The Issue Whether just cause exists to suspend Respondent without pay for a total of ten days, based on two separate incidents.
Findings Of Fact Mr. Marshall has been a teacher in Broward County for approximately 20 years. At all times pertinent to the instant case, Mr. Marshall was employed as a math teacher at McArthur High School. Prior to working at McArthur High School he had taught math at Hollywood Hills High School, and then at Flanagan High School. During his tenure at Hollywood Hills High School, Mr. Marshall was placed on a Performance Development Plan (PDP), which required Mr. Marshall to remediate and reteach math lessons in an effort to obtain 70 percent comprehension in his classes. During his tenure at Flanagan High School, Mr. Marshall was once again placed on a PDP, which included the same requirements as the previous PDP at Hollywood Hills. Mr. Marshall was next transferred to McArthur High School for the 2007-2008 school year. Because Mr. Marshall had not completed the second PDP while at Flanagan High School, he was placed on a PDP and 90-day probationary period to start his tenure at McArthur High School. He successfully completed the PDP. During the fall of 2010, Mr. Marshall complained about Mr. Jose Gonzalez, the assistant principal who supervised the math department at the time. Mr. Marshall was then permitted to choose which assistant principal would supervise him. He chose Shawn Aycock, who at the time worked as the assistant principal for the language arts department. On November 5, 2010, Ms. Aycock observed Mr. Marshall in his classroom. Ms. Aycock noticed the following deficiencies: Mr. Marshall did not have the students start an activity as soon as the students entered the room, he had the students perform a task that had no educational value and was not tied to the day's activity, he gave inappropriate responses to students' questions, the students were confused with the lesson, he did not provide proper feedback to the students, he did not provide complete answers to student questions, he used vocabulary that was beyond the students' ability, he gave the students a sample problem but did not work through the problem with the students, and he made no attempt to re-teach the lesson or remediate in any way. On November 16, 2012, Ms. Aycock met with Mr. Marshall to discuss the observation. Mr. Marshall was confrontational, denied that the observation of hers was accurate, and accused Ms. Aycock of lying. Ms. Aycock had observed many teachers before she observed Mr. Marshall, but had never seen the need to write up notes after a meeting with a teacher. But after her meeting with Mr. Marshall, she did. Since then, she has not seen the need to write notes arising from a meeting with any other teacher. During the meeting, Mr. Marshall indicated that he would not water down his instruction for any student, and that he would have no problem with observations that were done ethically and did not consist of lies that were made by unqualified individuals. On November 19, 2010, Ms. Aycock provided Mr. Marshall with a memo detailing her concerns and expectations: Concerns: Students were asked upon entering the class to copy the day's objective. Students did not understand all of the math vocabulary used to explain the lesson. A student seeking further explanation on a problem was told,"If you didn't get it not to worry. It will not be on the quiz." Students were referred back to their notes when they questioned the lesson. Only two math problems were worked during a half an hour review. Expectations: All student activities should be of value and tied to the day's activity. Teacher will use math vocabulary consistent with student ability level and explain lessons in multiple ways. Insinuating that lessons are learned only for a test is inappropriate. All student questions will be answered and explained in full. During a review a minimum of five review problems will be worked per concept. Additionally, we discussed the importance of you checking your email. I am directing you to check your email prior to the conclusion of first period and again prior to the conclusion of fourth period. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received hours upon hours of assistance in these areas. My expectation is that you will follow the directives listed above immediately. If you feel you need assistance, please see me. Next, Ms. Aycock requested that Principal LaPace, who had an extensive math background, observe Mr. Marshall. He did so on January 7, 2011. Mr. LaPace's extensive notes regarding the observation detail Mr. Marshall's failure to have a proper lesson plan, his scattered presentation manner, and his ineffective management of the classroom. Mr. LaPace prepared a memo detailing his concerns and expectations: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. The objective on the board did not match the lesson being taught. Modeling sample problems were ineffective. Expectations: Always give clear and concise directions to students. Plan and deliver lessons so that are presented in sequential order. The lesson presented in class will align with the objective posted for the day. During a lesson a minimum of three sample problems will be worked per concept. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. When Mr. LaPace met with Mr. Marshall regarding his observation, Mr. Marshall disagreed with Mr. La Pace's observations, but did not indicate why he did. Mr. Marshall also declined all types of support from other staff members. The administration asked Mr. Marshall to provide documentation of remediation and retesting of students if he had over 35% of his students earning Ds or Fs. The documentation needed to be specific information regarding times that Mr. Marshall sat down with students in small group settings, or phone logs regarding communication with parents, or any type of specific information regarding steps that Mr. Marshall was taking to raise the level of success of his students. Mr. Marshall was never observed remediating or re-teaching, despite the fact that all teachers were asked to allot the final 30 minutes of a class to these activities. On February 17, 2011, Ms. Aycock, Mr. Gonzalez, and Mr. Marshall met for a Pre-Disciplinary Meeting. Mr. Marshall was given a verbal reprimand for insubordination. In the memorandum which documented the verbal reprimand, Ms. Aycock directed Mr. Marshall to: Reduce the number of students in your class receiving D's [sic] and F's [sic] to at or below thirty-five percent through re-teaching and remediating of those students. Check your school email throughout the day, a minimum of twice per day. Follow all directives given by and with proper authority. Failure or refusal to follow the above directives will result in further disciplinary action. On September 20, 2011, Ms. Aycock again met with Mr. Marshall to discuss concerns and expectations, and also to conduct a Pre-Disciplinary Meeting, wherein Mr. Marshall was issued a second verbal reprimand for insubordination. On September 22, 2011, Ms. Aycock wrote a memorandum detailing the conversation during the meeting, and reminding Mr. Marshall that from June 2010 through September 2011, he had attended seven meetings regarding the high percentage of students in his classes that were receiving Ds and Fs. At each meeting, he had been directed to reduce the number of students receiving Ds and Fs to at or below 35 percent, through remediation and re-teaching. Because Mr. Marshall had failed to comply with these directives, and had failed to provide a reason why he should not be disciplined, he was issued the second verbal reprimand. He was also directed to: Reduce the number of students in your class receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Follow all directives given by and with proper authority. Stemming from the same meeting, Ms. Aycock documented her concerns and expectations: Concerns: You are receiving a large number of student and parental complaints in relation to your teaching practices. Students are not being graded in a fair and consistent manner. The department grading policy is not being followed. Meaningful assignments are not being given to students. Students are not receiving corrective and immediate feedback as it relates to their assignments. Expectations: You will model lessons for students. You will differentiate instruction to meet the needs of all the students. You will develop and implement rubrics so students have clear expectations of class participation and effort requirements. All assignments will correlate to the standards as tested by the Geometry EOC. Students will receive corrective feedback within seventy-two hours. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. Around December 2011, Ms. Aycock was promoted to the position of Principal for a middle school, and Ms. Arnita Williams became Mr. Marshall's supervising Assistant Principal. Ms. Williams and Ms. Aycock once again conducted a classroom observation of Mr. Marshall, and Ms. Williams documented her concerns and expectations as follows: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. You did not address students' questions and concerns. Modeling sample problems was ineffective. You did not provide and use the correct mathematical vocabulary. Expectations: Always give clear and concise directions to students and check for understanding. Plan and deliver lessons so they are presented in sequential order. Students' questions and concerns need to be addressed. Mathematical vocabulary on student's level should be used. In previous memos additional directives were given. Below were the following expectations: You will develop and implement rubrics so students have clear expectations of class participation and effort. Provide a copy of your participation rubric to Ms. Aycock by the close of business on Friday, September 26, 2011. Differentiate instruction every day the last 30 minutes of class the [sic] meet the needs of ask [sic] your students. Student will receive corrective feedback within seventy-two hours on all graded work. Reduce the number of students receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Daily indicate in your lesson plans interventions and strategies used to differentiate instruction. A minimum of two grades each week must be entered into pinnacle per student. Vocabulary used in class must be consistent with student's ability. Check your school email throughout the day, a minimum of twice daily (before and after school). During a lesson a minimum of three sample problems will be worked per concept. Follow all directives