Findings Of Fact Petitioner has been an employee of HRS for more than seven years. She has cerebral palsy and uses a motorized wheelchair. During her tenure with HRS, she worked initially as a CETA employee under the supervision of Timothy Myers. She was a Social Work Assistant in a para-professional position requiring minimal paperwork. She did very well and had no problems with her supervisor or cc-workers. She received a promotion to the position of AFDC worker under the supervision of Ann Hauckes in October, 1979, and worked in the HRS Suncoast office in St. Petersburg for approximately six months. During that six-month period, she had problems completing the "on-call" and workload responsibilities of an AFDC worker and was placed on conditional status. Due to her unhappiness with her supervisor and her conditional evaluation, she was transferred from the HRS Suncoast office in St. Petersburg to Pinellas Park under the supervision of Theresa Ruppel. Ruppel supervised Petitioner from March, 1980 to January, 1982. Ruppel was instructed by her superiors to give Petitioner a limited caseload so that Petitioner could perform her job duties as an AFDC counselor, and Petitioner was given a specialized caseload of AFDC foster care cases which required limited client contact and the use of small, lightweight files. Petitioner continues to be assigned a minimal workload of substantially less than other AFDC workers. She is evaluated just within her special work assignment and not within the responsibilities of an AFDC worker. When Petitioner first came to Ruppel's unit, she brought with her unfinished "on-call" work which Ruppel had to transcribe for her. During Petitioner's tenure under Ruppel, she served only as a backup "on-call" worker. Ruppel found Petitioner to be a very difficult employee to supervise. Petitioner had emotional outbursts as a worker in Ruppel's unit but received no disciplinary action, even when on one occasion she left the work site after having an emotional outburst and refused to advise the supervisor as to why she was leaving or when she would return to work. After Ruppel transferred out of the Pinellas Park Service Center, Susan Gilbert became Petitioner's supervisor from January, 1982, until January, 1984. The initial working relationship was good. Gilbert rearranged her office so Petitioner's wheelchair moved easily within it. Gilbert assisted Petitioner by updating Petitioner's policy manual, by making an easy reference chart for Petitioner so that every time Petitioner needed something, she did not have to pull out the HRS manual and read it but could just refer to the chart. Gilbert even assisted Petitioner with a case in which the written narrative had been accomplished by Petitioner, by taking the computer document apart, stapling it, and organizing it so it could be put in the filing cabinet. Gilbert also assisted Petitioner in preparing for the recertification test that all AFDC counselors must take. Gilbert made up some exercises to help Petitioner take the test. She allowed Petitioner 8 hours in which to take the 4 hour test. When Petitioner failed the test, Gilbert gave her 12 hours in which to take it again. The relationship between Gilbert and Petitioner deteriorated when, in March or April of 1982, Petitioner invited Gilbert, her supervisor, to take two days of annual leave and a weekend to accompany Petitioner to a Miss Wheelchair pageant, an invitation which Gilbert declined because she did not want to have a personal relationship with any person she supervised. The relationship then deteriorated, with Petitioner calling Gilbert a snob for refusing to go to the Miss Wheelchair pageant and accusing Gilbert of not liking her due to her handicap. Thereafter, there were emotional outbursts by Petitioner over minor matters. Petitioner served as a backup "on-call" person under Gilbert until December of 1982, when she was removed because she had complained about the amount of paperwork and she did not want to be "on-call" on Fridays. Petitioner was put back on "on-call" duty in June, 1983, due to Petitioner's complaints, and she worked "on-call" with her friend Frances Whittle who was willing to help Petitioner with those duties until Petitioner was moved out of Gilbert's AFDC Unit in January, 1984. Between January, 1983, and December 5, 1983, Petitioner would not accept authority or supervision from Gilbert. Petitioner questioned every decision Gilbert made. She would leave Gilbert's office upset and come back in a matter of minutes, arguing with her supervisor. The problem in the working relationship between Petitioner and Gilbert resulted in high-level District Administration meetings to determine how to resolve the problem. Initially, in early 1983, the high-level District officials met to determine how they could resolve the conflict, and the Deputy District Administrator suggested transferring Petitioner to the Clearwater AFDC Unit under a new supervisor. Petitioner opposed being moved to the Clearwater office, and so the Department did not move her from Pinellas Park to Clearwater. Both Gilbert and Petitioner agreed to try to resolve any problems on their own. As 1983 went on, the work relationship again deteriorated which again resulted in the District Administrator, Deputy District Administrator, Personnel Officer, Gilbert, Petitioner and the Human Services Program Administrator meeting to see if they could resolve the deteriorated relationship. There was a meeting on December 5, 1983, with those persons and another meeting on December 12, 1983. On December 5, 1983, four options were presented to Petitioner: (1), transferring Gilbert to another unit if HRS could find another supervisor willing to trade positions with her; (2), transferring Petitioner to a position in St. Petersburg under a different AFDC supervisor; (3), allowing Petitioner to work at home and equipping her office at home with all the rehabilitation equipment necessary to do her work, under which option she would only have to be involved with Gilbert once a week to have her work reviewed; and (4) having Petitioner stay at the Pinellas Park office but transferring her supervision away from Gilbert, with Petitioner being supervised long distance by Karen Raym Girard who would then drive, initially from Suncoast in St. Petersburg and, when the Wildwood Service Center opened, from the Wildwood office in St. Petersburg once a week or as often as was needed by Petitioner. Option 4 was the option chosen by Petitioner at the December 12 meeting. 2O. The effective date for the transfer of supervision from Gilbert to Karen Raym Girard was to be effective January 3, 1984. Subsequent to December 12, 1983, but before January 3, 1984, Petitioner changed her mind and did not want option 4. Petitioner requested a third meeting with the District Administrator after she had changed her mind about the option she had selected. The District Administrator declined a third meeting and told Petitioner that she could institute an internal grievance if that is what she wanted to do. When the District Administrator did not have yet another meeting, Petitioner filed an internal HRS grievance. Before the grievance committee met, the transfer of supervision did take place on January 3, 1984. During the period January 3, 1984 until February 10, 1984, Petitioner decided she was being segregated because she was working in the Pinellas Park office but was being supervised by Girard who was located in the Suncoast office in St. Petersburg. Petitioner's feelings of segregation were based upon the fact that she was taken off "on-call" duties in Gilbert's office because she was no longer a member of that unit; her name was removed from Gilbert's bulletin board showing the names of the persons in Gilbert's unit; and there was a sign placed on a vacant office in the building reserving it for Girard to use when her supervision of Petitioner required. While Petitioner was under the supervision of Girard from January 3, 1984, until February 10, 1984, Girard had weekly conferences with Petitioner where Girard would come from St. Petersburg to Pinellas Park to the office assigned to her in the Pinellas Park Service Center. Petitioner told Girard that she wanted Gilbert to be a personal friend with her and associate with her after working hours, and that she felt that Gilbert did not like her because Gilbert did not pursue being a personal friend of hers. During the time that Girard supervised Petitioner, she found Petitioner very difficult to supervise. Petitioner would lose her temper, raise her voice, or lose emotional control. The main issue Petitioner always wanted to discuss with Girard was that she wanted Gilbert to be friends with her. Petitioner did not want to discuss work-related issues with Girard. From February 10, 1984 until August 31, 1984, Petitioner was on extended leave -- annual leave, sick leave, and leave without pay. She never physically transferred to Wildwood in St. Petersburg, although her office furniture was moved there while she was on leave. The HRS internal grievance committee consisted of one member of Petitioner's choosing, one of HRS' choosing, and one agreed upon by both HRS and Petitioner. The internal grievance committee found: that an irreconcilable personality conflict existed between Gilbert and Petitioner; that the conflict was based on Petitioner's desire for a relationship that was personal as well as professional and Gilbert's inability to provide that relationship; that Petitioner did not have any problems with performing her job duties and was rated above satisfactory (it did not mention that Petitioner was only evaluated against her own performance) that considerable efforts were made to try to improve and clarify the relationship between Gilbert and Petitioner; that those efforts were not successful and the situation deteriorated rather than improved; that four options or solutions were discussed with Petitioner; that Petitioner participated in the selection of the option to remain in Pinellas Park but transfer her supervision, and that she agreed to that option; that subsequently she experienced a feeling of segregation and decided that the option was not in her best interest; that due to her physical location and supervision, she was segregated from her unit; that the committee was unable to substantiate any instance of discrimination due to Petitioner's handicap on the part of management; that she had been afforded special accommodations due to her handicap not normally given employees; that Petitioner's proposed solution was to return to her previous unit for a 90-day trial period during which all parties should work to improve the relationship. On February 9, 1984, the internal grievance committee recommended that: Both Petitioner and Gilbert be referred to EAP, Petitioner for counseling and more realistic expectations in dealing with management/employee relationships and Gilbert for sensitivity training in dealing with employees with special needs. Petitioner be physically transferred to Girard's unit when the HRS move to the Wildwood Service Center was made for the following reasons: Petitioner was experiencing segregation which could only be alleviated by physically locating her with the unit of which she was a member. The personality conflict between Gilbert and Petitioner could not be solved. The situation was detrimental to Petitioner's emotional and physical well being. By waiting to relocate Petitioner at the time of the HRS move to Wildwood, she would not be singled out as being moved because of a problem. Moving her when others were also being moved would afford her the opportunity to naturally interrelate with staff experiencing the same action. It was hoped that would facilitate her adjustment to her new service center. The Wildwood facility could easily be made accessible for her and a room could be adapted to her needs. Wildwood is on the Interstate and, therefore could be reached from Petitioner's home within a reasonable time frame. In the future, District Management should make every effort to afford Petitioner treatment consistent with treatment afforded all other employees. Special considerations given in the past had exceeded reasonable accommodation and had led Petitioner to have unrealistic expectations and difficulty in adjusting to the normal work setting. The many special considerations had not been to her benefit and, in fact, had been a disservice to her. On February 23, 1984, Petitioner's position was transferred from Pinellas Park to St. Petersburg. The District Administrator accepted the recommendation of the internal grievance committee and agreed to transfer Petitioner from Pinellas Park to Wildwood in St. Petersburg when Wildwood opened in the spring of 1984. The District Administrator was satisfied that Petitioner could drive from Pinellas Park to St. Petersburg where she had previously worked. Petitioner was very unhappy with the HRS internal grievance committee recommendation because she did not want to be transferred from Pinellas Park to St. Petersburg where she had formerly worked. Her preference at that Point was that the District place her back under the supervision of Gilbert and that they attempt to work out any relationship problems. When Gilbert transferred away from her supervisory position in Pinellas Park to a counseling position in the Central Licensing Unit in June, 1984, HRS offered Petitioner the opportunity of coming back to Pinellas Park with a new supervisor, Lawrence R. Raym. Raym supervised Petitioner from July 1, 1984, until February, 1985. During that time, Petitioner's temper tantrums continued. It was estimated that her caseload only took from 2 to 7 days to accomplish each month. Susan McPhee supervised Petitioner from March of 1985 until September of 1986 and also had problems with Petitioner's general acceptance of supervisory authority. During McPhee's supervision of her there were times when Petitioner would not like what McPhee told her and would abruptly terminate the conference by simply wheeling out of the room in anger. Martin Ademy became Petitioner's supervisor in October of 1986 when this case was initially scheduled for final hearing. Ademy has not had any difficulty in supervising her. Ademy estimates that it should take her between 10 to 12 days a month to do the work assigned to her. Any work she does not complete is assigned to another AFDC counselor. Ademy does not have Petitioner do "on-call" work because, in his opinion, she cannot handle those duties. Although Petitioner has applied for some unidentified promotions which she has not received, there is no evidence that Petitioner is able to perform the duties of those unidentified positions with reasonable accommodations being afforded her. Additionally, some of those positions were at locations to which Petitioner had refused to be transferred. Respondent has not discriminated against Petitioner based upon her handicap and has not retaliated against her in any way. HRS has provided Petitioner with much more than reasonable accommodation. To the extent that HRS has treated Petitioner differently than other employees, it has been through pampering rather than discrimination or retaliation. Petitioner has not suffered any physical or emotional illness as a result of any conduct on the part of Respondent. Although Petitioner testified that her absence from work from February until August, 1984, was due to illness brought on by Respondent's discrimination and retaliation, her testimony is simply untrue. Petitioner became ill while she was on annual leave. The minimal medical attention she received was for long- standing medical problems. Although Petitioner had provided HRS with reports from her doctor indicating her medical problems were work-related, those opinions were not those of her doctor. Rather, those reports were "doctored" by Petitioner herself before she gave them to HRS.