The Issue Whether Respondent is guilty of immorality and unprofessional conduct as is more specifically alleged in the Administrative Complaint dated February 25, 1991.
Recommendation Accordingly, it is RECOMMENDED that a final order be entered permanently revoking the Florida teaching certificate of Robert M. Dodd, Jr. DONE and ENTERED this 14th day of October, 1991, 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 14th day of October, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Robert M. Dodd 38124 Townview Avenue #106 Zephyrhills, Florida 33540 Jerry Moore, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
Recommendation Based on the foregoing, it is RECOMMENDED that the Miami- Dade County School Board enter a final order dismissing all charges against Carlos Legoas, rescinding his suspension, and awarding back pay and benefits. DONE AND ENTERED this 1st day of February, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 1st day of February, 2007. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 John L. Winn, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394
The Issue The issue to be determined is whether Respondent violated the provisions of Section 1012.795(1)(c), (f) and (i), Florida Statutes (2007)1/, and Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate, numbered 1003139, covering the area of athletics coaching. The certificate was valid through June 30, 2008. Petitioner is the state agency charged with the certification and regulation of teachers, pursuant to Chapter 1012, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as an in-school suspension teacher and a track coach at Hernando High School in the Hernando County School District. The allegations in this proceeding involve events that occurred during the 2007-2008 school year, and deal with three separate incidents: Respondent's conduct in connection to the prom; his actions toward M.G.; and his actions toward A.H. The Prom The prom for Hernando High School was held on or about April 5, 2008, at the Glen Lakes Country Club in Hernando County. Joy Nagy was a coordinator for the prom, and Vicelia Azzarelli was the administrator on duty. Teachers who desired to chaperone the prom signed up in advance. They were given specific responsibilities, including a schedule for monitoring students' behavior. Volunteers' duties did not include dancing with the students. Those teachers who were not volunteering but wanted to stop by and see the students dressed up in their prom attire were also expected to get prior authorization. According to Joy Nagy, Respondent neither signed up to volunteer nor sought permission to attend the prom. Respondent came to the prom with Mr. Mobley, a long-time substitute teacher. Both men were present for a short time, approximately twenty minutes. During their appearance at the prom, they were seen on the dance floor dancing with the students. Assistant Principal Azzarelli observed Respondent while he was at the prom, and he appeared to her to be under the influence of alcohol. He had the smell of alcohol on his person and on his breath, his eyes were dilated and his gait was unsteady. She and another administrator requested that Respondent and Mr. Mobley leave the dance, and they did so. After the prom, a group of students chose to continue celebrating, and rented rooms at a hotel in Clearwater Beach. Respondent and Mr. Mobley went to the hotel where the students were staying, and socialized with the students. The students were drinking alcohol at the hotel, and the presence of alcoholic beverages was evident. The next week, some students came forward asserting that Respondent and Mr. Mobley were partying with students in Clearwater Beach following the prom. During a subsequent investigation into the partying, Respondent admitted to Ms. Azzarelli that he went to Clearwater Beach after the prom, and had a couple of drinks at a club there. He also admitted that he went to the hotel room of some of the students. As a result of the investigation into the events surrounding the prom, school officials also received information regarding possible conduct by Respondent with respect to two female students at Hernando High School. M.G. M.G. is currently a student at Valencia Community College. At the time of the events in this case, she was a senior at Hernando High School, and was, along with a few other students, a manager for the track team. At some point during the 2007-2008 school year, M.G. was sent to the in-room suspension room for a dress code violation, because she was wearing a skirt that was too short. She was the last student to leave the room. As she was leaving the classroom, Respondent came up behind her and reached around, putting his hand underneath her skirt, over her underpants. M.G. immediately left the room. She did not report the incident to anyone initially, because there were no witnesses to the conduct and she did not think anyone would believe her. She thought that by staying out of in-school suspension and working with the other track managers, she would not be in a position where the situation could be repeated. However, there was a subsequent occasion where M.G. was taking inventory of the uniforms for the track team. She was again alone with Respondent, and he again came up behind her and touched her in the crotch area, over her clothes. On this occasion, M.G. was wearing capris pants. She left the room and, as before, did not tell anyone because she did not want to be in a position where she reported the behavior and no one believed her. She only came forward after hearing about another incident involving Respondent's alleged conduct with a female student.3/ A.H. A.H. was also a student at Hernando High School at the time of the events in question. She graduated in 2009, and is now a student at Pasco-Hernando Community College. There was an occasion during the 2007-2008 school year when A.H. was alone with Respondent in the portable where he taught. Respondent kissed her, and she tried to walk out. He grabbed her arm, pulled her back to him and kissed her again. Respondent also sent A.H. inappropriate text messages. For example, he would text her that he did not want to have sex with her because he knew she was a virgin, but that "I'll go down on you and show you a good time." Like M.G., A.H. did not want to tell anyone about the incident with Respondent because she did not want anyone to know about it. When questioned initially by school officials, she denied it for the same reason. Both girls were interviewed by Detective Morrell of the Hernando County Sheriff's Office during her investigation stemming from the conduct related to prom. The information given during the investigation by Detective Morrell and the information provided during the hearing was consistent. Unfortunately for both girls, after the conduct was investigated, there was significant publicity regarding the incidents. Information was published in both the print and electronic media. Consistent with her fears, M.G. was subjected to ridicule and the publicity related to the investigation made it difficult for her to finish her senior year. Neither girl wanted to press charges as a result of Respondent's conduct, because they did not want to have to deal with the publicity associated with criminal charges. Neither girl wanted to testify in this proceeding. However, both girls were candid and credible, despite their obvious reluctance to appear. On or about May 5, 2008, Respondent resigned in lieu of termination from his position with the school district.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Section 1012.795(1)(c), (f), and (i), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and permanently revoking his teaching certificate. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2010.
The Issue The issues to be determined are whether Respondent, Ms. Claudine Etienne, violated section 1012.795(1)(j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Ms. Etienne holds Florida Educator's Certificate 845026, covering the areas of English and mathematics, which is valid through June 30, 2018. At all times relevant to the complaint, Ms. Etienne was employed as an English teacher at Miami Springs High School in the Miami-Dade County School District. On or about January 20, 2012, an unknown student ignited a smoke bomb or large firecracker in a locker in Ms. Etienne's classroom. Ms. Etienne was unsure what the device was or how it was ignited. Smoke was generated from the device, and it filtered into the classroom. One or more students requested to leave the room because of the smoke. In her deposition, Ms. Etienne indicated that at the time of the incident, she was aware that one of the students assigned to her class, C.E., had asthma because she had a conversation with C.E.'s mother in December about it. Ms. Etienne testified that she did not recall C.E. asking her to leave the room on the day of the incident, however, and in fact did not remember if C.E. was even in class that day. Ms. Etienne did not believe the smoke was sufficiently serious to require her to allow the students to leave the room. She was uncertain how to proceed until administrators who had been called arrived in the classroom. Ms. Etienne instructed the students to stay in the room until an administrator arrived. One student subsequently required medical attention as a result of the smoke inhalation. In her written statement, C.E. stated that paramedics came to the school to assist her because she could not breathe after her exposure to the smoke in the classroom.2/ Ms. Etienne later received a verbal reprimand from the school district.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Ms. Claudine Etienne in violation of section 1012.795(1)(j), Florida Statutes, through her violation of Florida Administrative Code Rule 6B-1.006(3)(a), issuing her a letter of reprimand, and assessing a fine against her in the amount of $500. DONE AND ENTERED this 7th day of February, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2017.
