Findings Of Fact At all times pertinent to the allegations herein, Respondent, Alvin H. Dana, held Florida Teaching Certificate 100407 qualifying him in the areas of social studies, guidance, junior college, school psychology, and administration and supervision at the elementary, secondary, and junior college level. During the period pertinent hereto, Respondent was employed as a guidance counselor at TSHS in the Pinellas County School District. He resigned from that position in April, 1987 after having been employed there for the 1986- 1987 school year. During the 1986-1987 school year, Jeffrey Moore, age 16 or 17, was an 11th grade student at TSHS. In early April, 1987, Nancy Zambito, Director of School Operations for Areas 1 and 2 of the Pinellas County Schools, and previously Director of personnel Services for the District, received a phone call from a school board member who related that he had received a call from a minister who had related to him that a student at TSHS, Jeff Moore, had a sexual encounter with the guidance counselor at that school, Alvin Dana. Ms. Zambito met with the student, who now resides in Tennessee and who did not testify at the hearing, and his mother on April 6, 1987. During the conversation, Moore stated he had gone in to talk with the Respondent because his parents were in the process of getting a divorce and because he was having some problems with his own sexual identity, a condition not further explained. During this conversation, Respondent allegedly mentioned a bar in Dunedin which Moore knew to be a gay bar. At this point, Moore had to leave Respondent's office to go back to class, and Respondent allegedly asked him to meet him after school, which Moore did. When they met, according to Moore, Dana took him to his, Dana's, apartment, which Moore described, gave him a drink, and then initiated sexual contact with him by kissing him. Moore relates they went into the bedroom and had a sexual relationship. Afterward he claims, they cleaned up, had dinner at a restaurant, and then went to a bar where they had a beer. At about 8:30 P.M., Respondent returned Moore to his own car to go home. That was the only sexual encounter they had, but Respondent allegedly talked to Moore about going with him to Jacksonville. After meeting with Moore and his mother, that same day Ms. Zambito met with Respondent in the principal's office along with the Area 1 Supervisor, the Principal, and a union representative. During the meeting, which, according to Ms. Zambito, took between 45 minutes and an hour, she asked all the questions and in no way, she claims, attempted to place any influence or pressure on Respondent. She explained the complaint from Moore to Dana without telling him who the student was. It was obvious to her, however, that Respondent knew who the student was and, in fact, named him, but denied any improprieties with Moore who, according to Dana, had accused his own pastor of being gay. Ms. Zambito states that Respondent later admitted to her that he had taken Moore to the bar and to his apartment and had provided alcohol to him, in addition to admitting to a sexual relationship with the student. As to that aspect, she claims, Dana contended Moore was the aggressor. Mr. Coe, the Principal, and Mr. Kreiver, the Area Superintendent, who were both present at the meeting with Dana, tend to support Ms. Zambito's testimony. Both claim Dana admitted to having an "affair" or "sexual relationship" with Moore when she confronted him. As a result of this conversation, Ms. Zambito advised Respondent she would report the information to the Superintendent at which point, Respondent indicated he would resign. In fact, Respondent did resign the next day before Ms. Zambito could contact the superintendent. However, she prepared a memorandum of the conference, and mailed the original to the Respondent at his address of record. Ms. Zambito is not sure he received it, but it was not returned. Respondent denies having received it. On September 11, 1987, Mr. Dana pled nolo contendere in the County Court of Pinellas County to one charge of child abuse by furnishing Moore with alcoholic beverages. He was ordered to pay a fine of $250.00 and, inter alia, directed to not engage in teaching or in any other profession where minors will be without disclosure of the conviction to proper authorities. Respondent was a teacher in Sarasota County for ten years and served as a college registrar for seventeen years before his one year in the Pinellas County schools. In all his twenty-eight years in education, he has never been accused of improprieties with students and denies being either bisexual or homosexual. Dana admits to pleading nolo contendere to providing alcohol to a minor and understands that he was found guilty. However, as to the incident in question, he relates a somewhat different story than that reported by Ms. Zambito. He contends that one school day Moore came to him as guidance counselor and related he was having a sexual identity problem, describing himself as a "flaming faggot." Moore said he was considering running away and told Respondent stories of sexual relations he had had with someone in Port Richey at a MacDonald's restaurant. He also mentioned a place in Dunedin where he would go for sex with men. As a result of his conversation with the boy, Respondent feels he convinced him not to run away. After school that day, however, Moore was waiting for him in the parking lot and stated that he needed to talk with him more. Respondent agreed and they went to a restaurant and to a bar where they had two beers for which Respondent paid. On cross examination, Mr. Dana admitted that he took Moore to two bars, The Pro Shop and The Flamingo, both of which were gay bars, and at both of which he bought Moore a beer. According to Dana, the bars were chosen by Moore and Dana did not know they were gay oriented. While admitting to going to the bars and the restaurant with Moore, he denies going to his apartment or to Moore's house. On rebuttal, Ms. Zambito claims he admitted having been in Moore's house in response to her questions. Mr. Kriever recalls this as well. Respondent asserts there was no more to the relationship than his taking the boy for two drinks and while he admits he made a mistake in going with Moore and admits to paying for his beer, he unequivocally states he refused any attempts at sex initiated by Moore and claims none took place. Dana's story of the meeting with Ms. Zambito is somewhat different than hers. He recalls it as lasting ten minutes at the most as opposed to the forty-five minutes to an hour as she stated. He relates she suggested to him that he resign in lieu of being not reappointed the following year. He admitted to her that he went to the bar with Moore and admitted to a "relationship" with him but denies the relationship was sexual in nature, that he told her it was, or that he, at any time, ever had a sexual relation with any student. Dana admits that going to the bar with Moore was stupid but claims he went there out of curiosity. Moore is a very persuasive young man who claimed he wanted to be a journalist. When Moore called himself a flaming faggot, curiosity prompted Dana to go to the bar with him. This is a weak rationalization which does Respondent's position no good. Dana contends he had one or two previous visits with Moore, one of which involved Moore's mother. He believes Moore exaggerates and fantasizes. He describes Moore as a bright, articulate, convincing and conniving individual, and relates he was taken in by Moore's statement of need. Respondent claims Ms. Zambito never asked him if he had had sexual relations with Moore. She asked if he knew the student or could identify any student who would have made such allegations against him. Her questions were general in nature and he does not believe he would have admitted to any acts of sexual misconduct with Moore since he claims he committed none. According to Mr. Kriever, when