three years. C.R. did not know P.P., B.G., or M.M. before her senior year, when they were in Respondent's advanced chorus class together. The three sophomore girls described C.R. as more of an acquaintance than a friend. C.R. got along fine with Respondent and had no problems with him or his conduct in either her sophomore or junior years. By the end of those two years, C.R. had grown comfortable with Respondent, as he had been her music teacher for a while. In C.R.'s senior year, she had four classes with Respondent: two different keyboard classes, AP music theory, and advanced chorus. According to Respondent, because C.R. had two keyboard classes, he often used her as his aide during the second keyboard class, because she had already learned what she needed to in the first class. Respondent would have C.R. do copying, run to the library, and clean his office. Unlike in her first two years at Lehigh, in the first few months of her senior year, C.R. experienced numerous problems with Respondent, including improper physical contacts and inappropriate comments by Respondent. C.R. described multiple encounters with Respondent while she was playing the piano or keyboard, either in the private piano room or another practice room. At first, C.R. would be seated in a chair at the piano or keyboard playing, and Respondent, while standing, would reach one hand to the keys to show her the proper position and would rest his other hand on her chest area, below her shoulder and above her breast. When this first began in the early part of C.R.'s senior year, Respondent's "resting" hand would be towards the upper part of her chest, closer to the shoulder, but with each successive time, his hand went further and further down until it was resting on her breast. C.R. estimated that she was touched inappropriately this way by Respondent more than ten times in the first few months of the 2011-2012 school year until Respondent was suspended in November. C.R. testified that about halfway through the progression of these keyboard incidents, she was walking by the door to the piano practice room and saw through the door that Respondent was engaged in a similar hand-to-chest area encounter with B.G. Afterwards, C.R. approached B.G. and told her that Respondent does the same thing to her. C.R. said she wanted B.G. to know that she needed to tell someone because she was only a sophomore. When asked why C.R. did not tell Respondent to stop, she said, "I wouldn't know how to approach someone like that. I wouldn't, I wouldn't be able to tell you please don't touch my breast. It would make me very uncomfortable. I would rather just suck it up and deal with it." Respondent's description of his keyboard encounters was somewhat different than C.R.'s and B.G.'s descriptions, but he admitted key parts of those descriptions. Respondent explained that he frequently assisted his keyboard students while they are seated in a single chair at a piano or keyboard. Respondent chooses to remain standing, instead of pulling up another chair. Respondent emphatically denied standing behind his students; he claims to have always stood next to the playing student. However, Respondent admits that he would reach over the student (from the side) and lean over to the keyboard to demonstrate with one hand how to position the fingers on the keys. Respondent also admits that providing assistance this way puts him in a precarious position, so that he has to use his other hand to brace himself on the student's shoulder. Respondent said that he puts his hand "on their shoulder that's nearest me or on the shoulder that's on the opposite side of me," which means that Respondent would put an arm around the playing student, a strange way of bracing himself with his hand on their far shoulder. Thus, Respondent admits regularly touching C.R. and B.G., and presumably all of his other keyboard students, with his hand braced on their shoulders for the duration of the piece the student is playing. The only part Respondent disputes is the hand slippage from its shoulder perch down to the chest area in B.G.'s case, and still further down to the breast in C.R.'s case. However, C.R.'s and B.G.'s testimony was otherwise undisputed, and each of their stories was corroborative of the other's. Respondent's denial was not credible. In addition to the keyboard encounters, on multiple occasions in the few months before Respondent was suspended, C.R. would go to see Respondent in his office and he would ask her to come stand by him when he was sitting at his desk. When C.R. complied, Respondent would wrap his arm around her waist and rub or stroke her buttocks and thigh, while showing her something on the computer or telling her something he wanted her to do. C.R. estimated that these office encounters occurred ten or 15 times, until C.R. started trying to avoid going to his office or ignore his requests to come stand next to him. C.R. also began leaving Respondent's classroom between classes, instead of just staying in the room where she also had her next class with Respondent. To avoid encounters with Respondent between classes, C.R. would wait in the bathroom until students for the next class would arrive, and then she would join them for her next class. When asked whether she knew if Respondent intentionally touched her inappropriately, C.R. responded: "I think if a man touches you on your breast and on your hips and boob and your butt that he is being inappropriate." Once again, Respondent admitted frequent encounters with C.R. in his office, because, after all, he put her to work cleaning it and running errands for him. In addition, Respondent admitted that he would make physical contact with C.R., putting his arm around her while she stood next to him when he was seated at his computer. Once again, Respondent's description of these encounters stopped a bit short of C.R.'s version. According to Respondent, he would reach his arm (awkwardly) around and upward so that he could pat C.R. on her back for emphasis as he showed her something on the computer or showed her paperwork that he wanted her to copy. Once again, Respondent testified that although it was possible that his hand had an accidental encounter with C.R.'s buttocks, any such accident was just that-- accidental. C.R. also described Respondent's inappropriate conduct one day in her AP music theory class, in the presence of four or five other students. On that day, any time C.R. had a question or needed help, Respondent made her hug him before she could ask her question. Respondent also kissed her forehead when she answered a question correctly. She found this behavior objectionable. Respondent did not address this aspect of C.R.'s testimony, which stands unrebutted. C.R. also recounted her discomfort with Respondent's running brassiere commentaries. This string of incidents started during homecoming week, when there was a celebrity dress-up day on which C.R. went to class wearing an outfit that featured a neon-colored bra. Respondent made a joking comment, saying something like, "C., why is your bra so bright?" C.R. did