Findings Of Fact Respondent, Michael B. Smith (Smith), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board) since 1977. During the 1985-86 school year, Smith was employed under a continuing contract as a work experience teacher at Miami Norland Senior High School. The Assault and Loan Among the students in Smith's second period work experience class was Colleen Ann Dougherty (Colleen); a 15 year old female and 10th grade student. Colleen had been a student of Smith's since September 1985, and they enjoyed a good student- teacher relationship until the events which gave rise to these proceedings. 1/ On February 10, 1986, Smith asked Colleen to remain after class. Once the other students had left the classroom, and Colleen and he were alone, Smith engaged Colleen in a brief conversation concerning the progress of her outside employment. Gauging the conversation at an end, Colleen picked up her purse and book bag preparatory to moving to her next class, but was distracted when Smith asked her what was in her purse. As Colleen looked into her purse, which was hanging from her right shoulder, Smith placed his left hand on her right hip and his right hand on her left shoulder. When Colleen looked up, Smith pulled her toward him, and kissed her on the lips. Smith's conduct was uninvited and unexpected; Colleen, disconcerted, left the classroom. On February 11, 1986, Smith was covering Colleen's first period class for her regular teacher. After the class had started, Smith asked Colleen into the hall and, exhibiting his divorce papers and a sense of urgency, asked to borrow $50.00 by the end of third period. Colleen informed Smith that she did not know if she could get the money by then since she would need to go to her boy friend's house for the bank book. Thereupon, Smith gave Colleen a pass to visit her friend Jessica to see about transportation. After arranging for transportation with Jessica, Colleen returned to Smith, who was still standing in the hall outside the classroom, and informed him that Jessica and she could get the money. At this time, Smith told Colleen that he liked her and suggested that they meet at school one night so he could repay the money. When Colleen expressed a lack of understanding concerning Smith's comments, he told her to look down and said, "even standing next to you excites me." On looking down, Colleen observed that Smith had an erection. Colleen quickly changed the subject and left with Jessica to get the requested $50.00 from the bank, which she later gave to Smith. Colleen was troubled by what had transpired and was afraid that if she reported the incident the administration would not credit her statements over those of a teacher. However, on Wednesday, February 12, 1986, Colleen told her boss what had transpired between Smith and her, and on the evening of February 12, 1986, she informed her grandmother. On February 13, 1986 Colleen, together with her boss and grandmother, informed the principal of Miami Norland Senior High School concerning the events of February 10-11, 1986. Smith was subsequently suspended from his teaching position, and this administrative proceeding duly followed. In choosing to credit Colleen's recollection of the events of February 10-11, 1986, as opposed to Smith's, I am not unmindful of minor discrepancies in the proof. However, the candor and demeanor of Colleen, coupled with the corroborating proof, compels the conclusion that Smith did commit, without invitation or provocation, the acts set forth in paragraphs 3-5, supra. Smith's conduct was inconsistent with the standards of public conscience and good morals, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to the notoriety of his conduct, Smith's service in the community, as well as his effectiveness in the school system, has been severely impaired. The Excessive Absences The proof establishes that Smith was absent from his employment on 26 days during the 1985-86 school year. Five of those days, and possibly six, were for personal reasons, rather than illness. While teachers are generally allowed only 4 personal days each school year, the School Board offered no evidence to rebut the proof that the additional 1-2 days were authorized by Smith's supervisor, or that all time off was duly approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, Michael B. Smith, from his employment, and dismissing Respondent, Michael B. Smith, from his employment with the School Board. DONE AND ENTERED this 21st day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 21st day of November, 1986.
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated March 26, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates accused of violating section 1012.795, Florida Statutes, and related rules. Respondent Erin S. Scheumeister holds Professional Educator’s Certificate 982133. Valid through June 30, 2015, the certificate covers the areas of Elementary Education, English for Speakers of Other Languages, Exceptional Student Education, and Autism Spectrum Disorders. At all times material to this proceeding, the St. Lucie County School District (District) employed Ms. Scheumeister as an Exceptional Student Education teacher at Samuel S. Gaines Academy K-8 (“Samuel Gaines” or “Gaines Academy”). During the 2012-2013 school year, a typical school day in Ms. Scheumeister’s class ended with a science or social studies lesson which would be presented jointly with the class of Ms. Madelina. Ms. Madelina was another Exceptional Student Education teacher at Gaines Academy, and she and Ms. Scheumeister would co-teach the class. For the science lesson, Ms. Madelina would bring her class to Ms. Scheumeister’s classroom. Ms. Madelina’s self-care aide, Jane Alice Waite, assisted with the joint science lesson. During the 2012-2013 school year, two support staff members, a behavior tech and a paraprofessional, were assigned to Ms. Scheumeister’s class. Ms. Scheumeister is charged with violations that flow from an incident that occurred during a joint science class on Friday, March 8, 2013. The joint science class was conducted, as was customary, at the end of the school day but in Ms. Madelina’s absence because she was absent from school the entire day. In her place was Amy Crossland, a frequent substitute teacher at Gaines Academy. Ms. Crossland also substituted on occasion for Ms. Scheumeister when she was absent and had filled in for Ms. Scheumeister’s paraprofessional aide on more than one occasion so that she was familiar both with Ms. Scheumeister’s class and Ms. Madelina’s class and the arrangement for joint science or social studies classes at the end of the day. As Ms. Crossland put it at the hearing, “It [Ms. Scheumeister’s class] was a challenging classroom, so they [the Administration] would put me in there frequently because they knew I [could] do it.” Hr’g Tr. 11. One of the students in Ms. Scheumeister’s class was R.W., a nine-year-old male student with Autism Spectrum Disorder and Language Impairments. Described by Ms. Crossland as “a sweet kid but . . . a handful,” Hr’g Tr. 12, R.W. exhibited aggressive behavior on a regular, if not daily, basis. Ms. Scheumeister summed this behavior up as follows: He would hit, kick, punch staff, students, knock over desks, fall on the floor, roll around on the floor, knock over furniture. He would do self-injurious behavior such as pinching himself on the arm or he would run over into the kitchen and hit his head on . . . the counter where we have to block him from hurting himself. Hr’g Tr. 102. R.W.’s aggressive behavior was triggered when his routine was disrupted or he became upset. Whenever the trigger occurred, R.W.’s behavior became aggressive quickly. An example of R.W.’s aggressive behavior involved a sink in an island in the kitchen that is either adjoining the classroom or part of the classroom. The sink had a faucet that could be rotated away from a position above the sink into a position above the floor. In moments of acting out, R.W. would swivel the faucet and turn the water on so that water would pour onto the floor. Over the course of the several times that Ms. Crossland was present in Ms. Scheumeister’s class, she saw R.W. turn the faucet on above the floor. Ms. Scheumeister’s response usually consisted of attempts to redirect R.W. to appropriate behavior. By the time of the incident on March 8, 2013, R.W. had swiveled the faucet and turned it on to spill water onto the floor more than once that day. These spills occurred during the joint science class in the presence of students from the two classes of Mses. Scheumeister and Madelina. Immediately after the first time, R.W. ran from the sink and dropped to the floor, which was common behavior for R.W. when he did not get his way or was disciplined. Ms. Scheumeister “raised her voice a little bit,” Hr’g Tr. 13, and her facial expression indicated that her patience with R.W. was wearing thin. Ms. Crossland attributed Ms. Scheumeister’s less-than calm reaction to R.W.’s misbehavior, plus the added stress of the joint science lesson with so many students present in the classroom at once. Ms. Scheumeister did not do anything to R.W. physically the first time he ran the water onto the classroom floor on March 8, 2013. Her reaction became physical, however, when R.W. did it again. Ms. Scheumeister grabbed R.W.’s shoulders with both of her hands. With R.W. kicking and screaming, Ms. Scheumeister sat him on the floor. Ms. Scheumeister pushed and pulled R.W. through the water in what witnesses described as a mopping action. His shirt and shorts became wet. Ms. Scheumeister followed this physical discipline with words to R.W. with the effect that if he thought it was funny to spill water on the floor, she thought it would be funny for him to have to explain to