confronted with the allegations against him, Respondent initially appeared shocked and denied the relationship. Later, he said it was forced upon him and finally, he admitted to a sexual relationship with Moore. The principal, Mr. Coe, related, however, that Dana did not deny the allegations but admitted to a "relationship" with Moore without Ms. Zambito even identifying him by name. These responses come to easily and are far too indefinite to be controlling. If the allegations against Dana are accurate, he would be ineffective in any position in the school district. Educators hold positions of trust and Respondent's actions, if established, constitute a forfeiture of this trust. In the opinion of the principal, Mr. Coe, as a guidance counselor, Dana holds a position of trust which this misconduct clearly violates. The same would be true regarding Respondent's status as a teacher. The trust that administrators and parents must place in anyone in education has been violated by Respondent's misconduct and Respondent could not serve within the system. All the evidence, except Respondent's testimony is in the form of hearsay testimony. Moore did not testify. Other than Respondent, no one who testified was privy to the conversations and relationships between the two or saw them together away from the school grounds. In the instant case, the only evidence that Respondent engaged in sexual activity with Moore comes from the hearsay comments made to Ms. Zambito by Moore who was not present at the hearing. Ms. Zambito's testimony as to Respondent's alleged admissions to a sexual relationship is, to a great degree, con- firmed by that of Coe and Kriever. On the other hand, Respondent unequivocally denies having had a sexual relationship with Moore. This is direct evidence from a party in interest. Considering the evidence as a whole, therefore, it is found that Respondent did provide alcoholic beverages to Moore, a minor, and he showed extremely poor judgement in engaging in an unchaperoned social relationship with a student outside of the school environment and outside of school hours, but the evidence is insufficient to find that he engaged in homosexual activity with him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's Florida Teaching Certificate be revoked for a period of three years. RECOMMENDED this 10th day of November, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2475 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- 3. Accepted and incorporated herein. 4. Accepted and incorporated herein. 5. Accepted and incorporated herein except for the allegation that Respondent admitted to having sex with the student, which was not proven. 6. Accepted as a recitation of what the student told Ms. Zambito but not as dispositive of the issue. Further, the meeting took place not on April 27, 1987 but on the same day as Ms. Zambito's meeting with Respondent. 7. Accepted and incorporated herein. 8. Rejected as a recitation of testimony and not a Finding of Fact. 9. & 10. Rejected as it pertains to disregarding Respondent's denials. Balance rejected as a recitation of testimony and not a Finding of Fact. 11. & 12. Rejected 13. Accepted and incorporated herein For the Respondent Respondent claims his recitation of the facts is interwoven with his argument. Since they cannot be identified with specificity, they are not addressed individually. COPIES FURNISHED: J. David Holder, Esquire 325 John Knox Road Building C, Number 135 Tallahassee, Florida 32303 Lawrence D. Black, Esquire 152 8th Avenue Southwest Largo, Florida 34640 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399-0400
Findings Of Fact Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/ Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.
Recommendation Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years. ENTERED this 20th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Pinellas Vocational Technical Institute is operated by the School Board of Pinellas County, Florida and consists of the Police Academy and the Pinellas Corrections Academy. The Corrections Academy and the Police Academy are housed in separate buildings and offer different curriculum and degree programs, although certain faculty and staff members are shared. Students enrolled at the Police Academy or Corrections Academy are usually employed by a police department. The employer police department serves as the sponsoring agency for the student at the Academy. While employed with the Pinellas County Sheriff's Department, the Petitioner, a black male, was enrolled in Class XI at the Corrections Academy. The Petitioner was removed from his class at the Corrections Academy on December 3, 1984 by Mr. Paul Drolet, the instructor and class coordinator. The Petitioner was subsequently discharged from the Academy by Mr. Mario Vitelli, the Assistant Director. On December 3, 1984, Mr. Drolet called roll in class and discovered that a white female student, Donna Harper, was not in her assigned seat. Mr. Drolet asked Ms. Harper why she was not in her assigned seat. Ms. Harper, who had been sitting next to the Petitioner, stated that she was annoyed by the Petitioner and the things that he was doing. Ms. Harper complained that the Petitioner constantly annoyed and bothered her. Ms. Harper stated that the Petitioner constantly opened and closed his briefcase during class and generally displayed a disinterested attitude. This apparently disturbed Ms. Harper. Ms. Harper also complained that the Petitioner's legs and knees were constantly touching hers because he would spread his legs real wide and have them over on her space. The class had been in session for approximately six days and Ms. Harper complained that the Petitioner's actions had been going on since the beginning of class. After Ms. Harper informed Mr. Drolet of Petitioner's actions, he requested that she give a statement to her sponsoring employer, the Hillsborough County Police Department. After Ms. Harper gave her statement, Mr. Drolet called the Petitioner out of class and asked whether or not the Petitioner wanted to talk about the allegations. The Petitioner stated "I didn't do it, and I have nothing to say". Later, Mr. Drolet informed Petitioner that he was being withdrawn from the class. The Petitioner had been enrolled in the previous class (class IX) at the Corrections Academy. While in class IX, the Petitioner was late to class on several occasions, was found in the Police Academy building (students in the Corrections Academy are not allowed to go into the Police Academy building without permission) and was caught using the non-public telephone at the academy for personal reasons. The Petitioner's major disciplinary problem while in class IX was a complaint made against him by Tia Throckmorton, a white female student. Ms. Throckmorton complained to Larry Wagner, the class coordinator, about a series of events involving the Petitioner. Ms. Throckmorton complained that on one occasion, after the class was shown a .22 caliber gun that a female inmate had attempted to smuggle into a local jail by hiding it in her vaginal area, the Petitioner told Ms. Throckmorton that she could probably hide a .38 caliber gun in her vaginal area. Ms. Throckmorton also complained that during class breaks, the Petitioner would constantly touch her on the shoulders and neck, even after she would pull away to demonstrate that she did not want to be touched. On another occasion at the firing range, the Petitioner stood behind Ms. Throckmorton and squeezed next to her in a "grinding" fashion even though there was plenty of space to pass by. Subsequent to that, the Petitioner attempted to follow Ms. Throckmorton home one day after class. Following this last incident, Ms. Throckmorton decided to complain. The administration of the Corrections Academy, through Mr. Larry Wagner, informed the Pinellas County Sheriff's Department of the complaint by Tia Throckmorton. Upon receiving the information concerning