The Issue Whether actions taken by the Hillsborough County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended. whether budgeting and establishing positions by the School Board is sufficient to meet the test of comparability.
Findings Of Fact The Respondent, through its compensatory education section, has the responsibility of administering the Title I program, as called for in the Elementary and Secondary Education Act of 1965, as amended, and for dispensing federal-funds to the various school districts throughout the state of Florida. Petitioner, Hillsborough County School Board, is a large urban school district of over 100,000 children. It has some 11,000 employees and 6,000 instructional employees. Employees are allocated on the formula of a per pupil basis, and numerous adjustments must be made after the fall opening of the schools because of major shifts of pupils over a summertime. Allocations, in order to comply with Title I, is a task which requires a great deal of attention, particularly in the fall of the school year. The following sequence of events are pertinent: The Hillsborough County Title I application for FY '75 was approved initially on the basis of the assurance which was signed by the District School Superintendent indicating that comparability existed in the Hillsborough County Title I schools and would continue to be maintained throughout the 1974-75 school year. A memorandum dated September 27, 1974, was signed by Halley B. Lewis, Jr., Administrator, Compensatory Education, and was circulated to all local school districts in Florida confirming that the U.S. Commissioner of Education was designating October 1, 1974, as the date for collecting data on which a comparability report for FY '75 would be based. On October 7 and 8, 1974, the Compensatory Education Section in the Florida Department of Education sponsored a statewide meeting of Title I, ESEA personnel in Orlando. One of the sessions was devoted to comparability. On November 7 and 8, 1974, the Compensatory Education Section of the Florida Department of Education called a meeting for District School Superintendents, Finance Officers, Federal Program Directors and ESEA, Title I Coordinators from the eleven (11) most populous counties in Florida at the request of one (1) or more District School Federal Program Directors. One- half of the program--which amounted to one-half day--was devoted to comparability as outlined in Section 116.26 of the regulations as promulgated in the Federal Register, Volume 38, Number 124, for Thursday, June 28, 1973. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT", the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." On November 27, 1974, a letter from the Hillsborough County School District, dated November 26, 1974, and an original comparability report were received by the Compensatory Education Section of the Florida Department of Education. On December 2, 1974, a letter from Hillsborough County School District dated November 27, 1974, and a revised comparability report were received by the Compensatory Education Section in the Florida Department of Education. A letter, dated December 5, 1974, was forwarded to the Hillsborough County School District by the Compensatory Education Section requesting the dates that the personnel authorized by the School Board on November 26, 1974, reported for work. The Hillsborough County School District, in a letter dated December 10, 1974, submitted to the Compensatory Education Section a partial report detailing the beginning employment dates of some of the personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements. On December 13, 1974, Ralph D. Turlington, Commissioner of Education, Florida Department of Education, received a telegram from Robert B. wheeler, Acting Deputy Commissioner for School Systems, U.S. Office of Education: "This is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal audit. Your continued cooperation is appreciated." The Hillsborough County School District, in a letter dated December 17, 1974, submitted a final report to the Compensatory Education Section detailing the actual beginning employment dates of personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements. The Director of the Elementary and Secondary Education Division in the Florida Department of Education notified the Hillsborough County School District that ESEA, Title I funds were being withheld from December 1 through December 16, 1974. A letter from the Compensatory Education Section was sent to the Hillsborough County School District on December 20, 1974, for the primary purpose of reaffirming the necessity to maintain comparability. The Compensatory Education Section of the Florida Department of Education, in a letter dated January 3, 1975, notified the Hillsborough County School District of accounting procedures to be followed for the period of suspension of ESEA, Title I funds from December 1, 1974 through December 16, 1974. The Hillsborough County School District sent a letter dated January 8, 1975, to Commissioner Ralph D. Turlington, Florida Department of Education, along with the documentation they used as a basis for requesting "a special hearing to appeal withholding ESEA, Title I funds for Hillsborough County schools from December 1, 1974 through December 16, 1974." On January 24, 1975, the Commissioner of the Florida Department of Education wrote the district school superintendent in Hillsborough County granting their request for a hearing to appeal the withholding of Title I, ESEA funds. Petitioner, Hillsborough County School Board, applied for and received Title I funds for the school year 1974-75. It became apparent from the memorandum marked "URGENT" from the Department of Education, dated November 20, 1974, that some reallocation was necessary. On November 26, 1974 the Hillsborough County School Board authorized additional positions budgeting funds for the positions and on November 22, 1974 filed its report choosing the option to hire additional people into the Title I schools rather than shifting personnel who were already working in the non-Title I schools. By letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 2 through December 16, 1974, for the reason that the additional personnel required were not hired and all did not report to work until December 16, 1974. Some $63,000 of additional local funds were required to hire the additional personnel. Funds withheld from Petitioner in excess of $153,000 are Involved in this hearing. Petitioner contends: That it acted in good faith. That the Board action on November 26, 1974, budgeting, approving and establishing the additional positions was compliance both with the federal statutes and regulations and with the requirements of the memorandum from Mr. W. J. Darden of the Department of Education dated November 20, 1974. Respondent contends: That comparability is a continuous state of being, that it not only must be achieved, but must be maintained throughout the year; That upon collection of the data on October 1, it is incumbent upon the school board not only to approve and establish the additional positions but also to see that the persons are hired and in place, on the job, on or before the filing of the report on December 1. The Respondent's position is that the last person necessary to achieve comparability was not in place on the job in Hillsborough County until December 16, 1974, and therefore it had no alternative but to withhold the funds during the period December 2, 1974 through and including December 16, 1974. The statute under consideration is 20 USCA Sec. 241(e): "(a) A local educational agency may receive grant under this subchapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish)--... (3) That ... (c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this subchapter: . . . Provided further, That each local educational agency receiving funds under this subchapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; ..." The regulation under consideration which was promulgated to implement the statute is 45 CFR 116.26, a part of which reads: "(a) A State educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payment of title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in schools serving attendance areas not designated as title I project areas. Such approval shall not be given unless the local educational agency also provided the assurances and the additional information required by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with 116.45." 116.26(c) "If any school serving a title I project areas is determined not to be comparable under this paragraph, no further payments of title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient addi- tional resources to title I project areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance..." The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