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent has not discriminated or retaliated against Petitioner and dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. DONE and RECOMMENDED this 9th day of July, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. COPIES FURNISHED: Beverly L. Lassor 6333 81st Avenue North Pinellas Park, Florida 34665 Barbara Ann Dell McPherson, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts are found: With respect to an appropriate bargaining unit: Employees of the Pinellas County School system are classified into three categories for pay purposes. These classifications are for non-instructional or support persons, administrative persons, and instructional persons. The instructional classification or teacher salary schedule is reflected in a document entitled Pinellas County School Board Instructional Lists by Job Code, which was received into evidence as Exhibit No. 10 and contains approximately 5,200 persons. Members of the administrative and supervisory staff do not appear on this list, nor do supporting services personnel. Principals, deans, registrars and substitute teachers do not appear on this list. Curriculum specialists and coordinators, social workers, psychologists, learning disability specialists and attendance officers do appear on this list. Exhibit No. 16 depicts the organization of administration of the Pinellas County School system as it presently exists. Principals would appear on this organizational chart in the place marked "x" on Exhibit No. 16 in the box labeled local schools. All personnel above that level effectively recommend the hiring and firing of employees, direct other Employees, are paid on the administrative salary schedule, and participate in the preparation of budgets, the adjustment of grievances and in the process of collective bargaining. A stipulation that all persons depicted on this chart above the level of principals (whom are not depicted, but would appear at the local school levels) be excluded from the bargaining unit could not be reached. The following persons or classifications effectively participate in the preparation of the budget, have the ability to hire and fire or effectively recommend hiring and firing and are paid on the administrative salary schedule: the Superintendent, the associate Superintendent and assistant Superintendents. The School Board, CTA & AFT all stipulated that these three positions should be excluded from the bargaining unit. Attendance officers are included on the instructional, teacher's salary list, but they do not hold teaching certificates. They report to the administrative assistant to the associate superintendent and work out of the central administrative offices. It was stipulated by all the parties that attendance officers would not be appropriate in a bargaining unit. Principals and deans effectively recommend the hiring and firing of other employees, participate in the preparation of the budget and in the adjustment of employee grievances and are paid on the administrative salary schedule. It was stipulated that principals and deans should be excluded. The duties and functions of assistant principals are essentially the same as those of principal in the principal's absence. They are certificated, but generally not do classroom teaching. They participate in the formulation of the school budget and in the disposition of employee grievances. They effectively recommend the hiring, firing or disciplinary actions of employees, evaluate employees and are paid according to the administrative salary level. Not every school has an assistant principal. The elementary schools generally do not have one, unless they are on double session. Assistant principals are approved by the School Board, as is anyone who is on a supplement. No stipulation was reached as to assistant principals. Registrars participate in budgeting, are paid on the administrative salary schedule and come in contact with confidential material from time to time. They do have an office in the school, have daily contacts with students, receive essentially the same fringe benefits as classroom teachers. They do not have the authority to direct other teachers or employees in the performance of duties. By reason of their confidential status, it was stipulated by all the parties that registrars be excluded from the unit. The Pinellas County school system hires persons known as directors, associate directors and assistant directors. In a vocational program or center, the principal is known as the director and the assistant principal is also called an assistant director. Also there is a director of the budget and other types of directors. There are now approximately 50 directors, 2 or 3 assistant directors and no associate directors. They are paid on the administrative pay scale, have supervisory functions, assist in the preparation of the budget and in the collective bargaining process, deal with confidential materials, supervise employees and recommend hiring, firing or discipline and adjust employee grievances. They are generally at the county level and not the school level. It was stipulated that directors should be excluded from the bargaining unit, but no stipulation was reached with respect to assistant and associate directors. Supervisors are generally curriculum persons who supervise the formulation of the curriculum and supervise the teacher in working with the curriculum. They are paid pursuant to the administrative salary schedule, work out of the central office, evaluate other employees and effectively recommend hiring, firing or discipline, prepare and handle confidential materials and participate in both budgetary policies and the processes leading to collective bargaining. It was stipulated by all parties that supervisors should be excluded. Activity directors work in the schools, but do not teach classes. They are more of a business management type of person. They schedule activities and events, handle ticket or club monies, and hire teachers as ticket sellers at events. While they have occasion to work in the preparation of the budget for their particular school, they do not evaluate other employees, do not assist in the adjustment of Employee grievances, do not effectively recommend the hiring, firing or discipline of other employees and do not handle or prepare confidential records. They are on the instructional salary schedule. While they are not required to hold a teaching certificate, almost all do, and they are on ten-month contracts. No stipulation was reached as to the inclusion or exclusion of activities directors. Curriculum assistants, curriculum coordinators psychologists learning disabilities specialists and social workers are all regular, full-time instructional personnel and are listed on the instructional salary schedule, are not paid for vacations and do not accrue vacation time, have no power or control over budgeting and do not hire, fire or promote. In the same manner as classroom teachers, they earn sick leave, receive group health insurance, have the same retirement benefits and pay increases, have pupil contact and are certified employees. All are located within the schools, with the exception of psychologists and social workers, who are not assigned to a specific school, but work out of the county office. There is a classification known as specialist. There are approximately twelve persons in this classification such as a computer specialists and they are paid pursuant to the administrative salary schedule. If they perform supervisory and/or managerial functions, it would generally be over service personnel rather than instructional personnel. However, there is a group of specialists who fall within a category of a federal program which is in contact with students. No stipulation was reached as to this classification. In addition to curriculum coordinators, there is a classification known as coordinators. Some are purely classroom teachers such as a diversified education coordinator. Coordinators work predominantly in the schools with children and are paid on the instructional salary schedule. There are approximately 75 coordinators, and they receive the same paid holidays, the same group health insurance, the same retirement benefits and earn sick leave the same as classroom teachers. These people are required to hold a teaching certificate, although there may be one or two who do not. Most are in the vocational field. They do not supervise other employees nor do they have the ability to effectively recommend hiring or firing of other personnel. They have no power to establish a budget. No stipulation was reached on this position, or any of the remaining positions which follow. 1/ There is also a vocational teacher coordinator. The person occupying this classification teaches students in class and then coordinates their work outside of class and sees to it that students obtain jobs. They are generally assigned to a school and report directly to the principal of that school. They have no budgetary functions and they do not evaluate other teachers. They are usually certified. Also, there is a classification known as health coordinator. Most are certified and they work primarily with students. They coordinate the various phases of the health programs in the school to which they are assigned. They are on the instructional pay scale, have no power to make budgetary determinations and do not supervise instructional personnel. There are also secondary education coordinators who deal with the vocational aspects of a school. They work with students, receive regular retirement benefits and do not evaluate other teachers. There is one person involved in a classification known as RESRVOL. This is a federal program pertaining to the recruiting of adult volunteers to help senior citizens. While she is on the instructional payroll, she does not teach and she is not certificated. On the instructional payroll, there is a classification known as self- renewal. This too is a federal program comprising about four persons. While certification is not required, all who occupy the position are certified. Their function is to deal with children who have lost confidence in themselves and attempt to restore self-confidence. They receive the same emoluments as a classroom teacher and are not involved in the evaluative process of other teachers. They are not assigned to any particular school, but work out of a county office. This description would also fit a Position known as educational self-renewal. Enhanced learning personnel supplement the classroom teachers with respect to teaching the gifted child. They do not evaluate other teachers nor do they have any role in the budgetary Process. Some are permanently assigned to a school and others are on a county-wide basis. Their emoluments with respect to retirement, sick leave and vacation are the sane as classroom teachers. A curriculum assistant helping a kindergarten teacher exists on the instructional salary list. Only one person is involved. This person does evaluate teachers, has no classroom duties and is involved in the budgetary process. She reports to the supervisor of kindergarten and receives the same emoluments as classroom teachers with respect to retirement, sick leave and pay and vacations. Other helping teachers do exist and the positions are supervisory, supportive type positions. They evaluate teachers and report to their supervisors. A junior high school work experience teacher teaches children and finds them jobs outside of school. They do not coordinate teachers and they receive the same emoluments as a classroom teacher with respect to retirement, sick leave and vacation. An adult home economics teacher teaches post high school students in the evenings. They do not evaluate other teachers and report to their supervisor in the evening program. Substitute teachers are hired and paid on a daily basis. They are not required to be certified. However, there is a distinction between a short-term and a long-term substitute teacher. The long-term substitute takes a regular teacher's place over a long period of time. After the first ten days, the long term substitute is allowed to go on a teacher's contract (whatever contract they would be eligible for were they a regular teacher) for the period of time they are going to be substituting, if it is determined that the period of substitution will be extended. It was not determined whether long-term substitutes go on the same instructional list as Exhibit No. 10, but no long- term substitutes are now on said list due to the recent opening of school. They do not participate in the same retirement or receive the same insurance that a classroom teacher does. While several other positions were discussed, there were no other employees who were in the list of instructional personnel (excluding personnel heretofore discussed) who have the ability to effectively recommend the hiring or firing of other employees, who participate in the adjustment of Employee grievances or evaluate other employees, or who work in the preparation of the budget. All remaining positions receive their pay on the same day, earn sick leave in the same fashion, participate in the same group insurance and retirement benefits as regular classroom teachers and are required by the School Board to be certified. With respect to requests for recognition and bargaining history: Pursuant to local legislation enacted in 1971 granting to instructional personnel employed by the School Board the right to bargain collectively, the CTA has engaged in collective bargaining with the School Board. The first contract was ratified in September of 1971. The last contract expired on August 1, 1975. The 5,018 employees covered by this latter contract included counselors, librarians, classroom teachers, media specialists, special education teachers, vocational teachers, curriculum coordinators, psychologists, social workers and other employees of the public schools having whole or in part classroom teaching duties. This is essentially the same group listed in Exhibit 10. The CTA made a formal request for voluntary recognition by the School Board on April 30, 1975. Certain events (unfair labor practice charges and the filing of RC petitions) then ensued, which events are well known and are on file with the Public Employees Relations Commission. On or about April 24, 1975, the AFT requested, by letter, the School Board to officially recognize the AFT for the rights to bargain collectively with the School Board for the teachers. As noted above in the Introduction, the parties agreed that the School Board is a public employer; that both petitioners are employee organizations, and that there is no contractual bar to the holding of an election. In accordance with F.S. s. 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 22nd day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent is guilty of gross insubordination, misconduct in office and absent without leave as more fully alleged in letter dated November 7, 1989.