Ms. Throckmorton's complaint, the Sheriff's office withdrew the Petitioner from the Corrections Academy and conducted an internal affairs investigation into the incident. The internal affairs investigation resulted in a finding that there was insufficient evidence to either prove or disprove the allegations of Ms. Throckmorton. Thereafter, the Sheriff's office re-enrolled the Petitioner at the Corrections Academy for the next class. Due to a large number of students entering the Corrections Academy in the next term, the administration decided to operate two separate classes simultaneously, numbered X and XI, with Larry Wagner and Paul Drolet as the respective class coordinators. Due to the prior problems that Petitioner had experienced in Wagner's class, Wagner suggested to Drolet that the Petitioner be placed in class XI, so that Petitioner would feel less stigmatized by his previous withdrawal. Drolet agreed, and the Petitioner was assigned to class XI. While in class XI, and prior to the complaint against Petitioner by Ms. Harper, Mr. Drolet had experienced problems with the Petitioner. On several occasions, the Petitioner fell asleep in class, including a class on unarmed self-defense. On another occasion, the Petitioner wore a utility uniform to class after the students had been specifically instructed to wear their dress uniforms. The Petitioner had also been enrolled in a previous class at the Police Academy. While at the Police Academy, the Petitioner fell asleep on several occasions, and wore an improper uniform on at least two occasions. The Petitioner graduated from the Police Academy on January 3, 1984 with an overall rating of "poor" and the lowest grade average of all students in his graduating class. After Ms. Harper made her complaint against the Petitioner, Mr. Drolet considered the Petitioner's past performance and complaint record at the Pinellas Vocational Technical Institute and recommended to Mr. Vitelli, the Assistant Director, that Petitioner be withdrawn from the academy. Mr. Vitelli instructed Drolet to question the Petitioner about the incident. When Drolet questioned the Petitioner, the Petitioner stated that he didn't do anything and that he had nothing to say. Based on the Petitioner's past record of complaints and discipline problems, and on Petitioner's response to the latest complaint, Mr. Vitelli discharged the Petitioner from the Academy on December 3, 1984. Vitelli explained to Petitioner his right to appeal his dismissal from the Academy to the Director of the Pinellas Vocational Technical Institute, to the Director of Adult Education and to the Superintendent of the School Board of Pinellas County. The Petitioner did not avail himself of any of these direct appeals. The Pinellas County Sheriff's office initiated an internal affairs investigation into the complaint made by Donna Harper, which was scheduled to commence on December 5, 1984. On December 5, 1984, the Petitioner resigned from the Sheriff's office. In classes I through XV at the Corrections Academy, a total of 15 different students were withdrawn for disciplinary reasons, 4 of whom were minorities. During the same period, 56 minority students entered the Corrections Academy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the complaint and the Petition for Relief filed by Mr. Jeffrey C. Harris. DONE and ORDERED this 27th day of March, 1987 in Tallahassee, Florida. W. MATTHEW STEVENSON, 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 27th day of March, 1987. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board of Pinellas County Post Office Box 6374 Clearwater, Florida 33518 Jeffrey C. Harris 2805 West Horatio Street Tampa, Florida 33619 Miles A. Lance, Esquire Post Office Box 4748 Clearwater, Florida 33518-4748 Community Relations Board City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Pinellas Vocational Technical Institute 6100 154 Avenue, North Clearwater, Florida 33520 APPENDIX 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Rejected as a recitation of testimony. a. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate and/or misleading. a. Rejected as contrary to the weight of the evidence. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as contrary to the weight of the evidence and/or subordinate. Partially adopted in Findings of Fact 5 and 8. Matters not contained therein are rejected as subordinate and/or misleading. Rejected as contrary to the weight of the evidence and/or subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 26 Adopted in Finding of Fact 26. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Rejected as subordinate. Adopted in Finding of Fact 19. Adopted in Finding of Facts 10 and 18. Rejected as subordinate. Adopted in Finding of Fact 10. Adopted in Findings of Fact 11 and 12. 18. Adopted in Finding of Fact 4. 19. Adopted in Finding of Fact 13. 20. Adopted in Finding of Fact 14. 21. Adopted in Finding of Fact 15. 22. Adopted in Finding of Fact 16. 23. Adopted in Finding of Fact 17. 24. Adopted in Finding of Fact 18. 25. Rejected as subordinate. 26. Adopted in Finding of Fact 18. 27. Adopted in Finding of Fact 5. 28. Adopted in Finding of Fact 6. 29. Adopted in Finding of Fact 20. 30. Adopted in Finding of Fact 21. 31. Adopted in Finding of Fact 22. 32. Rejected as subordinate. 33. Rejected as subordinate. 34. Adopted in Finding of Fact 24. 35. Adopted in Finding of Fact 24. 36. Adopted in Finding of Fact 25.
The Issue The issue is whether Respondent is sleeping in class and failing to supervise his students, so as to violate the prohibitions against misconduct in office and incompetence, as provided by Florida Administrative Code Rule 6A-5.056.
Findings Of Fact Respondent has been employed by Petitioner as a classroom teacher for 12 years, all at Cypress Bay High School. During his teaching career, he has taught physical and earth science, except, on occasion, when he has been assigned to teach biology. He has earned exclusively satisfactory marks on each of his annual evaluations, including his most current evaluation. On the evening of April 8, Respondent and his wife were up all night with their special-needs daughter. The next morning, Respondent reported to work punctually and taught his first period course. Respondent was exhausted from lack of sleep the previous night. While seated in his chair between classes, he lifted his eyes toward the heavens, emitted a quiet sigh, and prayed silently for the strength to get through the day at work. His head tilted back and his eyes closed, Respondent was lost in prayer as the students filtered into the classroom.1/ Although in a deeply relaxed state, Respondent could hear the students taking their seats and preparing for class to start. Stirring slightly at the bell signifying the start of class, Respondent emerged from his prayerful reverie after no more than two minutes into second period; he was in this state for no more than four minutes immediately prior to the bell. On these facts, it is impossible to infer from the evidence that Respondent was sleeping at the start of class. He was disengaged, though, so, as he began instruction, he appropriately apologized for his inattention for what was no more than the first couple of minutes of class and explained that he and his wife had had a rough night with a sick child. At all material times, the white board at the front of the classroom was full of written material, and the students had bellwork to perform at the start of every class. There were no behavioral problems during the time that Respondent had failed to give the class his undivided attention, and his inattentiveness did not affect learning that day.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 13th day of January, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 13th day of January, 2014.
The Issue Whether cause exists for the Petitioner's proposed termination of the Respondent's employment as a bus driver for alleged inappropriate conduct with a student.