his parents why his clothes were wet. Jane Alice Waite, a paraprofessional aide assigned to Ms. Madelina’s class, observed Ms. Scheumeister push and pull R.W. through the water on the classroom floor. Ms. Waite’s response was immediate. She gathered Ms. Madelina’s students, left Ms. Scheumeister’s classroom with them, and returned the students to Ms. Madelina’s classroom. Ms. Waite did not want her students to remain in the presence of Ms. Scheumeister’s actions with R.W. for fear that they would be upset or become over-excited, a tendency of autistic students. Ms. Waite appreciates that maintaining order in a classroom of autistic students can be a task that is “overwhelming.” Hr’g Tr. 46. Nonetheless, Ms. Waite found Ms. Scheumeister’s method of discipline of R.W. to amount to a loss of control and to be unjustifiable and inappropriate. Morgan Kelly was the behavior tech in Ms. Scheumeister’s classroom the day of the incident. Ms. Kelly confirmed the testimony of Mses. Crossland and Waite. She saw Ms. Scheumeister “proceed with the mopping action dragging [R.W.] back and forth across the water.” Hr’g Tr. 53. Ms. Kelly’s immediate reaction was to offer to change R.W.’s clothing. Ms. Scheumeister reiterated that R.W. could go home wet and his parents can wonder why. R.W. responded to the comment by again turning on the faucet and running water onto the floor. Ms. Scheumeister grabbed R.W. and dragged him through the water again and then instructed Ms. Kelly to put R.W. on the bus wet without a change in clothing. R.W. rode the bus home in wet clothing. The incident with R.W. was not the first time Ms. Kelly had observed Ms. Scheumeister act inappropriately with the autistic students in her classroom. On one occasion, Ms. Scheumeister disparaged her students for their inability to answer questions about a topic at kindergarten level that she had just read to them. On other occasions, Ms. Scheumeister said to some of her students that she intended to “choke them out.” Ms. Scheumeister also on more than one occasion pulled a student’s tee shirt over the back of the chair in which they were sitting so that the student could not get up. Ms. Kelly reported the incident with R.W. to Carolyn Wilkins, the principal of Gaines Academy at approximately 5:30 p.m. on the evening of March 8, 2013, a few hours after it occurred. Ms. Crossland also reported the matter. Rather than to the principal, Ms. Crossland submitted the report to the Exceptional Student Education Department chairperson. In the investigation that ensued, Mses. Kelly, Crossland, and Waite provided written statements. Ms. Waite’s view of the incident with R.W. differed from Ms. Crossland’s in one respect. Ms. Waite was “not sure” how R.W. ended up in the water. But her statement was consistent with the other two statements in that Ms. Waite wrote that Ms. Scheumeister “pulled him in the water two or three time[s] and stated she was not going to change him and he was going home wet and he got on the bus wet.” Pet’r’s Ex. 4. In the wake of the report from Ms. Kelly, Ms. Wilkins called the assistant superintendent of Human Resources. The assistant superintendent directed Principal Wilkins to call the Department of Children and Families and the school resource officer. Ms. Wilkins did so. She followed up the reports with a call to Ms. Scheumeister. In the conversation with Ms. Scheumeister, the principal informed her of the allegations, and ordered Ms. Scheumeister to report to the District office on the following Monday. The District followed its procedures dictated by reports of a teacher’s inappropriate conduct with a student. The District commenced an investigation, and Ms. Scheumeister was transferred to the District office on what the District refers to as a “temporary duty assignment,” Hr’g Tr. 81, or “TDA.” See Pet’r’s Ex. 7. In keeping with standard procedure, the District hand-delivered to Ms. Scheumeister a copy of a written document entitled “Notice of Investigation and TDA” dated March 11, 2013, the Monday after the incident with R.W. In May 2013, Principal Wilkins sent a letter dated May 29, 2013, to Ms. Scheumeister. It informed her that Principal Wilkins had decided not to recommend Ms. Scheumeister for reappointment for the 2013-2014 school year. An Administrative Complaint was executed on November 7, 2013. On March 26, 2014, Petitioner moved to amend the Administrative Complaint. The motion was granted following Respondent’s notice of withdrawal of her opposition to the amendment. A section of the Amended Administrative Complaint entitled “MATERIAL ALLEGATIONS” contains three paragraphs, numbered 3, 4, and 5. Paragraph 3 alleges: Respondent twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled. During this, Respondent stated to the student, “You think it is funny to flood the room? Well, I think its funny your clothes are wet.” When another school personnel offered to change R.W.’s clothes, Respondent refused to allow it and commented she wanted R.W. to go home with wet clothes. Paragraph 4 alleges: Respondent made inappropriate comments or actions to her nine (9) students, who are diagnosed with Autism, including but not limited to, “I’m going to choke you out”; “That’s a kindergarten book and you (students) are not as smart as kindergarteners”; “It’s ok his (student’s) pants are too tight, he shouldn’t reproduce,”; putting student’s over their chairs to prevent them from getting out of their chair and yelling at students. Amended Administrative Complaint, executed March 26, 2014, EPC Case No. 123-2596. Paragraph 5 alleges that following an investigation, Ms. Scheumeister’s “employment contract was non- renewed for the 2013-2014 school year.” On the basis of the material allegations, the Amended Administrative Complaint charged Ms. Scheumeister as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 2: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 3: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety. COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Ms. Scheumeister requested a formal hearing before DOAH on an Election of Rights form in which she disputed all allegations of the Administrative Complaint. On March 10, 2014, the Office of Professional Practices Services filed the case with the EPC, and the EPC announced in a letter dated March 11, 2014, that it would forward the case to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be revoked for a period of not less than five years and that an appropriate fine be levied for each count. If Respondent, when eligible, reapplies for an educator’s certificate and receives one, a condition of the certificate should be probation for a period of five years with additional conditions appropriate to the facts of this case to be set by the Education Practices Commission. DONE AND ENTERED this 8th day of September, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
The Issue The issue in this case is whether a district school board is entitled to dismiss a teacher for just cause based principally upon the allegation that he failed to prevent or stop two students from engaging in oral sex in his classroom.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Ismael Delgado ("Delgado") had been employed as a teacher in the Miami-Dade County Public School System for approximately 12 years. At all times relevant to this case, Williams was assigned to Booker T. Washington Senior High School, where he taught students with disabilities. The alleged events giving rise to this case allegedly occurred on December 6, 2004. The School Board alleges that on that date, during Delgado's fourth-period class, a female student named R. B. fellated a male student named D. B., while Delgado busied himself on the computer, paying no attention to the brazen carnality on display in his presence. The School Board charges that at about 11:15 a.m., a young man named K. M.——who was not a student of Delgado's——chanced to enter Delgado's locked classroom (somehow without attracting Delgado's attention) to check up on R. B. at precisely the moment she happened to be orally stimulating D. B.'s penis. K. M. was purportedly shocked to see this behavior——too shocked, evidently, to mention anything about it to Delgado, who allegedly remained glued to his computer, oblivious. K. M. later reported the alleged incident to another teacher, investigations ensued, and Delgado ended up being accused effectively of causing the students' sexual misconduct, for which the School Board now wants to fire him. Delgado consistently has maintained——and testified at hearing——that nothing extraordinary occurred in his classroom on December 6, 2004. He claims that he neither saw nor heard R. B. and D. B. engage in any sexual activity; indeed, Delgado insists that such behavior could not possibly have taken place in his presence. The undersigned fact-finder believes Delgado's testimony in this regard, which is more credible and persuasive than the evidence to the contrary, and finds, on the record as a whole, that the evidence is insufficient to establish that R. B. and D. B. engaged in oral sex in Delgado's presence, as charged. Because Delgado witnessed nothing of the sort alleged, it is difficult to make affirmative findings concerning what, if anything unusual, occurred in Delgado's classroom on December 6, 2004. Compounding this difficulty, the students who testified were poor witnesses. The School Board called four purported eyewitnesses to the alleged sexual act: R. B. and D. B., the alleged participants; K. M., the student who serendipitously caught the two flagrante delicto; and A. S., another student in Delgado's class. Each one individually came across as an unreliable witness. None seemed to possess (or was able to articulate) a clear and precise memory of