given by and with proper authority. You have been given the above directions numerous times in the past. It is my expectation that all directives will be implemented immediately. On December 12, 2011, Ms. Williams issued a written reprimand for failing to meet the performance standards required of his position as a math teacher. As grounds for the written reprimand, Ms. Williams focused on Mr. Marshall's repeated failure to reduce the number of students receiving Ds and Fs to at or below 35 percent through remediation and re-teaching, and his failure to follow all other directives given by and with proper authority. School administration consistently directed Mr. Marshall to remediate and re-teach daily; he advised the administration that he would do so on one particular day of the week. The administration denied that request. As a result of Mr. Marshall's non-compliance, students were moved from Mr. Marshall's class to other classes, which resulted in a disparate amount of students in other classes. While most math teachers had from 30-35 students in their classes, Mr. Marshall's class was reduced to about 17 students. On January 5, 2012, Ms. Williams conducted a pre-disciplinary meeting with Mr. Marshall, for failure to provide daily re-teaching and remediation for students the last 30 minutes of class, as he had been instructed to do numerous times. He was informed by letter that he was being recommended to the School Board for a three-day suspension. On October 10, 2012, approximately nine weeks into the next school year, Ms. Williams sent Mr. Marshall a memorandum that stated: Due to the large number of complaints, schedule changes, high failure rate and conferences, you are hereby directed to provide the following documentation for each of the 93 students (Juniors) who presently have a grade of F in your class at interims by October 15, 2012. Please provide copies to Ms. Williams and Ms. DiPaolo by 2:45 p.m. Interventions and strategies for each student Parent phone contact log On that same date, Mr. Marshall responded to this request by giving Ms. Williams a document that read as follows: MATHEMATICAL RUBRIC Tests/Quizzes Correct Problems 10pts. Completely Wrong 0pts. Total is 100% Please note that the total number of questions can affect the outcome. Since the reply by Mr. Marshall was completely lacking in usefulness and did not supply the information requested by Ms. Williams, she attempted once again to solicit the proper information from Mr. Marshall by sending an e-mail to him on October 15, 2012, at 6:03 a.m., giving him a second notice that the deadline for production of the requested information was that same day. Mr. Marshall never complied with the directive to provide information on each student who was failing his class. He never asked for more time to collect the information, and despite that fact that he admitted it would have been easy to retrieve his phone log and submit it, he never did so. Ms. Williams met with Mr. Marshall, informing him that he would be recommended to the School Board for a seven-day suspension. The greater weight of the evidence established that Mr. Marshall is guilty of gross insubordination for his conduct before and after July 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order suspending Mr. Marshall without pay for a total of ten days, based on his conduct before and after July 2012. DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2013.
The Issue Whether the Petitioner, Karen Grimm, is entitled to obtain two years' creditable service toward retirement benefits in the Florida Retirement System for School Teachers, or the equivalent value thereof, for duties performed as a teacher for Project Excel in the 1993-94 and 1994-95 school years. Whether the Petitioner is entitled to obtain two years' teaching experience credit toward salary benefits with the Seminole County School Board.
Findings Of Fact Based on the evidence, the following facts are found: Project Excel is an alternative education program for students of the Seminole County Public School District who were subject to expulsion by the Seminole County School Board. The students removed from their regular school and permitted to attend Project Excel in lieu of a full exclusion or expulsion. Petitioner was employed as a teacher for Project Excel from February 4, 1994, until July 28, 1995. Project Excel (f/k/a Project REAP) was operated pursuant to a contract (hereinafter "Agreement") between the Seminole County School Board (hereinafter the "Board" or "School Board") and the Private Industry Council of Seminole County, Inc. (hereinafter "PIC"), a not-for-profit corporation organized under the laws of the State of Florida. PIC was an active Florida not-for-profit corporation during the period in question. The project was established under the federal Job Training Partnership Act for the establishment and operation of an alternative program for students. Under the terms of the initial and successor contracts, PIC was to provide a facility, equipment, curriculum materials, and teaching staff to deliver educational services to high school students who were offered an opportunity by the School Board to enroll in Project Excel as an alternative to a full expulsion for misconduct. Students enrolled in Project Excel were students who were charged with a violation of the student conduct and discipline code for which expulsion was a permitted penalty, but who, at the discretion of the School Board, were permitted to enroll in Project Excel as an alternative to a full exclusion or expulsion. PIC was paid consideration as stated in the contract for the services that it provided. In addition, the School Board made school lunches available to students enrolled in Project Excel and provided transportation. Lunches were provided to Excel students on the same basis that they were provided to other students, that is, the students paid for their lunches or received them under the Federal free or reduced-cost lunch program. Procedurally, when a student is alleged to have committed a violation of the student discipline and conduct code, the alleged infraction is investigated by a designated administrator at the student's school. If the investigation determines that the student has committed an offense, the student is initially suspended from school for a period of time, usually 10 days. During the 10-day suspension, if the violation is one that carries a maximum penalty of expulsion, the principal then meets with the student and the student's parents. If, in the course of that meeting, the student is willing to admit the violation, the student is offered an opportunity to enroll in Project Excel for a period of time as an alternative to a full exclusion. If the student accepts the offer, the student is enrolled in Project Excel for a prescribed period of time. If the child rejects the offer or requests an evidentiary hearing before the School Board under Section 120.57(2), Florida Statutes, the student could still be enrolled in Project Excel at the discretion of the School Board. Once a student completes his or her term of expulsion at Project Excel, the student is permitted to return to the student's regular school of attendance. The intent of Project Excel is to provide a penalty for serious student misconduct, while at the same time providing a student with an opportunity to continue receiving educational services during the student's exclusion from the student's regular school of attendance. By providing such an opportunity, it was the hope of the School Board that the student's behavior would be reformed, that the student would successfully reenter school at the completion of the term of expulsion, and that the student would not become a drop-out. Because of the School Board's expectation for student's assigned to Project Excel, the curriculum at Project Excel was designed to mirror the curriculum at the student's regular school and the school district standards. The student's grades at Project Excel were recorded in the student's School Board records. And a student earned regular academic credit towards graduation from a Seminole County public school by successful completion of course work at Project Excel. In order to ensure the quality of the teaching staff at Project Excel, teachers employed by PIC were required to meet the same standards applicable to teachers employed by the School Board. Teachers employed by PIC were required to be properly certified by the Florida Department of Education or eligible for certification and were required to submit to a criminal history check pursuant to Section 232.02, Florida Statutes (1993). Teachers for Project Excel were required to complete a Seminole County School Board personnel application package, the same as all Seminole County Public School teachers, which were thereafter maintained by the School Board in its applicant files. Teachers for Project Excel students were required to hold valid teaching certificates, the same as any teacher in the Seminole County School District. From January 1994 until July 1994, Mr. Wolfgang Halbig ("Halbig") held the position of Project Manager Principal for Project Excel. Halbig received his paycheck from the School Board, that is, the Seminole County School District. From July 1994 until June 1995, Ms. Jerry Merritt ("Merritt") held the position of Project Manager for Project Excel. Merritt was formally employed by the School Board and received her paycheck from the Seminole County School District. During the period of Petitioner's employment with Project Excel, Gary Earl was the Executive Director for PIC. During the period of Petitioner's employment with Project Excel, James Dawson was the Director of Alternative Programs for the Seminole County School District. During the period of Petitioner's employment with Project Excel, Dr. Tom Marcy was Executive Director of Secondary Education for the Seminole County School District. Dr. Marcy selected Wolfgang Halbig as the first Project Manager for Project Excel. Petitioner was interviewed by Halbig and Giannoni in January 1994, for the position of teacher at Project Excel. Petitioner was told that she would be teaching Seminole County School District students who had either been expelled or who would be attending Project Excel in lieu of expulsion. Petitioner was told that Project Excel was a "unique partnership" with the Seminole County School District. Petitioner had a Seminole County School District personnel application, dated in 1992, on file when she was hired for Project Excel. In 1994, after Petitioner was hired for Project Excel, she