Findings Of Fact At all times material to this case, Respondent Howard Jessie (Respondent) was employed as a bus driver by the Pinellas County School Board. On an unidentified day during the first semester of the 1993-1994 school year, the Respondent was observed fraternizing on campus with several Pinellas Park High School students. The Respondent was tossing a football with students in an area which was "off-limits" to students. A female student identified herein as T.C. was present. A school resource officer approached the Respondent, and informed him that the area was off-limits to the students and that it was not appropriate for him to socialize with students at that time. The Respondent informed the officer that he was a bus driver and his association with students was not inappropriate. On a later unidentified day during the first semester of the 1993-1994 school year, the school's assistant principal observed the Respondent walking with T.C. in the "mall" area of the high school campus. The assistant principal instructed the Respondent to cease fraternizing with students. On a third day during the first semester of the 1993-1994 school year, the assistant principal observed the Respondent standing near the school bus area and speaking with several students including T.C. The assistant principal contacted a supervisor at the school board's transportation department and informed him of the Respondent's behavior. Upon receiving the phone call from the assistant principal, the supervisor summoned the Respondent to his office and directed the Respondent to cease his association with the students. The Respondent agreed to refrain from having further contact with the students. On or about January 10, 1994, the school resource officer observed the Respondent and T.C. standing on campus next to a parked school bus, and watched as the Respondent kissed T.C. on her cheek. The student did not appear to resist the kiss. The officer reported his observations to the assistant principal who contacted another transportation supervisor and requested that the Respondent be removed from his employment as a bus driver at Pinellas Park High School. The Respondent was called to a meeting with the administrator of the School Board's Office of Professional Standards. During the discussion of the matter, the Respondent admitted that he had hugged and kissed T.C. on campus. During the discussion, the Respondent also admitted that he and the student had engaged in oral sex in January, 1994. By letter of March 3, 1994, the Respondent was notified that he was suspended with pay and that the superintendent would recommend dismissal to the school board at the meeting of March 23, 1994. A number of stories related to this matter have appeared in the local press, including the March 18, 1994 issues of the St. Petersburg Times and the Tampa Tribune. Engaging in sexual activity with a student is conduct serious enough to impair the Respondent's effectiveness in the school district and to bring the service of the School Board of Pinellas County into disrepute.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Howard Jessie. DONE and RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1876 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County P. O. Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board P.O. Box 2942 Largo, Florida 34649 Mr. Howard Jessie 15695 Waverly Street, Apartment 2 Clearwater, Florida 34620
The Issue Whether Respondent's teaching certificate should be disciplined by Petitioner, the Education Practices Commission and whether Respondent should be dismissed as an instructional employee from the Pinellas County School Board based on allegations set forth in the administrative complaint filed herein and the charges and amended notice of charges filed herein by the School Board by letters dated March 5 and July 8, 1992.
Findings Of Fact Respondent currently holds Florida teaching certificate No. 179606, covering the areas of administration and supervision, elementary education, french, spanish, special learning disabilities and varying exceptionalities. That certificate is valid through June 30, 1996. Respondent has been employed as a teacher by the Pinellas County School Board at Lealman Comprehensive Middle School (Lealman) and Tyrone Middle School (Tyrone). On November 5, 1976, Respondent received a letter of reprimand for striking a student with a belt. During various times in the 1978 and 1979 school year, Respondent appeared at work with alcohol on his breath which was noticed by administrators at Lealman. On April 30, 1987, Respondent received a letter of reprimand from Scotty East, principal at Lealman because of excessive absences and violation of school procedures. Respondent was advised to follow proper procedures for notifying the administration of his absence(s). Respondent was charged a personal day for the noted procedural infractions. During the 1986-87 school year, Pamela Coachman and Donna Strongoski were instructors at Lealman and worked with Respondent. Prior to and during the 1986-87 school year, Respondent made comments and inappropriate sexual advances to Pamela Coachman. Ms. Coachman rejected Respondent's advances. Respondent retaliated by making harassing and degrading comments such as calling her a "whore with champagne taste." Respondent's actions were offensive to Ms. Coachman. Respondent made inappropriate comments to Donna Strongoski about her appearance, the tone of her voice and her marital status. Specifically, from 1986-1988, Respondent questioned Strongoski's womanhood often telling her that she was "too strong to be a woman", that she had a voice like a man and questioned why she had never been married. Strongoski was angered by Respondent's comments. As a result of Respondent's comments to Strongoski and Coachman, they notified school administrators and district officials about his conduct. Nancy Zambeta, Director for Personnel Services, discussed the allegations with Respondent and advised him to refrain from making personal comments to colleagues and to avoid similar situations in the future. Coachman and Strongoski met with Respondent and cautioned him that they would not tolerate his behavior. Respondent received a memorandum from Lealman's principal advising him to refrain from similar behavior of a harassing nature. Respondent thereafter submitted his resignation but later rescinded it prior to the Board's acceptance. Respondent was permitted to return to employment as an annual contract teacher and was transferred to Tyrone. On March 7, 1988, Lois Beacham, assistant principal at Tyrone, observed Respondent acting in an incoherent manner and detected the odor of alcohol on his breath. Ms. Beacham requested a substitute for Respondent's class and later spoke to him about changing his behavior. Beacham advised Respondent to follow procedures to indicate absences in the future. On the same day, Tyrone's principal, Paul Brown, advised Respondent by letter not to arrive at work in an unprofessional condition (under the influence of alcohol). On January 3, 1989, Respondent requested a day off from work whereupon Principal Brown noticed that Respondent's speech was slurred and he detected an odor of alcohol on his breath. On January 4, 1989, Sandy Murray, secretary at Tyrone, encountered Respondent when he arrived at the office to pick up his paycheck. Ms. Murray noticed that the air "reeked of alcohol" around Respondent. On January 6, 1989, Steve Crosby, Director of Personnel Services for Petitioner School Board, met with Respondent to discuss allegations that Respondent reported to work under the influence of alcohol. Crosby warned Respondent that such conduct constituted poor judgment and misconduct in office and would not be tolerated by the Board. On January 25, 1989, Respondent entered into a stipulation with the Board agreeing to accept a three-day suspension without pay for reporting to work under the influence of alcohol. On April 17, 1989, Respondent encountered teachers Barbara Skatzka and Evelyn Villazon in a school hallway. Respondent improperly touched Ms. Skatzka's pants and commented that he had seen a lesbian who wore similar clothing. Respondent commented upon the fact that Ms. Skatzka was divorced, asked her if she was a lesbian and asked her if she had a man in her life. Such comments caused Ms. Skatzka to feel uncomfortable. On April 19, 1989, Charles Einsel, the Director of Personnel Services, met with Respondent to discuss the allegations. On April 25, 1989, School Superintendent Scott Rose issued a letter of reprimand to Respondent for the referenced unprofessional conduct. On June 7, 1989, Commissioner Castor filed an administrative complaint against Respondent. The complaint alleged several incidents including one that Respondent reported to work under the influence of alcohol, made improper comments to colleagues, used inappropriate corporal punishment and made improper comments to a student. On January 3, 1990, Commissioner Castor and Respondent entered into a settlement agreement to resolve the charges. The EPC accepted the settlement in its final order of February 26, 1990 (EPC Case No. 89-092-RT[PE4]). The