Findings Of Fact At all times pertinent hereto, Respondent, William B. Bailey, was a certified teacher in Florida employed by the Broward County School System (BCSS). He has been a teacher for 22 years and has taught at Markham Elementary School, (Markham) for 18 or 19 years. Respondent has generally had a good rapport with young boys. He has an adopted 26 year old son who was recently promoted to Captain in the U.S. Air Force. Allean Jones has known Respondent and his parents for many years. Several years ago she became the guardian of her grandson, Earl Edwards, who, for a long time, had disciplinary and behavior problems at home and at school due, at least in part, to his difficult home life with his natural mother who bore him at age 14. For some time, several years ago, Earl Edwards was a student at Markham of Respondent who developed a good relationship with him. While the student-teacher relationship existed, on numerous occasions, Earl went to Respondent's home where he swam, ate, played, and spent nights, always with Mrs. Jones's permission. She feels Respondent, who bought Earl clothes and paid his dental bills, is a good influence on him and she has offered to let Earl stay with him on a permanent basis. At no time did she object to Respondent's relationship with her grandson, and felt it to be beneficial rather than detrimental to his best interests. Unfortunately, Earl has left school since he graduated from Markham and she does not know where he is now. Mr. William Bell, who was principal at Markham at the time, heard about Respondent's relationship with Earl from two staff members and, without any investigation of the situation and without checking with Earl or his grandmother, concluded that since Respondent was an unmarried male, his off- campus contacts with a young male student were inappropriate and he asked Respondent to cease contact with his student off-campus or before or after school and on weekends. Had Respondent been married, Mr. Bell's reaction might well have been different. Mr. Bell believes that the Teacher Code of Ethics conflicts with off-campus contacts in such a manner as would interfere with teacher effectiveness, and parental approval would make no difference. This request to cease contact with Earl Edwards, in 1980 or 1981, somehow became a part of Respondent's record in the BCSS. No copy of any written request was produced by Petitioner, however, nor was any record reflecting it. Both Bell and Dr. Thomas Johnson, Associate Superintendent for Human Resources in the system, recall the incident, though. When requested to cease off-campus contacts with Earl, Respondent complied. In the Spring of 1986, the new principal, Ms. Dorothy Wooten, was approached by a teacher, Ms. Denise Wright, and the school counselor, who requested that she tell Respondent to leave some of her students alone and stop socializing with them when they should be in Ms. Wright's class. The students in question were Sedaniel Allen and Willie McCloud, who, apparently, would leave her class without permission and, she believed, go to visit with Respondent in his planning area. She believed this is where they went because, though she did not check on them to see where they were going, they told her that's where they were going when they asked her for permission to leave. She periodically gave it and therefore assumed that they would visit Respondent when they left without permission. Ms. Wooten did not investigate the situation herself, but, as a result of Ms. Wright's request, called Respondent in and spoke with him about the situation in the presence of the students in question and both complainants. Respondent seemed as though he would comply and she took no formal action. It appears, however, that the situation continued and a short while late, she talked with Respondent again about the same students and again he seemed to agree. It was after the second meeting that she wrote a memo summarizing the situation. After this second conference, she spoke with Ms. Linda Gaines, Sedaniel's mother, who indicated that Sedaniel had spent the night at Respondent's home without her permission or knowledge, and neither Sedaniel nor Respondent had called her to let her know he was there. When Sedaniel went to Respondent's home a second time without her permission, Sedaniel's step-father went to Respondent's home and got him. Further discussion of these incidents is found in paragraph 15 et seq. infra. After Ms. Wooten received this information from Sedaniel's mother, she wrote Respondent a letter on May 1, 1986 recounting the substance of the interview with Ms. Gaines and advised him she was referring the matter to the Internal Affairs Division, (IA), of BCSS. A week later, she wrote another letter to Respondent requesting that he restrict his contact with Sedaniel and Willie to the scheduled class time and "strongly advised" him to have no other contact with them. In a subsequent meeting held with Ms. Wooten, the students' parents, and Mr. Joseph Viens, an investigator with IA, at the investigator's suggestion, at least some of the parents indicated they did not want the Respondent to have any off-campus or extra-class contact with their children. At this point, Respondent indicated he would talk with his attorney before discussing the matter any further. Respondent took that position only after the investigator accusatorily pointed his finger at him and called him a faggot. Respondent strongly denies being a homosexual and there is no evidence to suggest otherwise. By the same token, Respondent's recounting of the investigator's public accusation was not contested either and is found to have occurred. Having done all she felt was required by reporting the matter to IA and by advising Respondent in writing to refrain from further off-campus contact, Ms. Wooten felt she was out of the matter until one day in October, 1986 when she noticed Sedaniel and Willie loitering after school and not going home. When she looked into it, she found Willie sitting in Respondent's classroom with Respondent and another person. She called both Respondent and Willie to her office where she recalled her instructions to Respondent to avoid extra-class period contacts with these boys and again stated her requests. In response, Respondent stated Willie had been injured and he was going to take him home. Willie confirmed he had been injured one day around this time in an afternoon ball game and the following day, aggravated the injury at recess. When he reported this to his teacher, Mr. Collins, this individual did not consider it serious and refused to let Willie do anything about it. It got worse during the day and swelled up and after school, Willie went to Respondent's room where he saw Mrs. Ruise, Respondent's team teacher. Respondent was at a meeting away from the area. Mrs. Ruise saw that Willie's ankle was injured, but did nothing for him and when staff departure time came, left the school locking the classroom door and leaving Willie out in the hall. When Respondent came back to his classroom somewhat later, he found Willie curled up on the hall floor outside the room crying. Willie's ankle looked bad but Respondent nonetheless questioned him in a forceful tone to find out what had happened. Willie said he needed a ride home. After some serious questioning and initial refusals, Respondent ultimately relented and agreed to take Willie home even though he knew he was not supposed to have contact with him. He saw Willie at school the next day and attempted to talk with him about his ankle in the cafeteria, but was unable to do so. After school, during a conversation with Mrs. Ruise, he again saw Willie who once more asked for a ride home. When, upon questioning, Willie told him he had gotten a ride to school that morning because of his ankle, Respondent gave him a tongue lashing and told him to get someone else to take him home. As Willie told him there was no one else around to do it, Respondent reluctantly agreed and did take him home, but that was the last contact he had with Willie. It must be noted here that Respondent, on both occasions, agreed to give Willie a ride