Findings Of Fact Respondent was initially employed by the Pinellas County School Board in August 1973 as a plant operator, and received evaluations on his job performance approximately on an annual basis through December, 1986. In the evaluation dated May 17, 1977 in the category of attitude, Respondent received a comment that he was "slow to cooperate, occasionally disagreed with others, objects to some jobs." Respondent received "Needs Improvement" ratings in attitude, and relations with others on his evaluation dated January 10, 1983. In the evaluation dated December 17, 1984, Respondent received a "Needs to Improve" in the category of relations with others. On October 5, 1979, while a night plant operator at Clearwater High School, Respondent was placed on a 90 day probationary period after using profanity and being insubordinate to his immediate supervisor. On January 11, 1980, the principal of Clearwater High School requested that the Superintendent of the Pinellas County school system initiate the termination of Respondent for failing to cooperate with fellow workers, and reporting that work was done when in fact it had not been done. Prior to any action being taken to terminate Respondent in 1980, Dr. Ronald F. Stone interceded with the Superintendent on Respondent's behalf. It was Dr. Stone's opinion that Respondent's difficulties in cooperating with his fellow workers were due to the larger and more complex nature of the plant operator work at a high school, and Stone arranged to have him transferred to an elementary school where he has been subsequently employed. Respondent's employment was covered by the terms of the collective bargaining agreement between the International Brotherhood of Firemen and Oilers (IBFO) and the Petitioner for the years 1985 through 1988. The IBFO agreement states, in Article 11 that: . . . except as expressly provided in this agreement, the determination and administration of school policy, the operation and management of the schools and the direction of employees are vested exclusively in the Board. The IBFO agreement does not set forth any definition of the grounds for which the Petitioner may discharge IBFO employees, including plant operators. However, the practice of "progressive" discipline is specifically recognized at Article 29, Section G(2). On January 22, 1987, the Office of the State Attorney for the Sixth Judicial Circuit for the State of Florida, in and for Pinellas County Florida, filed an Information in Circuit Criminal Case No. 87-695CFANO, alleging the Respondent had committed the felony of handling and fondling a child under the age of 16 in a lewd manner. The child involved is currently six years old. On May 27, 1987, Respondent entered a plea of guilty to the lesser included charge of simple battery in Case No. 87-695CFANO, the Court accepted said plea, found him guilty of the lesser included charge of simple battery, withheld adjudication of guilt, and placed him on probation for one year. The Superintendent of the Pinellas County School System has recommended that Respondent's employment be terminated based upon his plea to this charge, and the accumulated effect of his poor performance in this job. There are no plant operator jobs in small, noncomplex facilities, within the Pinellas County school system that would not bring the employee into contact with children. Even working on night shifts in an elementary school, Respondent would be coming into contact with children who are students of the Pinellas County school system. It is the opinion of Dr. Ronald Stone, Executive Assistant Superintendent of Human Resources and Ms. Nancy Zambito, Director of Personnel Service, that the employees of the Pinellas County school system must maintain a public image of respect for school age children, and that the commission of, or entry of a plea of guilty to the charge of any battery on a school age child is inconsistent with said public image and is, therefore, detrimental to the Pinellas County school system. According to his brother, Arthur T. Greer, a lieutenant in the Akron Police Department, Respondent has a learning disability which makes it very difficult for him to communicate. He discussed the entry of a plea of guilty to a simple battery with Respondent before it was entered, and he feels that Respondent entered this plea to avoid a very traumatic experience of testifying in court. However, Respondent has consistently denied improperly touching, fondling or committing a battery on the child. Respondent's immediate supervisor, William J. Johnson, who has supervised him for 5 years, testified that he was a very good, loyal and dependable worker. This testimony was supported by Robert Russell, Plant Operations Supervisor. Johnson also confirmed that Respondent has consistently denied the charges involving the child. In accordance with Article 29 of the IBFO agreement, disciplinary action taken more than two years previous to a current charge cannot be considered by an employee's immediate supervisor in assessing disciplinary action on a current charge. This provision, however, does not limit consideration by the Superintendent or School Board of all prior charges and disciplinary actions when imposing discipline on a current charge. Respondent is under contract for the 1987-1988 school year, but is in the status of suspended without pay, pending a final determination in this cause. He has been suspended without pay since January, 1987 when the information against him was filed in Case No. 87-695CFANO.