Findings Of Fact At all times relevant hereto Joseph A. Tourney held an Educator's Certificate from the Florida Department of Education (Ex. 1) and has been on continuing contract since 1972 with the Pinellas County School Board (Ex. 2). He has taught in the Florida School System for approximately 20 years with the last 14 years at Pinellas Park High School (PPHS) as a social studies teacher. As early as 1970, while a teacher at Lakewood Senior High School, Respondent's negative attitude toward strict compliance with school policies was noted (Ex. 9). Much of this attitude was exhibited by arriving later than and departing prior to the time designated for teachers to be at the school (Ex. 10). Following a review of Respondent's evaluations and conferences with him regarding his attitude respecting school policies and procedures to which Toumey did not agree, a recommendation was made by the Principal at Lakewood that Toumey be transferred (Ex. 12). Toumey was transferred to Largo High School. No problems were reported regarding Toumey during his tenure at Largo. When Pinellas Park High School opened circa 1976 Toumey was transferred to that school. Hugh Kreiger was principal at Pinellas Park High School. Krieger was a hands-on administrator who closely observed those under his supervision. The first time he observed Toumey depart school early he called him in and assigned Toumey permanent parking lot duty which required Toumey's presence at the parking lot until after the designated departure time. For the next five years no further problem was noted regarding Toumey's punctuality at school. Krieger was replaced by Louis Williams and Toumey's attendance problems resumed. After repeated warnings about leaving school in the afternoon prior to the scheduled departure time for teachers (30 minutes after students are released) and a conference between Williams and Tourney, Williams requested a conference with Tourney and John Mixon, Director of Personnel Services for the school board. This conference was held October 14, 1982 (Ex. 13). During this conference Respondents's early departures from school, his attitude toward school policies to which he disagreed, and his insensitivity to students was discussed and Tourney was advised that improvements in these matters was expected. By memo dated February 28, 1983 (Ex. 15) Williams noted several occasions where Toumey had departed school early and Tourney was charged with one-half day's leave and given a written reprimand. A subsequent documentation of Tourney leaving school early is contained in a memo dated November 7, 1986, from Williams to Tourney (Ex. 16). On September 21, 1987, Nancy Blackwelder, Assistant Principal at PPHS, submitted a memorandum to Tourney memorializing a conference with him in which he was again reminded of his need to improve in classroom atmosphere conducive to learning, judgment, and routine duties; and noting that if he failed to perform routine duties he would receive a written reprimand (Ex. 17). On October 8, 1987, a conference was held between Tourney; Nancy Zambito, who replaced Dr. Mixon as Director of Personnel Services; the principal of PPHS, M. Heminger; and a union representative. The summary of this conference is contained in a memo from Zambito to Tourney dated October 3, 1987, (Ex. 18). In this conference Tourney's inappropriate behavior in class involving his participation in a program adopted by the school, Patriot Educational Partners (PEP), was discussed, Tourney was again reminded of the need to support school board policies and programs in his contact with students, and Tourney agreed to improve. In November 1987 Tourney and the School Board entered into a Stipulation and Agreement (Ex. 19). In this Agreement Tourney acknowledged that he had been given less than satisfactory evaluations for the school years 1970-71, 1982-83, 1983-84, and 1986-87, that he had received numerous counseling sessions to discuss his failure to adhere to established school procedures and his negative comments to students. He also acknowledged that during the 1987-88 school year while assigned as advisor to a group of students with whom he is supposed to meet for five minutes each morning, he has frequently been late; that he referred to this program in the presence of students in negative and profane terms; and on one occasion he threw financial aid papers in the trash can and told students they could get them from there if they wanted them. For these infractions Tourney agreed to a suspension without pay for five days. He also acknowledged that further infractions may lead to a recommendation for his dismissal. In his testimony at this hearing Tourney averred that most of the students who were given financial aid applications threw them on the floor from which they had to be picked up and placed in the trash baskets, and that he was merely shorting the process by throwing these applications in the trash can rather than pass them out to the students who would throw them on the floor. On May 9, 1989, Respondent was issued a letter of reprimand (Ex. 20), by Principal Heminger for inappropriate conduct in his class during a visit to the class by members of the committee conducting a ten-year evaluation of the PPHS for accreditation during the period of April 25-28, 1989. In this reprimand he was also found to have arrived late at the final meeting of the Visiting Committee and to have returned from lunch with the odor of alcohol on his breath. On September 12, 1989, a conference was held between John Reynolds, Assistant Principal at PPHS and Tourney to discuss Tourney's 1988-89 evaluation. This conference is memorialized in memorandum dated September 19, 1989, (Ex. 21). The areas in which improvement is expected in the evaluations are attitude, judgment and routine duties. October 13, 1989, was an in-service day for teachers. This is a normal school day which only teachers attend. It was one of several similar days during the school year that teachers hold meetings, catch up on the grading of papers and perform tasks other than conducting classes for their students. It is a day all teachers are expected to be present at school. At PPHS in-service days have always been more informal than regular school days and in the past teachers have departed early once their tasks were completed. Prior to 1988 there had been no sign-in sheet for teachers at PPHS but such a procedure was instituted and in effect for the in-service day of October 13, 1989. Respondent appeared at school on October 13, 1989, as required but slightly late. Around 9:00 a.m. he received a telephone call from his good friend and fellow teacher in the social studies department, David Smith, who told respondent that he, Smith, had just awakened after not having slept well during the night, and Smith requested Respondent to sign him in and he would arrive shortly. Respondent did so. After making the call, Smith went back to bed and when he again awoke it was afternoon and he realized he was suffering from flu-like symptoms and was too sick to go to school. Several people were aware that Smith did not report to school on October 13, 1989 and reported same to the authorities. When confronted with the accusation both Tourney and Smith denied that Tourney had signed Smith in and that Smith was not at school that day. When he finally acknowledged his absence from school on October 13, 1989, Smith was suspended for three days without pay. The October 13, 1989, incident was the culmination of a long history of Respondent's failure to comply with school policies and directives, to "trash" school programs to which he did not agree, and to be in the forefront of rebellion against such programs and policies which led to the proposed action of the school board to dismiss Respondent from his continuing contract as a teacher in the Pinellas County school system at the expiration of the 1989-90 school year.
Recommendation It is recommended that Joseph Tourney be dismissed from his position as a continuing contract teacher in the Pinellas County School System at the conclusion of the 1989-90 school year. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Dr. Scott N. Rose, Superintendent Pinellas County School Board Post Office Box 4688 Clearwater, FL 34618-4688 Bruce Taylor, Esquire Post Office Box 4688 Clearwater, FL 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, FL 33675-0638
The Issue Whether Respondent's state teaching certificate should be suspended or revoked pursuant to Chapter 231, , Florida Statutes, asset forth in Petition, dated May 21, 1979. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on two counts of misconduct arising from the teacher/pupil relationship. The first count alleges that the Respondent had sexual intercourse with a seventh grade student on one or more occasions during the 1972 school year. The other alleges that during the 1978 school year, the Respondent kissed a female student on the lips on one or more occasion. The Petitioner herein was filed pursuant to directions of the State Commissioner of Education who, on May 18, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by his answer to the Petition, dated June 20, 1979.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 157255, Graduate, Rank II, valid through June 30, 1989, covering the areas of English elementary education, and junior college. He received a Maser's Degree in education from South Carolina State College in 1969, and obtained Florida teaching certification in August, 1969. At the time of the incidents alleged in the Petitioner, Respondent was employed as a teacher in the public schools of Orange County. (Testimony of Respondent, case pleadings) During the 1971-72 school year, Respondent was a sixth grade teacher at the Grand Avenue Elementary School, Orlando, Florida. At some undisclosed time subsequent to the end of the school year, an Information was filed against Respondent by the State Attorney, Ninth Judicial Circuit of Florida, as a result of allegations that he had engaged in sexual intercourse with one of his twelve- year-old female students in 1972. The case was thereafter nolle prossed by the State Attorney for insufficient evidence. (Testimony of Nagel, Bailey) The alleged victim, Harriett Moten, testified at the hearing that on a number of occasions during the period January or February through May, 1972, while a twelve-year-old student in Respondent's sixth grade class, Respondent had sexual intercourse with her in a storage area behind the stage of the school auditorium. She testified that such incidents occurred approximately twice a week at about 11:00 A.M. during a class period. At those times, Respondent allegedly sent her out of class on an errand, such as obtaining film, and then joined her in the backstage area. She stated that these encounters would consume approximately 20 or 25 minutes by the time she returned to class, and the Respondent came back to class a short time later. Although music classes were conducted in the auditorium practically every day of the school week during the times in question, Moten testified that she never saw the auditorium in use or heard music while she was behind the stage. She stated that she submitted to Respondent's advances because she was afraid of him. She further testified that on one occasion Respondent had brought another female student to the rear of the stage who observed his activities with her. The deposition testimony of another former student, Thomas Grier, was admitted in evidence wherein he testified that he had once observed Respondent lying on top of the student who supposedly had once witnessed Respondent and Moten behind the stage. This incident also allegedly took place behind the auditorium after a music class. He further testified that he had observed Respondent enter the classroom on a number of occasions with one or the other of the tow female students. The witness was deposed at Zephyrhills Corrections Institute, Zephyrhills, Florida, where he was incarcerated for possession of a firearm. It was his third conviction of a felony. Harriet Moten testified that she gave birth to a child in January 1973. Although her blood type and that of Respondent is 0, she was informed by an Assistant State Attorney that her child's blood type was A. She had been a failing student during her sixth grade year and had been paddled a number of times by Respondent for disciplinary reasons. She informed her mother of Respondent's actions in the summer of 1972 when she experienced irregular menstrual periods and was found to be pregnant after her mother took her to a physician. She had not informed her mother earlier concerning the matter because they did not get along with each other. She claimed that she had not had sexual relations with anyone other than Respondent. Respondent denied the allegations at the hearing and said that, although the student had been one of his "problem children" whom he had to discipline on occasion, she had appeared to like him and was the only student who had brought him a Christmas present in 1971. From the foregoing, it is considered that the improbable and uncorroborated testimony of Harriet Moten, when viewed against Respondent's unequivocal denial of the allegations, is insufficient upon which to predicate a finding that Respondent had sexual intercourse with the student, as alleged in the complaint. The deposition testimony of Grier which, in part, supports the allegations, is not deemed credible. (Testimony of Moten, Grier (deposition, Petitioner's Exhibit 3), Respondent, Petitioner's Exhibit 5, Respondent's Exhibits 1, 2, 5). During the 1978-79 school year, Respondent taught sixth grade at the Cypress Park Elementary School, Orlando, Florida. On November 20, 1978, one of his students, Patricia Foster, accompanied by another member of her class, Lola Ortega, reported to the school principal that in the preceding October, Respondent had kissed her in the classroom during a-recess period when no one else was present. Lola told the principal that she had opened the classroom door at the time and observed the incident. The principal reported the matter to a school board Area Administrator who interviewed the two girls on the following day. Patricia told this official that Respondent had kissed her twice on the lips during the recess period and that, after the first kiss, he had said he "didn't mean it." Patricia said that on the second occasion, she looked up and saw Lola open the door and then close it. She further stated that she had not told her parents of the incident because her stepfather would have become angry, and that she had not told the principal earlier because she didn't want to get Respondent in trouble. Lola told the Area Administrator that she had opened the door to the classroom and observed Respondent stoop over and kiss Patty on the lips, at which time she closed the door and returned to the playground. At the hearing, Patricia testified that Lola had opened the door when Respondent kissed her the first time. Lola testified that at the time she opened the classroom door, Respondent had his back toward her and that she only saw him bend over the desk. She conceded that she had not seen Respondent actually kiss Patricia and denied that she had told anyone that she had. However, upon further inquiry, she admitted telling the principal that she had seen Respondent kiss the student and could not explain why she had done so. Patricia later told one of her classmates at a "slumber party" about the incident. That girl, Michelle Cridelle, testified that she thought Patricia had told her Respondent had kissed her twice on different days. Respondent had disciplinary problems with Lola during the previous school year and at the beginning of the 1978-79 school year. Also, on a prior occasion, she and another female student had fabricated a letter purportedly written by a male student to them containing coarse language which she admitted was designed to get the boy in trouble when it was delivered to her father. In another instance, Patricia and Lola had been untruthful in telling Patricia's mother where they had been on one occasion. Lola had been a frequent disciplinary problem for the school principal who considered her to be a leader and catalyst in creating problems at school. Respondent testified that, on the day of the alleged kissing incident, another student was in the classroom with Patricia during the recess period, and that he had simply gone to her desk and colored some leaves on a box. He denied kissing her on this or any other occasion. The school principal is of the opinion that Respondent is a very truthful individual. It is considered that the improbable, contradictory, and uncorroborated testimony of Patricia concerning the alleged kissing incident, coupled with Respondent's denial of the same, is insufficient upon which to base a finding that Respondent committed the acts alleged in the Petition. (Testimony of Foster, Richardson, Ortega, Cridelle, Cossairt, Taylor, Brady, Respondent, Petitioner's Exhibit 1). Respondent was relieved of his duties as a classroom teacher by the Superintendent of Orange County Public Schools on November 28, 1978, and reassigned to an Assistant Superintendent's office to perform administrative duties pending investigation of the 1978 allegations by Petitioner. He had been supervised by the principal of the Cypress Park Elementary School for a period of six years. The principal testified that the other teachers respected him, but that he should not be working with children due to his abrasive personality with students. During the three year period 1976-78, Respondent's performance evaluations were uniformly "Satisfactory," except in those areas reflecting his relations with students and parents, and in his support of "state laws and county policies." It was noted in the 1977 and 1978 evaluations that improvement was needed in those areas. Narrative comments of the evaluations further indicated his lack of rapport with students and parents, lack of support of corporal punishment practices, and his ridicule of students. One fellow teacher at Cypress Park Elementary School submitted a letter to Petitioner in January, 1978, stating that Respondent had always conducted himself properly with students and parents on the occasions when she had observed him at the school and during school functions. (Testimony of Cossairt, Petitioner's Exhibit 2, Respondent's Exhibit 3, supplemented by Respondent's Exhibit 4).