the remarkable alleged events, yet each recounted details that struck the undersigned as being implausible at best. Moreover, taken together, their stories are inconsistent and, in material respects, irreconcilable. In support of these general observations, the undersigned will add the following particular findings, to underscore the care with which the evidence has been weighed. As mentioned, the students who testified gave conflicting accounts about what occurred. The points in conflict are not mere minor details, as the School Board argues, but rather involve material facts, such as when the alleged sexual act took place and what Delgado was doing at that time. The details are critical because it is not enough for the School Board to prove that R. B. and D. B. engaged in oral sex on December 6, 2004. In addition, the School Board alleged and must prove that the sex act took place in Delgado's classroom, while he was present; that Delgado knew or should have known what was going on; and that Delgado failed to take reasonable steps to prevent or stop the students from having oral sex. The following table presents a summary of the eyewitness testimony regarding six basic questions raised at hearing: R. B. D. B. A. S. K. M. When did act occur? In the morning, right before, and continuing after, the bell rang. In the middle of class. It was at the end of class, when the bell rings. Class was over. Before lunch; the bell rang at 11:50 a.m., so between 11 a.m. and 11:30 a.m., but witness is unsure. Before the bell rang. Between 11 a.m. and 11:15 a.m. Before 12:15 p.m. K. M. came after the class was over. Where did At R. B.'s desk, in the At the front of At the At a desk. act occur? front of the class. the room. teacher's desk in the back. (A. S. had to turn around to see.) Where was Delgado? Before the bell rang, at his desk, in the back of the room. After the bell, he was in hallway. At the board, on one side of the classroom, facing away from the students. At the board. Behind the computer. What was Delgado doing? Before the bell, looking at "perfume" on the computer; he didn't see the act. After the bell, Delgado was in the hallway, watching students. Writing on the board with a marker; he didn't know that students were having sex. Not looking at the computer. Writing a science problem (or something) on the board. He didn't see what was happening. Busy looking at the computer. He didn't see any sexual activities. R. B. D. B. A. S. K. M. What did other students do? No one said anything. Students were standing up to shield R. B. and D. B., so Delgado couldn't see the act. Students were not standing up to block Delgado's view. They were playing cards or something. Were other Yes, K. W. & S. J. Yes. T. H. did Doesn't Didn't see that. students Their pants were down something remember; having sex at their ankles. They (unclear). didn't see too? stood by the wall, Also, K. W. that. having regular sex. "jacked" S. J. Students told hem to while they were stop. Delgado couldn’t sitting down at see the couple, but one of the heard the students and teacher's desks. told S. to get off K. No one said They ignored Delgado and continued. anything. Although many discrepancies are obvious, focus on the question of Delgado's whereabouts. Two students placed Delgado behind his computer at the relevant moment. Two others recalled that he was writing on the board. The School Board insists that Delgado was engrossed in his computer; it became invested in this theory during the investigative phase when an examination of the cookies on the hard drive of Delgado's classroom computer turned up electronic evidence that the Yahoo website might have been opened at 11:37 a.m.2 If Delgado were at the computer, however, then both D. B. and A. S. gave unreliable testimony on this significant point.3 Conversely, if D. B. and A. S. were believed, then the reliability of the accounts of R. B. and K. M. would be brought into question. The inconsistencies ultimately undermine the credibility of each of the student witnesses. Apart from the testimonial inconsistencies, none of the students, considered individually, impressed the undersigned as being a trustworthy witness. R. B.'s testimony was vague and childlike, offering little on which the fact-finder could get any traction. Her story, in a nutshell, is that D. B. and some other students goaded her into performing oral sex on D. B., to which she reluctantly consented in the vain hope that compliance would put an end to persistent prodding. R. B. also testified that while she was sucking on D. B.'s penis, two other students (S. J. and K. W., a male and female) were standing by the wall, their pants down at their ankles, having regular sex. This latter is beyond belief and suggests to the undersigned that R. B. has difficulty distinguishing fantasy from fact. That being the case, the undersigned considers her testimony unreliable and has discounted it accordingly. D. B.'s version of the alleged event differs from R. B.'s in one immediately apparent respect: as D. B. tells it, he was practically the victim, R. B. the aggressor who pulled down his pants and commenced sucking on his penis against his wishes. This is unlikely——almost absurd, the undersigned thinks——but D. B.'s testimony in this regard is notable insofar as it exposes a desire (also evident, incidentally, in R. B.'s testimony) to shift the blame——for whatever happened——to someone else. Like R. B., D. B. testified that other students also engaged in sexual activity that morning in Delgado's classroom. In particular, D. B. asserted that K. W. had "jacked" S. J. (i.e. masturbated his penis) while the couple had been sitting down at one of the teacher's desks. The undersigned believes that D. B.'s testimony about K. W. and S. J. is most likely a fabrication.4 Having given testimony that is probably untrue, D. B.'s credibility is suspect and his testimony as a whole must be discounted. A. S. testified that on the morning in question, he turned around and saw R. B. and D. B. at the teacher's desk in the back of room, R. B.'s mouth on D. B.'s penis. Apparently witnessing two classmates openly engaging in a sexual act was not a remarkable event for A. S., for he claims to have looked away and said nothing to the teacher (who was, according to A. S., writing a problem on the board at the time). The undersigned considers this to be implausible. He can scarcely believe that a student in A. S.'s supposed position would react in the blasé manner that A. S. described. The testimony as a whole is not credible. K. M.'s testimony is full of improbabilities. To begin, the undersigned is skeptical that K. M. just happened to be running an errand for his teacher in the middle of fourth period, allowing him to detour to Delgado's classroom to check up on R. B.——whom, he said, he treated "like a sister"——at the very moment she was performing fellatio on D. B. This is too contrived to be believable. Second, the undersigned does not believe that K. M. could have entered Delgado's classroom—— which, it is undisputed, was locked while class was in session—— without Delgado knowing about it, which is what K. M. claims occurred. Third, the undersigned rejects as incredible K. M.'s testimony that he stood watching R. B. suck on D. B.'s penis for a considerable period of time (several minutes), unobserved by Delgado, without saying anything to the teacher. Fourth, the undersigned disbelieves K. M.'s testimony that he slipped out of the secure classroom unnoticed by Delgado. Finally, K. M. testified at hearing with some certainty that he had reported the incident the next day, after carefully considering whether to do so. Yet, the contemporaneous written record reflects that he reported the matter within hours after its alleged occurrence. Standing alone, this latter would be a relatively minor discrepancy. But viewed in the light of other facially improbable details, this discrepancy is more troubling. All things considered, the undersigned harbors genuine doubt regarding K. M.'s reliability as a witness. The School Board offered the unsworn written statements of eight students, including the four who testified at hearing. These are hearsay and hence can be used, if at all, only to supplement or explain other admissible evidence.5 To give a flavor of the nature and quality of the evidence presented in support of the charges against Delgado, the undersigned will reproduce the statements of the non-testifying students below.6 S. J.7 gave a statement dated December 8, 2004, wherein he recounted:8 it happen when [R. B.] was siting between [D. B.] legs and when I went to get my paper from the printer and I turn around I seen [R. B.] sucking [D. B.] penis I was not the only one seen them [K. M.] seen them also this happen 2 minutes before the bell rang that how the other person which is [K. M.] seen them when he walk into the room and seen them thats how everything started. I was not involved with them. J. signed another statement, dated December 14, 2004, in which he wrote: When the problem happen the teacher was right in front of them but he told her to stop but she wouldnt. He told her plenty of times to go down stairs to see Ms. Thomas but she wouldnt. but when they were doing it in the corner in he see them crowed around he gets up to see what's going on thats the only time he gets up to see. the problem doesn't occur now scense she not in the class anymore. K. W.'s9 December 7, 2004, statement provides as follows: when she came in she started to play with [nickname deleted] and he said to leave him and still cap playing with and he got up side on the other side of the classroom and teacher her to stop she cap on playing with him and I when to sleep after that I does not know that they had sex or not. T. H. gave