was asked by Halbig to update her personnel file with the District's Personnel Department, which she did on July 11, 1994. When the Petitioner updated the application package, an I-9 form was completed and Petitioner was also fingerprinted. Petitioner had not been fingerprinted when she completed the application package in 1992, nor was an I-9 form completed in 1992. Project Excel was listed by the Seminole County School District as a Cost Center with No. 9217, a number assigned to Project Excel for internal account purposes. On February 4, 1994, Petitioner was verified as eligible for immediate employment as a certified teacher. She was employed by PIC as a teacher in Project Excel from February 1994 until July 1995, that is, for 115 days of the 1993-94 school year and for the entire 196 days in the 1994-95 school year. Petitioner signed employment agreements with PIC. The Petitioner's employment by PIC was governed by a contract of employment between Petitioner and PIC. All of Petitioner's employment benefits were provided by PIC. PIC withheld a portion of the Petitioner's salary for federal income tax and FICA. PIC paid the employer's share of FICA on account of its employee, Karen Grimm. Petitioner's medical/hospital insurance was provided by PIC. Petitioner's working days and hours were controlled by PIC. During the time that Petitioner was an employee of PIC, the School Board provided no employee benefits and paid petitioner no compensation for services as a teacher in the Project Excel. Petitioner resigned her employment as teacher at Project Excel on July 28, 1995. While teaching at Project Excel, Petitioner never saw a copy of the Agreement between the School Board and PIC. Likewise other teachers at Project Excel, Brad Clayton and Lynette Stucka, did not see the Agreement between the School Board and PIC. The School Board reserved the right to make recommendations relative to personnel assigned or retained in Project Excel. The Project Manager was responsible for the day-to-day operations of Project Excel. The Project Manager was employed by the School Board and not by PIC's Director of Operations. He/she attended expulsion hearings for students before the School Board and many of these students became students at Project Excel. The Project Manager attended various meetings with members of the School Board regarding Project Excel. The Project Manager directly supervised Project Excel teachers and assisted in curriculum development. When Petitioner required time off, she requested the time from the Project Manager. The Project Manager and Director of Operations signed Petitioner's evaluation. However, teachers were in close daily contact with the Project Manager, and not with the PIC's Director of Operations. The Project Manager reported directly to Mr. Dawson. The Project Manager directed the Petitioner to contact Dawson's office for any questions relating to curriculum for Project Excel. The Project Manger conducted Project Excel orientation meetings for parents and students. 38 The Project Manager reported student attendance and student grades to the Director of Alternative Learning for the District. The Project Manager was responsible for management of the disciplinary system, including decisions relating to discipline of students and signed all incident reports when students misbehaved. All incident reports were sent to the District. At times, the Seminole County School District administrators exercised their authority and control to deny the Project Manager permission to recommend to the School Board removal of a Project Excel student. Seminole County School District administrators made frequent visits to the premises of Project Excel, including James Dawson, Supervisor of Alternative Programs; Dr. Tom Marcy, Executive Director of Secondary Education; Dr. Hortense Evans, Administrative Assistant to the Superintendent; and Dr. Marion Dailey, Executive Director of Instructional Support Services; and Dr. Paul Hagerty, Superintendent of Schools. At times, some district administrators made verbal recommendations for program changes during their visit. Dawson met with the teachers at least every other week. All students enrolled in Project Excel were identified by and referred by the School Board and were Seminole County School District students. Moreover, Project Excel accepted all students that were recommended by the School Board. Typically the entry process for a student to enter Project Excel was as follows: 1) a principal recommended expulsion to the superintendent; 2) the superintendent recommended expulsion to the School Board; 3) an expulsion hearing took place before the School Board; 4) the School Board held the student's expulsion in abeyance and offered the student the opportunity to attend Project Excel and the student automatically returned to his or her former zone school; and 5) the School Board could approve re-entry for a student to a former zone school upon request. The signature of Superintendent, Paul J. Hagerty, was required on all student behavioral and academic contracts before a student was permitted by the School Board to enter Project Excel. The "Code of Conduct" for students of Seminole County School District applied to students of Project Excel. Project Excel was included in the Seminole County School District courier system for inter-office transporting of packages and mail. Seminole County School District bus transportation department transported students who chose to attend Project Excel, the same as any other Seminole County public school student. PIC was required to accept for Project Excel any and all students identified by and referred by the School Board. School Board permission and approval was required for a student to be removed from Project Excel. As part of the operations of Project Excel, the School Board provided support and technical assistance as follows. The School Board verified students enrolled in and withdrawn from the program. The Board received a monthly report on each student enrolled to verify the student's attendance, including the number of days present and the number of days absent. The Board provided information about individual students enrolled in the program as necessary to facilitate and support a student's participation in the program. The Board allowed full use of District Media Services for the Seminole County School District. The Board provided to PIC the curriculum frameworks for courses taught in Project Excel consistent with Department of Education requirements. The Board required that PIC use the curriculum frameworks in its instructional program for Project Excel, which were provided by the Board and consistent with Department of Education requirements. The Board required that the educational program provided to students in Project Excel meet the requirements of Section 230.2316(4)(e), Florida Statutes. Project Excel operated according to the calendar adopted by the Board. Project Excel teachers worked on the same calendar as the Seminole County School District. Other PIC employees did not work on a school-based calendar. The School Board held Project Excel out to the public as a "partnership" between the Seminole County School Board and PIC. All forms included the logo of the Seminole County School Board, as well as PIC. James Dawson was named in the Agreement as the contract administrator between the School Board and PIC. The School Board funded Project Excel, pursuant to the Agreement, including the following: A minimum guaranteed payment to PIC for the operation of Project Excel of $841.00 per day and a maximum of $1,820.00 for the 1993-94 school year and $892.00 per day and a maximum of $1,645.00 per day for the 1994-95 school year. The Agreement also provided for bonus payments based on performance. Start-up costs for assets (February 1, 1994, to June 8, 1994), not to exceed $46,200.00 and total cost of assets purchased at both Service Levels II and III not to exceed $23,100.00, respectively, for the 1993-94 school year. Total cost of assets purchased at Service Level II, not to exceed $10,000.00 and not to exceed $15,000.00 at Service Level III for the 1994-95 school year. At the point of reimbursement to PIC, assets purchased were considered the property of the Board. All non-consumable supplies and equipment purchased by PIC for Project Excel and reimbursed by the Board were to be used solely for Project Excel and for no other purpose, without specific permission by the Board. No equipment for which PIC was reimbursed by the Board could be discarded by PIC without approval by the Board. The Board required that PIC maintain all equipment in good repair at all times. The Board required that all non- consumable supplies and equipment be made in accordance with Rules of the State Board of Education for the purchase of like equipment by the Board. The School Board required PIC to submit FTE reports and costs reporting the same as any other school in the Seminole County School system. The School Board had the right without limitation to audit any and all records relative to FTE reporting. The School Board required PIC to provide the School Board with accurate accounts and records with respect to the entire operation of Project Excel. The Crooms School of Choice, Pride Program, was another alternative, drop-out prevention program for Seminole County middle school students, which included students with disciplinary problems. However, Crooms was not operated under a contract but was operated by the School Board with teachers paid directly by the School Board. Eligibility criteria for Project Excel for high school students were the same eligibility criteria as for Crooms for middle school students. The Standard Operating Procedures Manual provides guidance of the interrelationship between School Board and PIC regarding Project Excel, inter alia, as follows: Placement into the program will be made by the School Board. Decisions regarding returning to zone school shall be made in joint staffing between student, parents, principal of zone school and Project Manager. Project manager shall develop a reporting and tracking system to verify student progress. Progress reports sent to Jim Dawson, District's Supervisor of Alternative Learning Programs. Students not considered to be expelled from District once they entered Project Excel, but a last chance to demonstrate to the School Board they want to obtain a high school education. Since the students were not formally expelled, they were still active Seminole County School District students. Recommendations for student enrollment and behavioral contract