Recommendation That the charges against Respondent Isadore Smith be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801 Professional Practices Council 319 West Madison Street - Room 1 Tallahassee, Florida 32301
Findings Of Fact Respondent, David L. Smith, is a teaching veteran of twenty years and holds a teacher certificate by Florida. He is employed by Petitioner, the School Board of Pinellas County, as a teacher by means of a continuing contract. During times material, Respondent was assigned as a teacher at Pinellas Park High School. At the beginning of the 1991-92 school year, Respondent's father passed away and Respondent was allowed bereavement leave for a period of approximately eight days. The incidents alleged in Petitioner's charging letter and which is at issue herein occurred over a 5-day period from September 9-13, 1991, after Respondent returned from the burial of his father in the Midwest. During early September 1991, Respondent found a black student, Gregory Mills, sitting in his chair whereupon he replied to the class, "How far to you think I can throw this negro?" The term "negro" is offensive to some black students and Petitioner discourages the use of racial slurs in the school setting. The student to whom the remark was made, Gregory Mills, did not view the remark as offensive and considered that Respondent was making a joke of the incident. Mills view Respondent as a good teacher who gets along well with all students and was particularly concerned about the welfare of minorities, exemplifying such by assisting them in achieving their career objectives. At least one student, Robia Brown, who was in Respondent's class when Respondent made the "negro" remark to Mills thought that Respondent used the term "nigger" instead of "negro." However, the facts failed to support Robia Brown's recollection and it was not borne out by the testimony of Respondent and the student to whom it was directed, Gregory Mills. During times material, Bihn Vo was an oriental student at Pinellas Park and was an office assistant whose duties included taking messages and information from the office to individual classrooms. On one occasion following September 9, 1991, Vo was delivering information to Respondent's classroom. When Vo entered the wrong door, Respondent replied, "What do you want, you oriental son of a bitch?" On a separate occasion during early September 1991, information was delivered to Respondent's classroom for Kelly Slusser, a student. When the file which contained the information was given to Respondent, he threw the open file across the room and remarked, "[I] do not like her anymore." Also, during the same time period, Respondent grabbed Slusser by the neck and pushed her backwards leaving marks on her neck which were later visible by the assistant principal, Pamela Jones. As a result of those incidents, Slusser and another student, Robia Brown, withdrew from Respondent's class. During this period of time in early September 1991, Respondent openly used profanity in the presence of students. On September 9, 1991, Respondent experienced restlessness and an inability to sleep because of the mental state that he was experiencing following his father's burial and the internal strife that was brought upon him by his family members and some chicanery that was ongoing between Respondent and other family members about estate property which his father left. Respondent and his father enjoyed a very close relationship. His father's death was untimely occurring during a period when he (Respondent's father) appeared to have been enjoying good health. Respondent's father would spend most summers with him and they would vacation in and around Central Florida. As a result of the depression that Respondent appeared to suffer following his father's death, he visited his physician, David R. Newsome, M.D., for medication which would allow him to sleep at night. All of the incidents which are at issue occurred over a 5-day period from September 9-13, 1991. Following those incidents, Respondent took an 8-day leave from September 16-27, 1991, and received psychotherapy. On September 27, 1991, Respondent returned to his teaching duties and continued his employment with Petitioner until October 19, 1991, without further incident, at which time he was suspended by Petitioner. It is undisputed that Respondent was a popular teacher who often kidded with students. He appeared sleepy and drowsy during early September 1991 and at least one of Petitioner's supervisory employees questioned him about his well-being and suggested that he request administrative leave, which he did. Respondent's actions during the period September 9-13, 1991, came about as a result of his despondency over his father's death and he received medical treatment which appeared to have alleviated the problem. Respondent enjoys teaching and it does not appear that his effectiveness has been reduced to the point whereby he would be an ineffective teacher if he is afforded an opportunity to return to a classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. Petitioner enter a Final Order (1) reversing its recommendation that Respondent be dismissed from his position of employment with Petitioner as an instructional employee, (2) that Respondent be placed on probation for a period of one (1) year under terms and conditions designed to assure that no further similar acts/occurrences that were displayed by him in September 1991 are manifested, and (3) that Respondent be reinstated with all other rights and benefits of a tenured instructor employed by continuing contract with the Pinellas County School Board. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: BRUCE P TAYLOR ESQ SCHOOL BOARD ATTORNEY PINELLAS COUNTY SCHOOLS PO BOX 2942 LARGO FL 34649 2942 LAWRENCE D BLACK ESQ 650 SEMINOLE BLVD LARGO FL 34640 3625 J HOWARD HINESLEY SUPERINTENDENT OF SCHOOLS PINELLAS COUNTY SCHOOLS PO BOX 2942 LARGO FL 34649 2942 BETTY CASTOR COMMISSIONER OF EDUCATION THE CAPITOL TALLAHASSEE FL 32399 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1992.