two written statements. The first, dated December 7, 2004, states: I was seating down on the char in I sha [D. B.] in [R. B.] [R. B.] was sukin [D. B.] penis two times. H.'s second statement is dated December 10, 2004. Therein he wrote: Mr. Dilgado trys to stop hus from having six bet we keep on going in he call ower house bet we cap on going. N. H. provided two statements, neither of which is dated. In one he wrote: [D. B.] in [R. B.] was having sex in the classroom. I was go to the computer lab. In the other, N. H. added: I feel I Mr. Delgado did not see [R. B.] in [D. B.] have sex in the class. These written statements do not explain or supplement the admissible evidence; to the contrary, if accepted they would create additional inconsistencies. Thus, the undersigned has not based any findings of fact on their contents. The undersigned has taken note, however, that out of 15-17 students in Delgado's fourth-period class, fewer than half (seven, to be exact) testified at hearing and/or signed a written statement about the alleged incident that was produced at hearing. This causes the undersigned to wonder what, if anything, the other 8- 10 students in the class witnessed on December 6, 2004. Given the paucity of persuasive evidence, the undersigned is better able to find what was not proved to have happened, than to find what likely happened in Delgado's classroom on December 6, 2004, if anything out of the ordinary. To repeat the key finding above, the School Board failed to prove that R. B. and D. B. engaged in oral sex in Delgado's classroom while he was present. While these students probably did not engage in oral sex, the undersigned believes that there is a slightly better than even chance, and thus he finds, that D. B. briefly exposed his penis in Delgado's classroom after the bell had rung and class had been dismissed, when Delgado was outside of the room monitoring the hallway, which is what he was supposed to be doing at the time.10 The undersigned thinks, based on the evidence presented, that it is reasonably possible (the probability being between, roughly, 25 percent and 35 percent) that R. B. might have placed her mouth on D. B.'s penis, but he cannot make this finding because he is not persuaded that this likely occurred. What is likely, and what the undersigned finds, is that D. B.'s exhibition was a type of taunting, teasing, or sexually harassing behavior directed at R. B. It is found that K. M. likely did enter Delgado's classroom, not during the class period as K. M. claimed, but after fourth period had ended, when Delgado was properly in the hallway and the door to his room was unlocked. It is found that, more likely than not, K. M. then learned about D. B.'s harassment of R. B. It is possible that the incident was already being exaggerated in discussions about what had happened. At any rate, by the time K. M. reported the incident, the facts had become distorted. There is no persuasive evidence that Delgado saw or knew about, or reasonably should have seen or known about, D. B.'s misbehavior, which occurred while Delgado was properly monitoring the hallway between classes. There is no persuasive evidence that Delgado reasonably should have foreseen D. B.'s misconduct or that he reasonably could have stopped or prevented it.11 There is no persuasive evidence that Delgado was in any way the cause of, or responsible for, D. B.'s bad behavior. In sum, the undersigned determines as a matter of ultimate fact that, to the extent anything unusual occurred on December 6, 2004, in Delgado's classroom, it was student misbehavior that took place outside the teacher's presence and beyond the reach of his senses. Delgado neither knew nor should have known that anything untoward was occurring. The student or students who engaged in the misbehavior should have been punished, not the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Delgado of all charges brought against him in this proceeding; (b) providing that Delgado be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Delgado back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 2nd day of March, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 2nd day of March, 2006.
The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, and gross insubordination.
Findings Of Fact At all times material to this proceeding, the Respondent, Chico J. Arenas, was employed as a teacher by the Dade County Public Schools pursuant to a professional services contract. At the time of the hearing in this case, K. F. was a fifteen-year-old student in the 10th grade. She is a former student of the Respondent. At the time of the hearing, E. W. was a fifteen-year-old student in the 10th grade. She is also a former student of the Respondent. Both K. F. and E. W. are females. Shortly after Halloween in 1990, one day when the Respondent and K. F. were alone in a classroom, the Respondent asked K. F. whether a male student named M. was "getting action." At that time M. was a close friend of K. F. The term "getting action" was a reference to sexual intercourse. When K. F. answered the question in the negative, the Respondent repeated the question and also made statements to the effect of, "M. is lucky," that he had "heard Jamaicans are wicked in bed," and that "older guys will show you more." The Respondent also told K. F. that she made him "excited." K. F. construed these statements as being sexual in nature. As a result of these statements by the Respondent, K. F. lost the trust she had in her teacher and never went back to his class. The incident involving K. F. resulted in the Respondent being made formally aware of the School Board's policies with regard to inappropriate statements to female students containing expressed or implied sexual references and the Respondent was specifically directed to avoid sexual harassment of female students. Beginning in February of 1992, on three separate Saturdays, at approximately 11:00 a.m. on each of those days, the Respondent telephoned E. W. at her home. At that time E. W. was one of the Respondent's students. On each of those occasions the Respondent's statements to E. W. were of a personal nature and had nothing to do with the fulfillment of Respondent's duties as a teacher. On the first of the three telephone calls to E. W., the Respondent identified himself, but there was very little other conversation. Shortly after the Respondent identified himself to her, E. W. told him that she was doing something and asked if he could call back later. During the course of the second telephone call, the Respondent made statements to E. W. to the effect that he "liked" her and that he had "feelings" for her. The Respondent also told E. W. that she was "a beautiful young lady" and that she "had a nice shape." After just a few such statements, E. W. told the Respondent to call back later and she hung up. The Respondent's statements during the second telephone conversation led E. W. to believe that the Respondent had a romantic or sexual interest in her. During the course of his third Saturday telephone call to E. W., the Respondent repeated statements to the effect that he liked her, that she had a beautiful shape, and that she was a beautiful young lady. He went on to also tell her such things as that "he wanted to wrap his hands around [her] and hold [her] tight," that "he wanted to give [her] things," that her boyfriend "didn't have to know what was going on," and he also told her "not to tell her mamma [she] was talking to him on the phone." The Respondent also asked E. W. to meet him in the library near her home and to otherwise skip school so that she could be with him. The Respondent also made comments to the effect that he could do more for E. W. than her boyfriend could and that she was "a beautiful young lady, and [she] deserved beautiful things." As a result of the statements during the third Saturday telephone call, E. W. became convinced that the Respondent wanted to have a sexual relationship with her and she began taking steps to avoid the Respondent. As a student, E. W. was doing well in the Respondent's class. If she had had any personal problems that came to the attention of the Respondent, it would have been his responsibility to have referred her to one of the school counsellors. The Respondent is not certified as a counselor or as a psychologist. At the time of the telephone calls to E. W. described above, the Respondent did not have any school related business which required him to call E. W. at home, nor was he trying to reach E. W.'s mother. When the events described above were reported to school officials, the Respondent was removed from a school based employment site and reassigned to work elsewhere. The reassignment and the reasons for it became known to a number of administrators, teachers, parents, and students. The disclosure of information about the matter resulted in part from statements the Respondent made to others. The Respondent's effectiveness as a teacher has been impaired as a result of his conduct with E. W. and his prior principal would be reluctant to rehire him as a teacher. The Respondent's conduct with E. W. also constitutes misconduct in office and is a breach of his professional relationship of trust with students because it exposed a student to embarrassment and disparagement. The Respondent's conduct with E. W. also constitutes immorality.