were sent to the School Board for review after students had participated in orientation at Project Excel. Student behavior was governed by Seminole County's Student Conduct and Discipline Code, after the 5th offense, the School Board was to be contracted. Project manager had the responsibility to update student records and to provide the School Board with information regarding removal of a student from Project Excel. Exit procedures from Project Excel were approved by the School Board. Duties of the project manager included observing and assisting teachers; maintaining student records; arranging for staff development and training, preparing reports to both PIC and the School Board; maintaining updated curriculum objectives for approved Seminole County School Board academic courses; working with county data processing personnel as to reporting student grades, credits, etc; preparing budget for Project Excel under guidance of both PIC and School Board; preparing reports for both PIC and School Board. Project manager was an assignment position from the Seminole County School Board as defined by the Board with pay consistent with the Seminole County School Board grade. Project manager was responsible for the disciplinary system of Project Excel. Project Excel teacher is directly responsible to the project manager. Petitioner's responsibilities are outlined on this page. Procedures for entry into Project Excel and re-entry back to a zone school are between the School Board or its designated staff and the project manager. No contact is with PIC's Director of Operations. Notification of students to attend Project Excel was through the office of Dr. Hortense Evans, during the time of Petitioner's employment at Project Excel. Verifies that student is not technically expelled. The School Board defined all policy relating to student participation in Project Excel. Student grievance process defined by School Board. Project manager responsible to monitor prescription drug use and off-property drug abuse by students would subject the student to possible recommendation to the School Board for removal from Project Excel. Recommendation to the School Board for removal was part of the progressive discipline program in effect at Project Excel. Bus transportation provided for Project Excel students at no charge. Seminole County School District provided lunch on campus for Project Excel. Attendance record used to calculate FTE's. Project Excel credits based on high school requirements. Teachers completed academic course offerings and turned in to project manager. Teachers completed academic course offerings and turned into project manager. Provided at orientation. All students selected by School Board for participation. Students must develop behavioral contract and appear before the School Board and request placement at Project Excel. Behavioral standards based on School Board's Student Conduct and Discipline Code. If a student is recommended for withdrawal from Project Excel, the student will be recommended to the School Board for expulsion. School Board assigned each student to Project Excel for a specified duration. Student behavioral contract signed by Superintendent Hagerty. AA. Project Excel teachers had access to district high school records. BB. Weekly student evaluation did not require signature of Tim Giannoni, Director of Operations of PIC, but did require the signature of the student, the teacher and the project manager. CC. Copies of incident reports were given to teacher, parent, student and project manager, but not to Director of Operations of PIC. DD. Withdrawal form was completed by the project manager, not Director of Operations. EE. Form developed by Wolfgang Halbig, Project Manager, and when completed, it was turned into the district office. (Joint Exhibit 8) In order to become an employee of the School Board in July 1995, Petitioner was required to update her School Board application file. That file, dated from 1991, was created when Petitioner first submitted an application for employment by the School Board. The superintendent was required to recommend to the School Board that the Petitioner be employed in the position of teacher at Hamilton Elementary School and the School Board was required to approve the recommendation. Subsequent to School Board approval of the superintendent's recommendation for employment of Karen Grimm as a teacher at Hamilton Elementary School, Petitioner was issued an annual contract of employment as a first-year teacher in the Seminole County School District. On December 20, 1994, the Director of Personnel for Seminole County Schools responded to Petitioner's request for information regarding credit for teaching experience at Project Excel as follows: Teaching experience can be granted for your teaching experience through the Excel program when you: have taught in the Excel program in a full-time capacity for 99 days or more during the school year and have possession of a Florida Educator's certificate for the duration of the time for which your teaching experience accrued. (Petitioner's Exhibit 8) On May 10, 1995, Petitioner wrote to Dr. Marcy and to Jim Dawson requesting assistance in verifying that teaching credit toward a Professional Services Contract should be granted. In 1995, Petitioner was recommended for continued employment by the School Board on a Professional Service Contract. The administrator in charge of personnel employment believed that Petitioner's service as a teacher for PIC in Project Excel counted towards the requirement for three years' employment in the district as one of the predicates for the issuance of a Professional Service Contract. Upon that premise, the Petitioner's employment by the School Board at Hamilton for the 1995-96 school year would have constituted Petitioner's third year of employment in the district. On its Instructional Experience Verification Form, the Seminole County Schools verified that the Petitioner worked for 115 days during the 1993-94 school year and 196 days during the 1994-95 school year. Therefore, the Petitioner worked more than 99 days during both the 1993-94 and the 1994-95 school years and was entitled to receive teaching credit toward the Professional Services Contract. On October 4, 1996, Petitioner received a Professional Services Contract. On February 6, 1997, via an internal communication, based on advice from the School Board's attorney, a decision was made to withdraw the teaching credit that had been approved by the School Board in 1996. On April 10, 1997, Petitioner was advised in writing that she had been issued a Professional Services Contract in error because the district had decided Petitioner was not entitled to credit toward PSC status for the two years teaching at Project Excel. At that time, Petitioner was advised that the professional service contract issued in error would be canceled and an annual contract issued in its place. On April 17, 1997, Petitioner signed the annual contract, with a proviso attached that she reserved her statutory right to challenge the District's decision to rescind her Professional Services Contract. On March 11, 1998, Petitioner was again recommended by the principal for the Professional Services Contract. When Petitioner successfully completed three years of teaching services (as computed by the School Board), a professional service contract was issued to Petitioner. In addition to publication in the general media, Project Excel teaching positions were advertised on the Seminole County Public School Hotline, which identifies position openings within the District. The School Board's funding of Project Excel provided a sum of money sufficient to take care of all the needs for Project Excel, including the salaries of the teachers. Unless the School Board provided funds to support the salaries of the teachers, there would be no teachers at Project Excel. Sixty to eighty-five percent of the money for teachers' salaries came from the School Board. Petitioner did not fill out an application package with the intent of becoming a substitute teacher. The paperwork completed by the Petitioner was the same as any other teacher employed by the Seminole County School District was required to complete. The School Board is subject to a union collective bargaining agreement under Chapter 447, Florida Statutes, which governs the wages, hours, and terms and conditions of persons employed as teachers. As an employee of PIC, Petitioner was not a member of the bargaining unit under the agreement between the School Board and the Seminole Education Association, Inc. When Petitioner became a teacher at Hamilton Elementary, the only additional paperwork required by the Seminole County School District personnel office was completion of an updated health certificate. The School Board received funding for students enrolled in Project Excel through FTE's the same as for any other Seminole County public school student. In the initial Project REAP, the program cost proposal and calculations of staff salary were based on current School District pay scale for respective positions, education, and years of service. The Project Manager representing Project Excel, attended meetings with district administrators to help establish consistency between competency based programs such as Crooms and EXCEL. In September 1994, Petitioner was assured by Excel Project Manager, Jerry Merritt, in response to Petitioner's inquiries, that School District personnel agreed that Excel teachers should receive Seminole County teaching credit toward a Professional Services Contract. On October 4, 1994, Petitioner wrote a letter to Ms. Linda Dawson, Director of Personnel Services, requesting written verification that Excel teaching staff could receive teaching credit toward a Professional Services Contract in Seminole County. On November 22, 1994, Petitioner wrote a follow-up letter to Ms. Dawson requesting expeditious written confirmation as to how teaching credit would be granted. On or about July 7, 1995, Petitioner spoke to Pam Williams in the Seminole County School District personnel office, who verified that the 1993-94 and 1994-95 school years at Project Excel would count toward eligibility for a Professional Service Contract. On July 12, 1995, the decision was verified on the Seminole County Determination of Prior Experience Verification Status Form. Petitioner taught at Hamilton Elementary School for the 1995-96 school year, which was Petitioner's third year with the District when the 1993-94 and 1994-95 Project Excel years were counted toward Professional Service Contract credit. As a