without checking around the school to see if someone else was available to do so. There was some question whether Willie was actually injured at this time and needed a ride. Ms. Wooten heard from other staff members that Willie did not seem to be nor did he complain of being hurt. By far the better evidence, however, clearly indicates that Willie was hurt on this occasion and needed transport and it is so found. Respondent used poor judgment in not looking for someone else to take Willie in light of the injunction he was under and in not reporting the contact after the fact. There is also some issue that Willie may have hidden in the car at Respondent's direction when Respondent drove him home. This is not established. Even according to Willie, it was his idea to hide to keep from being seen because of the fact that Respondent had been instructed not to be with him away from class. There is no evidence that Respondent attempted to conceal any of his actions with regard to Willie. As a result of all the above, on October 7, 1986, Ms. Wooten again sent Respondent a memo to advise him that all future incidents of unauthorized contact would be reported to IA. She was informed by IA that Respondent had had off-campus contacts with other students in addition to Sedaniel and Willie. These included Reggie Nixon, Andre Murray, and Trenton Glover among others. It was reported to her that Respondent would instruct them to meet him at a shopping center from which he would take them to his home where they would do chores for him there and at his nightclub. She felt this reported behavior, which she did not disbelieve, was inappropriate because (1) it was an abuse of his position as a teacher, and (2) a nightclub is no place for children. Ms. Wooten believes Respondent's effectiveness as a teacher has been adversely affected because she has heard the students are questioning his ability to control his students and are making moral judgments about his behavior in regard to Willie and Sedaniel. She has heard no specific comment by any student, however. During the period she has worked with Respondent, she does not feel there have been any conflicts which would create animosity on either his or her part. In fact, she has recommended him for several special projects which would be to his benefit. Ms. Wooten is convinced that Respondent has an ability to relate to troubled children who tend to seek him out. In fact, former students often come back to school to see him. This is both good and bad. Initially, she favorably commented on this in an evaluation of Respondent but after some of these students began making trouble, and after, at a course she took, she learned that this conduct may indicate inappropriate luring of children for improper purposes, she began to look at it differently and tried to put a stop to it. With regard to Sedaniel Allen, Ms. Gaines' dissatisfaction with Respondent arose out of an incident in April, 1986, when Sedaniel had spent the night at Respondent's home without either Respondent or Sedaniel calling to let her know he was going to do that. Prior to the weekend in question, Respondent, acquiescing in Sedaniel's request to be allowed to come over with some other boys, wrote her a note requesting permission for Sedaniel to come to his house to work for him for pay. She agreed to this and signed the permission slip but never returned it to the Respondent. Had Sedaniel returned home on Saturday night, she would not have been upset. In fact, however, Sedaniel did not come home until Sunday evening when Respondent dropped him off. Ms. Gaines and her husband were angry over this and told Sedaniel they didn't want him to go back to Respondent's house ever again. They did not pass this information on to the Respondent, however. Nonetheless, two weeks later, on a Saturday morning, Sedaniel disappeared again. When she checked around, she found that Respondent had picked him up again at the "Gate" of the housing project in which they lived. That evening, Mr. Gaines went to Respondent's house in Deerfield Beach where he found Sedaniel watching television. On this occasion, Respondent had not sent home a permission slip, but subsequent inquiry showed it was Sedaniel who initiated the visit and who had told Respondent that he had permission to be there. He had also told Respondent he had permission to spend the night on the first visit. On these visits the boys would swim, watch television, wrestle (with, on occasion, Respondent) and generally have a good time. Sedaniel indicates that he met with Respondent in his classroom after class on several occasions to discuss what would be done when he was at the Respondent's house. Some other teacher was always there when this happened. On most other occasions, Sedaniel would go to Respondent's classroom with Willie McCloud and wait while Willie would ask Respondent for a ride home. Ms. Sandra Ruise, who knew Sedaniel as one of her own students, and who was Respondent's team teacher, was frequently in the area of the room. She never saw Sedaniel in Respondent's room outside of class hours nor did she ever see any student come to have lunch in Respondent's classroom while she was there and she ate in the room with the Respondent almost every day. She knows Sedaniel's reputation for telling the truth, gleaned from discussions with other teachers and his mother, and it is not good. He has even lied about her, filing a false report about her which he subsequently recanted. Consequently, while it is clear Sedaniel did go to Respondent's home on two occasions, once without permission and once with permission for only a day visit, he was not a frequent visitor to Respondent's room outside of class hours and Respondent's relationship with him at school was not improper. As to the unauthorized visits by Sedaniel to Respondent's home, it is also clear that Sedaniel initiated the visits, begged to stay over night, and lied about having permission to be there. None of this excuses Respondent's failure to verify and have presented to him some concrete evidence of parental authorization for the visit and the length thereof, however. Sedaniel and some other boys, Willie McCloud, Andre Murray, and Trenton Glover, were with Respondent one time when he was on an errand and stopped by Club Bailey for a moment to drop something off. On that occasion, they picked up beer cans from a vacant lot and cleaned ashtrays outside the building. It well may be that the club was open at the time, a Sunday morning, (Respondent was inconsistent in his stories as to whether the club was open), but aside from Sedaniel's uncorroborated allegation that he cleaned the ashtrays inside the club, all the other testimony, including that of the other boys, indicates, and it is so found, that they did not go inside. Respondent alleges that one of the male visitors to Respondent's home on one of the occasions when the boys were there swimming made a remark to the effect that Reggie Nixon was "fine meat" or words to that effect and that Respondent immediately told this individual to keep quiet. Neither comment was heard by Reggie, though Willie and Andre allegedly did. Even if the comments were made, however, the evidence is clear that there were no approaches made to any of the boys, they were not touched or bothered in any way, and in fact, were not spoken to at all by any of the men in question, all of whom deny such comments being made. There is also no support for the allegation that one of the men asked if the boys had ever had sex with a man. What is certain, however, is that Sedaniel has a reputation for being untruthful and his report, as well as his characterization of Respondent's visitors as "faggots", is lacking in credibility. Each of the visitors identified by Sedaniel and the other boys testified at the hearing. The boys' descriptions of one or more of the men as "faggots" were based on their opinions of their hair styles, laughs, and voice patterns. This evidence is not enough to support a finding that there was anything untoward about Respondent's guests, especially in light of the youth and lack of sophistication of these boys and the unequivocal denials of Respondent and the other men. The investigation into Respondent's conduct, conducted by the school system's internal affairs division at the request of Ms. Wooten, resulted in a report incorporating much of the above information which was referred to Dr. Thomas P. Johnson, Associate Superintendent for Human Resources. Dr. Johnson referred