not take this comment in the wrong way, because Respondent said it jokingly. What bothered C.R., however, was the progression of Respondent's brassiere comments and touchings that followed after that day. For example, when C.R. wore a low-cut or v-neck shirt, Respondent stood above her and looked down her shirt, and made comments such as, "I'm glad you're not wearing your neon bra today"; or "this bra is much nicer." Once when C.R.'s bra strap was showing, Respondent pushed the bra strap over and repeated one of the comments about the color of her bra. Respondent gave a slightly different story. He testified that after the neon bra joke, on another day when C.R.'s shirt had slipped and exposed her bra strap, he moved her shirt to cover up the bra strap, while commenting that he was glad she was not wearing the neon bra today. Respondent's version is almost as bad as C.R.'s description. Respondent has no business rearranging clothing of his female students in such a personal manner, nor commenting on their intimate apparel. Respondent often gave nicknames to his students, naming them some kind of "smurf" that suited them, such as "good singer smurf." C.R. described an encounter with Respondent that bothered her, when he pushed up the bottom part of her shirt in the back and said, "We should call you "love handle smurf." Finally, C.R. described what she thought was the final incident with Respondent before his suspension. This incident occurred in the piano room. C.R. had gone in the room between classes when no one else was there. She was tired from soccer practice, so she moved several chairs together so they were touching. She laid down across the seats, which formed a kind of bench. Her shirt had ridden up so some of her waist was exposed, though she had a jacket on over it. Respondent came into the room, pushed up her jacket, and started rubbing her waist and sides. C.R. was uncomfortable so she jumped up, said she had to go do something, and walked out. Respondent admitted that he found C.R. lying down as she had described. Respondent testified that he used his hands to rhythmically beat on her back as he told her to get up, that it was time to get to work. Respondent denied pushing up C.R.'s jacket and he denied that his hands made contact with her skin. Respondent offered a new fact at the final hearing regarding this incident that he did not mention at the pre- determination conference. According to Respondent, after he had been beating on C.R.'s back, she commented, "oh, this feels better than my boyfriend. And at that point I stopped, because that was an inappropriate statement, and that was not the nature of any of that. I left, and that was it." He later elaborated on why he stopped: "Because that was very inappropriate, and that was not--that was not my intention to make it--for her to compare me to her boyfriend or anything like that was way above-- I mean way crossed the line." Respondent also offered his opinion that the reason why C.R. had said all these things about him was because he thinks she had a crush on him and was jealous, or felt threatened, when she saw Respondent touching B.G.'s chest while she was playing piano. This too was a new twist to Respondent's final hearing testimony that Respondent did not see fit to share at his pre- determination conference. No other testimony was offered to support Respondent's new theory; none of the witnesses testifying on Respondent's behalf were even asked if they knew about C.R.'s supposed crush on Respondent. Respondent's unsupported speculation lacks credibility, in part because C.R. was not the one to report Respondent to the school administrators; in fact, she was the last of his victims to give a statement. General Defenses An overall theme of Respondent's attempt to refute the allegations against him was that the three young ladies misunderstood his intentions, which were not sexual in nature. Respondent attempted to prove that B.G., P.P., and C.R. were impressionable and that each of them was influenced to embellish what happened because of the stories that each of them told about Respondent. This effort was ineffective. Respondent, having admitted the core facts of each of the young ladies' allegations, was not credible in his denials of some of the details, as found above. Respondent's admission of serial "accidents" suggests that the incidents were no accident at all. Respondent also attempted to cast doubt on the allegations of the three young ladies by emphasizing the visibility of his office from the classroom and the partial visibility of the classroom and the piano and keyboard practice rooms from the hall, through window panels on the tops of the doorways. Respondent also attempted to suggest that there were always students in these areas. While the testimony established that most of Respondent's inner office would be visible to persons in the classroom, the testimony also established that there were times when Respondent would be in his office with a student and no one else around. The same is true with respect to the piano and keyboard rooms--the testimony established that these rooms may have been at least somewhat visible, but others were not always around. All of the student witnesses, including the four witnesses who attempted to support Respondent with their testimony, confirmed this fact; each of them had, on occasion, been alone with Respondent. The witnesses testifying in support of Respondent think highly of him as a teacher and do not believe the allegations against him. However, their testimony lacked substance to refute the allegations in any respect. For example, all of Respondent's student witnesses admitted that they were not always with B.G., P.P., M.M., and C.R. when those four girls were in Respondent's presence. All but one of Respondent's student witnesses said that they would be surprised to hear Respondent describe himself as a hugger. One student witness never saw Respondent hug any student; another student witness said that Respondent hugged everyone. The shame of it is that Respondent has been a very good and talented teacher. Indeed, after he was suspended, each of the young ladies who made statements against Respondent stated publicly that they wished he was still teaching because he was such a good teacher (and also because they did not think much of his replacement). But each of these young ladies made clear that they were speaking only of teaching ability, and if he had actually come back to teach them, they would have felt very uncomfortable because of his misconduct and because they spoke up against him. Prior Notice Respondent makes much of the fact that the three students whose allegations are the predicate for the charge of misconduct never complained to him about his conduct, so that he could change his conduct to address their concerns. Under the circumstances found above, notice should not have been required for Respondent to realize that serial "accidents" in which his hands found themselves on the buttocks of female students and other "accidents" in which his bracing hand slipped