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order approving the Superintendent's recommendation that disciplinary action be taken against Respondent. However, it is recommended that such action be based solely upon the finding that he is guilty of a simple battery against a child under 16 years of age. Accordingly, it is recommended that Respondent be suspended without pay from January, 1987 until the entry of the Final Order herein at which time it is further recommended that Respondent be reinstated to his former position as plant operator. DONE AND ENTERED this 1st day of February, 1988, in Tallahassee, Florida. DONALD D. CONN 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 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4131 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-5 Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected as unnecessary and irrelevant. 10-11 Adopted in Finding of Fact 5. 12 Rejected as unnecessary and cumulative. 13-14 Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 17-18 Rejected as unnecessary due to Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Rejected as unnecessary and cumulative due to Finding of Fact 9. Rulings on Respondent's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 9. Rejected as simply a statement about evidence which was not presented; and therefore as unnecessary. Adopted in Findings of Fact 2-5, 13 and 14. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 James R. Stearns, Esquire 1370 Pinehurst Road Dunedin, Florida 34698 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 =================================================================
The Issue The issue presented for decision in this case is whether Petitioner, the School Board of Lee County (the "School Board"), has just cause to dismiss Respondent, a teacher at Cypress Lake High School ("Cypress Lake"), for setting his car on fire on school property.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Since August 1995, Respondent has been employed as a high school classroom teacher by the Lee County School District, teaching Spanish at Cypress Lake. He worked for the school district continuously until April 20, 1999, when he was suspended with pay and benefits. Throughout his active employment with the school district, Respondent’s performance evaluations and assessments showed that he met or exceeded all performance criteria. Respondent has not been subjected to discipline prior to this case. William Geddes, the principal of Cypress Lake, hired Respondent and had known him for five years. He testified that Respondent was a very effective Spanish teacher. He testified that Respondent got along well with students and staff and greatly improved the school’s Spanish club. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has known Respondent professionally for five years and described him as a very good teacher, doing exciting things in the classroom. She said Respondent was popular with students and fellow teachers. Ms. Gruhn called Respondent "fair" and "upright." Donald Koedyker is the sites maintenance person at Cypress Lakes. He begins work at about 6 a.m., Monday through Friday. He testified that he uses a golf cart to get around the campus during the day. On April 19, 1999, Mr. Koedyker arrived at the Cypress Lake campus at around 5:45 a.m. He opened the storage shed and got his golf cart and a trash barrel. He testified that he picks up trash on the school grounds first thing in the morning. Mr. Koedyker stated that he was running late that morning because there was a flat tire on his golf cart. He either pumped the tire or took the other golf cart, then began his rounds. As Mr. Koedyker drove his golf cart past a building toward the parking lot, he saw a flicker of light. After he rounded the corner of the building, he could see Respondent’s car burning. The car was parked in a handicapped space near the front of the main school building. Mr. Koedyker estimated the distance to be about 30 feet from the car to the building entrance. Mr. Koedyker drove to the cafeteria and pounded on the door. Carol Cote, the lunchroom manager, answered the door. Mr. Koedyker told her to call 911, then he headed back to the burning car. Mr. Koedyker saw Respondent coming through a wrought iron gate from the courtyard to the back of