result, the School Board approved Petitioner's change in status from annual contract to Professional Service Contract on August 13, 1996. Petitioner relied upon statements by Halbig, during the job interview for teaching at Project Excel, that because she was being paid by the School Board through its funding of Project Excel, she would receive the same benefits as an employee of the School Board. Petitioner relied upon the promises made orally and in writing in 1994 that she would receive teaching credit toward the Professional Service Contract eligibility. Petitioner made every effort during the fall of 1994, by contacting proper administrators orally and in writing, to determine whether she would receive credit. Petitioner made these efforts in order to make the appropriate career decisions. Dawson responded affirmatively that Petitioner would, in fact, receive the credit toward Professional Services Contract eligibility and gave the credit thereto. Petitioner would not have stayed at Project Excel had she known she would not receive teaching credit toward Professional Service Contract eligibility as promised by District administrators. Teaching at Project Excel meant teaching the students in the county with the worst discipline records, and the Petitioner would not have poured forth the great energy and care to help these students had she known that it would not help her professional career with the District. No contributions were made to the Florida Retirement System on behalf of Karen Grimm for her term of employment by PIC. As her employer from February 1994 through July 1995, PIC was not permitted to be a member of the Florida Retirement System, its employees were not public employees, and PIC was not permitted to make contributions to the Florida Retirement System on behalf of Karen Grimm. As Karen Grimm was not considered to be an employee of the School District, the School Board was not permitted to make contributions to the Florida Retirement System on her behalf. Petitioner has lost two years' creditable service with the Florida Retirement System by not being formally classified as an employee, in the amount of $8,421.51 and has lost two years' service credit toward a salary increase given pursuant to District policy after ten years. Petitioner has also lost two years' service credit for being considered for an administrative position. Petitioner is working on a doctorate degree and has professional goals for career advancement which are affected by this decision.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board enter a final order holding that: Petitioner was not an employee of the School Board for the 1993-94 and 1994-95 school years and, as a result, is not entitled to retirement benefits from the Florida Retirement System pursuant to Chapters 121 and 238, Florida Statutes for that period. Petitioner is entitled to receive teaching experience credit for said school years, as applicable to a salary increase after ten years, to which the Petitioner was entitled based on her prior teaching experience, together with her Project Excel teaching experience. DONE AND ENTERED this 26th day of May, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of May, 1999. COPIES FURNISHED: John J. Chamblee, Esquire Chamblee & Johnson, P.A. 202 West Cardy Street Tampa, Florida 33606 Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul Hagerty Superintendent of Seminole County Schools 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue The issue posed for decision herein is whether or not the Petitioner, State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools (Petitioner or Board), properly denied issuance of a license to Respondent to operate a school, as defined in Subsections 246.201-246.231, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, the following relevant facts are found: The Board is an agency of the State of Florida charged with the administration and processing of licenses for schools falling within the guidelines of Subsection 246.215(1), Florida Statutes. On February 14, 1978, Earl R. Edwards, Executive Director of the Board issued a report on Respondent's license application for licensure, and the Board recommended denial of such based upon, inter alia, the fact that the Respondent failed to provide certain information, as required by Chapter 6F-5.01(1)(g)4,A- Specifically, the Petitioner's curriculum catalog failed to contain information relative to: A school calendar, including legal holidays, and beginning dates for courses. Chapter 6F-5.01 (1)(g)4c, Florida Administrative Code. A school policy relative to a record of progress kept by the school and available to the student. (Chapter 6F-5.01(1)(g)4f, Florida Administrative Code.) The school's refund policy, Chapter 6F-5.01 (1)(g)4, (i). As such, there is a stated failure to comply with the provisions of Chapter 6F-5.01(1) (f)11. The school's policy relative to the granting of credit for previous training as set forth in Chapter 6F-5.01(1)(g)4,1, Florida Administrative Code. The school's policy relative to granting an award for successful completion of the course. (Chapter 6F-5.01(1)(g)4,m.) Respecting the Respondent's failure to abide by a permissible refund policy, Karen Fishbaum, of Lauderhill, Florida, contacted Respondent at the subject school during December of 1977. Miss Fishbaum expressed interest in becoming a model. She was shown around the school by Mr. R.E. Denson, the school director and owner. Miss Fishbaum tendered to Mr. Denson a $75.00 check and signed a contact to enroll in the school. She was given a course outline, an introductory letter, and a receipt for the $75.00 enrollment fee. Within 72 hours, Miss Fishbaum advised the Respondent of her desire to cancel her enrollment, as provided for in the school's enrollment contact. This cancellation was effected a telephone call and a telegram to Mr. Denson prior to the expiration of the three-day grace period allowed for cancellation. Mr. Denson advised Miss Fishbaum that he was entitled to retain approximately $25.00 of the amount which she paid for tuition. Within a few days, Miss Fishbaum received a check drawn by Respondent in the amount of approximately $50.00, representing Respondent's refund of her tuition. According to Miss Fishbaum, the Respondent explained to her that her course of instruction would last approximately 30 hours. Miss Fishbaum later enrolled at the Gayle Carson Modeling School in Hollywood, Florida, during the spring of 1977. Earl R. Edwards, the Board's Executive Director, is in charge of administering exams, analyzing and otherwise approving applications for licensure by the Board. Mr. Edwards first came in contact with the Respondent, Cinderella Modeling and Finishing School, during mid-February of 1976. Respondent was notified of its necessity to file an application and receive licensure by the Board. Respondent, at that time, was given a copy of the pertinent Florida Statutes and the rules and regulations relative to licensure requirements. Despite such notice, Respondent continued to operate with a license until he was enjoined by the Circuit Court in and For Dade County, Florida. (Petitioner's Exhibit No. 7). It was based on such acts and conduct that the Board, during its March, 1978 meeting, denied granting a license to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the action of the agency in denying licensure to the Respondent be sustained. DONE and ENTERED this 29th day of September, 1978, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1978. COPIES FURNISHED: Gene T. Sellers, Esq. Office of the General Counsel Knott Building Tallahassee, FL 32304 R.E. Denson, School Director Cinderella Modeling and Finishing Schools of Coral Gables 276 Miracle Mile Coral Gables, FL 33134 Mr. Earl Edwards Executive Director of the State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools Knott Building Tallahassee, FL 32304 =================================================================
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2017),1/ and Florida Administrative Code Rule 6A-10.081(2)(a)1. and 8., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Uncontested Facts by the Parties Respondent holds a valid Florida Educator’s Certificate No. 1046827, covering the area of Biology, which is valid through June 30, 2020. At all times pertinent to this matter, Respondent was employed as a Biology teacher at Miami Palmetto Senior High School (“MPHS”) in the Miami-Dade County School District. Respondent knew A.T. was a student at MPHS during the 2015-2016 school year and had tried out for the school’s lacrosse team in late January 2016. Respondent sent a text message to A.T. on December 19, 2016, stating, “How are you?” Respondent sent and exchanged text messages with A.T. in March 2017. Respondent met and engaged in sexual intercourse with A.T. in late March 2017. Respondent resigned from his employment with Miami-Dade County Schools on May 3, 2017, citing “personal reasons.” Additional Findings of Fact Petitioner, as Commissioner of Education, is responsible for investigating and prosecuting complaints against individuals who hold Florida educator certificates, and are alleged to have violated provisions of section 1012.795. Respondent is a highly effective educator who, over the course of his ten-year career, has earned the respect of his former principal and science department head, as well as parents and students with whom he has come in contact. The allegations of misconduct in this case have not altered the high professional regard in which Respondent is held by Principal Victoria Dobbs; Science Department Head Pamela Shlachtman; parent and lacrosse team booster club president Nicola Rousseau; and former student, lacrosse player, and the daughter of Nicola Rousseau, Samantha Rousseau. Each of these witnesses testified that their knowledge, observations, and experience working with Respondent led them to believe that he never would have had any type of relationship with a woman he believed to be a high school student. Each of these witnesses testified that, to the best of their knowledge, they had never seen or heard reports of any inappropriate conduct between Respondent and a student. Principal Dobbs bragged in a letter about Respondent and the support of his peers in voting him Science Teacher of the Year. She testified that in her 12 years of service at MPHS, the last three of which she was principal, she had no concerns with Respondent regarding inappropriate relationships with students. To the contrary, she recalled him as a very good teacher, who participated in many school