The Issue The issue in this case is whether the Petitioner, the Polk County School Board, should terminate the Respondent, Madeleine "Lo" Alexander, from her employment as an art teacher at Lakeland Senior High School, or take some other, lesser action against her continuing contract, on charges contained in the June 1, 1990, letter from the School Superintendent, John A. Stewart. The letter charges: (1) that the Respondent engaged in drunken and disorderly conduct at a private party in 1979; (2) that she was reprimanded in 1987 for an incident involving slapping a student; (3) that she accepted inappropriate art projects (namely, "pot pipes") produced by her students on several occasions; (4) that she also accepted inappropriate art projects, pornographic in nature and clearly of no artistic value, after having been instructed to report "questionable projects" to the principal; (5) that it was necessary on at least one occasion for the principal to send the Respondent home for being inappropriately dressed for a field trip; (6) that a May 30, 1990, audit revealed serious violations of school board policy in that, on the one hand, the Respondent collected fees from students and deposited them into her personal checking account and, on the other hand, did not collect fees from certain other students; and (7) that she disobeyed instructions to attend training sessions on collection of fees on at least two occasions. It was charged that the Respondent's alleged behavior shows either an inability or an unwillingness to exercise sound professional judgment and that it constitutes continuing misconduct in office.
Findings Of Fact The Respondent, Madeleine "Lo" Alexander, has taught art at Lakeland Senior High School for the past 21 years. She has a continuing contract. In her performance evaluations for the three years immediately preceding her termination, the Respondent met all performance standards and received compliments on her performance. Sometime in 1987, the Respondent was involved in the alleged slapping of a student. 1/ But the evidence did not prove, as alleged, that the Respondent was reprimanded over the incident but only proved that the Respondent participated in a conference concerning the incident, during which she was cooperative and instrumental in resolving the incident by apologizing to the student involved. The evidence also did not prove that the Respondent intentionally slapped the student involved but rather that the Respondent was gesticulating with her hands while speaking to another teacher and accidentally touched the student in the side of the face with her hand when she turned around. In 1987, a student in one of the Respondent's art classes made a clay smoking pipe. This student rarely participated in class and was a discipline problem in school. While the Respondent was circulating in the class, she noticed the student bending over a project and working diligently. Not knowing exactly what the student was making at that time, the Respondent praised the student for his unusual show of interest in class. It was not clear from the evidence what stage the project was in when the Respondenet praised the student. The student may have been in early stages of the project. The student could have been making either a cylinder, with or without the air passage, or a bowl, neither of which alone would have been recognizable as a pipe. Even if the Respondent had recognized the art project to be a pipe, there never has been any, and still is no, county-wide policy prohibiting making clay pipes in high school art classes. It is not clear, for example, that making an Indian peace pipe in a high school art class would be prohibited. The pipe this student made appears to have been fired once in class. The Respondent had student assistants who were learning how to use the kiln, and they could have fired the pipe. The Respondent maintains that she did not see it at all in the classroom, and it was not proven that she did. The pipe was painted after being fired, but it was not proven that it was painted in art class. It could have been removed from class after firing and painted elsewhere. It was not glazed after painting. At a later date, the student was caught with the pipe on his possession on school grounds and was accused of possession of drug paraphernalia and suspended. He told his mother that he made the pipe in art class with the approval of the Respondent and protested that he should not have been suspended for it. His mother reported the student's statements, and the principal, Robert Helmick, conducted an investigation, confiscating two other pipes in the process. One had been fired once and was unpainted; the other was not fired or painted. He then asked the Respondent for an explanation. The Respondent denied knowledge of any of the pipes, and her denial was accepted by the principal. The principal did, however, have the Respondent listen to a presentation by drug enforcement experts to heighten the Respondent's awareness of the problem of drugs and drug paraphernalia in the school. The principal also instructed the Respondent to report to him immediately if she saw any drug paraphernalia being made in her art class. There were no more incidents in the Respondent's class involving drug paraphernalia, the only subject of the principal's instructions to her. However, during the last week of the 1989/1990 school year, a female student (who was married and had a child) made a clay bowl of which the Respondent was aware. She also made two cylinders and rolled a few clay balls. To this point, there was nothing remarkable about the project. Then she made the cylinders into penises and attached them upright to the bottom of the bowl, along with two clay balls each, and turned the finished product in to the Respondent at the end of class. The Respondent had been occupied during the class recording grades and, in accordance with school policy, supervising make-up work by seniors who needed an art grade for graduation. She was not aware of the nature of the student's bowl project until it was finished and handed in. The bowl project was not submitted for a grade, and the Respondent had no intention of giving it a grade. She also was busy and did not have time at the moment to deal with the problem presented by the finished product. She decided to get the project out of sight until she could deal with it. She took it to the room where the kiln is located and locked it in the room. Within 24 hours after the "bowl project" was turned in, the chairman of the art department at the school removed it from the kiln room and brought it to the new principal, Dennis Dunn. The principal called the Respondent to his office and confronted her with the bowl project. In a very short and adversarial meeting, the principal informed the Respondent that he did