agreement included the following provisions: Respondent received a letter of reprimand for the misconduct alleged. Respondent was placed on probation for three years. Respondent agreed to attend Alcoholics Anonymous and be subjected to random alcohol testing. Respondent agreed to undergo psychological evaluations. Respondent agreed to violate no law and to fully comply with all school rules, district school board regulations and rules of the State Board of Education. On February 4, 1990, Respondent was arrested in Pinellas County and charged with driving under the influence of alcohol. He was adjudicated guilty of the DUI charge on June 29, 1990. On February 16, 1990, Personnel Director Steve Crosby met with Respondent to discuss the arrest. Mr. Crosby subsequently issued a letter of reprimand to Respondent warning him that any future instance of poor professional judgment by him could result in his dismissal. On or about December 20, 1990, Commissioner Castor filed a second administrative complaint against Respondent. The complaint alleged that Respondent violated the terms of his EPC probation as a result of his DUI conviction. On May 7, 1991, Commissioner Castor and Respondent entered into a settlement agreement to resolve the charges. The EPC accepted the settlement on June 25, 1991. (Petitioner's Exhibit 5) The May 7, 1991 agreement included the following provisions: Respondent agreed to undergo psychological evaluations. Respondent agreed to complete two courses in the area of classroom management and techniques of instruction. Respondent agreed to submit to evaluation and counseling with a substance abuse program. Respondent was placed on probation for an additional three years to begin at the expiration of his current probation which, by its terms, ends March 3, 1993. Respondent agreed to violate no law and to fully comply with all school rules, district school board regulations and rules of the State Board of Education. During the 1990-91 school year, Kimberly Coleman worked as a teacher's aide in a class for emotionally handicapped (EH) students taught by Barbara Day. After one of the EH students was assigned to Respondent's class, Respondent approached Coleman to discuss the student although Ms. Day was the teacher who supervised that student's progress. Respondent often looked at Coleman in a sexually suggestive manner and, as a result, Coleman attempted to avoid contact with Respondent whenever possible. During the 1990-91 school year, Kenneth LeBrant, a teacher at Tyrone, while checking on plants that he planted under Respondent's classroom window, observed a student misbehave in Respondent's classroom whereupon LeBrant shouted at the student to "knock it off". At about the same time, Respondent entered his classroom, angrily belittled LeBrant and demanded that he leave his class. LeBrant felt embarrassed at being shouted at in the presence of students and returned to his classroom. Respondent later encountered LeBrant in the faculty lounge and attempted to continue to confront LeBrant in a threatening manner. Both Respondent and LeBrant received a reprimand from the principal about their conduct in the faculty lounge. During the 1990-91 school year, Respondent entered the teacher's lounge and called Larry Mann, a "judaist" in an angry manner. Respondent used profanity in his classroom during the 1991-92 school year. Specifically, on occasion he called his class a "bunch of motherfuckers" and "you white motherfuckers". On one occasion while students prepared to leave his class, Respondent said "so long, motherfuckers". Respondent also directed profanity at specific students in his classroom. On occasion, Respondent's students heard him shout at students the words "dumb motherfucker", "asshole", "fuck off", "bitch" and "dumb bitch". On one occasion, Janet Masciotra, a teacher at Tyrone, entered Respondent's classroom while he yelled at an African American male student "you dumb nigger". Ms. Masciotra was surprised at Respondent's language and left the room without Respondent having observed her. Throughout the period, Respondent yelled similar disparaging remarks to students who wanted to make up homework after being ill and absent from class. Respondent often times made disparaging comments to students concerning their ability to learn and referred to students as "retarded" and "EH". On numerous occasions, Respondent slept in class by putting his feet on his desk, leaning back in his chair and closing his eyes. Respondent engaged in such behavior for varying lengths of time and while so doing, his class was most often not engaged in any school related or other meaningful activity. Respondent on occasion drank mouthwash from a bottle in the presence of students. Also, during this period Respondent often asked students in his class for gum and breath mints. When he did so, students complained of smelling alcohol on his breath. During this period, Respondent also left his classroom for varying periods of time leaving students unsupervised and left school grounds during the day. Respondent was familiar with the rules and procedures in effect at Tyrone Middle School and was aware of the expected hours for instructional employees to be on campus. Respondent was often late to school and was absent without following the proper procedures of notifying the school administration. On one occasion, the school resource police officers covered Respondent's classroom during his absence. Respondent's tardiness and absences during the school day meant that other staff members had to open Respondent's classroom and supervise his students. Students and parents expressed concern throughout the 1991-92 school year that Respondent was not properly teaching his classes and that he did not assign enough work. One student asked to withdraw from his class because "nothing was really happening". Other parents expressed concern about the Respondent's use of profanity in class. One student, P.K., went home after Respondent used inappropriate language. P.K. became upset to the point of crying while telling her mother what Respondent said. P.K.'s mother was offended by Respondent's conduct. During the 1991-92 school year, Respondent engaged in inappropriate conduct toward Bennie Smith, a teacher at Tyrone. Respondent's comments to Ms. Smith included attempting to solicit her to have an affair with him. Ms. Smith told Respondent that she was married and tried to avoid further contact with Respondent. During the spring semester of 1992, Smith rushed down a hallway in order to make "dittos" for her class. Respondent called to Ms. Smith and she slowed down. Respondent caught up with Ms. Smith and brushed his genital area against her buttocks. Later in the semester, Smith and Mark Benson, another instructional employee, walked down a school corridor on the way to a meeting. Respondent, who was walking behind them, reached forward and grabbed Ms. Smith's buttocks. Because the incident happened in the proximity of students and other teachers, Ms. Smith did not confront Respondent however she later made Respondent's conduct known to administrative officials. Mark Benson observed Respondent's hand move toward Ms. Smith's buttocks and later discussed it with Smith. Josephine Trubia worked as an aide in Barbara Day's EH classroom during the 1991-92 school year. Respondent made comments about Trubia to Kimberly Coleman, the sister- in-law of Josephine Trubia. Respondent told Coleman that Trubia was a "sixties kind of woman" that "walked like she was going places". When Coleman told Respondent that Trubia was her sister-in-law, and that her husband was a police officer, Respondent backed off. Respondent made compliments to Trubia about her appearance and attire which Trubia found to be sexually suggestive. Specifically, on one occasion, Trubia went to Respondent's classroom with a student to retrieve the student's make-up work. Respondent made comments about her appearance and asked her if she would wear her black skirt and pantyhose. Respondent further asked Trubia to date him and go with him (on a date) to Tampa. Trubia declined Respondent's advances although he continued to make suggestions that they go on a date and on one occasion backed Trubia toward a wall in his classroom. Trubia returned to her classroom whereupon teacher's aide Ronnell McDaniel noticed that she was visibly upset and nervous. Trubia confided to Ms. McDaniel that Respondent had made comments about her appearance and cornered her in his classroom. The following day, Trubia reported the incident to Barbara Day and expressed concerns about Respondent. Ms. Day advised Trubia to discuss the incident with the school's administration. Trubia resigned and found employment elsewhere. Respondent's actions made Trubia feel uncomfortable and was a factor in causing her to leave her employment at Tyrone. During the 1991-92 school year, Respondent was a member of an academic team with three other teachers. In January 1992, Respondent met with the three academic team members in the teacher's lounge. Respondent appeared incoherent and spoke in a disjointed fashion. Respondent became agitated and accused the team members of "playing games". He further