activities and field trips. He also served as coach for the girls’ lacrosse team. Principal Dobbs further testified that she was never informed that Respondent had been accused of having an inappropriate relationship with a student at her school. She was only made aware of a request by the school district for Respondent’s computer. She testified that if she had believed Respondent had an intimate relationship with a high school student, she would not have employed him. Ms. Shlachtman has been employed at MPHS since 2001 and has been a teacher since 1984. She affirmed her previously written statement supporting Respondent, and testified she had participated in the hiring and selection of Respondent ten years previously as a marine biology teacher. She stated that he had “the soul of an educator.” As a member of Ms. Shlachtman’s staff, Respondent had chaperoned multiple field trips, including extended travel with students and staff for the Enviro Team, and to state and national competitions in Montana and Toronto, Canada. Having seen Respondent react with both male and female students on seven- and ten-day trips, she never had a concern or received a complaint. She also knew girls on the lacrosse team and had never heard a concern reported from there. She noted that Respondent had the opportunity to be alone with students on multiple occasions, and no concerns or inappropriate behavior was ever reported. She would rehire Respondent on her staff again, if given the opportunity. Ms. Rousseau, the mother of three daughters who trained with Respondent at his CrossFit gym, also served as president of the girls’ lacrosse team booster club. She affirmed her previous letter of support for Respondent and testified about her commitment to Respondent as a trainer for her three daughters at his gym, which she said would continue. Additionally, Samantha Rousseau, Nicola’s daughter, and a full-time student at the University of Florida, confirmed her support for Respondent. While a student at MPHS, she had served as assistant captain of the girls’ lacrosse team during her senior year (2014), while Respondent was the team coach. She had known Respondent since she was a sophomore student in his Television Production class; she had traveled with Respondent to Los Angeles as part of his class; and had ridden numerous times on the team bus with Respondent. She testified that she believed Respondent would not have been involved with A.T. had he known she was a high school student. Respondent first encountered A.T. during MPHS lacrosse tryouts in late January 2016. A.T. was a junior at that time. Respondent had no further contact with A.T. until he sent her a December 12, 2016, text stating, “Hi! How was your weekend? You missed out on Saturday morning [referring to a workout designed for lacrosse players at CrossFit gym].” A.T., still a student at MPHS at the time of this text message, never replied to it. On March 15, 2017, Respondent sent another text message to A.T., stating, “Hey, what’s up? How have you been?” The remaining text messages sent by Respondent to A.T. were undated, but were sent between March 15 and their sexual encounter in late March. The text messages were sexually graphic. The messages sent by Respondent included explicit photographs, and while those sent by A.T. had explicit photographs, they were removed to protect her privacy. A.T. was a student at MPHS through December 2016. On January 12, 2017, the Miami-Dade School District conducted a conference to formulate an Individual Education Plan (IEP) for A.T. She was placed in a hospital/homebound program at that time and graduated from the virtual school in June 2017. She did not attend college during this time. Respondent never denied the one-time sexual encounter he had with A.T. On the day when the encounter took place, March 19, 2017, A.T. texted Respondent and asked if she could see him that night. A.T. was driven by a friend to Briar Bay Park where she met Respondent, who was already there and waiting for her in his car. She had sexual intercourse with him in his car. After their liaison, Respondent drove her home. A.T. and Respondent had no contact after that time. A great deal of testimony was elicited about whether Respondent texted or phoned A.T. and discussed her status as a student in March 2017. At different times during the investigation into the sexual encounter between A.T. and Respondent, he said he texted, instant messaged, or telephoned A.T. about her school. Respondent believed her to be taking courses at Miami Dade College (“MDC”) during the spring semester of 2017. In fact, she was a student at Brucie Ball Education Center (“Brucie Ball”), a virtual school where she took online courses to complete her high school education, graduating in June 2017. Respondent consistently believed, at the time of his interview by Detective Ochoa, during his deposition, and at hearing, that A.T. was in college and testified he was never told she was at Brucie Ball. A.T.’s memory is less clear. She testified she could not recall telling Respondent she was taking college courses, but there is no doubt she was enrolled at Brucie Ball during her final semester of high school and not at MDC. She remembers that she received a social media invite from Respondent to attend his CrossFit boot camp in December 2016. She recalls communicating back and forth via social media after that time, especially when Respondent texted her about missing her at boot camp. She and Respondent testified to multiple additional conversations via social media or texting, but many of those were not produced as evidence. When a three-month gap between their messaging occurred, Respondent testified that A.T. told him she had been backpacking in Africa with friends and, according to what he recalled she told him, she was taking courses at MDC. She did not recall having told him she was taking courses at MDC, but “guessed he knew” she was still a high school student because the previous year she had been a junior at MPHS. “It never came up,” she testified. While she could not recall having told Respondent she had been to Africa and was taking courses at MDC, A.T. testified she recalled many more text messages between Respondent and her that were not printed from her phone and introduced into evidence at hearing. According to A.T., she had not talked to Respondent about her upcoming 18th birthday on March 2, 2017. Yet, she invited him to the celebration at a club called “Do Not Sit on the Couch.” She also shared with him that she and her friends often visited another club called “Little Hoolies,” and invited Respondent to join them. Both of these clubs serve alcohol and are for adults over 21. Respondent did not join them at either club. A.T. did not recall any of these conversations at hearing. A.T. declined to be interviewed by Petitioner’s Professional Practices Services investigator. At hearing, she could not recall a request to be interviewed. Respondent assumed A.T. was older than 18 when they met at the park for sex, since he believed her to be taking classes at MDC; she hung out with her friends at two adult clubs; and she brought alcohol, a vapor pen, and THC oils with her when they met in the park. He did not believe this to be typical high school behavior. Respondent also believed A.T.’s absence from social media for three months before they had their encounter at the park was explained by her telling him she had been backpacking in Africa where he assumed she did not have readily available access to the Internet. He also believes this supported his understanding that A.T. was in college at that point, since three months of backpacking does not usually occur as part of a high school experience. Respondent consistently testified, from his statements to law enforcement to his appearance at hearing, that had he known A.T. was still a high school student, regardless of whether she was at the school where he taught, he would have never had an intimate relationship with her. Moreover, law enforcement never asked Respondent for his phone at the time of the investigation. After he learned A.T. had been a high school student in March 2017, when they had their one-time sexual relationship, on May 3 of that year he resigned his position as a teacher at MPHS for “personal reasons,” based upon advice he received from union representatives and an investigator, and to spare embarrassment to his school, colleagues, and family. At the time A.T. had entered into an IEP with Miami- Dade, her school was listed as South Miami Senior High School, not MPHS. This explains why Respondent never saw her again at MPHS in her final semester. There was no evidence presented that Respondent knew A.T. had not graduated from MPHS or that she had enrolled in either South Miami High School or Brucie Ball when she did not return to MPHS for the spring semester of 2017. Respondent’s assertion that he was unaware of A.T., an 18-year-old, still being in high school at the time of their March 2017 encounter, along with his cooperation with the investigation and admission at all times pertinent to it that he had a sexual relationship with A.T., renders his testimony more credible than A.T.’s concerning what Respondent knew about her status as a student. No evidence was produced that Respondent ever had an improper relationship with A.T. while she was under the age of 18. A.T.’s lack of candor and lack of cooperation with Detective Ochoa, the investigator on the case, as well as her incomplete memory of the various text messages with Respondent bring into question her truth and veracity when testifying against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the charges against Respondent in their entirety. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 23rd day of May, 2018.