not approve of the project and told her that she should contact her union representative because she had not heard the last of the incident. He did not ask for the Respondent's explanation or give her much opportunity to explain. After the meeting, the principal recommended to the School Superintendent that the Respondent be terminated because of the bowl incident. After the bowl incident, it was decided by the school administration to audit the Respondent's collection of art fees from her students. The Respondent fully cooperated with the audit by providing information on the amount of fees she had collected from her students and by providing as many receipts for purchases of art supplies as she could. The audit revealed that the Respondent had not followed School Board policy on the collection and handling of fees. Board policy required that fees of this kind be deposited within five days of collection. It had been the Respondent's practice for years to collect fees during the course of a school semester, record their collection, and retain the money on her person or at her home. She would purchase art supplies as needed during the course of the school semester and keep the receipts. Usually at the end of the first six-week grading period, she would deduct the total of the receipts from the total fees collected and write a personal check to the school for the net amount. The Respondent was not aware of the official policy. The audit revealed that the chairman of the art department also collected and handled art fee money in violation of the official School Board policy. No other personnel were audited for collection and handling of fees. Throughout her 21-year career as an art teacher at Lakeland Senior High, the Respondent collected and handled art fees the same way she did in 1989/1990. Both the art department chairman and the school comptroller knew how the Respondent was collecting and handling these monies. Neither they nor anyone else ever told the Respondent that she was in violation of a School Board policy. The audit also revealed that there was an apparent shortage. The Respondent promptly paid the apparent shortage. The Respondent does not admit that there was an actual shortage, and the School Board did not prove an actual shortage. The evidence suggests that the audit did not take into account some monies the Respondent paid to the school by personal check. According to School Board policy, there should have been a receipt and record of these payments, but the auditor did not find any. It also is possible that the receipts the Respondent was able to produce did not account for all of her purchases of art supplies. The Respondent did not collect art fees from all students. However, the evidence is that it is not mandatory that students pay these fees. The students only have to pay the fees if they wish to take their art work home after it is finished. During the second semester of the 1989/1990 school year, the Respondent did not to collect any art fee for the two drawing classes she taught. This was because the $3 art fee per student was to be used for art supplies, and the Respondent did not expect much would be needed in the way of art supplies for these two classes. There was no evidence that it was improper or against School Board policy for the Respondent to make this judgment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Polk County School Board enter a final order dismissing the charges and reinstating the Respondent, Madeleine "Lo" Alexander, with back pay. RECOMMENDED this 13th day of December, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1990.
The Issue The issue is whether Points meets the criteria for assignment to an educational alternative program. Petitioner presented the testimony of Laura Bryant, school bus driver: Peter Rossi, police officer with the Special Investigative Unit of the School Board of Dade County, Raymond Fontana, assistant principal of Highland Oaks Junior High School; Arnold Golditch, teacher, and Lawrence Jurrist, teacher. Petitioner had Exhibits 1-8 admitted into evidence. Respondent presented the testimony of John Points. The parties waived the filing of a transcript and proposed orders.
Findings Of Fact John Points was a student at Highland Oaks Junior High School during the 1983-84 and 1984-85 school years until his assignment to the alternative school. During his attendance at Highland Oaks, Points has been involved in numerous instances of misbehavior that involved disciplinary action. On October 26, 1983 he was truant and was placed-on indoor suspension in the SCSI program. On February 24, 1984, he was placed on a two day indoor suspension for disruptive behavior. On May 3, 1984 he was given a 10 day outdoor suspension for theft. He served a three day indoor suspension each for starting a fight on May 31, 1984, and for general disruptive behavior on September 11, 1984. On September 14, 1984, Points walked out of class and on October 4, 1984, he was reprimanded and warned for fighting. He was placed on two days indoor suspension for cutting class on October 25, 1984. Points served two detentions for refusal to be seated, disruptive behavior and disrespect on November 7, 1984. On December 5, 1984, Points was suspended and recommended for alternative school for fighting and creating a general disturbance. Based on that recommendation for alternative school, Points was assigned to alternative school on December 17, 1984. Because of a paperwork mistake, Points did not go to alternative school and remained at Highland Oaks. In February, 1985, the error was discovered, but Mr. Fontana decided to let Points stay at Highland Oaks because two months had passed and he had no behavior problems in the interim. Shortly thereafter, Points was warned for failure to dress out for PE class on March 4, 1985. On March 12, 1985, Points was placed on a two day indoor suspension for disrupting the cafeteria by whistling. Finally, on March 28, 1985, Points was suspended from school for ten days for possession of marijuana on the school bus. In fact, no independent evidence was presented regarding Points supposed possession of marijuana. The only evidence was his own statement. By Points' own admission, two other students asked him to roll a marijuana cigarette from marijuana which they gave him. Points did so and gave it back to the other students. He did not smoke marijuana on the bus. Points has had academic problems at Highland Oaks. He is an exceptional student in Learning Disability classes. As of his last report card, Points received three F's, two D's and one B. During the 1984-85 school year, Points was absent 17 days from September 4, 1984 to April 4, 1985. This number does not include his absences for the ten day suspension. Additionally he was also absent on some occasions from particular classes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning John Points to the alternative school program at Douglas MacArthur Senior High School-North. DONE and ENTERED this 16th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 16th day of September, 1985 COPIES FURNISHED: Angela Points 200-178 Drive Miami Beach, Florida 33160 Frank Harder, Esquire Twin Oaks Building Suite 100 2780 Galloway Road Miami, Florida 33165 Ms. Maeva Hipps School Board Clerk Dade County Public Schools 1450 N. E. 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