from shoulder perches downward in the direction of the breasts of female students, was improper conduct on his part. Moreover, Respondent admitted that he was indeed on notice about Lehigh's concern with him breaching body boundaries with female students. Respondent testified that he met with Lehigh Assistant Principal Niki Carthan sometime during the 2010-2011 school year, about a student complaint. Ms. Carthan informed Respondent that a student had complained to another teacher that Respondent made her feel uncomfortable. That teacher reported the complaint to Ms. Carthan, who spoke with Respondent about it. The student who had complained was a senior who was going to apply to FAMU, where Respondent attended. Respondent invited the student to his office to pull up her application essays on his computer. According to Respondent, the student was sitting down at his computer, and he reached around her for the mouse which was on the other side of her. He claims he did not touch her, but he acknowledged that by the nature of him reaching around her to click on the mouse that was on her other side and "being in close proximity to her looking at the computer screen, it might have made her uneasy " Respondent testified that Ms. Carthan warned him to be more careful and that he needed to be "very cognizant of your spacing" when it came to students. Rather than heeding Ms. Carthan's warning, Respondent was plainly less careful, not more careful. He did not learn his lesson from his close encounter that violated body space boundaries and made the FAMU-bound student uneasy enough to complain during the 2010-2011 school year. Instead, that too-close encounter in 2010-2011 progressed to numerous incidents of improper physical contacts by Respondent, with actual touching of private body parts, making three different young ladies very uncomfortable, fearful, and anxious about encounters with the one teacher who could teach them the music they loved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, enter a final order terminating Respondent, Willie Sparrow's, employment. DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 18th day of July, 2012.
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2013.
The Issue The issues are whether the conduct of the Respondent, an elementary school music teacher, justified a three-day suspension without pay on February 26, 27, and 28, 2008; and whether Respondent should be terminated from employment for conduct that constitutes misconduct in office, immorality, and/or incapacity.
Findings Of Fact James F. Notter, Superintendent of Schools of Broward County, Florida, signed the Administrative Complaint in this case on behalf of Petitioner, Broward County School Board (Petitioner or the Board). The Board operates public schools within the Broward County School District (the District). Respondent, Brian Duda, was employed as an elementary school teacher by Petitioner, Broward County School Board, and assigned to teach music at Sheridan Hills Elementary School during the 2007-2008 school year. Mr. Duda has taught school for a total of 29 years, 23 in Broward County. In addition to teaching music, Mr. Duda has been an elementary school classroom teacher. When Mr. Duda started at Sheridan Hills, in the 2004- 2005 school year, the principal was Christopher Pariso and the assistant principal was Deborah Freedman. Donald Fitz, who has been employed by the District since 1987, and for eight years before that in Pennsylvania, became the Sheridan Hills' principal in 2005, after Mr. Pariso retired. After Mr. Fitz was named principal, he received a letter from Mr. Duda saying he would not be returning to Sheridan Hills the following year. Mr. Fitz discussed Mr. Duda with Mr. Pariso who told him that Mr. Duda had served a one-day suspension related to anger management issues. When he did not receive a transfer to another school, Mr. Duda notified Mr. Fitz that he would, in fact, be returning to Sheridan Hills the following school year. Mr. Fitz and Ms. Freedman met with Mr. Duda and discussed his strength; he is an excellent music teacher; and his weakness, his need for anger management so that he is not "burning bridges." Mr. Duda was to seek help from Ms. Freedman when he felt the need for relief from his classroom or any other school setting to control his anger. The following year, Ms. Freedman left and Tara Zdanowicz became the assistant principal at Sheridan Hills. In a memorandum dated February 20, 2008, Mr. Duda was notified that the Board had approved Mr. Fitz' recommendation that he be suspended for three days. On April 11, 2009, Mr. Duda was notified, in the Administrative Complaint, that the Superintendent of Schools was recommending to the Board that his employment be terminated. In this proceeding, Mr. Duda challenged both actions. In the Amended Administrative Complaint, dated September 11, 2009, the disciplinary actions are, in relevant part, alleged to be justified based on the following: Specific Charges The Petitioner, James F. Notter, alleges as follows: Suspension Respondent, Brian Duda, humiliated and embarrassed a first grade student, W.J.R., in front of other students and parents at a school holiday show during the 2007-2008 school year. Specifically, W.J.R. arrived for the holiday show with his Mother, Grandmother, Grandfather, as well as his sisters, and approached Mr. Duda to take his place for the show. In the presence of others, Mr. Duda began to yell at W.J.R. causing him to cry at which time his family approached to see what was wrong. W.J.R.'s family then witnessed Mr. Duda continuing to yell at W.J.R. words to the effect that W.J.R. was banned from the holiday show and was supposed to have written in his journal and tell his parents that he was un-invited to the holiday show because he had acted despicable [sic]. Mr. Duda's actions embarrassed W.J.R. in front of his classmates and their parents. In this way, Mr. Duda violated his duty to protect students from conditions harmful to learning. W.J.R.'s mother took him and left the auditorium to prevent further humiliation and embarrassment to her son and family. Mr. Duda has been repeatedly counseled about his conduct with students, school personnel and parents and to conform his behavior, but he has failed to abide by these lesser disciplinary and counseling measures. Just cause exists for the requested relief as Mr. Duda's behavior is inexcusable under the Code of Ethics of the Education Profession, Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession, Rule 6B-1.006, Florida Administrative Code. WHEREFORE, based upon the foregoing, the Petitioner, James F. Notter, Superintendent of Schools, requests that the three (3) day suspension of the Respondent, Brian Duda, be upheld based upon the foregoing facts and legal authority. Termination Respondent, Brian Duda, creates and maintains a hostile, offensive and threatening environment for his colleagues as well as his students through his inappropriate conduct and behavior. Mr. Duda has been counseled repeatedly to correct his behavior but, he has disregarded