it to a committee for evaluation which resulted in a recommendation to bring charges against the Respondent. The action here was based upon the allegations that respondent had taken students to his home without parental permission; that some of the students involved had indicated Respondent's friends were "faggots"; that there was an allegation by one of the children that they had been worked in Respondent's night club; and that Respondent had disregarded a direction from his principal to cease this activity. This all was aggravated by allegations that Respondent had been the subject of a report of similar activity several years previously which, while not resulting in disciplinary action against him, had resulted in a "Cease and Desist Order" being issued. This prior order was not offered into evidence. School officials considered that Respondent's failure to abide by the orders given him by his principal showed a lack of judgment and integrity and his invitation of the students to his home violated the ethical requirements of the Teacher's Code of Ethics. It must be noted that off-campus contacts are not, per se, improper if done with parental consent. With regard to the issue of parental consent, Respondent always sent a note home requesting permission. Sedaniel lied about having permission to spend the night on the first visit and about having permission on the second visit. If Respondent is at fault, it is in failing to insure by a phone call or by seeing the permission slip itself, that what he was told by Sedaniel was true. As to Respondent's alleged disregard of Ms. Wooten's direction to stay away from Sedaniel and Willie, the evidence is clear that Respondent attempted to do just that; that the two occasions on which he gave Willie a ride home, (the only contacts he had with Willie after the direction from the Principal), were as a direct result of Willie's initiation and Respondent's unwillingness to allow an injured boy to fend for himself. Respondent showed poor judgment here but the evidence does not support a finding of misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent be reinstated to a teaching position with the BCSS and that that he be awarded full back pay and benefits. RECOMMENDED this 15th day of July, 1987, 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 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4727 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact (PFOF) submitted by the parties to this case. By the Petitioner Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. The witness's testimony related to Earl Edwards and was offset by Edwards' grandmother. Accepted and incorporated herein. Rejected as a recitation of testimony, not a FOF. Accepted and incorporated herein. Rejected as it refers to any male in female garb which does not appear in the record as represented. Accepted. Accepted and incorporated herein. 9-11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 14-15. Accepted and incorporated herein. 16-19. Accepted and incorporated herein. 20. Misleading. Respondent did take students to his home and paid them to perform chores in the yard. He did go to his lounge with some students on one occasion, but did not take them inside. 21-22. Accepted as the witness' opinion. Misleading. Sedaniel Allen, a reported liar, told Respondent not to pick him up at home. This was due more to Sedaniel's manipulation than to Respondent's actions. Rejected as contrary to the evidence. Rejected as contrary to the evidence. Accepted and incorporated herein. Respondent sent home a permission slip. The child reported he could stay. Respondent did not know he could not. Proposed FOF is incomplete and misleading. Accepted but phrased in a misleading way. Accepted as to the 1st and 2nd sentences. Accepted and incorporated herein. 31&32. Accepted and incorporated herein. This PFOF is misleading. The students went to the club once where Sedaniel cleaned some ashtrays outside while Respondent was doing something inside. The bar was closed to the public at the time and no alcohol was being served. The Respondent1s associates were at his home not at the club and there is substantial doubt as to the alleged comments. That the students were left at home unsupervised is contradicted by the Respondent who says his mother would come over and sit. In any case, this element is not in issue as to the charges. Accepted as to the facts, not the inferences. This PFOF does not make sense. Rejected. Accepted. Accepted. Rejected in that the transcript says he went to Respondent's home on 5 to 10 occasions but did not spend the night each time. Accepted as to what the witness testified to. Use of word feminine is improper. The cousins were male but were described as feminine in demeanor. Accepted. 42&43. Accepted. Accepted (See 33, supra). Accepted. Accepted. Misleading in that this student is the one who initiated all contact after the principal's directive. Accepted as the witness's opinions--the issue of comments was not established. Accepted but irrelevant. Rejected as an improper conclusion drawn from the evidence. This PFOF is incompetent in that it is impossible to determine who is being described. Rejected as contrary to the weight of the evidence admitted at hearing. Accepted and incorporated herein. 54&55. Accepted. 56&57. Accepted. By the Respondent 1-3. Accepted and incorporated herein. 4-10. Accepted. 11. Accepted and incorporated herein. 12. Accepted. 13-15. Accepted and incorporated herein. 16-21. Accepted. 22&23. Accepted and incorporated herein. 24. Accepted. 25&26. Accepted. 27-31. Accepted. 32-35. Accepted. 36-40. Accepted and incorporated herein. 41-44. Accepted and incorporated herein. 45&46. Accepted. 47. Accepted. 48. Accepted. 49. Accepted and incorporated herein. 50-55. Accepted. 56-58. Accepted and incorporated herein. 59. Accepted. 60-66. Accepted and incorporated herein. 67-76. Accepted and incorporated herein. 77. Accepted. 78-80. Accepted and incorporated herein. 81-83. Accepted. 84-90. Accepted and incorporated herein. 91-93. Accepted. 94-96. Accepted. 97-100. Accepted. 101-104. Accepted. 105&106. Accepted and incorporated herein. 107&108. Accepted and incorporated herein. 109. Accepted. 110-115. Accepted. 116. Immaterial. 117-119. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. 124-125. Accepted. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 S.W. 4th Street Fort Lauderdale, Florida 33312 Charles T. Whitelock, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Leslie Holland, Esquire Staff Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent wrongfully terminated Petitioner's continuing contract of employment.
Findings Of Fact Petitioner is currently a doctoral level graduate student. At all times relevant hereto, she held a continuing contract as a professor at SCC in the Networking and Electronics Program (the "Networking Program"). Respondent is a community college within the state community college system. It is governed by its Board of Trustees. Dr. Ann McGee is president of SCC; vice president of Educational Services is Dr. Carol Hawkins. Angela Kersenbrock is the dean of Career Programs, including the Networking Program. Department chair in that program is Leon Portelli. Beginning in calendar year 2003, SCC began to experience decreased student enrollment, especially in the area of the Networking Program. SCC instituted a program review under Dean Kersenbrock's tutelage. A program review provides for the collection of relevant data to ascertain the continued viability of programs within the college. The program review of the Networking Program found low and declining enrollment and retention, a perceived job market decrease, difficulty in recruiting industry partners, and limited internships for students. Based on those findings, a series of recommendations were made to improve the Networking Program. Included in the recommendations were the following: increase class size, reduce faculty (Reduction in Force (RIF)), cross-teaching in other areas, cut back on adjuncts, reduce contract length, consolidate courses and sections, and work closely with industry partners to locate jobs for graduates of the program. Many of the recommendations were implemented even before finalization of the program review. However, in February 2007, Dean Kersenbrock decided the measures being taken were not alleviating the problem. She then submitted her formal recommendations to the Board of Trustees. A formal presentation was made to the Board of Trustees