threatened them by remarking that things were going to get physical. Respondent's actions caused the team members to feel upset and uncomfortable causing one team member to start locking her classroom door after school. On February 20, 1992, while walking behind several teachers including Jim Joyer, David Blacuk and Richard Bessey, Respondent was heard to use profanity. On another occasion, Blacuk walked down a school corridor when Respondent stepped out of his room and used profanity such as "motherfucker" and "son-of-a-bitch" in the presence of Blacuk and other students. During a faculty meeting held in the media center after school, Respondent became visibly agitated while Blacuk spoke. Respondent stood up and stated "bullshit. This is bullshit" in a tone loud enough to be heard by everyone in the room. Carolyn Chester was employed as an aide at the media center during the 1991-92 school year. On a Monday morning in January, Ms. Chester went to Respondent's classroom to retrieve some video equipment. Ms. Chester encountered Respondent outside his classroom door as he approached from the parking lot. Respondent angrily told Chester not to play games with him and shouted that he did not have the equipment. Ms. Chester returned to the media center and told media specialist Sheila Chaki about the incident. A few minutes later, Respondent entered the media center and again spoke to Chester in a loud and angry manner. Respondent had also became upset about the S.O.S. table which was set up in the media center with self-help books for students. Respondent threw down a flier about the S.O.S. table and stated "this is bullshit, too". Respondent's conduct in the media center was observed and heard by Ms. Chaki and several students who were present. During the 1991-92 school year, staff members detected the odor of alcohol on Respondent's breath. Article XVI, Section E of the agreement between the School Board and the Pinellas County Teachers Association provides that "teachers are to treat other employees of the system in a professional manner at all times". According to Miller, the principal at Tyrone, Respondent's sexually offensive actions and confrontational conduct caused morale problems among some staff members at Tyrone. Respondent's use of profanity directed toward students and his sleeping while in the classroom undermined the confidence of parents and caused a disruption in the educational process. Doctor Howard Hensley, superintendent of schools for Pinellas County, and who was qualified as an expert in the area of education and education administration, testified as to the manner in which Respondent's conduct reduced his effectiveness as an instructional employee. The Pinellas School Board expects its instructional employees to be role models and to avoid the use of profane language as it fails to set a proper example as role models for students. The use of racial epitaphs and derogatory comments are also counter- productive to Pinellas County School Board's policies and its attempts to promote cultural diversity and tolerance among its students. Likewise, vulgar language directed toward other members of the school staff is unacceptable in that it harms the ability of staff members to work together cooperatively. Inappropriate and threatening comments reduce the effectiveness of the person making the comments and adversely affect staff morale. The Pinellas County School District intends that all employees feel comfortable in their work places and that they be free from sexual harassment and confrontational conduct from its fellow employees. Sexual harassment of staff members violates this intention and possibly subjects the district to legal liability. Sleeping in class violates the School Board's expectations that its teachers supervise and set a good example for students. Vulgar language directed towards students violates the expectations of the Pinellas School District in that it sets a poor example for students and reduces that teacher's effectiveness. Individual ridiculing of a student by the use of profane or disparaging comments subject the students to embarrassment. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Pinellas County School Board, enter a Final Order terminating the professional service contract between Respondent Jerome W. Jackson and the School Board of Pinellas County, Florida. Petitioner, Betty Castor as Commissioner of Education, the Education Practices Commission, enter a Final Order revoking Respondent's teaching certificate for a period of seven (7) years to be followed by a three (3) year period of probation with the Education Practices Commission upon his recertification following the period of revocation. The terms of the probation shall include the requirement that Respondent follow such terms and conditions imposed by the Education Practices Commission. DONE and ENTERED this 7th day of December, 1992, at Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1992.
Findings Of Fact The Respondent, Ronald Miller, holds a Florida teaching certificate numbered 464113, covering the area of physical education. During the 1980-81 school year he was employed as a teacher of physical education at Miami Coral Park Senior High School in Miami, Florida. He was also hired that year by Miami Coral Park Senior High School to be an assistant basketball coach for the junior varsity basketball team and an assistant coach for the varsity football team. At the beginning of that school year, the head coach for the varsity basketball team, Mr. Edward Joyner, was delayed in his arrival at school. For this reason during the first three or four weeks of school, Mr. Miller was appointed to take Mr. Joyner's place in coaching the varsity basketball team as well. This was the first year of Mr. Miller's assignment as a full-time teacher. The Petitioners are, respectively, the School Board of Dade County, a public agency charged with the hiring, employment and regulation of the operations, activities and practices of teachers it employs to instruct students in the Dade County Public School System. The Education Practices Commission is an agency of the State of Florida within the Department of Education and is charged with the duty of licensing and regulating the licensure status, practice and practice standards of teachers in the State of Florida. During the 1980-81 school year, as in the recent past, Coral Park Senior High School had a club called the Cagerettes which assisted the school's junior varsity basketball and varsity basketball teams by helping to raise funds for different functions as well as to work with the coaching staff performing such services as taking statistics during games. Members of that group were selected from the student body after "tryouts" where the individual applicants were judged on their personality and participation. Cindy Castillo was the captain or president of club for the 1980-81 school year. This was her third consecutive year as a member of the club and her second year as its president. Cindy Castillo approached Mr. Miller shortly after he became employed and after the school year began and asked him to be the faculty sponsor for the club. He had had no previous experience as a club sponsor for any school, but based upon Miss Castillo's representations concerning his insignificant duties as club sponsor, he agreed to become the sponsor of the club. One of the initial witnesses called by the Petitioner was Mr. Doug Wycoff. Mr. Wycoff was an instructor in the English Department at times pertinent here to and also acted in the capacity of athletic business manager for Coral Park Senior High School. As athletic business manger, Mr. Wycoff was required to oversee the financial business and accounting for monies received by the athletic department. These duties included overseeing ticket sales, crowd control, personnel at athletic events, overseeing fund raising efforts and managing the money received therefrom and in general assisting the athletic director. Mr. Wycoff testified that the high school maintained its banking accounts with the Sun Bank. Any monies derived from fund raising activities should go to him as a member of the athletic office in charge of finance and then they would be deposited with the school treasurer. The treasurer typically makes deposits on a daily basis via the Wells Fargo Armored Express Company. At all times material to these proceedings the practice was to segregate all accounts with the bank so that each different sports activity and the personnel involved therein would have their own account and otherwise maintain constant accessibility to the account. Prior to the commencement of the 1980-81 school year, Mr. Wycoff gave general instructions to all faculty members involved with the athletic program regarding who to contact should they have any questions regarding their involvement with a fund raising activity and how to account for the money. Although it was the witnesses' opinion that the Respondent had been present at that meeting, the Respondent denied it and the record does not establish whether or not the Respondent was present at that particular meeting. A condition precedent to the establishment