such directives and continues his conduct undaunted. He disregards directives and continues a pattern of conduct that is demeaning and frightening to students and harassing and offensive to staff. Specifically, numerous colleagues, supervisors, students and parents complain that Mr. Duda makes offensive and harassing comments toward them. Mr. Duda's rude and hostile comments toward students would cause them to become visibly upset and create an environment which is not conducive to learning. Mr. Duda regularly exposes his students to ridicule and embarrassment. Mr. Duda's behavior prompted several student's [sic] parents to remove their children from Mr. Duda's class as a result of his actions. Examples [sic] of Mr. Duda's pattern of behavior is included herein. Mr. Duda made offensive comments mocking the death of a student's father asserting "That's what happens to white trash and he got what he deserved". Mr. Duda regularly exhibits rude and inappropriate behavior in class toward students. Mr. Duda told M.S. she was "bad just like your brother." When a student asked what "retarded" meant, Mr. Duda pointed to student S.R. and said she was "retarded". Michael Corva, S.R.'s teacher, found S.R. and several other students visibly upset after Mr. Duda's class as a result of such comments. Mr. Duda told B.O. to "shut up," and called A.G. "retarded" as well, simply because he didn't know the answer to a question. Additionally, Ms. Eaton witnessed Mr. Duda demean a fifth grade class by telling them that they should be in Pre-K or Kindergarten, or that they should be wearing diapers. Mr. Duda was rude and demeaning to student M.S., when she simply told him it was her birthday. He responded "Well, that doesn't make you special. Sit down." Mr. Duda further demeaned her by then ordering her to sit alone in the back of the classroom. At the end of class, M.S. was discovered by another teacher sitting alone in the back of the room with her jacket over her head. M.S.'s parents subsequently demanded their child be removed from Mr. Duda's class. Mr. Duda threatened Tara Zdanowicz, Assistant Principal, upon being denied a letter of recommendation by responding "Okay, well if I'm here next year, things aren't going to be good. This is going on my list of things. I better not run into Mr. Fitz in Wilton Manors with my friends." Staff has further witnessed inappropriate interactions with Mr. Duda concerning his conduct, anger management and verbal statements which cause concern for the welfare of the staff and students. For example, Mr. Duda told staff that his friends had "heard enough and . . . if they ever saw Mr. Fitz out they'd kick his ass". Mr. Fitz is the school Principal. Mr. Duda further embarrassed, humiliated, and demeaned a parent volunteer by telling her "Why don't you go get a job at Publix? At least they pay you there," while she was volunteering in another class. This parent subsequently removed her child, C.F., from Mr. Duda's class because Mr. Duda would be offensive to her, and she did not want her child exposed to this type of conduct at a crucial age. Mr. Duda's actions further made the student C.F. so frightened and uncomfortable that when Mr. Duda would walk into the library, C.F. would try to avoid an encounter with him by hiding. Mr. Duda embarrassed and humiliated Steven Briggs, a seven year employee of the School Board, and Mary Harris, office manager and confidential secretary to the Principal of Sheridan Hills, by yelling at them prior to the start of the Christmas/holiday show saying "you people in the back. You adults. I don't want to hear anything out of you either." This comment drew the attention of everyone in the cafeteria whereby Mr. Briggs and Ms. Harris left and did not watch the show. Similarly, Mr. Duda yelled at and demeaned a teacher arriving with the class for a school show by yelling in front of the whole school that "You are supposed to be here at 9:00. It is 9:02. I should not let you come to this concert." Mr. Duda caused a coworker, Kathleen Treado, a twenty year employee, to cry upon yelling and berating her for inquiring as to what was wrong when she heard Mr. Duda yelling at the library clerk. Mr. Duda yelled to Ms. Treado "It's none of your business Kate Treado." Mr. Duda further humiliated and demeaned Ms. Eaton by stating, "You're off today. You're not taking your pills." Similarly, Mr. Duda stated to staff that Mrs. Fletcher, president of the Parent Teacher Association (PTA), " . . . is nothing but trailer trash, and so is Debbie Corriveau". Mr. Duda also told staff that other staff and parent volunteers at Sheridan Hills, were "white trailer trash". Mr. Duda has also harassed Mabel Gutierrez-Sangal, a fifteen year paraprofessional at Sheridan Hills, with continuous comments to her about her clothes being inappropriate. Mr. Duda also threatened to kick her out of his class if she attempted to enter his classroom. Ms. Sangal felt threatened and uncomfortable and reported the incident to the Principal Donald Fitz. Mr. Duda further demeaned pre- k students, in front of Ms. Sangal, during lunch by stating "Okay little ones, Please eat your government lunch biscuit" while adding that they should not let Ms. Sangal eat their pizza. Mr. Duda was hostile and threatening toward Ms. Corriveau, by approaching her and sticking his finger an inch from her face and accusing her class of being loud. Rhonda Lane, an eleven year employee, witnessed this "highly inappropriate" interaction. The School Board has taken lesser corrective measures by repeated counseling of Mr. Duda to correct and conform his behavior but he has failed to abide by such counseling and lesser disciplinary measures. The conduct described, the Amended Administrative Complaint concluded, constitutes, in Count I, Misconduct in Office; Count II, Immorality; and Count III, Incapacity. Collective Bargaining Agreement (CBA) Record-keeping requirements and procedures for handling complaints against employees of the District are governed by a CBA negotiated between the Board and the Broward Teacher's Union (the Union). The CBA, in relevant part, provides: E. Personnel File- Access and Security Number of files: There shall be no more than two (2) personnel files maintained for each employee. The official file will be maintained at the district personnel office. In the event two (2) such files are maintained, one (1) shall be kept in the principal's or director's office at the school or other location where the employee is then employed. Each document placed into the employee's file maintained in the principal's or director's office shall be duplicated and the original transmitted to the district Personnel Office for inclusion within the employee's file maintained at the district Personnel Office . . . . Entries log: Each personnel file shall contain a form titled "Log of Entries" to include all of the following information regarding certificates, commendations, assessment documents, disciplinary matter and complaints placed in the files: (1) a brief description of the time; (2) the date shown on the item; (3) the