The Issue Whether it is appropriate for Petitioner to discipline Respondent's Florida educator's certificate for acts alleged in Petitioner's Administrative Complaint dated July 16, 2009.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent holds Florida Professional Educator's Certificate No. 1045332, covering the area of music, which is valid through June 30, 2011. At the time of the incident alleged in the Administrative Complaint, he was employed as a band teacher at Memorial Middle School, Orlando, Florida. Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in Florida. On December 12, 2007, Respondent, pursuant to his teaching responsibility, was conducting the seventh-grade band ensemble which was performing in the school cafeteria. Apparently, this is where the band class meets. C.F., a sixth-grade band student, was in the cafeteria as a part of the class. Students who were not actively performing had been instructed to remain quiet, to read music, to be courteous and not to distract the performing ensemble. Notwithstanding the admonition to remain quiet, C.F. became "bored" and began "banging" rhythmically on a lunch table. Initially, Respondent attempted to get C.F.'s attention. Another student also attempted to stop C.F. Respondent moved across the cafeteria as he continued to conduct the ensemble, reached out and "tapped" C.F. on the wrist/forearm with a conductor's baton "to get his attention," and instructed him by facial expressions to stop banging on the table. A conductor's baton is approximately eight inches long, has a cork end that allows it to be grasped between the thumb and forefinger, and is smaller in circumference than a pencil. It looks similar to a small knitting needle, only shorter. When the ensemble concluded the musical selection it was performing, Respondent returned his attention to C.F. who began arguing with him. Respondent told C.F. to remove himself from the cafeteria and stand in the hallway. Instead of standing in the hallway as instructed, C.F. went to the assistant principal, Mr. Campbell, and complained that Respondent had struck him. Mr. Campbell called Mr. Longmire, the sixth-grade dean of men, to his office, and Mr. Longmire observed a small red mark on C.F.'s arm.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Michael Allen Simmons, be found not guilty of the violations alleged in the Administrative Complaint and that no disciplinary action be taken. DONE AND ENTERED this 29th day of April, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2010. COPIES FURNISHED: Deborah Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Michael Allen Simmons 6004 Westgate Drive, Apartment 102 Orlando, Florida 32835
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
The Issue The issues to be determined are whether the Florida educator’s certificate of Respondent, Carmen Komninos, is subject to discipline for violating section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A- 10.081(2)(a)1, as alleged in the Administrative Complaint, and, if so, the appropriate penalty therefor.
Findings Of Fact Ms. Komninos holds Florida Educator’s Certificate No. 985529, which covers Elementary Education, English for Speakers of Other Languages (ESOL), and World Language – Spanish, and is valid through June 2021. Ms. Komninos began her 42-year career as an educator in New Jersey. She moved to Florida in 2006 and started working for the School District. She primarily taught Spanish at the School from 2007 until she retired in 2019. During the 2017-2018 school year, Ms. Komninos served as a Spanish teacher and taught B.T. and C.M., among other students. The Administrative Complaint focuses on two separate incidents in which Ms. Komninos allegedly grabbed B.T. and C.M. by their arms. Neither B.T. nor C.M. reported the alleged incidents to the School when they happened. Rather, they only disclosed them during the School’s investigation of complaints made by other students. That investigation began on March 22, 2018, when a teacher received the following two documents from an unidentified student: (1) a handwritten letter of unknown origin purportedly signed by several students complaining about Ms. Komninos1; and (2) a copy of a photograph posted to Snapchat. The photograph clearly depicts Ms. Komninos standing behind B.T. and holding onto his left arm with both of her hands. She does not appear to be exerting any force. B.T. is facing away from her and clearly smiling. The photograph contained the following two captions: how aggressive Hey Look! “Los novios” The use of the cry-laughing emoji multiple times seems to reflect that the students who posted the photograph found the incident humorous. But, the record contains neither evidence as to who took the photograph, posted it to Snapchat, or drafted the captions, nor evidence as to when that occurred. The teacher brought the documents to a guidance counselor who gave them to the assistant principal. The assistant principal brought them to the principal and Corporal Soto, the School’s youth relations deputy. The principal notified the School District and immediately removed Ms. Komninos from teaching duties pending the investigation. Mr. Ghelman, the School District’s coordinator for secondary schools and human resources at the time, directed the principal to obtain statements from the students. In his statement, B.T. acknowledged that he got out of his seat to sharpen his pencil after being told not to do so by Ms. Komninos and then refused to heed her directive to sit down. At that point, she grabbed his arm and tried to pull him back into his seat while his classmates yelled. 