Findings Of Fact The Respondent, Ronald Miller, holds a Florida teaching certificate numbered 464113, covering the area of physical education. During the 1980-81 school year he was employed as a teacher of physical education at Miami Coral Park Senior High School in Miami, Florida. He was also hired that year by Miami Coral Park Senior High School to be an assistant basketball coach for the junior varsity basketball team and an assistant coach for the varsity football team. At the beginning of that school year, the head coach for the varsity basketball team, Mr. Edward Joyner, was delayed in his arrival at school. For this reason during the first three or four weeks of school, Mr. Miller was appointed to take Mr. Joyner's place in coaching the varsity basketball team as well. This was the first year of Mr. Miller's assignment as a full-time teacher. The Petitioners are, respectively, the School Board of Dade County, a public agency charged with the hiring, employment and regulation of the operations, activities and practices of teachers it employs to instruct students in the Dade County Public School System. The Education Practices Commission is an agency of the State of Florida within the Department of Education and is charged with the duty of licensing and regulating the licensure status, practice and practice standards of teachers in the State of Florida. During the 1980-81 school year, as in the recent past, Coral Park Senior High School had a club called the Cagerettes which assisted the school's junior varsity basketball and varsity basketball teams by helping to raise funds for different functions as well as to work with the coaching staff performing such services as taking statistics during games. Members of that group were selected from the student body after "tryouts" where the individual applicants were judged on their personality and participation. Cindy Castillo was the captain or president of club for the 1980-81 school year. This was her third consecutive year as a member of the club and her second year as its president. Cindy Castillo approached Mr. Miller shortly after he became employed and after the school year began and asked him to be the faculty sponsor for the club. He had had no previous experience as a club sponsor for any school, but based upon Miss Castillo's representations concerning his insignificant duties as club sponsor, he agreed to become the sponsor of the club. One of the initial witnesses called by the Petitioner was Mr. Doug Wycoff. Mr. Wycoff was an instructor in the English Department at times pertinent here to and also acted in the capacity of athletic business manager for Coral Park Senior High School. As athletic business manger, Mr. Wycoff was required to oversee the financial business and accounting for monies received by the athletic department. These duties included overseeing ticket sales, crowd control, personnel at athletic events, overseeing fund raising efforts and managing the money received therefrom and in general assisting the athletic director. Mr. Wycoff testified that the high school maintained its banking accounts with the Sun Bank. Any monies derived from fund raising activities should go to him as a member of the athletic office in charge of finance and then they would be deposited with the school treasurer. The treasurer typically makes deposits on a daily basis via the Wells Fargo Armored Express Company. At all times material to these proceedings the practice was to segregate all accounts with the bank so that each different sports activity and the personnel involved therein would have their own account and otherwise maintain constant accessibility to the account. Prior to the commencement of the 1980-81 school year, Mr. Wycoff gave general instructions to all faculty members involved with the athletic program regarding who to contact should they have any questions regarding their involvement with a fund raising activity and how to account for the money. Although it was the witnesses' opinion that the Respondent had been present at that meeting, the Respondent denied it and the record does not establish whether or not the Respondent was present at that particular meeting. A condition precedent to the establishment of any fund raising activity of the high school, or a club or a group operating under the auspices of the school, required that the sponsor of the group obtain approval from Mr. Wycoff. The school records reveal, through Mr. Wycoff's testimony, that there were only two functions which had previously been approved for the basketball team. One was a car wash held at the beginning of the year in question and the the second was an M & M candy sale which took place later during the spring of the 80-81 school year. The approval for the car wash was obtained from Mr. Wycoff by the Cagerette captain, Miss Castillo. Near the close of the 80-81 school year the school principal ultimately learned that other fund raising activities had been conducted for which substantial sums of money had been received, which had been unapproved fund raising activities. The generated proceeds were received and unaccounted for by the Respondent. The car wash took place on or about September 27, 1980. Mr. Wycoff issued to Miss Castillo one hundred tickets with a prestamped price of $1.50 on each ticket for sale of car washes. The car wash was a success and generated approximately $900 in gross proceeds Two hundred dollars of that (apparently checks) was turned over to Mr. Wycoff, the balance in cash was retained by the Respondent. The Respondent admitted receiving perhaps $200 to $300 within a few days after this event. The Respondent explained ;to Miss Castillo and the other students involved in the car wash activity, that the monies were going to be held by him for the benefit of the Cagerettes and the basketball team in a special account at a bank near his home. On October 4, 1980, a car wash was held by the Cagerettes with the help of the Respondent. Mr. Wycoff was not requested to approve this endeavor, nor were the funds raised therefrom ever accounted for to Mr. Wycoff or any other employee or official of the school. Approximately $256 was generated and the proceeds were placed in the Respondent's custody at his request. The Respondent admitted that with regard to this fund raising effort he received approximately $247. On approximately October 11, 1980, at the instance of the Respondent and without prior knowledge or approval from Mr. Wycoff, the Cagerettes and basketball players held a donut sale. The total proceeds of that sale approximated the sum of $900. Cynthia Castillo took $594 of that sum to pay the vendor of the donuts and the balance, in the approximate sum of $311, was turned over to the Respondent. The Respondent admitted that he received approximately $300 from that fund raising activity. A second donut sale was held a short time later, also not approved by Mr. Wycoff or any personnel in his office. Approximately $368 were generated from that venture which was initially given to Coach Joyner. The record in this proceeding does not reflect what became of that $368, but it was not included in the sum ultimately the subject of criminal proceedings against the Respondent. In the fall of 1980, the Respondent suggested and initiated a procedure whereby members of the Cagerettes would pay monthly dues. This was a practice that was followed with the dues set in their approximate amount of $2 per member per month. These dues were collected for approximately one month and the monies were turned over to the Respondent in the amount of between $30 and $40. The Respondent never accounted for this money. The Respondent also initiated a procedure whereby the members of the Cagerettes would take up donations from individual girls for "penny week." These donations were taken up in the form of pennies on Monday; nickels on Tuesday; dimes on Wednesday; quarters on Thursday; and dollars on Friday. This activity grossed approximately $43 which was turned over to the Respondent and never accounted for. The initiation of this program on his own by the Respondent without approval of any one in authority was in direct conflict with rules promulgated by the school. Prescribed receipt books were to have been obtained from Mr. Wycoff and used so as to avoid any accounting for the money. This was not done. The Respondent also conducted another fund raising project whereby he solicited donations from students of $1 each for the purchase of athletic socks. At least one student made such a donation, but no socks were purchased. Mr. Wycoff established that no such collection project came to his knowledge and that the athletic department purchases and provides socks for its junior varsity teams at no cost to its members, thus the alleged need for donations to purchase athletic socks was false. During the course of the the 1980-81 school year, both the Respondent and his fellow coach and colleague, Mr. Joyner, made several attempts to have a banquet in honor of the basketball team and Cagerettes. Because of the lack of financing, the banquet never came to fruition. This was because certain funds raised by the above-mentioned fund raising projects during the year were unaccounted for by the Respondent, thus the banquet was severely under-financed. Additionally, several students paid to Mr. Miller at least $10 per banquet ticket for anticipated attendance of themselves and their respective guests. When the banquet was finally cancelled, the Respondent did not return their ticket purchase money. Mr. Lopez established that he was a student at that time and a member of the varsity basketball team. He purchased three tickets at $10 each, payable in cash, and was never refunded when the banquet was cancelled. JoAnn Oropesa paid the Respondent cash for banquet tickets, but was never refunded her money. She made demand on the Respondent for her money and the Respondent informed her that he would make a refund by check in the mail at the end of the school year. He failed to do so. During the school year the Cagerettes and the basketball team agreed with Coach Joyner to have a skating party at a neighboring commercial skating rink. In order to fund this event, the students involved agreed to sell tickets at the price of $3 per ticket. Mr. Wycoff was not advised of this money raising effort either and never received any money for an accounting, therefor, from either Respondent or Coach Joyner. JoAnn Oropesa sold all ten tickets assigned to her at $3 per ticket. The Respondent acknowledged receipt of the monies from that fund raising activity, representing that the money would be used for the banquet in lieu of the skating event which was cancelled, Ultimately, these monies were never returned to JoAnn Oropesa or other students purchasing tickets. Manuel Martinez purchased tickets for the skating party and never had a refund, being merely told by the Respondent to "wait." The same student, Manuel Martinez, established that the Respondent solicited members of his class on more than one occasion to make contributions to a touring gospel singing group of which he was a member and that in consideration for this donation a student could receive an "A" for a test or make-up work. The Respondent also offered that "detentions" or "make-up requirements" could be taken off a student's record, for any of the classes in which the student was enrolled with the Respondent, in return for such donations. The testimony of Manuel Martinez was corroborated by Raphael Lopez, another student of the Respondent's, who established that the Respondent solicited students for contributions to his gospel group in return for enhancement of their grades. Marilyn Munne observed the Respondent soliciting students for contributions to his gospel group in consideration for which he would have a detention "dropped off" which would automatically result in a better grade. The Respondent ultimately proved unable to account for the proceeds of the money generated by the various fund raising projects outlined above and caused resulting concern to the various witnesses testifying on behalf of the Petitioners. Miss Castillo estimated that at least $1,700 had been placed in the Respondent's custody, exclusive of the $368 which she had given to Coach Joyner and which was apparently not accounted for either. Even by the Respondent's own admission he received at least between $900 and $1,100 from these fund raising projects that school year. The testimony of Miss Castillo and other witnesses establishes that the Respondent represented that those monies were to held in a special account for the benefit of the Cagerettes and the basketball team. The Respondent by his own admission acknowledged that he told Miss Castillo that he would "possibly" place the monies in such an account. The Respondent did not have a bank account and did not customarily maintain one. He testified that he maintained a "strong box" used as a depository within his own home. The Respondent testified that he placed the subject money in a green plastic zippered bag (Respondent's Exhibit A) up until the time it was supposedly removed by persons unknown who, according to the Respondent, stole his car on or about February 8, 1981. The Respondent testified that he was about to go spend the night with a friend and put the subject zippered plastic bag or case into his car, went back into the house to get some more belongings and the car was stolen while he was inside. The car was not recovered until some days later and the money was gone, although the plastic bag remained in or returned to the Respondent's possession and was made Exhibit A in this proceeding. The Respondent did not demonstrate that any efforts were made to replace the money prior to his being prosecuted for its disappearance. He did not, for instance, establish that he made any effort to file a claim against his automobile insurance carrier in order to see that the students were recompensed. Ultimately, the State Attorney's Office for the Eleventh Judicial Circuit in and for Dade County, Florida, filed a one count felony Information charging the Respondent with grand theft. The victim in that case was alleged to be the Petitioner's chief witness, Miss Cynthia Castillo. The Respondent, in that criminal proceeding, never went to trial, offering instead to enter into an agreement with the State Attorney to go into the "pre-trial intervention program" which is apparently a sort of probationary status coupled with a court enforced reimbursement of at least $1,700 to the Dade County School Board. The entire scenario described above concerning the fund raising efforts, diversion of the funds generated by them and the Respondent's ultimate refusal or at least inability to account for the whereabouts of those funds and his ultimate criminal prosecution for diversions of the funds became a matter of knowledge of a number of students and parents at the school as well as Mr. Wycoff, Desmond Patrick Gray and other members of the Dade County School Board's administrative staff. It should be noted that although no conviction has been entered against the Respondent in the criminal proceedings referred to above, it has been established without question that he took the cash portions of the funds generated by the various above-described fund raising efforts into his possession, failed to properly account for them, failed to place them in a bank account and failed to deliver them over to Mr. Wycoff or other responsible authorities. He exhibited adequate knowledge of whom he should have delivered the funds to because he only retained the cash portions of the monies generated by each fund raising effort, turning over the non-fungible checks to those entitled to them.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That with regard to case No. 81-2115, the petition of the School Board of Dade County against Ronald Miller, the Respondent, Ronald Miller, be dismissed from his employment with the School Board of Dade County and forfeit all back pay. It is, further RECOMMENDED: With regard to case No. 82-1234, the petition of the Education Practices Commission, Department of Education, Ralph D. Turlington, Commissioner against Ronald Miller, that Ronald Miller have his Florida teaching certificate No. 464113 permanently revoked. DONE and ENTERED this 22nd day of December, 1982 in Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of December, 1982. COPIES FURNISHED: Michael J. Neimand, Esquire Attorney for School Board 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Craig Wilson, Esquire Attorney for Education Practices Commission 315 West Third Street West Palm Beach, Florida 33401 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 81-2115 RONALD MILLER, Respondent. /
The Issue At issue herein is whether or not the Respondent's teaching certificate should be revoked for conduct which will be set forth hereinafter in detail which is allegedly violative of Sections 231.09 and 231.28, Florida Statutes, and Rules 6A-4.37 and 6B-1, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the argeements of counsel, the stipulation of the parties entered on June 7, 1979, and the entire record compiled herein, the following facts are found. The Florida Professional Practices Council (sometimes referred to as "Petitioner") received a report from the Superintendent of Pinellas County Schools on October 24, 1977, indicating that the district had reason to believe that there might be probable cause for revocation of the teaching certificate of John A. Lettelleir, Respondent. Pursuant to this report, and under the authority contained in Section 231.28, Florida Statutes, Petitioner's staff conducted a professional inquiry into the matter and on January 9, 1978, made its report to the Executive Committee of the Professional Practices Council. The Executive Committee recommended that the Commissioner of Education find that probable cause exists to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teacher's certificate. The Commissioner of Education found probable cause and directed the filing of a Petition on January 9, 1978, pursuant to the authority vested under Section 6A-4.37, Rules of the State Board of Education, and Section 231.28, Florida Statutes. In conclusionary allegations, the Petition cites that the Respondent engaged in acts which are "immoral, seriously reduced his effectiveness as a School Board employee and was not a proper example or model for students and not in the best interests of the health and safety of students" contra to Section 231.09; 231.28, Florida Statutes, and Rule 6A-4.37 and 6B-1, Rules of the State Board of Education. Respondent currently holds a Post-graduate, Rank II, Florida Teacher's Certificate No. 347804, covering elementary education, early childhood and junior college, which is valid through June 30, 1985. Respondent was employed in the Public Schools of Pinellas County as a teacher at Maximo Elementary School during the 1976-77 school year. Respondent resigned from his teaching position in the Pinellas County School System in October, 1977. Respondent chaperoned a three day Easter trip for male and female school children from Maximo Elementary School in April of 1976. The trip required three nights away from home for these children. On two of these nights, Respondent shared a sleeping bag with one of his male students. On both nights, Respondent improperly touched the student. During the fall of 1976, three male school children from Maximo Elementary School spent the night at Respondent`s home. The boys slept in Respondent's bedroom. Respondent slept in a double bed with one of the three students and improperly touched the student. Sandra McMichael and Louanne Crawford, teachers in the Pinellas County School System, appeared and testified respecting their relationship with the Respondent. Ms. McMichael and Ms. Crawford both related their professional involvement with Respondent and it suffices to say, in summary fashion, that they considered the Respondent a person of unquestionable character. (TR 20-57 of Joint Exhibit 2.) During the hearing, Respondent testified respecting the agony which the subject incident has brought to his family. Among other things, he stated that he only stipulated to the facts contained in Joint Exhibit 1 based on counsel's advice and their considered joint opinion that without regard to the outcome of his proof or innocence by a contested hearing in this matter, that ultimately he would have gained nothing based on the wide publicity which attaches to such hearings involving public figures. Therefore, Respondent, while maintaining his innocence of the material accusations against him, reluctantly entered into the stipulation which admits improper touching of a male student, in order to satisfy the apparent interpretation of Rule 6A-4.37, Rules of the State Board of Education during a prior hearing in this matter on August 15, 1979. Such an interpretation requires an admission of wrongdoing as a predicate to surrender of a teacher's certificate for less than permanent revocation. Based on the foregoing and the parties' joint stipulation for less than permanent revocation, i.e., five years, the undersigned is of the considered opinion that sufficient basis exists to support a favorable recommendation to the Board of Education for a five (5) year revocation with the running of the revocation period commencing in October, 1977, the date of Respondent's resignation from the Pinellas County School System. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent's teacher's certificate, No. 347804, be revoked for a period of five (5) years with entry of the revocation period commencing on October, 1977, the date of Respondent's resignation from the Pinellas County School System. ENTERED this 2nd day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent engaged in the misconduct alleged in the charging document; and, if yes, whether such offenses are violations of Pinellas County School Board Policy 8.25 and the Code of Professional Conduct and/or constitute "just cause" for his dismissal as a teacher in the Pinellas County School District.