date the item was first placed in the file; and (4) the identification of the source of the item. * * * Investigative File: The file established by the district as a result of any investigation of an employee is not one of the two personnel files listed above. Access to a file dealing with an investigation shall be in accordance with the provisions of Florida Statute 1012.31. If the preliminary investigation is concluded with . . . no disciplinary action taken or charges filed, then the district will ask the Department of State . . . for permission to destroy the . . . file. Notification to employee: Items may not be placed in an employee's official personnel file unless the item has been made known to the employee, pursuant to the methodology described in Florida Statute 1012.3l(2)(c) . . . CBA, Article 18(E)(1), (2), (4), and (5). The CBA also provides for handling complaints as follows: Complaints on Employees: No action against an employee shall be taken on the basis of a complaint by a parent or student or other individual nor any notice of such action or complaint shall be included in the employee's personnel file, unless the matter is first reported to the employee in writing and the employee has had the opportunity to discuss the matter with his/her principal. CBA, Article 18(B)(2). At various times during the school year when teachers, parents, and students complained about Mr. Duda, Mr. Fitz would have them put their complaints in writing. He did not provide copies of the complaints to Mr. Duda but maintained them in a correspondence file. Respondent's position is that the "correspondence file" was a separate third "personnel file" maintained in violation of the terms of the CBA, and that, as a consequence, no disciplinary action may be taken against Mr. Duda. That position ignores Article 18(E)(4) of the CBA that allows information to be collected in an investigative file. Respondent also maintains that Mr. Fritz should have given him copies of the written complaints that he was collecting. Diane Watts, the field representative for the union who was assigned to assist Mr. Duda, agreed with Mr. Duda that employees should be notified of complaints immediately, although the CBA has no specific time limit. Ms. Watts confirmed that an employee does not have to be given copies of written complaints. According to the requirements of the CBA, a principal or supervisor who gets a complaint about an employee should not put the complaint in the personnel file, but should keep it separate and forward it with a request for an investigation to the District's Special Investigative Unit (SIU). It is the SIU that notifies the employee in writing of the complaint and conducts the investigation, but the SIU is also not required to give the employee copies of the actual complaints or any written or recorded statements taken during the course of the investigation. With a union representative present, the employee has an opportunity to give his or her own statement. At the conclusion of an SIU investigation, a written report summarizing allegations and statements must be provided to the employee, but again not the written complaints. The employee, with a union representative, has another opportunity to appear, this time before the Professional Standards Committee. If further action is recommended, a pre-disciplinary conference allows the employee, with a union representative, to have additional input. Mr. Duda had both a union representative and an attorney present at a pre-disciplinary conference. As confirmed, the CBA procedures were followed in Mr. Duda's case. She accompanied him throughout the process and never filed a grievance concerning the manner in which the matters were conducted. Ms. Watts confirmed that it would have been a violation of the terms of the CBA if Mr. Fitz had placed complaints in Mr. Duda's personnel file before and during the investigation. She said the SIU process unfortunately can take an "awfully long time" meaning up to "over a year." In this case, Mr. Duda was removed from a teaching position and reassigned to a District office in August 2008, but the first Administrative Complaint to terminate his employment was not filed until April 2009. There is only one exception to the requirement that complaints not be placed in the personnel file until the investigation has been completed: that is for minor matters that a principal may resolve internally with a letter of reprimand. In each instance of discipline at issue here, Mr. Duda was notified in writing of the recommendations and reasons given to the Board by Mr. Fitz, who recommended suspension, and subsequently by the Superintendent, who recommended termination. There was no violation of the CBA in the procedures to impose discipline. Therefore, the CBA does not prohibit further consideration of the allegations in the Amended Administrative Complaint, based on the provisions related to personnel files and written notice. The additional requirement of an opportunity to discuss the matter with his principal was also met based, in large part, on the testimony of Mr. Duda himself. See, for example, Findings of Fact 24, 32, 43, 45, 49, and 50. Mr. Fitz also kept an Entry Log in Mr. Duda's personnel file that Mr. Duda conceded was correct. Mr. Fitz gave Mr. Duda "satisfactory" ratings on the Instructional Personnel Assessment System (IPAS) at the same time he was collecting complaints to refer to the SIU. He was instructed by Cathy Kirk, the District's Evaluation Coordinator, and Loreen Calhoun, of Employee Relations, not to address possible disciplinary issues in the IPAS, although he did write a comment about the need for anger management on one IPAS. Amended Administrative Complaint Paragraph II.A.a. On December 6, 2007, W.J.R. was a first grade student at Sheridan Hills. Based on his description of W.J.R.'s behavior earlier in the day as "despicable," Mr. Duda apparently told a substitute teacher for W.J.R.'s class to write in his agenda/planner for his parents to see that he was being excluded from the holiday show that night. All parties agree that W.J.R. was humiliated, embarrassed and in tears. He had been excited that he was going to be in the holiday show, got all dressed up, and was accompanied by his mother, grandparents, and sisters. As they entered the music room, Mr. Duda yelled from the back of the room that W.J.R. should not be there. Mr. Duda testified that that the grandmother called him a "jackass." W.J.R.'s parents and grandparents found Mr. Fitz and complained about Mr. Duda, and then left the school before the program. Mr. Fitz was concerned because Mr. Duda was "in one of those moods [and had previously] declined to follow through with the [spring] concert and . . . I had to get someone outside of our school to carry through for the rest of the spring concert rehearsal." To calm things down, Mr. Fitz asked the parent to come see him the next day. He also called Ms. Zdanovicz, the assistant principal, who was on her way to the school, to ask her to get there quickly to help calm Mr. Duda because she had a better