the cafeteria parking lot. Respondent was walking in no apparent hurry. Mr. Koedyker did not notice whether Respondent was carrying anything. Mr. Koedyker yelled to Respondent that his car was on fire. Respondent climbed onto the golf cart and rode to the parking lot with Mr. Koedyker. Mr. Koedyker testified that Respondent told him that he couldn’t believe his car was burning. He described Respondent as being "in shock." They stopped the golf cart about 30 to 40 yards from the car. Mr. Koedyker testified that the fire appeared to be burning more intensely than when he first saw it. Shortly thereafter, a fire truck arrived and they watched the firemen attempt to put out the fire for about 25 minutes. Mr. Koedyker testified that the flames were intense enough that he could feel the heat from where he stopped the golf cart, some 30 or more yards away. Mr. Koedyker testified that he saw no damage to the main building at the time of the fire, but the next day he saw that the asphalt was singed where the car had been parked. Mr. Koedyker estimated that five or six teachers were at work at the time he discovered the fire, which he estimated to be at about 6:10 a.m. The custodian who opens the school building was also there. By the time the fire was put out, nearly all the staff and faculty were at school. Mr. Koedyker estimated that the fire department arrived at about 6:20 a.m., and that the fire was out by 7 a.m. Mr. Koedyker testified that he saw no students at the time of the fire, though some students regularly arrive early to run track. Mr. Koedyker testified that the school building is usually open by 6:05 a.m. He was not aware of any school policy prohibiting students from entering the school until a time certain. Mr. Koedyker testified that Respondent regularly arrives early at school. He described Respondent as one of about four "early bird" teachers. Mr. Koedyker stated that Respondent arrives about the same time as he does. Mr. Koedyker stated that Respondent was not parked in his usual spot that day. Respondent walks with a cane, and has a handicapped parking sticker, but usually does not park in the handicapped space. Respondent is one of two staff people at Cypress Lake with handicapped parking stickers. Mr. Koedyker recollected that Respondent stated he was told to park there on the morning of April 19, 1999. Construction was still going on in the main building. The actual construction was finished, but punch list items and cleanup were still under way. Mr. Koedyker testified that Respondent was aware of his morning routine, and that his routine made it likely that he might discover the person setting the car on fire. Mr. Geddes has been the principal of Cypress Lake for over a year and has worked at the school for 24 years. Mr. Geddes testified that the official work day for teachers runs from 7:00 a.m. until 2:30 p.m., and that they report to work from 6:30 to 6:45 a.m. He testified that he prefers to keep students out of the building until 7 a.m. On April 19, 1999, Mr. Geddes arrived on the campus at 6:23 a.m. He recalled the precise time because he checked his watch as he drove onto Panther Lane, the main road into the school. As he drove in, Mr. Geddes saw a fire truck pull out of Panther Lane. As he drove the 200 feet from the entrance to the front of the campus, Mr. Geddes saw several police and fire department cars, and yellow tape cordoning off the burned vehicle. He saw no flames coming from the car. Mr. Geddes’ testimony has the fire already out at about 6:25 a.m., roughly the same time Mr. Koedyker testified the fire truck first arrived. This variance in the testimony is noted, but has no real bearing on the relevant facts of the case. In any event, Mr. Geddes’ testimony on this point is credited due to his more precise recollection. Mr. Koedyker testified that he was estimating the times. Mr. Geddes spoke to a police officer, who told him that a student may have set the car on fire. Mr. Koedyker told Mr. Geddes that the car belonged to Respondent. Mr. Geddes commenced looking for Respondent. He called for Respondent over the school loudspeaker system. He waited ten to fifteen minutes, but received no response. Mr. Geddes then went back to the parking lot, but did not see Respondent there. He saw the that the police and fire department were still investigating the scene, and that they had pulled a one gallon container of liquid from the vehicle. Mr. Geddes stated that the officers told him they were going to bring in arson investigators, but there was nothing for him to do and he should simply go about the business of running the school. Mr. Geddes testified that the fire did not delay the start of school. Mr. Geddes testified that Respondent’s car was parked about 50 feet from the entrance of the main building, in the parking space closest to the school. Cypress Lake has a circular drive, with a student drop- off area near the school. School buses