Findings Of Fact Petitioner, the Pinellas County School Board, operates the public schools in Pinellas County, Florida. Respondent has been a teacher for 25 years. The last 18 years, he has worked as a music teacher in the Pinellas County schools. From 1986 to 1993, Respondent taught music at Dixie Hollins High School. From about August 1993 until about April 28, 2004, Respondent worked as a music teacher at Southern Oak Elementary School (Southern Oak). Respondent transferred to Southern Oak because his two sons were attending school there. At all times relevant to this proceeding, Respondent taught music to students in kindergarten through fifth grade at Southern Oak. The classroom teachers brought their classes to the music room where Respondent taught music and returned to pick up the students at or near the time the music class was over. The music room at Southern Oak was a large room, which included the open area where the students sat during their music class. In addition to the area where Respondent taught the various classes, the music room also included an office, a practice room, and three storage rooms. The music room had several large windows facing outside. As part of the music classes, Respondent worked with the children on rhythm movement, singing, playing instruments, and active listening, where the children were asked to keep the beat of the music that was playing on either the television or compact disc player. In the 2003-2004 school year, Respondent used a music curriculum that was about two years old. This music curriculum included a variety of videos and lessons. As part of his teaching and implementation of this curriculum, Respondent showed these curriculum-related videos to the students in his music classes. During the 2003-2004 school year, C.L., St.H., and Sa.H. were students at Southern Oak. C.L. was seven years old in second grade. St.H. and Sa.H., who are sisters, were about seven years old and in first grade. Like all other students at Southern Oak, C.L., St.H., and Sa.H. went to Respondent for music. C.L., St.H., and Sa.H. were all in different classes and, therefore, they did not attend music class during the same class period. Rather, they went to music with their respective classes at the time scheduled. At all times relevant to this proceeding, C.L. did not know either St.H. or Sa.H. Also, at all times relevant to this proceeding, neither St.H. nor Sa.H. knew C.L. Situation Related to C.L. On December 1, 2003, while C.L. was in the tub, her mother, Ms. L., picked up C.L.'s panties from the floor and noticed that there was blood in the panties. Ms. L. asked C.L. questions about the blood, but C.L. could not say when the bleeding had started. The following day, Ms. L. took C.L. to see Jeanette Moss, M.D. She also took two pairs of C.L.'s panties to the doctor's office to show the doctor. Because Ms. L. first discovered the blood in C.L.'s panties on December 1, 2003, she did not know and, thus, could not state with absolute certainty when this episode of bleeding began. However, Dr. Moss' medical report for that office visit indicated that C.L. was brought in by her mother because of suspected vaginal bleeding for the last five days. Dr. Moss did not conduct a vaginal examination, but looked in C.L.'s vaginal area to see if there was still bleeding and determined that there was not. Dr. Moss inquired about the possibility of sexual abuse, but Ms. L. did not think this was possible because she believed that C.L. was always properly supervised. After December 1, 2003, Ms. L. became aware that C.L. had two more episodes of bleeding, one in early January 2004 and one in late January or early February 2004. Following the early January 2004 episode, Ms. L. took C.L. to a medical office, where a nurse, Rene Nolan, looked at C.L.'s vaginal area, but did not conduct a vaginal examination. At the time of this visit, there was no bleeding. Nurse Nolan asked Ms. L. about the possibility of sexual abuse. Still, Ms. L. did not believe this was possible. Following the episode of bleeding in late January or early February 2004, C.L. was referred to Dr. Diamond, an endocrinologist. Dr. Diamond saw C.L. in April 2004 and reported to Ms. L. that there was no indication that the bleeding was related to puberty. With Ms. L.'s permission and in her presence, Dr. Diamond looked at C.L.'s vaginal area and, based on that observation, reported to Ms. L. that the vaginal opening "was not right for a seven-year-old" and indicated he believed there was some kind of sexual abuse. He told the mother to call the Child Protective Team (Child Protective Team or CPT) and have a full examination done. Ms. L. contacted the Child Protective Team the day after she and C.L. went to Dr. Diamond's office, but was told that a police report had to be filed before an examination could be performed. Since C.L. had denied that anything inappropriate had happened, Ms. L. was reluctant to file a police report. Ms. L. contacted Nurse Nolan and shared her concerns about filing a police report. She also updated Nurse Nolan about what had been happening with C.L. since the January 2004 office visit. Nurse Nolan then referred Ms. L. to Dr. Cheek, a physician who had previously worked with the Child Protective Team. On or about April 16, 2004, C.L. was examined by Dr. Cheek. After examining C.L., Dr. Cheek told Ms. L. that she was able to see C.L.'s hymen and determined that there was missing tissue, and there was also scar tissue. Dr. Cheek told Ms. L. that she suspected some type of abuse and reported her suspicion to the child abuse authorities. On or about April 20, 2004, a nurse practitioner with the Child Protective Team conducted a full examination of C.L. That examination, like the one performed by Dr. Cheek, showed loss of hymenal tissue and scarring. The medical record, completed by the nurse practitioner, stated that the loss of hymenal tissue with scarring observed during the examination "is consistent with penetrating trauma." Notwithstanding C.L.'s repeated denials that any sexual abuse had taken place, the nurse practitioner told Ms. L. that based on the findings of the examination, she believed that C.L. had been sexually abused. After C.L. was examined by the nurse practitioner with the Child Protective Team, C.L. and her mother met with a counselor at the CPT office. The counselor told C.L. that if someone had touched her, she should tell her mother and the counselor. C.L. did not verbally respond, but became visibly upset. The counselor then left the room, afterwhich, Ms. L. reiterated that C.L. should tell if someone had touched her and made her feel uncomfortable. After the counselor left the room and in response to her mother's question, C.L. stated that the only person who touched her was her music teacher. C.L.'s mother then asked, "Your music teacher?" C.L. then replied, "You know, the one I said was creepy." In describing how her music teacher touched her, C.L. said only that he would hold her on his lap real tight. C.L. then began crying. About that time, the counselor returned to the room, and Ms. L. told her what C.L. had just revealed to her. In making the comment, "You know, the one I said was creepy," referred to in paragraph 21, C.L. was referring to an earlier conversation she had with her mother about the music teacher. In or about November 2003, when C.L. came home from school, she told her mother that the music teacher was "creepy." Ms. L. then asked C.L. what did she mean. In response, C.L. told her mother, "He makes me sit on his lap." At or near the time C.L. made the statements to her mother noted in paragraph 22, C.L.'s parents discussed what C.L. told her mother. At that time, the parents did not suspect sexual abuse. So after discussing the matter, C.L.'s parents decided they did not want to get an innocent person in trouble, but if it happened again, they would "address it." After Ms. L. told the counselor what C.L. had said while the counselor was out of the room, the counselor asked Ms. L. what she knew about the music teacher. Ms. L. told the counselor about an incident that occurred at or near the beginning of school when she attended that school's open house. According to Ms. L., when she visited the music teacher's room during the open house, he flirted with her. However, there is no indication of exactly what the music teacher did to lead Ms. L. to that conclusion. It is unclear whether C.L. was in the room or had left the room when her mother told the counselor about the "flirting" incident. After Ms. L. told the counselor that C.L. had said the music teacher held her on his lap, the counselor asked C.L. if that was all that he had done and did it make her feel uncomfortable. C.L. answered, "Yes," and said that the music teacher had just held her tight and would not let her get up. After leaving the Child Protective Team office, Ms. L. went to a fast food restaurant before taking C.L. back to school. While at the drive-thru window, Ms. L. noticed that C.L. was clutching a stuffed animal and was crying. Ms. L. asked C.L. what was wrong. C.L. told her mother that she needed to tell her what had happened. After Ms. L. pulled over in the parking lot, C.L. told her mother, "It was him." Ms. L. asked C.L., "Who is him?" C.L. answered, "My music teacher." In response to her mother's asking what was her music teacher's name, C.L. said, "Mr. Fronczak." Immediately after C.L. made the revelations described in paragraph 27, Ms. L. went home and called her husband. Mr. and Mrs. L. then called the Pinellas County Sheriff's Office. Subsequently, C.L. revealed additional details concerning the number of times and how Respondent touched her. During the 2003-2004 school year when C.L. was a second grade student at Southern Oak, her class went to Respondent for music once a week. Each music period class lasted about 30 to 45 minutes. Every other week, Respondent showed the students a curriculum-related video, which would be played on the television which was located at the front of the classroom. The students in C.L.'s class would always sit on the floor to watch the videos. Whenever Respondent showed a video to C.L.'s class, the lights in the classroom were turned off, and the vertical blinds at the windows were closed. While the video was showing, Respondent sat in a chair in the back of the room, with the students seated in front of him, a few feet away. The students were facing the television and had their backs to him. The chair in which Respondent sat had no sides or arms. C.L. did not always sit on the floor during the entire time the video was playing because Respondent would whisper to her, "Come over here." C.L. reasonably understood Respondent's statement to mean that he wanted her to come to where he was seated. In response to the directive, C.L. usually would get up from the floor where she was sitting with the other students and go to Respondent. She would then be required to sit in his lap. If C.L. did not get up when Respondent whispered to her, he would pull her or pick her up and take her to his chair and put her on his lap. Even though C.L. was unable to state the exact time that the incidents described in paragraph 33 occurred, her credible testimony was that the incidents occurred about four or five times during the 2003-2004 school year. The first time C.L. was required to sit in Respondent's lap, he touched her inappropriately in her "private area," either under or over her clothes. This encounter lasted about five or ten minutes, and less time than the video played. While C.L. was sitting on Respondent's lap, she did not say anything, but she did try to get up. However, she could not get up because Respondent was holding her down. In a second incident, Respondent touched C.L. in her private area. C.L. testified that she thought, in this instance, Respondent touched her under her clothes, put his hand in her underpants, and put his fingers inside her. When Respondent put his fingers inside her, C.L. did not scream, even though it hurt and felt like "needles went through" her. During a third incident, Respondent touched C.L. in her private area, but over her clothes. On that particular day, C.L. was sitting on the floor near the back of the music room. Respondent whispered to her, "Come over here." C.L. just turned around, but did not go to Respondent. However, after C.L. did not come to him, Respondent again told C.L. to come to him. After the second directive from Respondent, C.L. got up and went to him. In this instance, C.L. was on Respondent's lap for five or ten minutes, during which he touched C.L. over her underwear. During a fourth incident, Respondent touched C.L. inside her underwear and put his fingers inside her. He may have used two hands, but only one hand at a time. Respondent used one hand to hold her on his lap while his other hand was inside her underwear and/or inside her. He would then sometimes change or alternate hands. When Respondent put his fingers or finger inside C.L., it hurt, but, again, she did not scream. C.L., as she had during the past incidents, tried to get up from Respondent's lap, but she was unable to do so because Respondent was holding her down. When it was over, Respondent let C.L. up, and she went