relationship with him. The following day Mr. Fitz met with the family of W.J.R. and received a written statement from his mother. Mr. Fitz also met with Mr. Duda concerning the incident. Mr. Duda testified unconvincingly that Mr. Fitz only discussed the incident by "briefly ask[ing] what happened . . . ." With Ms. Watts, Mr. Duda attended a pre-disciplinary conference on January 25, 2008. Eight-year-old W.J.R. was "sad" when "[Mr. Duda] yelled at me and said I was not supposed to be there." Christopher Falzone, the after school program director, who was there to help with the concert, confirmed that Mr. Duda was eye-level with the child, as Mr. Duda said, but that he was very loud and angry. He was pounding his fists, and causing a scene in front of other children and parents. In a memorandum dated January 31, 2008, Mr. Fitz notified Mr. Duda that he was recommending his suspension for three days without pay because: ". . . you lost your temper in front of students and parents while exhibiting conduct unbecoming a teacher. This is in violation of the Florida State Department of Education's Code of Ethics Rule 6B-1.001(2) that states, 'The Educator's primary concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.'" Mr. Fitz found that Mr. Duda's conduct violated Florida Administrative Code Rule 6B-1.006(3)(c), which states "[an] [o]bligation to the student requires that the individual shall not intentionally expose a student to unnecessary embarrassment or disparagement." The memorandum also advised Mr. Duda of his right to file a grievance and to schedule an informal discussion with a union representative present within 15 working days of the date of the memorandum. No grievance was filed and the Board approved the recommendation for suspension and provided written notice of that decision to Mr. Duda on February 20, 2008. Based on Mr. Duda's behavior at the hearing, Mr. Fitz is credible in saying that Mr. Duda laughed and said that "his mother was going to make up the difference in pay" for the three days. The fact that Mr. Duda did not take seriously the inappropriateness of the manner in which he handled the incident with a first-grade child was reinforced by his insistence, at hearing, that he had the authority to exclude anyone he wished from the program. The factual allegations in Paragraph II.A.a. of the Amended Administrative Complaint are proven. Amended Administrative Complaint Paragraph II.B.b. Lynn Eaton, a pool substitute teacher at Sheridan Hills, was sorry to hear that a father of three, including two who were students at Sheridan Hills, was killed in a boating accident. It was reported all over the news that the accident was alcohol-related. Mr. Duda said, "Oh, did you hear what happened to Mr. [B] drinking and being drunk and getting killed in a boating accident . . . That is what happens to white trash when they drink and drive a boat." After attending the funeral, thinking about the comment over the weekend, and still being upset about it, Ms. Eaton reported the comment to Mr. Fitz and put her complaint in writing. Mr. Duda testified that what he said was, "Thank God he did not get behind the wheel and kill an innocent person on the road." He denied calling Mr. [B] "white trash" or saying "he got what he deserved." Mr. Duda's testimony that he did not use the expression "white trash" is not credible due to evidence of other incidents when he reportedly used a similar expression about a PTO volunteer and another teacher. Giving him the benefit of the doubt and referring to Ms. Eaton's written statement, at the time of the incident, quoting Mr Duda, he said "that is what happens to white trash but he felt very sorry for the children." There is inadequate evidence to support a finding that he also said "he got what he deserved." Mr. Duda conceded that he was confronted about the incident, when he said he and Ms. Eaton did not speak to each other for some time after that. The factual allegations in Paragraph II.B.b. are proven, in part. Amended Administrative Complaint Paragraph II.B.c. and II.B.d. Mr. Duda acknowledged that he told student M.S. that she was "bad just like her brother" in front of her classmates. He berated M.S. for having a birthday crown or hat on her head. Saying she was not special, he made her take it off. Mr. Duda said he was adhering to the school policy of no hats and believes that "floppy things" on the hat interfered with her music lesson, although what he interpreted as the strict no-hat rule is waived for birthdays and some children do wear Burger King cardboard crowns on their birthdays. When M.S.'s teacher came to get the class from music, M.S. was sitting in the back of the classroom crying with a hooded jacket over her head. Her mother said M.S. told her she felt uncomfortable with Mr. Duda and, as a result, she had M.S., a straight-A, gifted student, removed from music class. Mr. Duda pointed at student S.R. and said, "speaking of retarded." K.M., another student in the class, heard Mr. Duda call S.R. "retarded" or "stupid" in the course of teaching a class about a musical term. Her testimony is consistent with that of S.R. and Mr. Duda that he was teaching about the musical term ritardando, which means to slow the tempo of music. He compared slow tempo to a slow mind, but denied that he made any reference to or stared at S.R. or any other student. Mr. Duda's demeanor at the hearing lends credence to the students' testimony. The testimony of S.R. and K.M. was confirmed by that of S.R.'s classroom teacher, Michael Corva. S.R. and other students in his class informed him that Mr. Duda called S.R. "retard." He also saw that she obviously was upset when he picked up his class from music. The students told him that Mr. Duda was "mean" to them. Saying that she did not want to get anyone in trouble, specifically not Mr. Duda, S.R. would not go to the office to report the incident, but Mr. Corva did in a written statement he gave to Mr. Fitz. Student A.G. also was upset when Mr. Corva picked up his class. A.G. testified that Mr. Duda was explaining something like "retardo" and called some of the students retarded, including himself and S.R. The evidence supports a conclusion that Mr. Duda, at a minimum, implied that S.R. and A.G. were retarded by the way he pointed or looked at them while teaching a lesson on the musical term ritardando. No evidence was presented concerning the allegation in Paragraph II.B.c. that Mr. Duda told student B.O. to "shut up." Ms. Eaton overheard Mr. Duda tell students that they should be in diapers. Mr. Duda denied ever telling students they belonged in diapers. Of the two, Ms. Eaton was by far the more credible witness. With the exception of the allegations related to student B.O., the allegations of Paragraph II.B.c. and d. have been proven. Amended Administrative Complaint Paragraph II.A.b. and II.B.a., e., and j. After she came to Sheridan Hills in Mr. Fitz's second year as principal, Assistant Principal Zdanovicz was the person who, like Ms. Freedman before her, was assigned to help Mr. Duda by relieving him whenever he felt he was