drop off students about 200-250 feet from the school entrance. The students exit the buses and walk up a covered walkway to the entrance. Mr. Geddes estimated that the burned car was parked about 200 feet from the bus drop-off point, but only 30 feet from the nearest point on the walkway. Mr. Geddes returned to his office at about 6:45 a.m. and again called for Respondent over the school loudspeaker system. At about 7:10 a.m., Respondent came to Mr. Geddes’ office. He told Mr. Geddes that he had not heard the call on the loudspeaker, but had been told that Mr. Geddes was looking for him. Mr. Geddes testified that he never found out what Respondent was doing during the period between the first loudspeaker call and his arrival at the office. Mr. Geddes testified that Respondent was a smoker, and that teachers are not supposed to smoke on the campus. Mr. Geddes conceded that Respondent may have been smoking a cigarette at the shed where the golf carts were stored, but stated that the loudspeaker can be heard at the shed because he had fielded complaints about it from the residents of the suburb behind that area. Respondent told Mr. Geddes that he left his car unlocked as he came into the school to copy some papers for a class, and that a student apparently "torched" his vehicle while he was in the building. Respondent said he could think of no one who would set his car on fire, and said nothing to implicate himself. Respondent told Mr. Geddes that he was unhurt, but "pretty shook up." Mr. Geddes told Respondent that he would see that Respondent’s classes were covered, and that Respondent should concentrate on taking care of this matter. Respondent left the office and went outside to work with the fire and police investigators. Mr. Geddes contacted the district office to inform them of the matter. At around 9:30 a.m., Mr. Geddes received a phone call from the Lee County Sheriff’s Office telling him that they were taking Respondent to the district substation for further investigation. Some time between 11:30 a.m. and noon, the Sheriff’s Office called Mr. Geddes to tell him they were arresting Respondent and charging him with arson. Respondent was to be transported to the Lee County Jail. Shortly thereafter, Respondent called Mr. Geddes and asked him to bring his briefcase, keys, and cellular phone down to the police station. Mr. Geddes told Respondent that he would bring the items to the jail after school, and asked Respondent if his wife knew what had happened. Respondent said she didn’t, and accepted Mr. Geddes’ offer to call her. Mr. Geddes called Respondent’s wife, informed her of the events of that morning, and told her that he was going to try to see Respondent at 3:00 p.m. Respondent’s wife said she would try to meet Mr. Geddes at the jail. Mr. Geddes tried to deliver the briefcase to Respondent, but the police would not allow him to see Respondent because Respondent had not yet been arraigned. The police told Mr. Geddes that only Respondent’s lawyer could speak with Respondent prior to arraignment. Mr. Geddes testified that he waited for Respondent’s wife at the police station until about 4:15 p.m., but she never appeared. Mr. Geddes testified that Respondent told him during their telephone conversation that he was sorry for what he had done. Respondent sounded as if he was choking back tears. Mr. Geddes testified that he did not take this statement as an admission that Respondent had set the fire. Mr. Geddes testified that in the immediate aftermath of the fire, teachers on the Cypress Lake campus were concerned about students setting fires. The Lee County Sheriff’s Office told Mr. Geddes that Respondent had admitted setting the fire. The officers also told him they had found burns on Respondent’s body. Mr. Geddes attended the predetermination hearing concerning Respondent’s employment status. Also present were Gail Williams, a secretary; and Respondent and his counsel. Respondent’s counsel advised Respondent to make no statements pending resolution of the criminal charges. After the meeting, Mr. Geddes recommended that Respondent not return to Cypress Lake, believing that it was in no one’s best interests to have him on the campus. Mr. Geddes testified that there was shock on the campus when it was learned that Respondent had been charged with arson, but also relief that the perpetrator apparently was not a student. Mr. Geddes testified that the incident undermined Respondent’s effectiveness on campus. Mr. Geddes testified that the area where Respondent’s car was parked on April 19 was generally more visible than the area where Respondent usually parked. He testified that there were less obvious places on campus to set a car on fire. Daniel Leffin is a battalion chief with the Iona MacGregor Fire District and an officer with the Lee County Sheriff’s Office. On the morning of April 19, 1999, Mr. Leffin was on duty at the fire department. His unit was dispatched to