back to her seat on the floor. The foregoing incidents did not occur every time C.L. was in music class. However, when each incident occurred, the lights in the classroom were out, the vertical blinds were closed, and Respondent was seated in his chair (which did not have sides/arms), in the back of the classroom behind the students. During these incidents, C.L. did not sit in Respondent's lap the entire class period or the entire time the video was playing. Given that the incidents happened more than two years ago, when C.L. was only about seven years old, she could not specifically identify the time during the 2003-2004 school year that the incidents occcurred. C.L. could not recall, in each of the incidents described above, whether Respondent touched her private area over or under her clothes. However, C.L. clearly recalled that in the two or three instances when Respondent touched her under her clothes, she was wearing a skirt. Even though C.L. was unable to identify the precise dates and to describe the exact inappropriate touching that occurred in each instance, C.L.'s testimony that four or five such incidents happened during the 2003-2004 school year in Respondent's class is found to be credible. C.L. recalls that at some point, there was blood in her panties. However, she does not recall whether there was bleeding after Respondent touched her in her private area. Prior to the incidents described above, C.L.'s parents had told her about "good touch, bad touch." C.L. believed that what Respondent was doing to her was inappropriate. However, until April 2004, she did not tell her parents or anyone else that Respondent had been touching her in her private area, even though she had been specifically asked if anyone had touched her in that area. C.L. initially told the law enforcement officers who were investigating her allegations that she was not afraid of anyone. However, the reason C.L. did not initially tell anyone that Respondent touched her inappropriately was that she was afraid that she would get in trouble with "the teacher." Another reason C.L. did not tell anyone what happened was that she was afraid that if she told anyone, Respondent would come and hurt her whole family. In April 2004, C.L. finally told her mother that Respondent had touched her because she was "tired of having to go to [medical] exams and missing out on class activities." Despite C.L.'s denying several times that anyone had touched her in an inappropriate manner, those earlier denials are not a basis for discounting her testimony that the incidents described above occurred. In cases such as this, children frequently delay for a significant period of time that they have been the victims of sexual abuse. Prior to C.L.'s disclosing that Respondent had touched her, no one suggested to her that Respondent had done anything to her. C.L.'s reason for stating that Respondent touched her was that he had done so. In fact, C.L.'s credible testimony was that no one had ever touched her in her "privates" like Respondent did. The Testimony of Sally Smith, M.D. Sally Smith, M.D., is board-certified in pediatrics and has worked in the field of child abuse for 19 or 20 years. During that time, Dr. Smith has handled at least 1,000 sexual abuse cases. In or about 2002, Dr. Smith became the medical director for the Pinellas County Child Protective Team. As medical director, Dr. Smith conducts examinations of children for the Child Protective Team. In addition to conducting such examinations, Dr. Smith also supervises the two nurse practitioners with the Child Protective Team who also conduct such examinations, including the nurse practitioner who examined C.L. in April 2004. According to the medical report, at the time C.L. was examined by the nurse practitioner at the CPT office, C.L. had not reported any abuse. The nurse practitioner who examined C.L. documented seeing an abnormality of the hymen, the membrane that covers part of the opening of the vagina. According to the medial report, the back part of C.L.'s hymen, the part near the rectum, was abnormal in that there was an area of the hymen that was about 25 percent missing, which indicated the abnormality was caused by a laceration. Also, there was also some scarring in that area, which indicated healing of the laceration. The type of abnormality found in C.L. is one of the few types of abnormalities considered specific for penetrating trauma. Based on her review of the examination and the photographs related thereto, Dr. Smith could not say definitively what caused the laceration. However, based on her review of the report and the photographs of C.L.'s genital area, Dr. Smith's credible testimony was that the photographs and examination report indicate that C.L. had a significant episode, or perhaps one or more episodes of penetrating trauma to the hymen-vaginal area. It takes at least several weeks to develop scar tissue. Accordingly, the fact that the area was scarred at the time of the examination indicates that the injury occurred several weeks to a month prior to examination. Respondent suggested that the injury to C.L.'s hymen may have been caused by an injury to the genital area, but presented no evidence to support this suggestion. Contrary to this proposition, C.L. has no history of previous penetrating trauma to her genital area due to an accidental injury. The type of injury/abnormality of C.L.'s hymen documented during examination is not the type seen in a straddle injury. Because the hymen is located a half inch to an inch above the surface and is protected by the outer labia in the genital area, straddle injuries do not result in hymenal injuries. Respondent suggests that the injury to C.L.'s hymen may have been caused by masturbation, but presents no evidence to support this suggestion. Contrary to Respondent's assertion, the credible testimony of Dr. Smith is that the abnormality or injury to C.L.'s hymen that was seen at the time of C.L.'s examination in April 2004 is not the type of injury seen in children who masturbate. Moreover, the abnormality or injury observed in C.L. could not be caused by C.L.'s inserting her own finger into the vaginal opening. The reason is that the child's own finger is similar in size to that of the opening of her vagina, so her finger would not cause the lacerations or trauma. However, a grown man's finger could cause such lacerations or trauma. The credible testimony of Dr. Smith is that the injury to C.L.'s hymen is evidence of sexual abuse. Moreover, the abnormality or injury to C.L.'s hymen was consistent with C.L.'s late reporting of how Respondent had inappropriately touch her. The medical report prepared at or near the time C.L. was examined by the nurse practitioner at the Child Protective Team office noted that C.L. had had three episodes of vaginal bleeding over the preceding four months, one of which lasted about ten days. This information was provided by C.L.'s mother. In this case, the episodes of bleeding can not be linked to the times that C.L. experienced the penetrating trauma described above. However, because injuries such as the one that C.L. had do not necessarily result in bleeding, such a link is not dispositive in determining when or how the injuries occurred. The credible and undisputed testimony of Dr. Smith is that the hymen of a child C.L.'s age, prior to puberty, is a relatively thin membrane that does not have a lot of blood vessels, and, therefore, a laceration of the hymen may not bleed like a cut on the skin. However, a "fair percentage" of children that have an incident of penetrating trauma to the genital area may have some fluid/discharge associated with such trauma, but not necessarily bleeding. In this case, there is no definitive medical explanation for the cause of C.L.'s bleeding. C.L.'s vaginal bleeding occurred from December 2003 through February 2004, but did not occur after Respondent was removed from the school in late April 2004. The trauma necessary to tear the hymen would be associated with some sensation for the child. However, often, in incidents such as those described in paragraphs 36 and 38, the child may not react, cry out, or make any verbal response to the penetration and/or significant trauma. According to the credible testimony of Dr. Smith, children frequently delay divulging, for a significant period of time, that they have been sexually abused. Testimony of Wade Meyers, M.D. Wade Meyers, M.D., is a child and adolescent psychiatrist and forensic psychiatrist. Dr. Meyers is currently a professor at the University of South Florida, where he is chief of the Division of Child Psychiatry in the Department of Psychiatry. During this proceeding, Dr. Meyers testified regarding his opinion of the credibility of the students who made the allegations that are at issue in this proceeding. In preparation for giving his opinion, Dr. Meyers reviewed materials which included deposition transcripts, videotaped depositions, and a number of Pinellas County investigative reports.1 Dr. Meyers did not specify which documents he reviewed for each particular student. However, Dr. Meyers did not review any videotaped depositions or videotaped interviews of C.L., but only her deposition transcript(s). Based on Dr. Meyers' review of the materials described in paragraph 65, he opined that C.L.'s allegations regarding Respondent were not credible and that she had not been abused sexually in any way by Respondent. Dr. Meyers based his conclusions and/or opinions on the four reasons set forth below. First, Dr. Meyers testified that C.L.'s allegations cannot be validated as the medical evidence and the timing do not fit logic that would match digital penetration in a young girl. This assertion is based on the medical record which indicates that the bleeding started in December 2003 and went on for five or eight to ten days. Dr. Meyers noted when the bleeding was first observed, during the Thanksgiving holiday, when students were out of school. Also, when the bleeding was first observed, C.L. had not been in school for several days and had not been in Respondent's class for about two weeks. Dr. Meyers apparently believed that the bleeding was necessarily related to C.L.'s allegations that Respondent had digitally penetrated her. Based on this belief, Dr. Meyers concluded that because C.L. had not been in Respondent's music class for about two weeks prior to Ms. L.'s discovering blood in C.L.'s underwear, Respondent could not have penetrated C.L.'s hymen. Dr. Meyers' conclusion, that the medical evidence and timing do not logically coincide with the allegation that Respondent digitally penetrated C.L., is not persuasive. This conclusion or assertion is contrary to the credible and persuasive testimony of Dr. Smith that there is not necessarily bleeding associated with digital penetration of a child C.L.'s age. Therefore, the truth regarding C.L.'s allegation that Respondent digitally penetrated C.L. need not be tied or related to any specific episode of bleeding. Second, Dr. Meyers asserted that C.L.'s initial denial and subsequent denials that any sexual abuse had occurred are a basis for not believing her later statements that Respondent engaged in the alleged conduct.2 According to Dr. Meyers, a victim of sexual abuse usually reveals such abuse in the initial interview. Dr. Meyers' conclusion, in paragraph 69, based on his assertion that victims of sexual abuse usually reveal such abuse in their initial interview, is not persuasive. Dr. Smith's credible testimony, that victims of sexual abuse or acts alleged by C.L. frequently do not disclose this information until some time after the incidents have occurred, is persuasive. Third, Dr. Meyers testified that when evaluating children for sexual abuse, it is important to not do multiple interviews. According to Dr. Meyers, when children who have initially denied that sexual abuse has occurred are interviewed multiple times, the children may feel pressured to change their answer, and they may begin to doubt if they actually forgot what happened. Therefore, their initial statements, not their subsequent statements, are more credible. Where, as in this case, C.L. was interviewed and/or questioned multiple times, Dr. Meyers testified that her subsequent statements, in which C.L. alleged inappropriate touching by Respondent, are not credible. Dr. Meyers' conclusion that C.L.'s allegations regarding Respondent are not credible because she felt pressured to make the allegations after she was questioned or interviewed multiple times is not persuasive. Admittedly, Dr. Meyers never met or interviewed C.L. or viewed any videotaped depositions or videotaped interviews of C.L. Therefore, at most, his conclusion and opinion are based solely on a review of written documents (i.e. the deposition transcript and/or investigative reports). Moreover, those conclusions and opinions are contrary to C.L.'s credible, persuasive, and clear testimony presented at this proceeding. Fourth, Dr. Meyers asserts that C.L.'s allegations lack credibility because of the leading and suggestive questioning techniques used during C.L.'s deposition and/or interviews.3 Dr. Meyers testified that the techniques used were not only improper, but likely resulted in C.L.'s having