1 The record is silent as to the letter’s author, no student who signed it testified, and it focuses on allegations beyond the scope of the Administrative Complaint. Thus, the undersigned excluded the letter and has not relied on it in making any finding of fact. In her statement, C.M. indicated that she got up out of her seat to throw a piece of paper in the recycling bin and did so without permission because Ms. Komninos did not have a rule requiring them to ask first. C.M. stated that Ms. Komninos approached her at the recycling bin, grabbed her arm forcefully, and pushed her down to pick up the paper from the bin. C.M. said she picked up the paper and walked back to her desk. In their written statements, neither B.T. nor C.M. indicated when their respective incidents occurred or stated that they suffered (or could have suffered) any harm. Upon receipt of the statements, Mr. Ghelman met with Ms. Komninos. Contrary to C.M.’s statement, Ms. Komninos confirmed that she required the students to ask permission before getting up from their seats. She also said that she never placed her hands on a student. When shown the photograph, she ultimately agreed that it depicted her and B.T., but she did not recall the incident. She noted that she met with B.T.’s parents earlier that year to address B.T.’s struggles in her class. As to C.M., Ms. Komninos recalled the incident, but said that she never pushed C.M. and only told her to sit down when she got up without permission. Around the same time, Corporal Soto interviewed B.T. B.T. conceded that he wrongly got up without permission and refused to sit after being told to do so. B.T. said that, at that point, Ms. Komninos grabbed his arm to prevent him from continuing to walk towards the pencil sharpener and he went back to his seat. B.T. confirmed he suffered no injuries. Corporal Soto contacted B.T.’s father, who did not know about the incident. After viewing the photograph and speaking to his son, he informed Corporal Soto that they did not want to press charges. However, he remained concerned because he had met with Ms. Komninos and the guidance counselor before the incident to address concerns with her teaching style. In early April 2018, the principal met with B.T., his father, and Ms. Komninos. B.T.’s father wanted to ensure that Ms. Komninos would not treat his son differently if she returned to the class. She apologized for the incident and promised to help B.T. with the class. The principal believed that B.T.’s parents accepted the apology and welcomed her assistance. On April 18, 2018, after concluding its investigation, the School District suspended Ms. Komninos for one day without pay. She accepted the discipline and returned to the classroom. B.T.’s father confirmed that she treated B.T. fairly and that he passed her class. Notwithstanding the discipline already imposed, the Commissioner conducted its own investigation and obtained additional written statements from the students in November 2018. In B.T.’s statement, he indicated that he stood up to sharpen his pencil during a test, after Ms. Komninos told him he could not do so, and she then grabbed his arm and pulled to get him back to his seat. This statement largely mirrored the one he gave in March 2018. In C.M.’s statement, she indicated that Ms. Komninos forcefully grabbed her arm when she got up to throw away trash, pulled her, and told her to return to her seat. C.M. did not believe she needed permission since they were doing independent study. She was upset that Ms. Komninos grabbed her, instead of asking her to sit down. This statement conflicted with the one she gave in March 2018, in which she never accused Ms. Komninos of pulling her. Much like their first statements, neither B.T. nor C.M. indicated when their respective incidents occurred or stated that they suffered (or could have suffered) any harm. Several other students also submitted statements, though none of them testified at the hearing. A.A. indicated that B.T. got out of his seat after the bell rang, at which point Ms. Komninos grabbed B.T.’s arm and would not allow him to leave until he handed in his work. M.C. indicated that Ms. Komninos grabbed B.T.’s arm and pulled him over to her desk. C.R. indicated that Ms. Komninos grabbed C.M.’s wrist and pulled her to the front of the room, yelling that she would not give C.M. respect without it being returned. Most of these accounts conflicted with the details described in the statements of B.T. and C.M. In the meantime, Ms. Komninos continued teaching at the School until her retirement in July 2019. Upon her retirement, the School District issued a “Resolution in Recognition of Outstanding Service Leading to Retirement” to recognize her excellent service, contributions to the School District, and devotion to the school system. The resolution recognized that Ms. Komninos served the School District in a meritorious, faithful, and outstanding manner. The honor bestowed on her is not surprising. The principal who evaluated Ms. Komninos’s performance for many years, including at the time of the alleged incidents, believed she was a strong educator, a hard worker, and a rule follower based on his observations of her in the classroom. According to him, she clearly communicated her rules to the students, had a great rapport with them, and maintained control over the classroom. After Ms. Komninos already had been disciplined by the School, received an award from the School District for her years of dedicated service, and retired from teaching, the Commissioner issued its Administrative Complaint seeking to discipline her educator’s certificate as a result of the two incidents. Specifically, the Commissioner alleged that she violated the Principle of Professional Conduct requiring her to make reasonable efforts to protect the students from conditions harmful to their learning, mental and physical health, and/or safety. In its PRO, the Commissioner seeks to issue a letter of reprimand, place Ms. Komninos on probation for two years, and levy a $750 fine against her. Only three witnesses who were in the classroom when the incidents allegedly occurred testified at the hearing—B.T., C.M., and Ms. Komninos. Ms. Komninos generally explained that she required students to raise their hands before getting out of their seat for any reason. They knew the rules because she wrote them on the bulletin board and repeated them verbally. However, some of the students pushed the envelope. As to the incident concerning B.T., Ms. Komninos credibly testified that she did not recall the incident even after seeing the photograph, which she agreed depicted her holding onto B.T.’s arm. She said the same thing to both the principal and Mr. Ghelman during the investigation. She credibly explained that the photograph must have been taken in the Fall of 2017 based on the items posted on the cabinet doors in the background. She agreed that she met with the principal and B.T.’s father after the investigation began, reassured them that she would harbor no ill will towards B.T., and offered to help him better his grade. The undersigned credits Ms. Komninos’s testimony and found her to be forthcoming and truthful. B.T. testified that he thought the incident occurred within a month or two before the March 2018 investigation. He explained that Ms. Komninos would not allow him to sharpen his pencil during a test, so he violated her rules and got up without permission. Instead of walking to the back of the room to the