Cypress Lake shortly after 6:00 a.m. Mr. Leffin testified that, as shift commander, he separately drove a car to the scene, arriving two minutes after the call. The fire truck followed immediately behind him. Mr. Leffin estimated they arrived at the school at about 6:15 a.m. He testified that five to seven people, including Respondent, were in the parking lot as they arrived. Respondent was sitting on Mr. Koedyker’s golf cart. The firemen found a Toyota 4Runner "fairly well involved" in a passenger compartment fire. The fire had broken out the windows, and flames were shooting about two feet over the top of the car. Mr. Leffin testified that the car could have blown up, but that explosions are not something the firemen ordinarily worry about. Explosions are very rare, usually caused by ruptures in the gas tank. Mr. Leffin stated that he has seen only two car explosions in 19 years of work, and both of those involved crashes. Mr. Leffin testified that the fire was hard to extinguish. He stated that water is usually sufficient for car fires, but in this case foam had to be used. Foam is usually used on fuel fires. Mr. Leffin stated that it took about five to ten minutes to put out the fire. After the fire was extinguished, Mr. Leffin surveyed the car in an effort to discover how the fire started. He found fuel containers under the floor boards of the passenger seat and the rear left seat. At that point, he did not remove the containers. Mr. Leffin testified that it was apparent that the fire had been started intentionally, and he called in the police and the State Fire Marshall. The scene was cordoned off with yellow tape for a radius of 20 feet. Mr. Leffin estimated that the vehicle was parked about 30 feet from the walkway, and was about 50-75 feet away from the main building. While waiting for the police to arrive, Mr. Leffin spoke to Respondent, who told him he didn’t know what happened. Respondent told Mr. Leffin that he had gone into the building to make copies, and was told by Mr. Koedyker that his car was on fire. Mr. Leffin asked Respondent whether anybody was "mad" at him. Respondent said he could not think of anyone. Mr. Leffin testified that the conversation was limited after this point, because he had begun to suspect that Respondent set the fire. Also arousing Mr. Leffin’s suspicions was the fact that, when Respondent went to view the burned vehicle, he walked straight to the left back window and looked in where one of the fuel containers had been. Mr. Leffin had mentioned the fuel containers to Respondent, but had not told him their location in the car. Mr. Leffin waited for Philip Roman of the State Fire Marshall’s office to arrive before questioning Respondent any further. In Mr. Roman’s presence, Mr. Leffin removed one of the fuel containers from the car and set it aside. The odor and color of the liquid in the container indicated it was "some sort of accelerant." Philip Roman was the arresting officer, though Mr. Leffin sat in on the interview at the district substation. During the interview, Mr. Roman noted singed hair on Respondent’s right upper hand and palm. He also noted what appeared to be heat blisters on Respondent’s pant legs. Mr. Leffin testified that Respondent appeared "indifferent" at the outset of the interview, sitting and listening without any outward display of emotion. Later, Respondent appeared to be on the verge of breaking down, holding back tears. Mr. Roman read Respondent his Miranda rights and had Respondent sign a "Miranda Warning" form. Respondent wrote "No" next to the question, "Having these rights in mind, do you wish to talk to us now?" Mr. Leffin testified that there was a period during which Respondent wanted to talk to them, but then changed his mind. Still later, Respondent agreed to talk to Mr. Roman alone. After that discussion, Mr. Roman taped a statement by Respondent. Mr. Leffin testified that Respondent confessed to Mr. Roman that he had gotten the fuel containers out of a recycling bin, filled them with gas at a Hess station on the way to school, and set the car on fire. Respondent did not tell them why he did it. Respondent was charged with second degree arson. At the hearing, Respondent produced an Order Granting Defendant’s Motion to Suppress, entered by Circuit Judge Isaac Anderson, Jr. in the criminal case against Respondent. Judge Anderson found that Mr. Roman "used pressure designed to embarrass, intimidate and to ultimately get the Defendant to confess," and that these actions justified suppression of Respondent’s confession. Gail D. Williams is the director of personnel services for the Lee County School District. Among her duties are disciplinary and internal investigations. In this case, her supervisor received the complaint and initiated the investigation. Ms. Williams then chaired the predetermination conference for Respondent on July 26, 1999. After the conference, the Superintendent recommended