The Issue The issue presented is whether Respondent is guilty of the allegations in the Complaint and Notice of Hearing filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent began his employment with Petitioner on October 25, 1977. For the last 13-14 years, he has been employed as a head custodian. On August 24, 1994, he was demoted from his position as the head custodian at Fulford Elementary School to the rank of custodian. Several days later, he was assigned to a high school where he has been employed as the acting lead custodian, a rank between custodian and head custodian. During the 1993-94 school year while Respondent was employed as the head custodian at Fulford Elementary School, a conference for the record was held on November 30, 1993, to discuss Respondent's work performance, his alleged gross insubordination, and his future employment with Petitioner. At that conference, Principal Pope and Assistant Principal Galgano discussed specific instances of their dissatisfaction with the manner in which Respondent maintained the yard at Fulford Elementary. Respondent was specifically advised that further deficiencies in his performance and further acts of gross insubordination would not be tolerated and could lead to further disciplinary action, including non-reappointment. On December 15, 1993, Respondent was issued a written reprimand for the reasons discussed during the November 30 conference for the record. That document entitled "Reprimand for the Record" states, in part, as follows: You are hereby officially recommended [sic] for gross insubordination and your inadequate work performance as a head custodian that refuses to perform his job description and job assignment. On that same date Principal Pope gave Respondent eleven written directives regarding his job duties in maintaining the yard, attending training, and using his walkie-talkie. On February 23, 1994, Principal Pope issued a memorandum to Respondent complaining that Respondent had arrived at work late on January 31 without giving her an explanation. On March 2, 1994, Principal Pope issued a memorandum to Respondent noting that on Saturday February 26, when the teachers and staff and their families worked in the school yard weeding and planting, the "yard had not been picked up nor had the lawn been mowed". That memorandum contained 9 directives. On March 24, 1994, the Director of Petitioner's Department of Plant Operations issued a memorandum to Principal Pope questioning the leadership of Respondent as head custodian and noting that Fulford Elementary School could be kept cleaner. On April 15 Assistant Principal Galgano and Respondent performed a quality assurance audit at Fulford, noting that some of the classrooms, corridors, and grounds were not maintained properly. By memorandum dated April 18 Respondent was directed to better supervise the other custodians and improve the appearance of the courtyard. By memorandum dated May 13, 1994, Assistant Principal Galgano directed Respondent to perform specific tasks in the school yard. By memorandum dated June 7, 1994, Assistant Principal Galgano wrote to Principal Pope, noting her May 13 memo to Respondent, noting that Respondent had to work overtime to prepare the grounds for visitors on May 25, and noting that Respondent had "shedded [sic] paper" while mowing the lawn in preparation for visitors to the school on June 3. On June 29, 1994, a conference for the record was conducted to address Principal Pope's recommendation that Respondent be demoted from head custodian to custodian. During the 1993-94 school year Fulford Elementary School was allocated 4.5 custodians according to Petitioner's formula. Yet, Fulford Elementary only employed 3 full-time custodians, including Respondent. A part-time person helped in the cafeteria for some undisclosed portion of that school year. Principal Pope determined which custodians worked which shift and the specific duties assigned to each. During the 1993- 94 school year Respondent was the only custodian at Fulford assigned to the 7:00 a.m. shift which ended at 3:30 p.m. The other 2 custodians, whom Respondent was responsible for supervising, worked the night shift which began at 3:00 p.m. They were responsible for cleaning the classrooms, offices, bathrooms, corridors, and the remainder of the school facility. As the only custodian on the day shift at Fulford, Respondent was responsible for disarming the alarm, unlocking the building in the morning, and "policing" the grounds. He also unlocked specific classrooms for substitute teachers. He also set up the cafeteria and worked in the cafeteria during breakfast removing trash, wiping tables, and washing the floor. After the cafeteria was clean, he was free to do his yard work until lunch time when he returned to the cafeteria to work there, removing trash and washing the floor and tables. In addition to his cafeteria and yard duties, however, Respondent was responsible for emergency clean-ups whenever a child became sick or was incontinent. He helped unload delivery trucks. He moved furniture and cabinets for teachers and office staff. He performed any other tasks requested by the principal. Respondent carried a walkie-talkie in order that the principal and assistant principal could reach him whenever they wished. The principal paged him to perform special assignments once or twice a day as did the assistant principal. The assistant principal had no problem reaching Respondent on his walkie-talkie. The principal complained that Respondent ignored her when she summoned him on the walkie- talkie. On one such occasion, one of Petitioner's master custodians who was on site looked for Respondent and discovered that Respondent was riding a tractor at the other end of the school site and simply could not hear the principal paging him. Principal Pope asked Assistant Principal Galgano to assist her in supervising the custodians. Galgano discussed with Respondent his work performance on different occasions during the 1993-94 school year. Respondent maintained that he was doing the best he could in view of the fact that he had no one to help him. During the previous school year Respondent had also requested that someone else work with him during the day. Having only one custodian during the day shift is a deviation from the standard recommended by Petitioner's Department of Plant Operations. An employee of that Department specifically advised Principal Pope that Respondent needed help since he was the only custodial worker on the day shift. A principal can request that one of Petitioner's master custodians be sent to the school site to train that school's custodial staff. During the 1993-94 school year a master custodian was sent to Fulford on one occasion at Principal Pope's request to provide additional training for one of the custodians who worked on the night shift. On that occasion and the other time that master custodian was at Fulford he observed the yard and determined that it was "not bad." Principal Pope never requested a master custodian to assist Respondent with additional training. A different master custodian employed by Petitioner's Department of Plant Operations was present at Fulford Elementary on two occasions during the 1993-94 school year and observed the yard. On both of those days the maintenance of the yard met Petitioner's standards. Similarly, the other custodians who worked at Fulford that year observed the yard when they came to work and rated its maintenance as an "8" or a "9" on a scale with "10" being the highest score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint filed against Respondent in this cause and reinstating Respondent to the position of head custodian with full back pay and benefits. DONE AND ENTERED this 31st day of December, 1996, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: J. Michael Haygood, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite No. 562 Miami, Florida 33132-1308 Ben R. Patterson, Esquire Patterson and Traynham Post Office Box 4289 Tallahassee, Florida 32315-4289 Mr. Octavio J. Visiedo Superintendent of Dade County Schools 1450 Northeast Second Avenue, Suite No. 403 Miami, Florida 33132-1308
Findings Of Fact At all times relevant hereto, respondent, Elizabeth Harrison, was an instructional employee of petitioner, School Board of Broward County. She has held a continuing contract of employment since 1961. When the events herein occurred, she was assigned as a media specialist (librarian) at Nova Middle School in Davie, Florida. Respondent has also used the name Elizabeth Dunn, her maiden name, and E. Dunn Harrison, a variation of her married name. Prior to this occasion, she had never been disciplined for misconduct. Harrison has known Walter James Stanley, Jr. since 1957 when Stanley was a student at a junior high school in Dade County where Harrison was employed. Stanley has been a mathematics teacher at Nova High School since 1981. Nova High School, Nova Middle School and two elementary schools share the same campus in Davie, but are located in different buildings and are considered separate schools within the Broward County school system. In 1984, Stanley made application with Southeast Bank, N.A. for various personal loans. In connection with one of those loans, he purchased insurance policy number 29-235, certificate number 188693, with Bankers Life Insurance Company of Florida (Bankers Life). Under the terms of the policy, whenever Stanley was disabled and unable to work, Bankers Life was obligated to pay the creditor (Southeast Bank) for that portion of the installment loan payment then due. On the credit application filled out on October 17, 1984, Stanley used the name "Walter Stanly," and gave his employment as a teacher at Nova High School. 2/ He also listed Elizabeth Harrison as his supervisor, and gave the telephone number 475-7760 as the number for the school. That telephone number was actually the telephone number in the media room at Nova Middle School where respondent worked. It should be noted that respondent had no personnel responsibilities in her position as a librarian, and had no connection whatever with Nova High School. Indeed, Stanley's personnel records were maintained by the office manager of Nova High School. On January 27, 1985, Stanley executed a claim form under policy number 29-235 with a general agent for Bankers Life. It was eventually forwarded to the claims department in St. Petersburg on February 20, 1985. The form has appropriate sections to be filled out by the creditor, insured, physician and employer. According to the section purportedly filled out by the employer on January 4, 1985, Stanley (referred to as "Stanly" in the form) had been disabled and absent from work at Nova High School since June 5, 1954. The employer section was not signed by an individual, but simply had the words "Personnel Records Secretary" in the signature block where the employer was to sign. However, in the line for the employer's address, the words "3600 College Avenue, Ft. Lauderdale, Fla., 33314 Attn: Elizabeth Harrison" were written. The employer's telephone number was listed as 305-475-7760. To verify Stanley's absences at work, Patricia Verbosch, a claims representative, telephoned 305-475-7760 on February 25, 1985. After Verbosch explained who she was and the purpose of her call, the person who answered the telephone identified herself as Harrison and said she was the personnel