sharpener, he started walking to the front. Ms. Komninos then grabbed his arm to stop him from walking. She held onto his arm for a matter of seconds and let go. He initially confirmed that she never pulled him back into his seat, contrary to his prior written statements, but later waivered and agreed that his memory was better back then. B.T. confirmed that he suffered no injuries in the incident and felt embarrassed more than anything else. That is why he smiled. He definitively testified that he never felt there was even a chance of Ms. Komninos harming him, though he waivered when counsel for the Commissioner later asked whether he could have been harmed had he continued to walk forward. Based on the weight of the credible evidence, the undersigned finds that Ms. Komninos held onto B.T.’s arm for a few seconds to stop him from further violating the rules by walking around during a test, but she did not pull him back into his seat. B.T. suffered no harm and the credible evidence established that Ms. Komninos never acted in a manner that could be seen as failing to make reasonable efforts to protect B.T. from conditions harmful to learning, mental and physical health, and/or safety. As to the incident concerning C.M., Ms. Komninos credibly explained that it occurred in March 2018. Ms. Komninos testified that C.M. got out of her seat without permission and, when Mr. Komninos instructed her to sit down, she further defied her order by continuing to walk to the recycling bin. Ms. Komninos walked to the recycling bin, instructed C.M. to remove the paper, and followed her back to her seat to ensure that she did not walk around the room and disturb the other students. Ms. Komninos credibly confirmed that she never touched C.M., pushed her down towards the recycling bin, or pushed her into her seat. She stayed at least a foot away from C.M. the entire time. C.M. testified that Ms. Komninos pushed her down towards the recycling bin, grabbed her arm for a brief period of time, and pulled her back to her seat. However, C.M.’s testimony conflicted with her prior written statements. In the first statement, she indicated that Ms. Komninos forcefully grabbed her arm and pushed her down to pick up the paper from the bin. In the second statement, she accused Ms. Komninos of forcefully grabbing her arm, pulling her, and telling her to sit down. When confronted with these inconsistencies, C.M. said the first statement—that omitted any reference to pulling her—more accurately reflected the incident. She also could not recall on what day the incident occurred. Nevertheless, C.M. confirmed that she suffered no harm and only got upset because Ms. Komninos could have asked her nicely to sit down. Based on the weight of the credible evidence, the undersigned finds that Ms. Komninos did not forcefully grab C.M.’s arm, push her down towards the recycling bin, or pull her back to her seat. C.M. suffered no harm and the credible evidence established that Ms. Komninos never acted in a manner that could be seen as failing to make reasonable efforts to protect C.M. from conditions harmful to learning or to her mental and physical health, and/or safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission, issue a final order dismissing the Administrative Complaint against the Respondent, Carmen Komninos. DONE AND ENTERED this 26th day of March, 2020, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2020. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears. General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Respondent, Lissa Nappier, committed the violations alleged in the Notice of Specific Charges and, if so, whether such allegations are just cause for termination of her employment with the School Board.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Lissa Nappier, was an employee of School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. The Respondent’s employment relationship with the Petitioner began in 1984 when she was retained as a temporary instructor. In 1988 she was hired as a permanent teacher and was assigned to Homestead Senior High School where she has continued service until the instant issues emerged. From 2004 until the time of her recommended termination, the Respondent was employed as the Student Activities Director at the school. Prior to the instant matter, the Respondent has had no disciplinary issues or actions. As a condition of her employment with the Petitioner, the Respondent is subject to the terms and conditions of a contract between the School Board and the United Teachers of Dade (UTD contract). Article XXIV of the UTD contract provides for credential payment to encourage employees of the School Board to pursue further studies and expertise in their respective fields. Such pursuit enhances the quality of education for students in the school district. At all times material to this case, the credential payment increase for a teacher with a doctorate degree was $7000. The effective date for the implementation of the credential payment is computed “after completion of eligibility requirements, as indicated on the transcript by the issuing university.” The UTD contract further provides that: Completion of eligibility requirements shall be defined as: (a)filing an official M- DCPS/UTD application for credential payment with the Office of Human Resources (receipt acknowledged and dated by M-DCPS); and (b) completion of course work/degree requirements prior to the date of the quarter for which payment is requested, as indicated by the date on the transcript, or other appropriate evidence provided by the university. M-DCPS shall notify all new employees of the availability of the credential payment programs and the procedures for making application. Under the heading “Eligibility,” the UTD contract also states: To qualify as graduate level, credit must have been earned after the applicant was granted the Bachelor’s degree and must be clearly identified as such. Pursuant to the UTD contract, Applicants whose applications are disapproved shall be notified that they may appeal the decision to the committee by resubmitting and supplying such additional and germane information and/or documentation as will be helpful in reaching a decision regarding the appeal. The decision of the committee is final and not grievable or arbitrable. On or about April 8, 2004, the Respondent submitted a note to the Petitioner’s Office of Compensation Administration that stated: Enclosed please find my official transcript for my Doctorate Program. Along with the transcript is a verification form. My employee number is 152174. Thank you for your attention in this matter, and with the necessary adjustments with payroll. Attached to the note described above, was a document purportedly from Rochville University. The Rochville document contained the words “Official