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Respondent is guilty of immorality, misconduct in office, and gross insubordination as charged in the Notice of Specific Charges and, on the basis of those conclusions, terminating the Respondent's employment. DONE AND ENTERED this 10th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 10th day of January 1994. APPENDIX The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties: Findings of Fact submitted by Petitioner: Paragraphs 1, 2, and 3: Accepted in substance with some details modified in the interest of clarity. Paragraph 4: Rejected as irrelevant because the conduct described here was not charged in the Notice of Specific Charges. Paragraphs 5, 6, 7, the unnumbered paragraphs following 7, 8, and 9: Accepted in substance with some details modified in he interest of clarity and accuracy. Paragraphs 10 and 11: The essence of these paragraphs has been accepted, but most details have been omitted as unnecessary. Findings of Fact submitted by Respondent: By way of clarification, it is noted that the Respondent submitted two post-hearing documents in support of his positions on the issues: one titled RESPONDENT'S MEMORANDUM IN SUPPORT OF HIS PROPOSED ORDER RECOMMENDING REINSTATEMENT, and the other titled RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. The first of these two documents includes an extensive summary of the testimony, which summary has been carefully reviewed by the Hearing Officer. However, because those summaries do not constitute proposed findings of fact, they are not specifically addressed below. Here, as in the usual course of events, it would serve no useful purpose to recite at length the extent to which the summaries are or are not accurate and to do so would add to this Recommended Order voluminous subordinate and unnecessary details; details which have been carefully considered during the fact-finding in this case. Specifically addressed below are the paragraphs contained in the "Findings of Fact" portion of the RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. Paragraphs 1, 2 and 3: Rejected as contrary to the greater weight of the evidence. (This disposition of the proposed findings is, in any event, irrelevant in view of the Hearing Officer's disposition of the immorality charge). Paragraph 4: Rejected as contrary to the greater weight of the evidence. The evidence is sufficient to prove the acts alleged by a preponderance of the evidence. Paragraph 5: Rejected as contrary to the greater weight of the evidence and as constituting a proposed conclusion of law, rather than proposed findings of fact. (On the basis of Johnson v. School Board of Dade County, 578 So.2d 387 (Fla. 3d DCA 1991), the Hearing Officer has reached a conclusion different from the one proposed here.) COPIES FURNISHED: David Rothman, Esquire Thornton, Rothman and Emas, P.A. 200 South Biscayne Boulevard Miami, Florida 33131 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Dr. Joyce Annunziata, Director Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33122 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner terminated Respondent's annual contract as a teacher for just cause.
Findings Of Fact Petitioner hired Respondent, an inexperienced teacher who had recently graduated from college, and assigned him to teach and serve as an assistant basketball coach at Dixie Hollins High School during the 2000-01 school year. For the 2001-02 school year, Petitioner reassigned Respondent to Tarpon Springs High School, where Respondent assumed the duties of head basketball coach. During both school years, Respondent was on annual contract. Initially, an administrator at Tarpon Springs High School informed Respondent that he would teach American history and economics, which are the subjects that he had taught at Dixie Hollins High School. When Respondent reported for duty at Tarpon Springs High School, administrators did not give him a schedule until a couple of days before classes started. At that time, Respondent learned that, during the first quarter, he was to teach counseling and personal fitness, neither of which he had taught before. He also learned that, the following quarter, he was to teach Freshman Experience, which was a relatively new course, and personal fitness. In the third quarter, he was due to teach earth-space science in place of personal fitness. At least for the first two quarters, Respondent was assigned students in the GOALS program, which is designed for students who have not made substantial academic progress due to social problems. In this program, the students take only four classes per quarter. Each class runs one hour and forty-five minutes, five days weekly. Respondent had difficulties assembling materials for the peer counseling course. Teachers who had previously taught the course were not available. Extensive renovations at the school made it difficult to locate materials for this and other courses. Respondent finally visited a teacher at another school and obtained books, guides, and tests for peer counseling. These materials advised Respondent to help the students learn to settle their disputes peaceably without adult intervention and suggested that the teacher supplement the book with relevant movies dealing with peer pressures, conflict, and social issues. Respondent experienced similar difficulties with the personal fitness course, for which he had books, but no teacher edition or worksheets. However, Respondent's background in athletics presumably prepared him to teach this course. Although Respondent voiced similar complaints about Freshman Experience, he had a quarter to try to obtain materials. Also, no one else at the school had any experience with this course, which the District had abruptly required the high schools to teach. Similar to peer counseling, Freshman Experience is a motivational course that also covers personal and academic issues, as revealed by the titles of the required books, Chicken Soup for the Soul and Ten Steps for How To Manage Time. The seven charges listed in the Preliminary Statement fall into four groups. Charges 1 and 2 are the most serious; they allege that Respondent kissed two students and touched the vaginal area of one of these students. Charges 3 and 4 are also sexual in nature; they allege that Respondent made inappropriate comments to female students about their appearance and inappropriate sexual comments to or in front of students. Charges 5 and 6 pertain to classroom management; they allege that Respondent allowed students to come to his classroom for no legitimate purpose and encouraged students to leave campus to get him food. Charges 7-9 pertain to curriculum, administration, and instruction; they allege that Respondent used noncurriculum-related materials (such as videos), lacked appropriate recordkeeping, and lacked appropriate classroom instruction. Petitioner wisely dropped Charges 6, 8, and 9. No evidence in the record supported these allegations prior to Petitioner's announcement that it was not pursuing these allegations. Charges 5 and 7 require little more analysis. The evidence supports neither of these allegations. Concerning Charge 5, unenrolled students visiting Respondent's classroom included basketball players. While Respondent remained the basketball coach, these players briefly visited the room from time to time to discuss something about the basketball program. Petitioner did not show the extent of these visits or that they were illegitimate. Unenrolled students who were not participating in the basketball program infrequently visited Respondent's classroom. Although the principal testified that one of his assistant principals told him that there was a problem with unenrolled students visiting Respondent's classroom, he added that she rejected his offer to talk to Respondent and said she would handle it. After that conversation between the principal and assistant principal, the principal said the problem was eliminated. Interestingly, though, neither the assistant principal nor anyone else ever talked to Respondent about this issue, which appears not to have loomed large at the time. Concerning Charge 7, Petitioner never proved the rating of any of the films mentioned during the hearing as shown in Petitioner's classroom. Films mentioned during the hearing as shown in one of Respondent's classes include With Honors, Rudy (shown repeatedly), Finding Forrestor, Saving Private Ryan, The Hurricane, [The Mask of] Zorro, and assorted basketball videotapes. The record reflects disagreement among Petitioner's administrators as to the policy concerning the application of the District policy regarding R-rated films. According to the representative of the Office of Professional Standards, The Patriot (apparently an R-rated film) "could" violate this policy, but, according to the principal, who is now handling workforce development in the District office, The Patriot "probably" would not be a problem. Even if The Patriot were a problem, as an R-rated film, it would be so only if Respondent had not obtained permission slips from parents to show this and perhaps other R- rated films. Respondent testified that he did so. Notwithstanding the testimony of one student to the contrary, Petitioner never proved that Respondent failed to obtain permission slips. The issue of the relationship, if any, between the films and the courses fails because Petitioner failed to prove the contents of the films or to prove adequately the prescribed content of the courses, so as to permit a finding that the films were irrelevant to the courses. The broad outlines of peer counseling in particular, at least as established in this record, would appear to accommodate a vast array of films. A sufficient number of students testified in sufficient detail to a broad array of bookwork, class discussion, and other instructional and assessment methods in both peer counseling and Freshman Counseling to overcome whatever proof that Petitioner offered in support of Charge 7. The crux of this case lies in the charges involving sexual improprieties, as alleged in Charges 1-4. The quality of proof was considerably different