of any fund raising activity of the high school, or a club or a group operating under the auspices of the school, required that the sponsor of the group obtain approval from Mr. Wycoff. The school records reveal, through Mr. Wycoff's testimony, that there were only two functions which had previously been approved for the basketball team. One was a car wash held at the beginning of the year in question and the the second was an M & M candy sale which took place later during the spring of the 80-81 school year. The approval for the car wash was obtained from Mr. Wycoff by the Cagerette captain, Miss Castillo. Near the close of the 80-81 school year the school principal ultimately learned that other fund raising activities had been conducted for which substantial sums of money had been received, which had been unapproved fund raising activities. The generated proceeds were received and unaccounted for by the Respondent. The car wash took place on or about September 27, 1980. Mr. Wycoff issued to Miss Castillo one hundred tickets with a prestamped price of $1.50 on each ticket for sale of car washes. The car wash was a success and generated approximately $900 in gross proceeds Two hundred dollars of that (apparently checks) was turned over to Mr. Wycoff, the balance in cash was retained by the Respondent. The Respondent admitted receiving perhaps $200 to $300 within a few days after this event. The Respondent explained ;to Miss Castillo and the other students involved in the car wash activity, that the monies were going to be held by him for the benefit of the Cagerettes and the basketball team in a special account at a bank near his home. On October 4, 1980, a car wash was held by the Cagerettes with the help of the Respondent. Mr. Wycoff was not requested to approve this endeavor, nor were the funds raised therefrom ever accounted for to Mr. Wycoff or any other employee or official of the school. Approximately $256 was generated and the proceeds were placed in the Respondent's custody at his request. The Respondent admitted that with regard to this fund raising effort he received approximately $247. On approximately October 11, 1980, at the instance of the Respondent and without prior knowledge or approval from Mr. Wycoff, the Cagerettes and basketball players held a donut sale. The total proceeds of that sale approximated the sum of $900. Cynthia Castillo took $594 of that sum to pay the vendor of the donuts and the balance, in the approximate sum of $311, was turned over to the Respondent. The Respondent admitted that he received approximately $300 from that fund raising activity. A second donut sale was held a short time later, also not approved by Mr. Wycoff or any personnel in his office. Approximately $368 were generated from that venture which was initially given to Coach Joyner. The record in this proceeding does not reflect what became of that $368, but it was not included in the sum ultimately the subject of criminal proceedings against the Respondent. In the fall of 1980, the Respondent suggested and initiated a procedure whereby members of the Cagerettes would pay monthly dues. This was a practice that was followed with the dues set in their approximate amount of $2 per member per month. These dues were collected for approximately one month and the monies were turned over to the Respondent in the amount of between $30 and $40. The Respondent never accounted for this money. The Respondent also initiated a procedure whereby the members of the Cagerettes would take up donations from individual girls for "penny week." These donations were taken up in the form of pennies on Monday; nickels on Tuesday; dimes on Wednesday; quarters on Thursday; and dollars on Friday. This activity grossed approximately $43 which was turned over to the Respondent and never accounted for. The initiation of this program on his own by the Respondent without approval of any one in authority was in direct conflict with rules promulgated by the school. Prescribed receipt books were to have been obtained from Mr. Wycoff and used so as to avoid any accounting for the money. This was not done. The Respondent also conducted another fund raising project whereby he solicited donations from students of $1 each for the purchase of athletic socks. At least one student made such a donation, but no socks were purchased. Mr. Wycoff established that no such collection project came to his knowledge and that the athletic department purchases and provides socks for its junior varsity teams at no cost to its members, thus the alleged need for donations to purchase athletic socks was false. During the course of the the 1980-81 school year, both the Respondent and his fellow coach and colleague, Mr. Joyner, made several attempts to have a banquet in honor of the basketball team and Cagerettes. Because of the lack of financing, the banquet never came to fruition. This was because certain funds raised by the above-mentioned fund raising projects during the year were unaccounted for by the Respondent, thus the banquet was severely under-financed. Additionally, several students paid to Mr. Miller at least $10 per banquet ticket for anticipated attendance of themselves and their respective guests. When the banquet was finally cancelled, the Respondent did not return their ticket purchase money. Mr. Lopez established that he was a student at that time and a member of the varsity basketball team. He purchased three tickets at $10 each, payable in cash, and was never refunded when the banquet was cancelled. JoAnn Oropesa paid the Respondent cash for banquet tickets, but was never refunded her money. She made demand on the Respondent for her money and the Respondent informed her that he would make a refund by check in the mail at the end of the school year. He failed to do so. During the school year the Cagerettes and the basketball team agreed with Coach Joyner to have a skating party at a neighboring commercial skating rink. In order to fund this event, the students involved agreed to sell tickets at the price of $3 per ticket. Mr. Wycoff was not advised of this money raising effort either and never received any money for an accounting, therefor, from either Respondent or Coach Joyner. JoAnn Oropesa sold all ten tickets assigned to her at $3 per ticket. The Respondent acknowledged receipt of the monies from that fund raising activity, representing that the money would be used for the banquet in lieu of the skating event which was cancelled, Ultimately, these monies were never returned to JoAnn Oropesa or other students purchasing tickets. Manuel Martinez purchased tickets for the skating party and never had a refund, being merely told by the Respondent to "wait." The same student, Manuel Martinez, established that the Respondent solicited members of his class on more than one occasion to make contributions to a touring gospel singing group of which he was a member and that in consideration for this donation a student could receive an "A" for a test or make-up work. The Respondent also offered that "detentions" or "make-up requirements" could be taken off a student's record, for any of the classes in which the student was enrolled with the Respondent, in return for such donations. The testimony of Manuel Martinez was corroborated by Raphael Lopez, another student of the Respondent's, who established that the Respondent solicited students for contributions to his gospel group in return for enhancement of their grades. Marilyn Munne observed the Respondent soliciting students for contributions to his gospel group in consideration for which he would have a detention "dropped off" which would automatically result in a better grade. The Respondent ultimately proved unable to account for the proceeds of the money generated by the various fund raising projects outlined above and caused resulting concern to the various witnesses testifying on behalf of the Petitioners. Miss Castillo estimated that at least $1,700 had been placed in the Respondent's custody, exclusive of the $368 which she had given to Coach Joyner and which was apparently not accounted for either. Even by the Respondent's own admission he received at least between $900 and $1,100 from these fund raising projects that school year. The testimony of Miss Castillo and other witnesses establishes that the Respondent represented that those monies were to held in a special account for the benefit of the Cagerettes and the basketball team. The Respondent by his own admission acknowledged that he told Miss Castillo that he would "possibly" place the monies in such an account. The Respondent did not have a bank account and did not customarily maintain one. He testified that he maintained a "strong box" used as a depository within his own home. The Respondent testified that he placed the subject money in a green plastic zippered bag (Respondent's Exhibit A) up until the time it was supposedly removed by persons unknown who, according to the Respondent, stole his car on or about February 8, 1981. The Respondent testified that he was about to go spend the night with a friend and put the subject zippered plastic bag or case into his car, went back into the house to get some more