Transcript” and purported to indicate that the Respondent had completed the noted courses. The document represented the Respondent had obtained a “Doctor of Arts (Major: Education).” Also attached to the note described in paragraph 11 was a form purportedly executed by the Rochville University Registrar and President that stated: This is to verify that Lissa A. Nappier has successfully completed the Doctor’s Program from Rochville University in the year 2004. In order to obtain the “Doctor of Arts” from Rochville University, the Petitioner submitted her transcripts from Brenau College, Nova Southeastern University, the requisite fees required by the school, and a summary of her 18 years of teaching experience to Rochville. Rochville University is an “on line” institution. The Respondent did not complete additional course work, did not write a thesis, and did not attempt to verify that Rochville University was an acceptable, accredited school prior to paying her fees for the degree and submitting the documents to the Petitioner for credential payment. It is unlikely that Rochville is an accredited university. Its academic claims are related to its status as an accredited “on line” institution. For approximately $600.00 the Respondent received a doctorate degree. After reviewing the Respondent’s documentation, the Petitioner denied the credential payment increase. The Respondent did not challenge or seek additional review of that denial. The matter was referred to the Petitioner’s Office of the Inspector General because the Respondent had “submitted a transcript to obtain credential payment for an advanced degree using a transcript from an unaccredited university.” None of the courses depicted on the Rochville University transcript that was appended to the Respondent’s note were actually for course work completed by the Respondent while attending (even online) Rochville classes. None of the hours for the courses depicted on the Rochville University transcript were earned while attending (even online) Rochville classes. The Respondent knew or should have known that a credible doctor of arts degree requires more than the submission of prior coursework, life experience, and the payment of fees. Moreover, the Respondent did not present evidence of any “life experience” that would entitle her to a doctor of arts degree from any accredited university. That Rochville University accepted the Respondent’s experience and prior academic work as sufficient to award a doctorate degree dishonors the hours of work that are, in reality, required of post-graduate students who obtain doctorate degrees from reputable institutions. Although technically truthful in Respondent's representation to the Petitioner, the Respondent’s request for credential payment was clearly not supported by credible academic achievement. The Respondent attempted to obtain credential payment using a non-creditable source. This was a tremendous lapse of good judgment. The Respondent, did not, however represent that Rochville University is an accredited university. She only represented that she had obtained a doctorate degree from that entity. Her lapse of judgment was in attempting to parlay her worthless degree into a credential payment increase. Her effort failed due to the attentive review of her request. At the time the Respondent was going through a divorce and needed additional income. The online approach to obtaining the doctorate degree appeared to be an easy, affordable alternative. The Respondent did not verify that Rochville University was accredited by any national accreditation source or that the university was acceptable to the School Board for purposes of obtaining a post-graduate degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the Respondent’s suspension without pay for the amount of time it deems appropriate, but returning the Respondent to full employment thereafter. S DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of September, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
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 should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent holds Florida Teaching Certificate 431123 issued by the Florida Department of Education including the subject areas of business education, mathematics and vocational education. During the 1981-82 school year involved in this proceeding, the Respondent was employed as a teacher at Brownsville Middle School in the Escambia County School District. The Petitioner is an agency of the State of Florida charged with licensing and enforcing the licensure standards embodied in its organic statute and rules and with regulating and enforcing the standards of professional practice of teachers licensed in the State of Florida, including the institution of disciplinary proceedings against teachers for alleged violation of those standards. During the month of April, 1982, the Respondent served as one of eight chaperones for the Pensacola High School senior class trip to various points of interest in the State of Florida, including Busch Gardens in Tampa. Transportation for the trip was provided by four busses with two chaperones assigned to each bus. While on the trip the group took a brief cruise off the east coast of Florida, visited the Kennedy Space Center on Saturday and returned to Tampa on Saturday afternoon. The group had dinner at the Kapok Tree Inn Restaurant on Saturday evening and then visited Busch Gardens on Sunday. The class then returned to Pensacola directly from Busch Gardens without staying overnight Sunday. They arrived back in Pensacola in the early hours of Monday morning. There were eight chaperones, three of whom were male. Senior student Joe Blake was among the students on the senior class trip. The Respondent knew Joe Blake prior to the senior class trip because she served as a substitute teacher during the Spring of 1979 for a class at Pensacola High School in which Joe Blake was enrolled. Deborah Greene is a learning disabilities teacher at Pensacola High School. She also served as a chaperone for the senior class trip and shared a hotel room with the Respondent. Prior to accompanying the seniors on their trip in April, 1982, Ms. Greene had never met the Respondent. Joe Blake rode the same bus that Ms. Greene and Ms. Holmes rode on the trip, and on which they served as chaperones. On the Saturday afternoon bus trip from the Kennedy Space Center to Tampa, Florida, the Respondent hugged Joe Blake by placing her arm around him while they were both standing in the aisle of the bus. This action was done in a joking, lighthearted manner at a time when both Blake and Respondent were surrounded by other students. The Respondent also sat with Joe Blake near the rear of the bus on the ride from Kennedy Space Center to Tampa. They were observed with two of their arms