moving forward with Respondent’s termination. His reasoning was that Respondent’s actions jeopardized the safety of students and staff at Cypress Lake. The Superintendent notified Respondent of his recommendation by letter dated August 10, 1999. Ms. Williams could not say whether Respondent ever admitted to school district personnel that he set the fire. On advice of counsel, Respondent said nothing at the predetermination conference. Ms. Williams stated that Respondent’s actions constituted violations of Rules 6B-1.006(3), 6B-1.006(5)(a), 6B-1.001(2), and 6B-1.001(3), Florida Administrative Code. Andrew W. Baker has been a teacher and basketball coach at Cypress Lake for three years. He knows Respondent as a co-worker, and as a volunteer ticket taker at basketball games. On the morning of April 19, 1999, Mr. Baker arrived at school at 5:50 a.m. He opened his classroom, then walked to the main office at 6:00 a.m. to sign in. Mr. Baker said good morning to Respondent in the office. He noticed nothing unusual in Respondent’s behavior. Mr. Baker then walked to the main entrance of the building to get a morning newspaper and walked back to his classroom to read the newspaper. He did not see a fire in the parking lot at that time. He testified that the lot adjacent to the main entrance is the best lit parking lot on the campus. Mr. Baker testified that he saw Respondent again about 20 minutes later. Mr. Baker was sitting in his classroom, reading the paper, and drinking coffee when Respondent knocked and came in. Respondent told Mr. Baker, "Somebody blew up my truck." Respondent wondered aloud, "Why would a kid do this to me?" Mr. Baker testified that Respondent was crying. Mr. Baker testified that on a typical day, there are five or six teachers and other employees at the school at 6 a.m., including Mr. Koedyker. Mr. Baker testified that he did not hear any sirens, because his classroom is "clear in the back of the school." Mr. Baker testified that he heard some students discussing the incident later. He described their state of mind as encompassing confusion, surprise, and shock. Mr. Baker also heard students discussing Respondent’s arrest. Some of the students told him they had seen Respondent being handcuffed. Mr. Baker testified that he did not know if the handcuffing actually occurred. Mr. Baker testified that no one questioned him about the incident. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has worked at Cypress Lake for eight years. She has known Respondent professionally for five years, and described him as a very good teacher. On April 19, 1999, Ms. Gruhn came in late to school, at about 8:30 a.m. She was told about the fire when she called in to the office to say she would be late. The person on the phone told her there was some "excitement" at the school, that someone had set Respondent’s car on fire and that there was gasoline in the car. When she arrived at school, Ms. Gruhn heard more about the incident from teachers. Ms. Gruhn testified that the teachers were scared, and were asking her about security in the parking lot. Some of the early arriving teachers asked Ms. Gruhn if they should wait until 7 a.m. to come to school henceforth. After she arrived at the school, Ms. Gruhn talked to Respondent. Ms. Gruhn described Respondent as very upset, crying off and on. Respondent told her that someone had started a fire in his car, and Mr. Koedyker had come running to tell him it was on fire. Ms. Gruhn discussed the matter with the deans at the school. They wondered who was the likely candidate to have come in early to the school and burned Respondent’s car. None of them was privy to what the investigators at the scene were thinking. Ms. Gruhn recalled that on the next day, Mr. Geddes told her confidentially that Respondent had set the fire.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, and ordering that Respondent be dismissed from employment with the Lee County School Board. DONE AND ENTERED this 28th day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 28th day of March, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Keith B. Martin, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Dr. Bruce Harter, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3916