belongings and the car was stolen while he was inside. The car was not recovered until some days later and the money was gone, although the plastic bag remained in or returned to the Respondent's possession and was made Exhibit A in this proceeding. The Respondent did not demonstrate that any efforts were made to replace the money prior to his being prosecuted for its disappearance. He did not, for instance, establish that he made any effort to file a claim against his automobile insurance carrier in order to see that the students were recompensed. Ultimately, the State Attorney's Office for the Eleventh Judicial Circuit in and for Dade County, Florida, filed a one count felony Information charging the Respondent with grand theft. The victim in that case was alleged to be the Petitioner's chief witness, Miss Cynthia Castillo. The Respondent, in that criminal proceeding, never went to trial, offering instead to enter into an agreement with the State Attorney to go into the "pre-trial intervention program" which is apparently a sort of probationary status coupled with a court enforced reimbursement of at least $1,700 to the Dade County School Board. The entire scenario described above concerning the fund raising efforts, diversion of the funds generated by them and the Respondent's ultimate refusal or at least inability to account for the whereabouts of those funds and his ultimate criminal prosecution for diversions of the funds became a matter of knowledge of a number of students and parents at the school as well as Mr. Wycoff, Desmond Patrick Gray and other members of the Dade County School Board's administrative staff. It should be noted that although no conviction has been entered against the Respondent in the criminal proceedings referred to above, it has been established without question that he took the cash portions of the funds generated by the various above-described fund raising efforts into his possession, failed to properly account for them, failed to place them in a bank account and failed to deliver them over to Mr. Wycoff or other responsible authorities. He exhibited adequate knowledge of whom he should have delivered the funds to because he only retained the cash portions of the monies generated by each fund raising effort, turning over the non-fungible checks to those entitled to them.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That with regard to case No. 81-2115, the petition of the School Board of Dade County against Ronald Miller, the Respondent, Ronald Miller, be dismissed from his employment with the School Board of Dade County and forfeit all back pay. It is, further RECOMMENDED: With regard to case No. 82-1234, the petition of the Education Practices Commission, Department of Education, Ralph D. Turlington, Commissioner against Ronald Miller, that Ronald Miller have his Florida teaching certificate No. 464113 permanently revoked. DONE and ENTERED this 22nd day of December, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1982. COPIES FURNISHED: Michael J. Neimand, Esquire Attorney for School Board 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Craig Wilson, Esquire Attorney for Education Practices Commission 315 West Third Street West Palm Beach, Florida 33401 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 81-2115 RONALD MILLER, Respondent. /
Findings Of Fact Respondent, David L. Smith, is a teaching veteran of twenty years and holds a teacher certificate by Florida. He is employed by Petitioner, the School Board of Pinellas County, as a teacher by means of a continuing contract. During times material, Respondent was assigned as a teacher at Pinellas Park High School. At the beginning of the 1991-92 school year, Respondent's father passed away and Respondent was allowed bereavement leave for a period of approximately eight days. The incidents alleged in Petitioner's charging letter and which is at issue herein occurred over a 5-day period from September 9-13, 1991, after Respondent returned from the burial of his father in the Midwest. During early September 1991, Respondent found a black student, Gregory Mills, sitting in his chair whereupon he replied to the class, "How far to you think I can throw this negro?" The term "negro" is offensive to some black students and Petitioner discourages the use of racial slurs in the school setting. The student to whom the remark was made, Gregory Mills, did not view the remark as offensive and considered that Respondent was making a joke of the incident. Mills view Respondent as a good teacher who gets along well with all students and was particularly concerned about the welfare of minorities, exemplifying such by assisting them in achieving their career objectives. At least one student, Robia Brown, who was in Respondent's class when Respondent made the "negro" remark to Mills thought that Respondent used the term "nigger" instead of "negro." However, the facts failed to support Robia Brown's recollection and it was not borne out by the testimony of Respondent and the student to whom it was directed, Gregory Mills. During times material, Bihn Vo was an oriental student at Pinellas Park and was an office assistant whose duties included taking messages and information from the office to individual classrooms. On one occasion following September 9, 1991, Vo was delivering information to Respondent's classroom. When Vo entered the wrong door, Respondent replied, "What do you want, you oriental son of a bitch?" On a separate occasion during early September 1991, information was delivered to Respondent's classroom for Kelly Slusser, a student. When the file which contained the information was given to Respondent, he threw the open file across the room and remarked, "[I] do not like her anymore." Also, during the same time period, Respondent grabbed Slusser by the neck and pushed her backwards leaving marks on her neck which were later visible by the assistant principal, Pamela Jones. As a result of those incidents, Slusser and another student, Robia Brown, withdrew from Respondent's class. During this period of time in early September 1991, Respondent openly used profanity in the presence of students. On September 9, 1991, Respondent experienced restlessness and an inability to sleep because of the mental state that he was experiencing following his father's burial and the internal strife that was brought upon him by his family members and some chicanery that was ongoing between Respondent and other family members about estate property which his father left. Respondent and his father enjoyed a very close relationship. His father's death was untimely occurring during a period when he (Respondent's father) appeared to have been enjoying good health. Respondent's father would spend most summers with him and they would vacation in and around Central Florida. As a result of the depression that Respondent appeared to suffer following his father's death, he visited his physician, David R. Newsome, M.D., for medication which would allow him to sleep at night. All of the incidents which are at issue occurred over a 5-day period from September 9-13, 1991. Following those incidents, Respondent took an 8-day leave from September 16-27, 1991, and received psychotherapy. On September 27, 1991, Respondent returned to his teaching duties and continued his employment with Petitioner until October 19, 1991, without further incident, at which time he was suspended by Petitioner. It is undisputed that Respondent was a popular teacher who often kidded with students. He appeared sleepy and drowsy during early September 1991 and at least one of Petitioner's supervisory employees questioned him about his well-being and suggested that he request administrative leave, which he did. Respondent's actions during the period September 9-13, 1991, came about as a result of his despondency over his father's death and he received medical treatment which appeared to have alleviated the problem. Respondent enjoys teaching and it does not appear that his effectiveness has been reduced to the point whereby he would be an ineffective teacher if he is afforded an opportunity to return to a classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. Petitioner enter a Final Order (1) reversing its recommendation that Respondent be dismissed from his position of employment with Petitioner as an instructional employee, (2) that Respondent be placed on probation for a period of one (1) year under terms and conditions designed to assure that no further similar acts/occurrences that were displayed by him in September 1991 are manifested, and (3) that Respondent be reinstated with all other rights and benefits of a tenured instructor employed by continuing contract with the Pinellas County School Board. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: BRUCE P TAYLOR ESQ SCHOOL BOARD ATTORNEY PINELLAS COUNTY SCHOOLS PO BOX 2942 LARGO FL 34649 2942 LAWRENCE D BLACK ESQ 650 SEMINOLE BLVD LARGO FL 34640 3625 J HOWARD HINESLEY SUPERINTENDENT OF SCHOOLS PINELLAS COUNTY SCHOOLS PO BOX 2942 LARGO FL 34649 2942 BETTY CASTOR COMMISSIONER OF EDUCATION THE CAPITOL TALLAHASSEE FL 32399 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1992.