on April 17, 2007. After much discussion and debate, the Board of Trustees approved the recommendation from Dean Kersenbrock's review committee to implement a RIF in the Networking Department. At that time, there were five faculty members in the department, including Petitioner. The other faculty members were: John DelGado, Ben Taylor, Bill Irwin, and Gary Belcher. The proposed RIF intended to reduce the faculty from five to two. Irwin and Belcher were immediately selected for termination due to the fact that they could teach fewer topics within the department than could the other three staff. After they were terminated, SCC had to select one of the three remaining staff (DelGado, Taylor, and Petitioner) to be the final cut for the RIF. Each of the three had identified strengths and weaknesses; so, the selection was a difficult one to make. In order to make the decision, the following factors were considered: (1) the essentiality of the position, (2) work performance, (3) attendance record, and (4) supervisory recommendations. If all those factors are equal between the faculty members being considered, then length of service to the college would be the determining factor.1 SCC evaluated DelGado, Taylor, and Petitioner and found them, on aggregate, to be equal as far as the four factors were concerned. Each faculty member had strengths and weaknesses within the four categories, but were essentially "tied" when it came down to making a decision.2 Petitioner correctly pointed out that of the three faculty members, she was the only one who had experience making presentations at national level conferences. This fact weighed in her favor, but it was not enough to outweigh the strengths of the other faculty members. Likewise, Petitioner has the ability to teach a number of different classes, a positive in her favor. But, again, her abilities did not make her more essential than the other two. Some questions were raised about Petitioner's work performance, attendance record, and poor supervisory recommendations. However, none of those questions indicated that Petitioner was inferior to her fellow professors. Neither of the parties offered into evidence a true comparison of the three faculty members. There was some indication that each had strengths and weaknesses, but each person's individual assets or liabilities weren't described with any particularity. Thus, a substantive de novo review of that part of Respondent's decision making process is not possible. When all was said and done, Petitioner's length of service at SCC was shorter than the other two, and, thus, she was selected for the final RIF cut. Pursuant to SCC policies and procedures, an employee affected by a RIF must be given at least two weeks notice prior to the reduction taking effect. Petitioner was advised twice concerning her termination: once in a letter from the director of Human Resources Development--letter dated April 26, 2007--and once in a letter from SCC's president, E. Ann McGee--letter dated May 17, 2007. The latter correspondence provided Petitioner her appeal rights. Petitioner was provided her severance package in accordance with SCC policies. President McGee's letter to Petitioner stated in part, "You have the right to appeal the Board's decision pursuant to Chapter 120, Florida Statutes." However, the letter did not address Petitioner's right to appeal directly to the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be given an opportunity to select a direct appeal to the Board of Seminole Community College. As far as the instant case is concerned, Petitioner failed to meet her burden of proof and the termination of her contract would be upheld. DONE AND ENTERED this 16th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 16th day of November, 2007.
The Issue The issue is whether Respondent should be terminated from her position as an instructional employee for gross insubordination and being willfully absent from duty.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this termination case, Petitioner, Lake County School Board (Board), seeks to terminate Respondent, Brenda Armstead, an instructional employee, on the ground that she was willfully absent from duty without leave and guilty of gross insubordination by virtue of having repeatedly refused to report to her job assignment. In a letter dated May 26, 2000, Respondent asked for a hearing "as soon as possible," contending that the "termination was illegal." In school year 1999-2000, Respondent was employed as a teacher at Lake Hills School in Eustis, Florida, where she taught 3 to 5-year-old children with severe emotional disabilities. In September 1999, Respondent was arrested for stalking. However, the criminal charges were later dropped or reduced to a lesser charge. Pending the disposition of the matter, Respondent continued working in the classroom. In January 2000, Respondent reported to her supervisor that she had been exposed to "CMV," an infectious viral disease. Despite being tested as negative, Respondent continued to have concerns with her health and began to exhibit unusual or bizarre behavior in the classroom. Among other things, Respondent constantly wore gloves in the classroom, avoided physical or close contact with her aides, and exhibited other unusual habits or practices. She also began sending "unusual" correspondence to the Superintendent. Because of this, she met with her principal and the Board's Assistant Superintendent on February 14, 2000. At that meeting, Respondent was orally directed to report to the Board's MIS Copy Center (Copy Center) effective immediately until she "could meet with a medical doctor." This action was authorized by School Board Policy 6.171(4), which allows the Board to "require a physical, psychological, and/or psychiatric examination by a physician licensed in the state of Florida when in the School Board's judgment such an examination is relevant to the teaching performance or employment status or a School Board employee." Given Respondent's behavior, the transfer to a non-teaching position was also appropriate and necessary since Respondent was working with emotionally handicapped children. Accordingly, the Board arranged for an evaluation of Respondent by a Dr. Kendall on February 17, 2000; that physician recommended that Respondent be further examined by a psychiatrist. By letter dated February 24, 2000, the Board's Superintendent again directed Respondent to report to the Copy Center for temporary duty pending the results of the examination. The letter was hand-delivered to Respondent on February 25, 2000. Despite both orders, Respondent never reported to work at the Copy Center. Although she "came on campus" a couple of times, she never returned to work. She was later given another oral instruction by telephone on March 16, 2000, by the Board's Assistant Superintendent. By certified mail sent on April 13, 2000, the Board's Superintendent again directed Respondent to report to work, and he warned that if she did not do so by April 19, 2000, she would be subject to being terminated for being absent without leave, gross insubordination, and willful neglect of duties. Respondent received the letter the following day. Even so, she never reported to work. It is fair to infer from the evidence that Respondent was willfully absent from work without leave. On April 21, 2000, the Superintendent recommended to the Board that Respondent be terminated because of her "continuing intentional refusal to report to work despite repeated direct orders, reasonable in nature, and given by and with proper authority to do so." This recommendation was accepted by the Board at its meeting on May 8, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order determining that Respondent is guilty of gross insubordination and being willfully absent without leave, and that she be terminated as an instructional employee for just cause. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 16th day of August, 2000. COPIES FURNISHED: Dr. R. Jerry Smith, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Stephen W. Johnson, Esquire McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Brenda Armstead 32412 Crystal Breeze Lane Leesburg, Florida 34788 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact At all times relevant hereto Joseph Testasecca, Respondent, held a Florida Teaching Certificate and was employed as elementary art coordinator in the Hillsborough County School District. He has been employed by the Hillsborough County school Board for 25 years, having begun as the first full- time art instructor in the Hillsboro County School System. Mr. Testasecca is 51 years old and has been married to his wife, Alicia, for 23 years. He is an active member of the Corpus Cristi Catholic Church in Temple Terrace, Florida. In 1970, Respondent was selected as one of eight instructors from throughout the county to teach a newly formed gifted student program. Students qualified for the program by having an IQ of 132 or higher. In 1973, the Hillsborough County School Board formed a Division of Performing Arts. Respondent applied for and was selected as coordinator of the Division, a position he holds to this date. His primary duties involve running an Arts in the schools' program throughout Hillsborough County and acting as liaison between the School Board and area art related organizations such as the Tampa Museum, the Tampa Bay Performing Arts Center, the University of South Florida and the Arts Council of Tampa. The majority of his time is spent outside the office working in the community. Throughout his adult life, Respondent has maintained a strong interest in the arts. He is an accomplished painter and has, with his wife, assembled a prize art collection of some 200 pieces which he keeps in his home. During the 1987-88 school year, Michael Bailey was a senior at Gaither High School and applied for enrollment in the executive internship program for the first semester. The internship program was designed to provide a means for seniors to gain practical working knowledge of the business world by serving as interns to various businesses in the community. Bailey was interviewed by Respondent for one of the internship programs as were several other students. Respondent's first and second choices opted to go with another teacher and, at the request of the coordinator of the program who was having trouble placing Bailey, Respondent selected Bailey to serve as intern in the arts program. The work schedule was roughly 9:00 a.m. to 4:00 p.m. each school day. Bailey's duties involved constant travel with Respondent from one location to another within the school district. Respondent treated Bailey as an equal and Bailey was very favorably impressed with Respondent. In fact, Bailey became possessive of Respondent's time and company and insisted on accompanying Respondent on trips and to meetings at which Respondent preferred Bailey not to be present. A luncheon birthday party for Theresa Solomon was held at Malio's Restaurant on October 22, 1987, sponsored by her supervisors which included Respondent. The luncheon was attended by Douglas Lerner, Respondent's assistant; Claudia Davidson, a music teacher; Solomon; Respondent and Bailey. Solomon had requested Respondent not invite Bailey because of the latter's tendency to monopolize conversation and his general boorishness. However, Bailey insisted that he be allowed to accompany Respondent to this luncheon. At the luncheon one of the attendees ordered a bottle of sparkling wine which was poured into five glasses by the waitress. When asked about being old enough to drink the wine, Bailey replied that his parents allowed him to drink and yes, he will have a glass. Bailey also made comments about his twin brother being an alcoholic. Respondent did not stop Bailey from having the glass of wine. During the luncheon, Bailey drank about half of one glass of wine poured for him. On October 23, 1987, a Friday, when interns attend regular classes, Respondent left a message with the secretary to advise Bailey on Monday morning, October 26, when he arrived at the office, to join Respondent at the Tampa Theatre. A superintendent of schools meeting was being held in Tampa, and Respondent was charged with taking some of these people on a tour that morning. The secretary was ill Monday, did not report to work, and Bailey did not get the message. Two witnesses, Doug Lerner and Betty Clark, testified that Monday morning, October 26, 1987, Bailey was quite upset because "Joe left me again." He was pouting, morose and refused to participate in any other projects offered. Bailey was heard by one or two to say regarding Respondent, "He'll get his." Respondent returned to the office just before noon and had to go to an elementary school that was being painted. He took Bailey with him at this time. After visiting the elementary school Bailey asked Respondent to show him Respondent's art collection. Since Respondent had food left over from a party the evening before he decided then to go to his house for lunch. While at Respondent's home, most of the incidents forming the basis of the charges here involved allegedly occurred. Bailey testified that Respondent approached him from the rear while he was standing in the living room and pressed his body against Bailey's body, than Respondent rubbed his shoulder and cheek and fondled Bailey's genitals. Shortly thereafter Respondent allegedly asked Bailey to sit on the couch along side him, but Bailey sat on a couch opposite and Respondent then sat on Bailey's lap and again stroked Bailey's face and/or shoulder. When little response was received from Bailey Respondent ceased and they departed. Respondent denies any such incidents occurred. Both Respondent and Bailey agreed that they stopped at Respondent's home for lunch. In his testimony, Bailey did not disagree that after leaving the office around noon they first went to the elementary school and then drove another 15 minutes to Respondent's house; that a quick tour of the art collection was held; that they had lunch; and that they left in time for Respondent to make his two o'clock appointment. According to Respondent they could not have spent more than 25 minutes at his home and that included the art tour, lunch fixing and eating. Under that scenario there was little, if any, time for peccadillos. Upon their return to the school that afternoon October 26, Bailey reported to Mrs. Dupereaux, the school board employee in charge of the intern program, that Respondent had made the improper sexual advances to which Bailey had testified. She cautioned him to be sure of his facts in view of the serious of the charge. Upon his arrival home Bailey went to his sister's house and related the incident to her. He then went to his girlfriend's mother who is president of the Gaither High School PTA and related the events to her. Later that evening he told his parents. While the fresh complaint lends more credence to the events as described by Bailey, on the other hand there is the reputation of Respondent who has taught in the Hillsborough County School System for some 25 years during which no similar incidents have ever been reported. No witness, other than Bailey, testified to any reason to suspect Respondent of ever having made homosexual advances to any other person. The following day, Bailey accompanied Respondent to the University of Tampa Museum, and upon their return to the office, Bailey testified Respondent put his arm around Bailey's shoulder and asked "What's the matter? Don't you want me to cream in your ass?" Respondent not only denies any such comment was made but also denies that such language would be used by a person in Respondent's generation. No further contact was made between Respondent and Bailey. In other areas, on which Bailey testified, his credibility suffers from his recollection of events as opposed to the facts as related by others. For example, his account of his actions at Malio's Restaurant differs sharply from the account by others present. Similarly, his recollection of his grade point average at Gaither High School was considerably higher than his actual grade point average as shown by school records. Bailey's behavior in attempting to monopolize Respondent's time and to intervene where he was not wanted is a factor somewhat equivocal in arriving at the ultimate fact regarding the alleged incident. Obviously, had Respondent been more forceful in maintaining the teacher-student relationship with the ultimate superiority in the teacher, Bailey would not have developed this possessiveness and feeling of equality which lead him to believe he had a right to accompany Respondent to all functions and to resent any rebuff. Finally, the fact that Petitioner attempted to introduce the results of a polygraph examination which Petitioner was fully aware are, absent stipulation, inadmissible in judicial or quasi-judicial proceedings, cast further doubt on the merits of Petitioner's case. This attempt to improperly influence a fact finder by proffering the results of a polygraph examination should not be condoned and should lead the fact finder to insure no improper inferences are drawn from such information.