intertwined and listening to a large radio which they were holding across their laps. Petitioner's Exhibit 2B in evidence, shows that the Respondent took a nap for part of the bus trip across the state, and was photographed with her head resting on Joe Blake's shoulder. Upon arriving in Tampa on Saturday afternoon, the class and the chaperones had supper at the Kapok Tree Inn and thereafter returned to their hotel rooms. Both Ms. Greene and the Respondent spent a considerable amount of time that evening checking the student's rooms and monitoring the halls and ensuring that the students engaged in no misconduct, were not absent from their rooms and unaccounted for. Ms. Greene finally went to bed at approximately 2:30 a.m. Sunday morning and the Respondent went to bed sometime thereafter. On this evening Ms. Greene and the Respondent were sharing a hotel room. Respondent was not in the room when Ms. Greene went to bed. Ms. Greene testified that she awoke sometime later to sounds of kissing, moaning and other indistinct noises and she heard the Respondent say "Joe, quit, be quiet, be quiet." According to Ms. Greene, the Respondent was lying in a recumbent position on the bed with the student named Joe Blake. Ms. Greene believed that she was awake for about an hour and that she heard noises of what she assumed to be sexual intercourse during that time, describing the Respondent's tone of voice as "passionate." Ms. Greene awoke about 6:00 that morning and observed the Respondent leaving the room clad in her bathrobe. Joe Blake was asleep in the adjoining bed, unclothed from the waist up and covered otherwise. Ms. Greene went into the bathroom to get dressed and then stepped out into the hall, leaving the hotel room door partially open. Shortly thereafter Joe Blake got up and went to his room next door. At approximately that time, the Respondent explained to Ms. Greene that Joe Blake had come to her room, knocked on the door and she let him in to watch television, and that he had fallen asleep on her bed. The Respondent told Ms. Greene that she didn't know what to do about that so she just left him there explaining that she slept in a chair. The hotel room was in a darkened condition at the time Ms. Greene perceived the Respondent and Joe Blake in the room. Ms. Greene did not report the incident to anyone until the Spring of 1983, approximately one year later and on the occasion of a proposal to include the Respondent as a chaperone for the 1983 senior trip. Thus, at that time she discussed the matter with another teacher named Peggy Hess and ultimately reported the matter to Principal J. P. Cone, who obtained a written statement from Ms. Greene. Ms. Greene testified that she "really didn't know what to do about the situation." In any event, Ms. Greene was eventually questioned about the incident in September of 1983 by Pensacola High School Principal J. P. Cone. At that time she verbally related her observances to Mr. Cone and later provided him with a written Statement concerning the episode. After arising on Sunday morning, the senior class and their chaperones, including the Respondent and Dean Barbara Rose, another chaperone, visited Busch Gardens in Tampa. While Dean Rose observed the Respondent walking hand-in-hand with Joe Blake on one occasion while the class was visiting Busch Gardens, she did not consider that unusual under the circumstances. J. P. Cone, the Principal of Pensacola High School, received a report, concerning the incident involving the Respondent being observed holding hands with Blake at Busch Gardens, from Barbara Rose on September 13, 1983. Mr. Cone obtained a written statement from Debbie Greene concerning the incident in the hotel room on September 1, 1983. That written statement and the verbal statement made by Ms. Greene to Mr. Cone contained no reference to the fact that Ms. Greene allegedly heard sounds of sexual intercourse. An investigation was conducted by Mr. Cone and the Respondent ultimately was issued a reprimand. Mr. Cone also received a written report prepared by Margaret Hess, another chaperone on the trip which was introduced into evidence by Respondent. In that written statement, Ms. Hess acknowledged that she knew of the report made by Debbie Greene, but stated that she had observed nothing that would have indicated such an event had taken place based upon her observance of the Respondent and Joe Blake's conduct on the trip. Ms. Hess explained that she had seen the Respondent with Joe Blake and other students at Busch Gardens and observed them holding hands on one occasion but had not considered that in itself unusual. The Respondent is a 35-year old woman with two teen age sons. She took the stand in her own defense and stated that she had no contact of a romantic nature with Joe Blake, explaining that she considered such conduct ridiculous since she was approximately 17 years his senior. Ms. Holmes described Joe Blake as banging on the door of her hotel room and creating a disturbance on the night in question. When she opened it he appeared to be intoxicated. She maintains that although he made an advance and attempted to kiss her or hug her, including pulling her down beside him on the bed, that this was at his behest and not hers and that she resisted and discouraged his conduct immediately. Thereafter Blake fell asleep for the remainder of the night, and she stated that she spent the remainder of the night sleeping in a chair. She told the other chaperones the next morning that Blake was asleep in her room so that they would not be concerned about his whereabouts. Charles Franklin Beall is a minister at Trinity Presbyterian Church in Pensacola, Florida. The Respondent has been his parishioner for approximately twelve and one-half years and she has a good reputation in the community for truthfulness. Lucy Mitchell, an Occupation Placement Specialist at Pensacola High School has known the Respondent for approximately seven years and considers her to be "highly respected." Aside from the disciplinary measure of a reprimand imposed by Principal Cone, concerning this incident, the Respondent was not shown to have ever been subjected to disciplinary action in the past.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Administrative Complaint should be DISMISSED. DONE and ENTERED this 20th day of December, 1984 in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Donald Griesheimer, Executive Director Education Practices Commission The Knott Building Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issues for determination in this proceeding are whether Respondent fraudulently or dishonestly completed the professional orientation program required for teachers holding two year temporary certificates and, if so, what, if any, disciplinary action should be taken against Respondent's teaching certificate.