Findings Of Fact From September 5, 1991, and at all times material to this case, Respondent Brenda Simmons was employed under an annual contract as a teacher's aide, a classified employee position, by the Lee County School Board. On January 29, 1993, the Cypress Lake High School women's basketball team played the Mariner High School team at the Cypress Lake gym. The Respondent was the coach of the Cypress Lake junior varsity team which played the Mariner team prior to the varsity team game. During the junior varsity game, the Respondent sat with the players while coaching them. During the varsity game, the Respondent sat with her sisters next to the Mariner cheerleaders and close to the playing area. The section within which the Respondent sat during the varsity game is an area where black students generally sit to watch the game. The Respondent is black. The Mariner cheerleaders who testified at the hearing are white. The Respondent and her sisters apparently were annoyed that the cheerleaders would occasionally block their sight lines during cheers. During the game, the Respondent made hand gestures ridiculing the cheerleaders movements. At one point during the game, the Respondent called one cheerleader a "fucking slut." She also called one particular cheerleader a "fat ass." The Mariner cheerleaders were disturbed by the Respondent's behavior and as the game was ending, notified their adviser of the situation. The adviser contacted her Cypress Lakes counterpart who identified the Respondent and informed the assistant principal of Cypress Lakes. In the lobby area of the gym, the Cypress Lakes assistant principal approached the Respondent and inquired as to the situation. The Respondent became loud and angry, at which point the assistant principal suggested that the discussion should be continued on the next school day. The Respondent stated that she did not "have to take this shit" and left the gym. The Respondent then went into the parking lot of the gym and confronted the Mariner cheerleaders as they were being escorted to their transportation. The Respondent threatened the cheerleaders, stating she would "kick your motherfucking asses." The assistant principal, notified of the parking lot incident, went to the scene in an attempt to calm the situation. The Respondent continued to threaten the Mariner cheerleaders and to respond to the assistant principal in an angry and hostile manner. The Superintendent of Schools directed that the matter be investigated. Subsequent to his inquiry, a meeting was conducted on February 5, 1993, at which time the Respondent was provided with an opportunity to respond to the allegations. The Respondent denied that she had acted inappropriately towards the Mariner cheerleaders or that she had been insubordinate to the assistant principal. The Respondent claims that the complaining witnesses in this case are unable to distinguish her from her sister and that her sister was the person who acted inappropriately. The evidence, which includes eyewitness identification from persons who worked with the Respondent on a daily basis fails to support her claim. Further, the Respondent's sister denied that she used such language as was alleged.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Brenda Simmons. DONE and RECOMMENDED this 23rd day of February, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1994 APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2940 The Respondent filed a written closing argument which included no proposed findings of fact. The following constitute rulings on proposed findings of facts submitted by the Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-6. Rejected, not supported by the greater weight of credible and persuasive evidence. 10. Rejected, not supported by the greater weight of credible and persuasive evidence. 11-12. Rejected, subordinate. 14-19, 24, 31. Rejected, unnecessary. COPIES FURNISHED: Bobbie D'Alessandro, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament, Esquire Kunkel & Hament Suite 785, 1800 Second Street Sarasota, Florida 34236 Willie Green Willie J. Battle 1971 French Street Fort Myers, Florida 33916
The Issue Whether or not on or about January 26, 1976, the Respondent, Alberta Quarterman, did physically and verbally attack Mrs. Bettie Shelor, Dean of Girls at the Largo Middle School, Largo, Florida, and whether the Respondent, Alberta Quarterman, should be dismissed from the public schools of Pinellas County, Florida for those alleged acts, which are regulated under Chapter 230.33(8)(c), Florida Statutes.
Findings Of Fact On January 26, 1976, an eighth grade assembly was being held in the Largo Middle School, Largo, Florida. Alberta Quarterman was in the assembly area, which is the gymnasium of that school, and was seen by Mrs. Bettie Shelor, the Dean of Girls, to be without her shoes and blouse. In addition, the Respondent was not with her assigned class group and was jumping up and down on the bleachers in the gymnasium. Mrs. Shelor approached Alberta Quarterman and asked her to put on her blouse and shoes and told Miss Quarterman she would not be allowed to stay in the assembly if she did not comply. Alberta Quarterman did not adequately comply with the request, and was asked by Mrs. Shelor to return to the administration offices for the duration of the assembly period. It was the intention of Mrs. Shelor, to have the Respondent stay in the so called "time out room", for the duration of the assembly period. The "time out room" is a room in which students being disciplined are asked to stay for disciplinary purposes. Mrs. Shelor returned to her