a "false memory" about the alleged incidents. According to Dr. Meyers, a false memory is one in which the source of the memory (i.e. the purported suggestive and/or leading questions) is false even though to the child the memory is real. Dr. Meyers' conclusion that C.L.'s allegations regarding Respondent are not credible, but instead are the result of a "false memory" are not persuasive. Furthermore, this conclusion and opinion are contrary to the credible, persuasive, and clear testimony of C.L. presented at this proceeding. For the reasons stated above, the conclusions and/or opinions of Dr. Meyers, as they relate to C.L., are not persuasive. Situation Involving St.H. and Sa.H. When St.H. and Sa.H. were in first grade, their mother, Ms. H. asked them how was their day at school. The girls never talked much about their teachers. However, in response to their mother's question, the girls reported that Respondent stroked their hair. Ms. H. wondered about this behavior and asked a teacher whether a teacher's stroking students' hair was normal behavior. After the teacher told Ms. H. that that was just the way Respondent was, Ms. H. thought that Respondent's behavior (stroking the girls' hair) was not necessarily inappropriate. Based on her conversation with the teacher, Ms. H. never discussed the matter with Respondent. When St.H. was in first grade, Respondent was her music teacher. During music class, Respondent would call St.H. to come up to him, and he would "take [her] waist" and sit her on his lap. While St.H. was sitting on Respondent's lap, he would stroke her hair and rub her neck and stomach. When St.H. was in Respondent's music class, the vertical blinds at the windows were always closed. St.H. recalled that she sat on Respondent's lap every music period. St.H. sat on Respondent's lap when the students in the music class were playing instruments, but did not stay on his lap the entire music period. When Respondent was showing the students how to play the various instruments, he would make St.H. get off his lap. Respondent also had St.H. to sit in his lap when he showed videos to the class. After Respondent turned the television on, he would go back to his chair, he'd then pat his leg. St.H. would then go to Respondent and sit in his lap. The reason St.H. went to Respondent and sat on his lap is because she knew what that sign, patting his leg, meant "because he does [did] that a lot and that means [meant] for me to go to him." Even though sitting on Respondent's lap made St.H. feel uncomfortable, she never told Respondent how she felt. However, St.H. did ask him why he had her sit on his lap. Respondent then told St.H. that her older sister (who at this time was about 15 years old) had sat in his lap, presumably when she was in his class. St.H. wrote about Respondent's actions in her journal, but she later disposed of the journal because the journal entries reminded her of the bad memories. St.H. would not want Respondent as a teacher again because she would not want to go through the experience she had with Respondent again. When Sa.H. was in first grade, Respondent showed videos during music class. Respondent turned out the lights when he showed the videos. When the video was showing and the lights were out, sometimes Sa.H. would have to sit on Respondent's lap. Sa.H. did not sit in his lap the entire class period, but only sat there about five minutes. When Sa.H. was sitting on Respondent's lap, he would rub her stomach and back and tap her legs. At this proceeding, more than two years after the events related to Sa.H. occurred, she could not recall when she first sat on his lap or how she knew to go to Respondent and sit on his lap. However, Sa.H. did not want to sit on Respondent's lap and felt nervous when she was on his lap. Sa.H. never told Respondent that she did not want to sit on his lap. Moreover, Sa.H. never told anyone that she was sitting on Respondent's lap during the time she was in first grade. Sa.H. would not want Respondent as a teacher again because of what he did to her. According to Sa.H., "It would be very scary again." The testimony of St.H. and Sa.H. is found to be credible, notwithstanding the conclusion of Dr. Meyers to the contrary. Respondent's Denies Alleged Inappropriate Conduct At this proceeding, Respondent testified that he never touched any student inappropriately. According to Respondent, this is evidenced by the fact that, in the criminal trial that was based on the allegations of C.L., the jury acquitted him. At this proceeding, Respondent testified that he never touched C.L. inappropriately and that she never sat in his lap. During his testimony at his criminal trial, Respondent testified that he did not recall if C.L. sat on his lap during the movies/videos. However, Respondent recalled that C.L. came to him when she was feeling sad, but she was not on his lap. Rather, Respondent recalled that C.L. stood next to him and sat on his knee for a short period of time, and he asked her what was wrong. Based on this testimony, Respondent appears to try to make a distinction between C.L. sitting on his lap and sitting on his knee. Contrary to his testimony at trial, at this proceeding, Respondent testified that when C.L. was sad or something was wrong, she came up to him and leaned on his knee. According to Respondent, he taught about 700 students a week, and, when they are sad or something is wrong, they come up to him as C.L. did. At this proceeding, Respondent testified that he never touched either St.H. or her sister, Sa.H., or had them sit in his lap. Notwithstanding Respondent's testimony at this proceeding that he never allowed any student to sit in his lap, during his deposition, he testified that he had kids in his lap all the time. In explaining this seeming discrepancy in his sworn testimony, Respondent explained that when he said students were in his lap all the time, he meant that they were "standing next to me" or "leaning on my knee when they come up to get instruments." Respondent testified that this would happen because this (i.e. getting the musical instruments) was a fun activity, and the children would get excited. However, according to Respondent, there was nothing sexual about the children standing next to him or leaning on his knee. They would simply get their instruments and return to their seats. Respondent gave several explanations that he apparently believed established that it would not be reasonable for him to engage in the alleged misconduct in light of the number of people who were regularly in and near his classroom, often with no advance notice. First, many visitors, including parents of prospective Southern Oak students, came to Southern Oak to observe the school. During these visits, the visitors sometimes went into the music classroom while class was in session. Second, Robert Ammon, principal of Southern Oak, circulated throughout the school almost every morning. Even though Mr. Ammon did not necessarily go into the music classroom every day, he would walk in or near the general vicinity of Respondent's classroom. Third, because there was a refrigerator and microwave in the office in the music room, several teachers were routinely in and out of Respondent's classroom each day to get and/or warm their food. Respondent's explanations are not a sufficient basis to support his assertion that it was not reasonable for him to engage in the alleged misconduct. In fact, the teachers who were in and out of Respondent's classroom, or more specifically, the office in the music classroom, on a regular basis, were there for a specific purpose and only for a few minutes. Respondent's testimony at this proceeding, in which he denied inappropriately touching C.L., St.H., and Sa.H., is not credible. Prior Complaints or Disciplinary Actions Against Respondent Prior to the matters at issue in this proceeding, there have been three complaints filed against Respondent during his tenure with the Pinellas County School District. Two of the complaints were determined to be unfounded, and one resulted in a letter of caution being issued to Respondent. The incident which resulted in Respondent's receiving a letter of caution, involved an act of dishonesty. Specifically, Respondent made a telephone call to someone, and, during that call, he misrepresented himself as someone calling from the superintendent's office on behalf of a School Board member. In the 2001-2002 school year, a complaint was made against Respondent. In January 2002, the assistant principal at Southern Oak notified the principal, Mr. Ammon, of allegations that Respondent had inappropriately touched students. The matter was reported to the Pinellas County School District's Office of Professional Standards, which then reported the matter to the Pinellas County Sheriff's Office. After an on-site investigation was conducted, the allegations were determined to be unfounded. The Office of Professional Standards received the investigation determination of "unfounded" from the Sheriff's Office. The Office of Professional Standards defines the term "unfounded" to mean that the conduct alleged never happened. Accordingly, the allegations in the complaint discussed in paragraph 102 were deemed not to have happened. Therefore, no disciplinary action was imposed against Respondent. After the January 2002 complaint was investigated and determined to be unfounded, Mr. Ammon met briefly and "informally" with Respondent. Although no disciplinary action was required or appropriate in this situation, Mr. Ammon discussed with Respondent the need for him to not put himself in a situation where such charges (inappropriate touching of students) might come up. During this conversation, after Mr. Ammon perceived that Respondent did not comprehend the seriousness of the issue, Mr. Ammon directed Respondent not to touch students for any reason. Mr. Ammon regularly conducted faculty meetings where he cautioned teachers to exercise common sense in their physical contact with students and reminded them of appropriate boundaries in this context. During the 2002-2003 school year, a teacher reported to Mr. Ammon that some students had come to her about Respondent inappropriately touching them. The matter was then reported to the Pinellas School District's Office of Professional Standards and to the Pinellas County Sheriff's Office. As directed by the Office of Professional Standards, Mr. Ammon interviewed the students. As with the previous complaint, following the interviews and the investigation, the allegations were determined to be unfounded, and possibly retaliatory. As a result thereof, the Office of Professional Standards deemed that the alleged conduct never occurred, and no disciplinary action was imposed on Respondent. Superintendent's Recommendation of Dismissal On or about April 28, 2004, Respondent was arrested and subsequently charged with capital sexual battery and lewd and lascivious behavior on a child. By letter dated May 30, 2004, Dr. J. Hinesley, then superintendent of the Pinellas County School District, recommended that the School Board dismiss Respondent as a teacher. According to the description of the agenda item related to Respondent's dismissal, the rationale for the superintendent's recommending dismissal was that Respondent's alleged actions were a violation of Pinellas County School Board Policy 8.25(1)(a), (c), (n), (u), and (v).4 Pinellas County School Board Policy 8.25 has been duly-adopted by the School Board. That policy enumerates offenses for which disciplinary action may be imposed and sets out the penalty or penalty range for each offense. School Board Policy 8.25(1)(a) makes it an offense for school board employees to engage in inappropriate sexual activity, including sexual battery and other activities. The penalty for employees who engage in such conduct is dismissal. School Board Policy 8.25(1)(c) makes committing a criminal act (felony) an offense for which the School Board employees may be disciplined. The penalty range for this offense is reprimand to dismissal. School Board Policy 8.25(1)(n) lists, as an offense, making inappropriate or disparaging remarks to or about students or exposing a student to unnecessary embarrassment or disparagement. The penalty range for this offense is caution to dismissal. School Board Policy 8.25(1)(u) lists, as an offense, insubordination. The penalty range for committing this offense is caution to dismissal. School Board Policy 8.25(1)(v) lists, as an offense, misconduct in office. The penalty range for this offense is caution to dismissal. Prior to this proceeding, and after the superintendent recommended Respondent's dismissal, Respondent was tried on the criminal charges and was found not guilty. Notwithstanding Respondent's being acquitted of the criminal charges, in the instant administrative proceeding, it is found that Respondent inappropriately touched C.L., St.H., and Sa.H. and also failed to observe the appropriate boundaries in his physical contact with those students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order that dismisses Respondent from his position as a teacher with the Pinellas County School District. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 13th day of September, 2006.