records secretary. Although Harrison denies that it was she who spoke with Verbosch that day, it is found that Harrison did indeed speak with Verbosch. Harrison confirmed to Verbosch that she had filled out the form and that the absences for Stanley were correct. Having been satisfied that Harrison filled out the form, the claims department later approved the claim for absences from work for the period August 14, 1984 through February 1, 1985 and paid the creditor $839.36 by check dated April 11, 1985. Without Harrison's representation, the claim would not have been paid. On May 21, 1985 the claims department of Bankers Life was contacted by petitioner's director of internal affairs, Howard Stearns, and told that three other insurance companies were investigating Stanley. Stearns also gave the department's supervisor, Nancy Berghammer, the actual dates of absences by Stanley during school year 1984-85 as well as Stanley's correct name, address and social security number. Shortly afterwards, Stanley made claim under his policy for continued disability after February 1, 1985. In view of Stearns' conversation, and conflicting dates of absences, Berghammer spoke with Stanley by telephone on June 19, 1985. She then telephoned 305-475-7760 the same day and spoke with a female who identified herself as Elizabeth Harrison. Although Harrison denies it was she who spoke with Berghammer, this is not deemed to be credible. Berghammer requested copies of the computer printout for Stanley's attendance record in 1984-85 and an affidavit verifying his dates of absence. She was told by Harrison that it would be supplied by mail. On July 5, 1985, Berghammer received a letter dated June 26, 1985 on Nova High School stationery which read as follows: TO: Banker's Life Insurance Company Claim's Department RE: Walter Stanly's absences from work March 9, 1945/ss#263-71-5128 Mr. Stanly was absent from work from March '84 to June '84; August '84 to June '85. The letter did not bear the author's signature. In connection with a credit application filed with Sentry Acceptance Corporation (Sentry) in Coral Springs, Florida, Stanley purchased policy number 95735 with American Financial Life Insurance Company (America) effective February 29, 1984. This policy provided that during any period Stanley was disabled and out of work, American was required to pay Sentry that portion of the installment loan then due during the disability period. On the application, Stanley used the name "Walter Stanly" and gave March 19, 1945 and 263-71-5128 as his date of birth and social security number, respectively. In January, 1985 Stanley filed a claim for payment under policy number 95735. In the form it was represented that Stanley was absent from work continuously from June, 1984 through December 19, 1984. The portion of the form where the employer was to give the dates of absence from work was blank. After checking with Stanley, an American claims clerk sent a letter to respondent on January 24, 1985 at Nova High School requesting that she document his absences from work. The letter was returned to the claims clerk with a notation on the envelope "Not at Nova H.S." However, on January 31, 1985 a completed claim form was received in the mail by American. The employer's section stated that "Stanly" had been absent from work continuously from June 19, 1984 through January 30, 1985, and that the employer "(didn't) know when Walter will return to work." It bore the purported signature of Elizabeth Harrison, Secretary Records, and gave the telephone number 305-475-7760. At about the same time American had directly contacted the principal's office at Nova High School requesting verification of Walter Stanley's absences. On January 30, 1985, the principal sent American a letter advising that Walter Stanley was absent from work on December 11 through 14, 17 through 20, 1984 and on January 22 through 25, 1985. When no payment on his claim had been made, Stanley telephoned American in February and was told the school had sent a verification letter with different attendance dates than those given on the claim form. After speaking with Stanley, American's office manager, Laurie Ragan, telephoned Nova High School and obtained a different spelling of Stanley's last name, as well as a different date of birth and social security number than those given on the credit application. In an effort to clarify the matter, Ragan telephoned 305-475-7760 on the morning of February 20, 1985 because Harrison's name and telephone number were given on the claim form. Without identifying herself, Ragan asked to speak to Elizabeth Harrison. A second female came to the telephone, and after Ragan identified herself, she gave the purpose of her call. Although Harrison denied it was she who spoke with Ragan, this assertion is not deemed to be credible. Harrison told Ragan she had just seen Stanley that morning, and would forward the requested information. On February 25, 1985 Ragan received a letter dated February 27, 1985 on Nova High School stationery which stated as follows: Stanly, Walter/bd-March 19, 1945 To whom it may concern: Mr. Walter Stanly (263-71-5128) has been absent since June 15, 1984 and as of now he is still out, because of illness. Sincerely, Elizabeth Harrison The letter was written on Nova stationery which was no longer being used. Such stationery was available to all teaching personnel. On March 7, 1985 American sent Stanley a letter advising him that in view of the "many discrepancies" in his name, social security number, date of birth and absences from work, it would no longer honor his claims until such discrepancies were "cleared up." Stanley also purchased disability policy number H1-839-092 from Northwestern National Life Insurance Company (Northwestern). This policy was not purchased in connection with a loan. The application was made on October 26, 1984 and the policy became effective January 1, 1985. Stanley used the correct spelling of his name and date of birth on the application. On March 27, 1985 he executed a claim for disability benefits ($1,000 per month) under the above policy indicating he became totally disabled on February 1, 1985 and did not expect to return to work until August, 1985 due to a leg injury received from tripping over a water hose. The form also reflected that Elizabeth Harrison was the appropriate employer representative to be contacted. The telephone number 305-475-7760 was given. After receiving the claim on April 2, Anita Holmes, a disability claims examiner for Northwestern, engaged the services of Equifax, a firm which specializes in insurance investigations. Holmes requested, among other things, that Stanley be interviewed and that his attendance records from Nova High School be obtained. The investigator, Walter Lohmann, interviewed Stanley at his residence on April 19, 1985. After interviewing Stanley, Lohmann went to Nova High School to secure his attendance records, but he could not find an Elizabeth Harrison in that school's personnel office. On April 23 he returned to Nova Middle School and went to the media room. He entered, introduced himself to Harrison and requested Stanley's attendance records. She told him the hard copies were at the school board central office but she could supply the information from a 3x5 file card she had in her file box. She then retrieved a 3x5 card and told Lohmann that Stanley had been absent continually from February 2 through April 14, 1985. Lohmann later received a copy of Stanley's attendance records from Nova High School and they reflected that Stanley was actually absent on February 6 and March 7, 8 and 11 (1/2 day) due to illness. As a result of this investigation, Holmes wrote Stanley on May 3, 1985 advising him that his claim had been denied. Respondent denied (a) that she was involved with Stanley, (b) that it was she who had spoken with Verbosch and Ragan on the telephone, (c) that she had authored and mailed the employer's statements and various letters sent to the insurance companies, and (d) that she had given Lohmann the false attendance records on April 23, 1985. However, she did concede that Stanley, an old friend, may have asked her to participate in the scheme on one occasion. To support her steadfast denial, Harrison produced an "alibi" witness who claimed she was with respondent on the morning of February 25, 1985. According to this witness, she specifically remembered taking Harrison to work that day around 12:30 p.m., or after Verbosch had telephoned the media office and spoken with a female who identified herself as respondent. However, this testimony is discredited since the official school attendance records reflect Harrison was present at work the entire day. Harrison also offered an expert documents examiner who opined, without credible contradiction, that the signature on Harrison's personal checks was not the same as the signature on the letter purportedly authored by Harrison on February 25 and the employer's certificate on the various claim forms. In fact, the expert found that the claims form certificates may have signed by two or three different persons. In view of this testimony, it is found that Harrison did not author the letter dated February 25 or sign any of the various claim forms. It is further found that Harrison did not receive any financial reward by virtue of her conduct. 4/ However, the remainder of her testimony is not deemed credible, and it is found she had knowledge of the letters and forms, and otherwise aided and assisted Stanley in his efforts to defraud the insurance companies. A former associate superintendent testified on Harrison's behalf and stated that if the facts in the amended petition were true, it would still not justify her dismissal. However, the witness acknowledged that if Harrison represented herself to various insurance companies as a responsible school official for the purpose of allowing a third party to collect unauthorized benefits, such conduct would be "serious" and would warrant the consideration of dismissal as a penalty. Harrison's principal could not say whether Harrison's effectiveness as a teacher at Nova Middle School was impaired by virtue of her conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and she be suspended for school year 1986-87 and thereafter reinstated on probationary status the following two years, with a return to annual contract status in school year 1989-90. All other charges should be dismissed. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. DONALLD R. ALEXANDER 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 12th day of August, 1986.