losing his temper. As Mr. Fitz counseled Mr. Duda repeatedly and, especially, after his three-day suspension, Mr. Duda refused to talk to Mr. Fitz and would only deal with Ms. Zdanovicz, although she made it clear to him that she was reporting their conversations to Mr. Fitz. In June 2008, Mr. Duda was seeking a transfer to another school. He asked Ms. Zdanovicz to write a letter of recommendation for him. When she refused the request, Mr. Duda became agitated and started "ranting and raving" in an open area of the front office. In one conversation that she had with Mr. Duda, Ms. Zdanovicz was concerned that he was making a threat on the life of Mr. Fitz. In his testimony, Mr. Duda confirmed that, referring to himself and his friends, he told Ms. Zdanovicz, "If we ever see that son of a bitch out in Wilton Manors, we would kick his fucking ass." Ms. Zdanovicz took it seriously, in part, because Mr. Fitz lives in Wilton Manors. Explaining why his friends were involved, Mr. Duda said it was because they heard him complain regularly about the way Mr. Fitz treated him. It is implausible, therefore, to conclude that, as Mr. Duda testified, he was not being advised regularly by his principal of complaints about his behavior. Ms. Zandovicz testified, "Whatever the outcome of this I do fear for myself and Mr. Fitz and the other people at our school. The allegations in Paragraph II.A.b. and II.B a., e., and j. have been proven. Amended Administrative Complaint Paragraph II.B.a. and f. Mr. Duda told G.F., a PTO parent volunteer, "Go get a job at Publix. At least they pay you there." When her child, C.F., was in third grade, C.F. began to complain of feeling ill on the days for music classes. When confronted by her mother, C.F. told her that Mr. Duda was mean to her and made her feel uncomfortable. At her mother's request, C.F. was taken out of music class. Kate Treado, the Sheridan Hills media specialist, reported that C.F. needed to be reassured about her safety after she noticed her hiding behind the stacks whenever Mr. Duda came in the media center. Mr. Duda acknowledged making the comment about Publix, but said he was joking with G.F. and had no ill intent. Mrs. F. said she was offended but tried not to be confrontational. Claiming that he and Mrs. F. were friends and that he did not know why C.F. was removed from music class, Mr. Duda testified that he approached Mrs. F. and asked "what happened," and she said she did not want to talk to him. In response to accusations from M.S. and C.F. that he glared at them or otherwise intimidated them after they were removed from his class, Mr. Duda said, "No. There had been enough trouble when they were removed from my class. I have 623 other kids to worry about. If they don't want to be in music, fine." At another time, he conceded that he knew their removal from his class reflected negatively on him. When asked, on cross-examination, "What trouble had there been relating to their removal?," Mr. Duda said, "I don't know what you are referring to. I don't recall saying that." Another parent, D.L.R., asked to have her son, D.B., removed from music class. D.B. accused Mr. Duda of grabbing his shirt. After Mr. Fitz randomly chose children in the class to interview, he concluded there was no evidence to support D.B.'s claim and he told Mr. Duda, "[D]on't take it any further." In direct violation of that directive, Mr. Duda said D.B. came in with hoodie over his head, and he "professionally would not let a kid sit there curled up like that, afraid to look at me." So, he said "[D.B.], I'm not upset with you. I'm just disappointed." D.B. said "[Well, you did it." Mr. Duda responded, "Oh, Oh, we are not going there." He asked which children had been interviewed, and gave them rewards called "flip-its" for "telling the truth." Mr. Duda admits being advised that Mr. Fitz considered his behavior unacceptable, saying he "chewed" him out. The allegations in Paragraphs II.B.a., d., and f. have been proven. Amended Administrative Complaint Paragraph II.B.g. Mr. Duda made comments in a cafetorium filled with children and parents attending one of the holiday programs, to chastise teachers in the back for having a "teacher conference going on." He was speaking to Steven Briggs and Mary Harris who complained that the comments were directed at them. Mr. Duda claimed to be joking with and looking only at Debbie Corriveau. Mr. Briggs' testimony that Mr. Duda directed the comment to him and Ms. Harris is supported by a contemporaneously written statement dated 12/7/07. Mr. Briggs also observed and reported that Mr. Duda chastised one teacher, in front of the entire assembly, for bringing her class in at 9:02 a.m. instead of 9:00 a.m, saying he should not let them attend. Media specialist, Kate Treado, confirmed that Mr. Duda got very tense about the time for performances, including often threatening to exclude children from performing, and once telling children and parents who had gathered early in the media center that they could not attend a performance that evening. Mr. Duda attributed this action to his concern for overcrowding. The allegations in Paragraph II.B.g. of the Amended Administrative Complaint have been proven. Amended Administrative Complaint Paragraph II.B.h In September 2007, Cheryl Fogarty, a media clerk at Sheridan Hills, was verbally and loudly criticized by Mr. Duda for leaving bubbles in his laminating project and was in tears by the time he left the media center. Ms. Treado heard what was happening, walked in and said "good morning" to Mr. Duda. Although the media clerk works under Ms. Treado's supervision, Mr. Duda told her what was going on with Ms. Fogarty was none of her business. On another occasion, Mr. Duda became angry with Ms. Fogarty because he thought she was taking laminating projects out of order and that he reported that to the assistant principal. He said his work was on top at 7:00 a.m., but he saw other work on top of his at 7:30 a.m. Mr. Duda agreed referred to Ms. Eaton regularly for years as a "lovable crazy old bat," sometimes asked if she took her medication or had "silly pills", and laughed at her silly clothes, but Ms. Eaton was not offended and said she did wear silly outfits to entertain the children. After she made the complaint about his comments regarding the death of the parent, Mr. B., however, their joking relationship ended and they stopped speaking for a while. After school program director, Christopher Falzone, testified that Mr. Duda referred to another teacher and a parent as "white trash." Mr. Duda denied that he made the comments, but Mr. Falzone and Ms. Eaton are more credible with independent memories of Mr. Duda's having used the same expression on separate occasions. Based on the evidence, it is found that the allegations in Paragraph II.B.h. are proven. Amended Administrative Complaint Paragraph II.B.i. There is no evidence to support the allegations concerning Mabel Gutierrez-Sangal. Mr. Duda testified that he was upset that Ms. Corriveau's class was, in his opinion, too loud and that the noise was disturbing another teacher's