between Charges 1 and 2, on the one hand, and Charges 3 and 4, on the other hand. Analyzing Charges 3 and 4 first may help explain the findings as to Charges 1 and 2. Concerning Charges 3 and 4, Petitioner proved that Respondent made numerous inappropriate comments to female students, of a sexual nature, that understandably made the students feel uncomfortable. Respondent directed three of these comments and one behavior to T. R., a junior. While walking around the track during the personal fitness class that T. R. was taking from Respondent, he asked her what she thought of a 26-year-old dating an 18-year-old. T. R. was either 18 years old or Respondent implied that the dating would await her 18th birthday; either way, T. R. reasonably believed that Respondent meant her. Although actually 29 or 30 years old at the time, Respondent typically told his students that he was only 26 years old, so T. R. reasonably believed that Respondent meant him. T. R. was so uncomfortable with this question that she mentioned it to a female teacher at the school, Cheryl Marks- Satinoff. Thoughtfully considering the matter, Ms. Marks- Satinoff found that the question was "odd," but not "extremely inappropriate" and "on the fence." Ms. Marks-Satinoff's characterization of the question, in isolation, is fair. In the context of other comments to T. R. and other female students during the relatively short period of two school quarters--little else, if any, of which was Ms. Marks-Satinoff was then aware--the comment acquires its proper characterization. To T. R., Respondent also said, "If I were still in high school, I'd be climbing in your window at night." T. R. was "shocked" by this comment, but her mother or stepmother, when told by T. R. about the comment--again, in isolation--did not attach much importance to it. On another occasion, when a female student asked why T. R.'s grade was better than D. P.'s grade, Respondent replied, "T. R. and I have an agreement." While taking Respondent for personal fitness, T. R. found Respondent staring at her repeatedly. Accordingly, T. R. switched from stretch pants to baggies. T. R.'s testimony is credible. She spoke with adults about two of the comments roughly at the time that they were made. Also, T. R. bore no grudge against Respondent. She said that she did not think twice about the dating comment, although she obviously gave it enough thought to raise it with Ms. Marks- Satinoff. T. R. freely admitted that Respondent made the comment about crawling into her window in a joking manner. She discredited D. P., who is the alleged victim of the most serious sexual incident, discussed below, as a person who always lies, convincingly. T. R. added that D. P. told her once that Respondent "tried" to kiss her and put his hand up her skirt and did not understand why D. P. confided in her initially. T. R. testified that she never heard Respondent do or say anything inappropriate in the personal fitness class that she took with D. P. T. R. testified that Respondent made her and her friends leave if they disturbed his class the few times they got out of their assigned class to visit his office and watch movies. T. R. described another female student, B. H., who testified to several inappropriate comments made by Respondent, as someone who "likes to stir the pot." To A. T., an 18-year-old who graduated from Tarpon Springs High School in June 2002, Respondent alluded to the size of her breasts, in front of the class, and used his hands to frame them. Although done in connection with a warning that A. T. was violating the school dress code due to the revealing nature of her shirt, Respondent delivered this warning in a sexual manner that was obviously unnecessary for the purpose of reminding the student to conform to the dress code. A. T. testified that she liked Respondent as a teacher, but he made her uncomfortable, and he should be more a teacher than a friend. Like T. R., A. T. seemed not to bear any negative feelings toward Respondent, but instead merely seemed to be describing an insensitive incident as it happened. To N. S., a junior at the time, Respondent said, upon learning that she had surgically implanted rods in her back, that he wanted to have sex with her. N. S. testified that she was not bothered by the remark. N. S.'s testimony is credited. She was friendly toward Respondent and had long dated Respondent's teacher assistant. To A. M., Respondent said that she looked pretty and could get any guy she wanted. A. M.'s testimony is credited. She did not have much interaction with Respondent and was not part of any group interested in causing him trouble. She seems simply to have truthfully reported an ill-advised comment that Respondent made to her, although she did not describe her reaction to the comment. To L. D., Respondent said that he had a bracelet of hers that she had lent him and that, whenever he looked at it, it reminded him of her. L. D. felt uncomfortable about this remark. L. D. also testified that Respondent sometimes tried to get the boys to treat the girls with respect, and her testimony is credited. Other witnesses, especially D. P. and B. H., described other comments, but their credibility is poor, and their testimony cannot be credited. The demeanor of two witnesses favorable to Respondent revealed something bordering on exasperation with him, even as they testified that he never said anything sexually inappropriate in class. The demeanor of each witness was consistent with someone who believed that Respondent was only joking around in class, when making sexually charged comments, and had suffered more than enough due to the consequences of lies told by two female students, as described below. In isolation, the comment about having sex with a student with orthopedic rods in her back is sexually offensive, as is the sexual comment and gesture framing a female student's breasts is sexually offensive. The comments about the agreement between T. R. and Respondent, the bracelet reminding Respondent of L. D., and A. M. being able to sufficiently pretty to get any boy are not sexually offensive, in isolation, but, even in isolation, betray a tendency by Respondent to regard certain of his female students as females more than students. With the exception of the comment to A. M., all of the comments, gesture, and behavior, in the aggregate during a relatively short period of time, depict a transformation by Respondent of the relationship between a teacher and several of his students to a more ambiguous relationship, at times resembling the relationship that might exist between these girls and the boys with whom they attended high school. Nearly all of these incidents embarrassed the female students; all of them, except perhaps A. M., reasonably should have been embarrassed by them. Several of these incidents suggest that Respondent regarded these female students as available for him in some role other than that of student--for instance, as females with whom to flirt. Petitioner has proved that Respondent exploited these female students, with the possible exception of A. M., for personal gain. This characterization of these comments, gesture, and behavior is confirmed by Respondent's implausible assertion that all of these students, except N. S., are lying. If confident that the comments, gesture, and behavior were innocuous or at least not improper, Respondent could have gained credibility by admitting these incidents and explaining their innocence. With one exception, Petitioner has not proved that Respondent sexually harassed or discriminated against his female students or these students in particular. The record does not suggest any quid pro quo in the sexual incidents, although the agreement with T. R. approaches the type of proof required. Nor does the record suggest that the sexual commentary, gesturing, or behavior were so pervasive as to create a hostile environment. Two students, N. S., A. M., and L. D., were each the subject of a single comment. One student, A. T., was the subject of a single incident, which consisted of a comment and gesture. On this record, Petitioner failed to prove that Respondent's treatment of these students rose to harassment or discrimination of them or of his female students in general. However, Respondent's treatment of T. R. rose to harassment and sexual discrimination because he made three sexually inappropriate comments and engaged in one sexually inappropriate behavior that caused her to alter her mode of dress. Respondent implicitly asked her to think about dating him--now or later--with the comment about a 26-year-old dating an 18-year-old. Respondent implicitly identified the possibility of their having sex with the comment about climbing in her window. Respondent alluded to the possibility of sex between T. R., a student, and himself, a teacher with the power of the grade, with the comment about her grade resulting from an agreement. And Respondent leered at T. R. sufficiently to cause her to change her workout clothes. In partial mitigation of the sexual comments, gesture, and behavior, but not the harassment or discrimination, no one seems to have provided Respondent with any timely feedback on this manner of interacting with certain female students. The only reports to adults seem to have been of isolated comments. In addition to the two reports noted above, a male student reported inappropriate comments, midway through the first quarter, to the teacher who was head of GOALS. Although the teacher did not describe the inappropriate comments, she said that she talked only to the two female students involved and evidently decided that the matter was not sufficiently important to discuss with Respondent or the administration. As noted above, Ms. Marks-Satinoff learned from