Findings Of Fact Respondent was employed as a teacher at Hickory Tree Elementary School ("Hickory Tree") in the Osceola County School District during the 1990-1991 and 1991-1992 school years. Respondent holds Florida Teaching Certificate 684324 in psychology. Respondent's teaching certificate is a two year nonrenewable certificate. All teachers certified in Florida must complete a professional orientation program before receiving a five year professional educator certificate. Teachers who do not complete the program the first year are not entitled by right to a second year to complete the program. However, they may be granted an additional year to complete the program at the discretion of the assistant principal. Credit received by a teacher in the first year is not cumulative. A teacher who does not complete the professional orientation program in the first year must satisfy all of the requirements in the program during the second year. Respondent failed to complete the professional orientation program during the 1990-1991 school year. Respondent was granted an additional year to complete the program. There are 27 Florida Essential Generic Competencies which must be satisfied in order to complete the professional orientation program. A teacher complies with each item by submitting a written document which is kept in a portfolio during the school year and evaluated by a supervisor and the assistant principal. Item 24 requires a teacher to construct or assemble classroom tests to measure student achievement of objectives. A teacher must create his or her own test to evaluate what students learned from a lesson given by the teacher in the classroom. A teacher is not permitted to use form tests or tests prepared by other teachers to satisfy this requirement. The test must be the teacher's original work. During his first year of teaching, Respondent satisfied item 24 in the professional orientation program by submitting a test that demonstrated his competency to construct or assemble classroom tests. During the second year, however, Respondent submitted a different test. Respondent submitted a test on simple machines during his second year in the professional orientation program. The test was substantially identical to a test written by Ms. Margaret Ann Walek, another teacher at Hickory Tree at the time. Ms. Walek wrote the simple machines test in a previous year to satisfy her own professional orientation program requirement. The simple machines test was written by Ms. Walek to evaluate third grade students on concepts such as pulleys, levers, and basic functions of machines. It was created solely by Ms. Walek in her handwriting and transcribed by her mentor-teacher for the ditto master before being submitted to Ms. Walek's students. Ms. Walek used the simple machines test the following year in typed form. Respondent used a copy of the same test to satisfy item 24 in his professional orientation program. The similarity in the two tests was not detected by Respondent's supervisor or the assistant principal at the time Respondent submitted the simple machines test. Respondent received a satisfactory score for successfully completing the professional orientation program during the 1991-1992 school year. In December, 1992, the assistant principal was reviewing all of Respondent's records as a result of a charge of discrimination filed by Respondent against the assistant principal after his employment was terminated for reasons not at issue in this proceeding. The assistant principal called Ms. Walek to the office. Without knowing the purpose of the inquiry, Ms. Walek identified a copy of both the ditto version of the simple machines test and the typed version as her original work. Respondent submitted evidence during the formal hearing that the allegations against him were made in retaliation for his charge of discrimination. However, Ms. Walek is no longer employed as a teacher in the Osceola County School District. She is employed in the private sector and has no discernible secondary gain for testifying on behalf of Petitioner. Her testimony on behalf of Petitioner during the formal hearing was credible and persuasive and was corroborated by competent and substantial evidence. Respondent completed the professional orientation program and obtained his teaching certificate by fraudulent means. He converted the work of another teacher and submitted it as his own in order to complete the professional orientation program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of obtaining his teaching certificate by fraudulent and dishonest means, within the meaning of Section 231.28(1)(a) and Florida Administrative Code Rule 6B- 1.006(5)(a) and (h), and suspending Respondent's teaching certificate for two years from the date of Respondent's termination of employment. DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact All of Petitioner's proposed findings of fact are accepted in substance. Respondent's Proposed Findings of Fact Respondent did not submit proposed findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire 411 East College Avenue Tallahassee, Florida 32301 Joseph Egan, Jr., Esquire P.O. Box 2231 Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