class where he was helping proctor the FCAT administered in March 2008. Mr. Duda spoke to Ms. Corriveau about it and, because he thought she was being sarcastic when she said, "okay, Mr. Duda, okay," he turned back towards her to say it was not a joking matter and to chastise her further. Mr. Duda was rude, inappropriate, and he spoke to her as if he were reprimanding a bad child. After the incident, Ms. Corriveau told Mr. Duda she had never been spoken to that way in her life and avoided him. Summary of Findings: The terms of the CBA were not violated in the procedures that led to either the three-day suspension or he proposed termination of Mr. Duda. Disciplinary actions, if otherwise appropriate, are not barred by the terms of the C.B.A. The factual allegations in Paragraphs II.A.a. and II.A.b. of the Amended Administrative Complaint, in support of the suspension, have been proven. The factual allegations in Amended Administrative Complaint Paragraphs II.B.a., b. (in part), c. (in substantial part), d., e. (in substantial part), f., g., i. (in part), and j. have been proven.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board issue a final order upholding Respondent's suspension and terminating his employment with the School Board. DONE AND ENTERED this 15th day of December, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 15th day of December, 2009. COPIES FURNISHED: Carmen M. Rodriguez, Esquire Carmen Rodriguez, P.A. 15715 South Dixie Highway, Suite 411 Palmetto Bay, Florida 33157-1884 Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 James F. Notter, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale 33301-3125 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2008),1/ and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B- 1.006(5)(a), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Dunn holds Florida Educator's Certificate 930668, covering the area of exceptional student education, which is valid through June 30, 2012. At all times pertinent to this case, Ms. Dunn was employed as a varying exceptionalities teacher at Seminole High School in the Pinellas County School District (School District). Deborah Joseph (Ms. Joseph), the director of School Partnerships for St. Petersburg College, hired Ms. Dunn for the Spring Semester of 2009 to supervise 12 student interns, teaching in various Pinellas County elementary schools. Ms. Joseph credibly testified that she asked Ms. Dunn what Ms. Dunn would do with her current employment as a Pinellas County teacher, if offered a job. Ms. Dunn stated that she would resign as a teacher. On January 30, 2009, during school hours, Ms. Dunn left the Seminole High School campus without permission from the school administration. When the school's assistant principal, Phillip Wirth (Mr. Wirth), questioned Ms. Dunn about her whereabouts, Ms. Dunn alternately claimed that she had been given permission by another principal to leave the campus and that she had been meeting with another teacher. Neither of Ms. Dunn's explanations was supported by the assistant principal or the teacher. Consequently, on March 9, 2009, Mr. Wirth gave Ms. Dunn a written reprimand for her conduct. The evidence clearly and convincingly shows that Ms. Dunn continued her employment as a teacher at Seminole High School while at the same time working a second job for St. Petersburg College, supervising student interns working in elementary schools. Unfortunately, Ms. Dunn's work hours at Seminole High School coincided with the student interns' work hours at the elementary schools. In order to work both jobs, the record shows that Ms. Dunn was routinely untruthful in her use of sick leave time and left the Seminole High School campus during school hours without permission. For example, the record shows that she requested sick leave on February 26, 2009; March 4, 2009; March 6, 2009; and March 17, 2009. On those very same dates, Ms. Dunn signed in to supervise interns at Pinellas Central Elementary School, Sandy Lake Elementary School, Plumb Elementary School, and McMullen Booth Elementary. Again, on one date, April 23, 2009, Ms. Dunn wrote in her leave request that "family and kids touch [of] flu" and that she was signing out for a doctor's appointment beginning at 9:30 a.m. The record shows on that same day Ms. Dunn miraculously recovered from the illness and was able to eat lunch at her husband's nearby restaurant at 11:50 a.m., and then supervise an intern at Pinellas Central Elementary School at 1:33 p.m. In addition to misusing sick leave, the record clearly showed that Ms. Dunn would leave the Seminole High School campus without permission or signing out and would falsify school records. For example, the record clearly showed that, on April 16, 2009, Ms. Dunn left the school campus without permission. The record shows that she signed out for lunch at 1:00 p.m. and that she returned at 1:30 p.m. However, the records also show at 1:45 p.m., that same day, Ms. Dunn signed into High Point Elementary in order to supervise an intern. Again, on April 22, 2009, Ms. Dunn left Seminole High School without permission or signing out at 9:46 a.m. Walter Weller (Mr. Weller), the principal of Seminole High School, credibly testified that co-teachers, like Ms. Dunn, are placed in exceptional student education classes in order to assist with the students' individual education plans and to help the students succeed. Further, he credibly testified that it was important that teachers remain on campus to keep classrooms covered, and it is a safety issue for the students. James Lott (Mr. Lott), an administrator in the Office of Professional Standards for the School District, credibly testified that the School District felt that progressive discipline was not appropriate in Ms. Dunn's case, because her actions amounted to stealing time and outright falsification of records. Ms. Dunn testified that she did not dispute that she had the second job and claimed that the collective bargaining agreement allowed her to work a second job. Ms. Dunn testified that she never used time off with pay and that the School District should have used a progressive discipline against her, rather than terminating her employment. Further, Ms. Dunn claimed that she and the School District had reached an agreement concerning her claim for unemployment compensation that the School District "would not go after my certificate." Ms. Dunn showed no remorse or acknowledgement of her many untruthful statements or wrongdoing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Dunn violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j) and rules 6B-1.006(3)(a) and 6B-1.006(5)(a), and suspending her educator’s certificate for two years followed by a period of three years' probation during which she shall be required, along with standard conditions utilized by the Education Practices Commission, to complete a three-hour college level course in ethics during the first year of her probation. DONE AND ENTERED this 27th day of April, 2011, 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 27th day of April, 2011.