T. R. of a borderline inappropriate comment. Sometime later, in January, she spoke briefly with Respondent and advised him to watch inappropriate comments. This marks the only feedback, and it was too late to alter the course of events. However, for the same reason that this lack of feedback does not mitigate at all the harassment and discrimination involving T. R., the value of this mitigation is largely undermined by the fact that the knowledge of the need to refrain from improper personal references to students is not granted only to the most experienced teachers or administrators. Perhaps Respondent was not fully aware that his comments, gesture, and behavior were sexually charged and did not realize the effects of these comments, gesture, and behavior on his students, as some teachers may not be fully aware of their sarcasm and its effect on their students. However, Respondent, as a teacher, remains responsible for determining the effect of his interaction upon his students and ultimately must bear the consequences if he fails to identify the problem. D. P. is the complainant in Charge 1. She was born in September 1984 and was a senior during the 2001-02 school year. Respondent taught her peer counseling during the first quarter and personal fitness during the second quarter. D. P. testified that on Monday, January 14, 2002, she approached Respondent to ask if she could exempt a final exam. She testified that he said to return after lunch. When she did, she testified that they met in his office where he kissed her and moved his hand up her leg until he digitally penetrated her vagina. D. P.'s testimony is unbelievable for several reasons. First, two different students testified that they heard her say that she would get Respondent into trouble. One of the students testified that he heard her say this immediately after an argument D. P. had with Respondent over absences and tardies. D. P. was upset with Respondent because her numerous absences and tardies prevented him from exempting her from the final examination in his class. D. P. did not tell anyone of the alleged incident until immediately after she found that she could not obtain an exam exemption from Respondent. Second, D. P.'s testimony is unusually inconsistent with other statements that she has given. Some inconsistencies are not fatal to credibility, but the number and importance of inconsistencies in her testimony and statements preclude a finding of credibility. Numerous material discrepancies exist between D. P.'s testimony at the hearing and her testimony in a prehearing deposition. Other discrepancies exist between her testimony at the hearing and earlier statements given to law- enforcement officers or made to others. These discrepancies include differences of two hours as to when during the day the incident occurred and one day as to which day on which it occurred. D. P.'s implausible implication is often that the persons taking down her version of events made a mistake. Third, D. P.'s testimony is improbable. First, Respondent was aware of the investigation into his dealings with female students by the morning of January 14. The investigation was already underway by the end of the prior week. For instance, D. P. had given her first statement on January 11. It is unlikely that Respondent would engage in such egregious sexual abuse of a student while he knew that he was under investigation. Second, Respondent's teacher assistant testified that he was in the office during the entire time that the incident supposedly would have taken place, and he never saw D. P. Fourth, D. P. has a poor reputation for honesty among her peers who know her well. D. P. testified that she told several persons about the sexual abuse, but they all denied such conversations. At one point during her testimony, she stated that everyone at school had his or her own opinion concerning rumors as to with which student Respondent was accused of having an improper relationship. As she testified, D. P. seemed clearly to have relished the attention that she had gained by making the charge. S. Y. is the complainant in Charge 2. S. Y. was born in April 1987 and was a sophomore during the 2001-02 school year. She was a student of Respondent. She testified that Respondent taught her Freshman Experience during the third quarter, although she was not a freshman and Respondent did not teach very long into the third quarter before he was terminated, as described below. S. Y. testified that Respondent kissed her one day while they were alone in his office. A number of reasons exist that undermine the credibility of this assertion. First, S. Y.'s testimony is also unusually inconsistent with other statements that she has given. At different times, she has attested that the kiss occurred between Thanksgiving and Christmas, before Thanksgiving, and in January. Second, S. Y.'s timing in reporting the kiss is suspect. First, three times she told investigators nothing about a kiss. Second, she reported the kiss only after she knew that D. P. had accused Respondent of sexual improprieties. S. Y. admitted that emotions were running "sky high" at the time. Unlike D. P., who did not like Respondent, S. Y. liked him, at one time even having a crush on him. S. Y. appeared capable of jealousy regarding her feelings about Respondent, as evidenced by the following facts. Third, S. Y. reported the kiss immediately after he referred her to the office for abruptly interrupting his class and loudly demanding that he tell her who else he was "fucking." Although she denied knowledge that Respondent was having sexual intercourse with any students, including herself, S. Y. admitted that the referral prompted her to report the kiss to an investigator. Fourth, S. Y. engaged in embellishment concerning her relationship with Respondent, as would be consistent with a fantasy attachment to him. Although S. Y. implausibly denied it, she told Ms. Marks-Satinoff that she had been to Respondent's home, which was in a poor section of Clearwater. Respondent's home is not in a poor section of Clearwater. S. Y. also has said that Respondent proposed that she and another girl perform in a porn movie that he would make. The reality is either that she proposed it to Respondent, who told her never to suggest such a thing again, or that a former boyfriend proposed the porn movie--without Respondent's involvement. For the reasons listed above, it is impossible to credit the testimony of D. P. or S. Y. that Respondent sexually abused them. Although the presence of multiple accusations of this type may sometimes be indicative of their reliability, they are more likely due to Respondent's sexual banter and flirtation and repeated failure to maintain appropriate boundaries between the professional and the personal. Both D. P. and S. Y. were doubtlessly aware of Respondent's tendencies in this regard, and, from this sexually charged atmosphere, which Respondent himself had helped create, they struck back at Respondent by making sexual allegations. D. P. chose to strike out at Respondent for not granting her an exemption to which she was not entitled, and S. Y. chose to strike out at Respondent for referring her to the office and not meeting the unrealistic expectations that she and her infatuation on Respondent had generated. Shortly after D. P. and possibly S. Y.'s charges emerged, law enforcement officers arrested Respondent, who remained in jail for nine days. In June 2002, the state attorney's office dropped the charges, although D. P. testified at the hearing that she intended to sue Respondent and Petitioner. Petitioner then terminated Respondent's employment six weeks prior to the end of the term of his annual contract. A proper penalty must reflect the nature of the offense and its impact on the students. Some students who were the subject of improper comments, gesture, and behavior denied embarrassment. Of those admitting to embarrassment, it does not seem to have been traumatizing or even especially painful. Not entirely without reason, some of the students implied that Respondent had already suffered enough, having been fired and served nine days in jail on accusations that were not established on this record. Also, the mitigation discussed above, as to the failure of authority figures to provide Respondent with timely feedback as to the improper comments, gesture, and behavior, but not harassment and discrimination, plays a role in setting the penalty. Petitioner's representative from the Office of Professional Standards testified that Charges 3 and 4 would suffice to warrant dismissal, depending on the frequency of the improper comments. The improper comments warrant, at most, an unpaid suspension of three days, but the harassment and discrimination involving T. R. warrant a more serious penalty. In the absence of the other sexually inappropriate comments and gesture, the harassment and discrimination involving T. R. probably would warrant a long suspension. However, two facts warrant termination. First, the harassment and discrimination involving T. R. are accompanied by the sexually inappropriate comments and gesture involving the other students. Second, still not grasping the requirements of a professional's proper relationship toward his students, Respondent has continued, implausibly, to deny all of the sexually inappropriate comments, except for an admission of a vague version of the comment about the orthopedic rod in N. S.'s back. By branding these students liars when he himself is lying, Respondent makes the case for Petitioner that termination is the proper remedy.
Recommendation It is RECOMMENDED that the Pinellas County School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 February, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942