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2003.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact: The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education. The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978. Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986. 1980-81 SCHOOL YEAR During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class. For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences. 1981-82 SCHOOL YEAR The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility. The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships. Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing. During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students. During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints. On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students. In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status. 1982-83 SCHOOL YEAR On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year. During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program. 1983-84 SCHOOL YEAR During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required. A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints. As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable. On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner. A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics. For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom. 1984-85 SCHOOL YEAR At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment. 1985-86 SCHOOL YEAR On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected. On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control. After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription. On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence. Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences. In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital. Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes. During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days. At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility. Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation. It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida. DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274 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. 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 3. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 11 8. Adopted in Finding of Fact 11. 9. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 15. 17. Adopted in Finding of Fact 16. 18. Adopted in Finding of Fact 17. 19. Adopted in Finding of Fact 18. 20. Adopted in Finding of Fact 19. 21. Adopted in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 25. Rejected as a recitation of testimony. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/orsubordinate. Rejected as a recitation of testimony and/orsubordinate. COPIES FURNISHED: Johnny Brown, Esquire Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132
Findings Of Fact At all times material hereto, Respondent was an instructional employee of the School Board of Dade County. In that capacity, Respondent was employed on an annual contract basis at Rainbow Park Elementary School from the beginning of the 1974-1975 school year through the end of the 1976-1977 school year. During this period, Respondent was placed on continuing contract on the recommendation of Andel W. Mickens, Principal of Rainbow Park Elementary School. During the 1976-1977 school year, after he had been placed on continuing contract, Respondent, while employed as a physical education instructor at Rainbow Park Elementary School, was involved in an altercation with students from another school in which Respondent suffered some injury, the nature of which is unclear from the record. It is, however, clear that after this altercation, Respondent's effectiveness as an instructor at Rainbow Park Elementary School, suffered dramatically. After the incident, Respondent was unable to control or discipline students in his classes, and was, therefore, unable to adequately organize students for instructional work. In fact, the school principal or another member of the administrative staff was required to be present in Respondent's classes to insure that some instructional progress could occur. As a result, the principal of Rainbow Park Elementary School recommended at the conclusion of the 1976-1977 school year that Respondent be transferred to another school. Respondent was transferred to Crestview Elementary School for the 1977-1978 school year. However, problems which had initially surfaced while he was still at Rainbow Park Elementary School continued at the new location. Respondent was instructed by the principal of the Crestview Elementary School that uniforms were not to be utilized as part of that school's "after-school programs", and that "all-star" games against other schools in the area were not to take place. Respondent, in direct disregard of these instructions, collected monies from students at Crestview Elementary School for the purchase of uniforms, and scheduled "all-star" games between Crestview Elementary School and other area schools. In the scheduling of these games, Respondent did not obtain the prior permission of, nor in fact did he consult, the principal of Crestview Elementary School. One of the "all-star" games was cancelled by the principal when he learned, the day before the game was to be played, that it had been scheduled by Respondent. When it was discovered that Respondent had collected monies for the purchase of uniforms for use in the after-school program, he was directed to return these monies to the individual students. In addition, Respondent on several occasions left classes unsupervised during his tenure at Crestview Elementary School. One of these occasions occurred when Respondent was contacting students scheduled to participate in the aforementioned "all-star" game. Another of Respondent's problem areas while at Crestview Elementary School dealt with his inability to organize his classes. Students were observed climbing trees during times when they should have been participating in Respondent's physical education class. A representative from the Area Office of the Dade County School Board specializing in physical education was called in specifically to consult with Respondent concerning the organization of his classes. Few, if any, of the consultant's suggestions were implemented by Respondent, whose classes remained disorganized. Finally, notwithstanding direct instructions to the contrary, Respondent allowed one of his physical education classes to participate in "tackle" football. There was no equipment at Crestview Elementary School to insure that participation in this type of activity would not result in injury to elementary school children. In fact, one child was injured in the course of one of these games, and reported this fact to the principal, who then prevented Respondent from continuing these activities. Although Respondent started the 1977-1978 school year at Crestview Elementary School, he was returned at the request of the Crestview principal to Rainbow Park Elementary School on November 9, 1977. The principal of Rainbow Park Elementary School, who had earlier suggested that Respondent be given a continuing contract, testified that Respondent appeared to be a "totally different person" upon his return to Rainbow Park Elementary School. She testified that Respondent evidenced irrational and bizarre behavior, and, on one occasion after a teacher-principal conference, Respondent snatched written suggestions concerning conduct of his classes from her hand, ripped them up before her and stalked from the room. Respondent could not control discipline in his classes and would, on occasion, scream and curse at his students. On one occasion, Respondent used excessive physical force in removing a student from one of his classes to the principal's office. Respondent would often not be in place to receive his classes when they were brought to him by the classroom instructor, and, on occasion would bring his classes back from the physical education fields before their class time was completed. Respondent's classes were disorganized to the point that activities occurring in his classes bore no resemblance to lesson plans. The principal of Rainbow Park Elementary School attempted to assist Respondent in organizing his classes by making suggestions and calling in consultants from the Area Office, but Respondent refused to accept constructive criticism. As a result, the principal of Rainbow Park Elementary School again requested that Respondent be transferred, which, in fact, occurred on December 12, 1977, when Respondent was reassigned to Carol City Senior High School. Respondent was employed at Carol City Senior High School from December 12, 1977 through the end of the 1977-1978 school year. At this new location, Respondent again encountered problems with school administrative and instructional personnel. According to the principal of Carol City Senior High School, Respondent repeatedly arrived late for classes, and submitted only "sketchy" lesson plans for his classes. In addition, the principal of Carol City Senior High School requested that Respondent be transferred to another school when it came to his attention that Respondent had attempted to "recruit" athletes from another area high school in order for them to participate in athletic programs at Carol City Senior High School. Respondent continued to experience problems with controlling his classes, and with using profanity toward students and members of the school administration. On one occasion, Respondent, a physical education teacher, called the chairman of the Physical Education Department at Carol City Senior High School a "mother fucker" in the presence of other teachers and students, and told him "to sit [his] ass down." Respondent continued to react negatively to evaluations or critiques, and, on one occasion snatched an evaluation from the hands of an assistant principal at Carol City Senior High School, and used profanity in response to that negative evaluation. At the beginning of the 1978-1979 school year, Respondent was assigned to Carol City Elementary School. Although there is no reason clearly reflected in the record, Respondent was transferred from Carol City Elementary School to Parkway Junior High School on October 27, 1978. The principal at Parkway Junior High School was the assistant principal at Carol City Senior High School with whom Respondent had had earlier difficulties. Respondent continued to experience these same difficulties at Parkway Junior High School. The school's principal received a complaint shortly after Respondent's conduct of his classes. Specifically, the complaints concerned Respondent's lack of control of students in the classes, and his failure to remain in the area where his classes were meeting. The school principal contacted Respondent to attempt to arrange a conference with other instructional personnel to resolve these problems. However, when the principal spoke with Respondent, Respondent began to use abusive language toward him. The school principal advised Respondent not to report back to Parkway Junior High School, but instead to report directly to the Area Office. Respondent indicated that he would not report to the Area Office, whereupon the principal advised him that if he returned to Parkway Junior High School, he would be arrested. Respondent then advised the school principal that if he had him arrested " . . . I will kill your mother fucking ass." Thereafter, Respondent was suspended as an instructional employee, and these proceedings ensued. Both Petitioner and Respondent have submitted Proposed Findings of Fact in this proceeding. To the extent that proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The central issue in this case is whether the Respondent, Sean F. McKinney, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: During the 1986-87 academic year; Respondent attended Miami Carol City Senior High School in Dade County, Florida. During the 1985-86 school year, Respondent attended junior high school and received failing grades in all of his academic courses. Respondent's promotion to Miami Carol City Senior High was done in error. Respondent's grades for the 1986-87 school year, the first two grading periods, were as follows: COURSE ACADEMIC GRADE EFFORT CONDUCT Mathematics 1st F 3 D 2d F 3 F Physical 1st F 3 F Education 2d F 3 F Language 1st F 3 F Arts 2d F 3 F Communications Social 1st F 3 D Studies 2d F 3 D Language 1st F 3 C Arts Readings 2d F 3 C Industrial Arts 1st F 3 F Education 2d F 3 F Science 1st F 3 F 2d F 3 F SYMBOLS: GRADE "F" UNSATISFACTORY EFFORT "3" INSUFFICIENT CONDUCT "C" SATISFACTORY CONDUCT "D" IMPROVEMENT NEEDED CONDUCT "F" UNSATISFACTORY Respondent was administratively assigned to the opportunity school on March 23, 1987. Respondent did not enroll at the opportunity school and did not attend classes. Consequently, Respondent's academic record for the 1986-87 term ends with the second grading period. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Carol City Senior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms and are used for behavior problems. During the first two grading periods of the 1986-87 school year Respondent caused nine Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's misbehavior is attached and made a part hereof. Theresa Borges is a mathematics teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. While in Ms. Borges' class, Respondent was persistently disruptive. Respondent was habitually tardy and/or absent from Ms. Borges' class. When Respondent did attend class he was ill- prepared and refused to turn in assigned work. When Respondent did attempt to do an assignment it was unsatisfactorily completed. The Respondent refused to work and would put his head down as if sleeping in class. On one occasion Respondent grabbed a female student between the legs. Respondent's disruptive behavior was exhibited on a daily basis in Ms. Borges' class. Larry Williams is an English teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. Mr. Williams caught Respondent fighting with another student in class. Respondent failed to complete homework assignments for Mr. Williams and turned in only 3-5 percent of his work. Respondent was disruptive and would walk around the classroom talking to other students. Since Respondent was habitually tardy he would interrupt the class with his late arrival. William E. Henderson is the assistant principal at Miami Carol City Senior High School. Mr. Henderson received the Student Case Management Referral forms that were submitted for Respondent and counseled with him in an effort to improve Respondent's conduct. Additionally, Cora McKinney was contacted with regard to Respondent's discipline and academic needs. Respondent's behavior problems were discussed in-depth with Mrs. McKinney. Such conferences did not result in any changed behavior on Respondent's part. While Mrs. McKinney made a sincere and continuing effort to bring Respondent's grades and behavior into line, such efforts did not alter Respondent's lack of progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Douglas MacArthur Senior High School-North. DONE and ORDERED this 24th day of August, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1955 Rulings on Petitioner's Proposed Findings of Fact: Adopted in substance in FF #1. Adopted in substance in FF #3. Adopted in substance in FF #2. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #7. Adopted in substance in FF #7. Rejected as hearsay as to whether this student instigated the fight; otherwise adopted in substance in FF #7. Adopted in substance in FF #5 and attached Synopsis. Adopted in substance in FF #8. Adopted in substance in FF #8. Rejected as unnecessary. COPIES FURNISHED: Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Cora McKinney 3450 Northwest 194th Terrace Carol City, Florida 33054 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS SEAN F. MCKINNEY DATE INCIDENT DISCIPLINE September 26, 1986 excessive absences counseled October 16, 1986 excessive unexcused tardies and absences from class (period) Three days SCSI October 28, 1986 not attending classes conference with mother 3 days SCSI December 11, 1987 fighting excessive tardies 10 days suspension January 13, 1987 disruptive behavior, [grabbed girl between legs] five days SCSI February 5, 1987 defiant, refused to leave school property after hours 5 day suspension March 17, 1987 defiant, in halls unapproved time, left office without permission conference with parent, initiated opportunity school processing March 20, 1987 not attending school 10 day suspension
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