office after leaving Alberta Quarterman in the "time out room". Alberta Quarterman then came into Mrs. Shelor's office, unannounced, and sat down and attempted a confrontation about the matters that had transpired in the assembly room. At the time the Respondent was in Mrs. Shelor's office, she spoke in these terms, "I don't care about shit", "You're a bitch", "Damn", "Hell", etc. Mrs. Shelor attempted to escort Alberta Quarterman from her office by placing her hand on Miss Quarterman's arm to assist her from the chair. This movement was not with force. At that time Alberta Quarterman stood up and hit Mrs. Shelor with her fist on Mrs. Shelor's upper left arm. The Respondent then ran from the room and was gone for a period of about 10 minutes. The Respondent returned to the administration offices and went directly into Mrs. Shelor's office at the moment of the second encounter. After attempting to engage in conversation with Mrs. Shelor, Alberta Quarterman jumped out of the chair she was seated in and started knocking Mrs. Shelor about the room with her fists, in the area of Mrs. Shelor's arms and chest. Five or six blows of this nature were administered to Mrs. Shelor. While this action was taking place Mrs. Shelor called for assistance from a Mr. Jack Ellott, the campus security officer, who was in the outer office. At this point Alberta Quarterman picked up a chair and raised it over her head and attempted to strike Mrs. Shelor with the chair. Mrs. Shelor blocked the blow from the chair. At this moment, Martha Matthews, secretary for the Dean of Girls entered the room, and pushed a chair between Alberta Quarterman and Mrs. Shelor. Alberta Quarterman jumped over the barrier and tried to reach Mrs. Shelor again but was unsuccessful. The security officer, Jack Ellott, entered the room and stopped the Respondent from further action. There was no further encounter between Mrs. Shelor and the Respondent. The above findings of fact were testified about and agreed to by Mrs. Bettie Shelor, Mrs. Martha Matthews and the Respondent, with the exception that the Respondent denied raising the chair against Mrs. Shelor. Since September, 1974, when the Respondent became a student at Largo Middle School, she has been referred for discipline approximately 34 times while in the seventh grade; for physical violence, violation of school rules, defiance of teachers, and verbal abuse. This same course of conduct has occurred approximately 23 times while the Respondent has been in the eighth grade at Largo Middle School. Many of these circumstances have led to the student's suspension, both from the school grounds and on-campus suspensions. The testimony of these statistics was offered by Mrs. Bettie Shelor, the custodian of these records and the Dean of Girls, for the Largo Middle School. Eight suspensions, according to Mrs. Shelor, for a total of 29-1/2 days in the course of the two years were out-of-school suspensions. According to Mrs. Shelor, the student has problems following instructions and participating in a structured environment, to the extent that the student will not remain seated while class is in session and on many occasions has walked out of class. The school has tried to help the Respondent by providing individual attention and counseling, such as affording the Respondent individual responsibility for maintaining a garden located on the school grounds. The Respondent has been counseled by the school's social worker and school staff psychologist. Linda C. Rubin, of the Pinellas County School System, Pinellas County, Florida, took the stand. Ms. Rubin has a Masters Degree in school psychology and while she was working at the Largo Middle School was involved in counseling and testing the Respondent. She testified that the Respondent lacks academic achievement and evidences disruptive behavior. In addition, she has learning problems and an auditory memory problem, observations born out by certain tests. Moreover, the Respondent was involved in a number of instances which were attributable to a short attention span and a short temper. The Respondent had lost her parents several years ago and the witness felt that this contributed to the Respondent's adjustment problem. To the witness's knowledge, no psychologist is working with the Respondent at this time, in the form of an in- school staff psychologist.
Recommendation It is recommended: If a program is available to handle students with Alberta Quarterman's background, within the public school system of Pinellas County, Florida, then the Respondent should be tried in such a program. Should no such program be available within the Pinellas County School System, it is recommended that the Respondent, Albert Quarterman, be dismissed from the Pinellas County School System for the balance and duration of the 1975-76 school year. DONE and ENTERED this 23rd day of March, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1976. COPIES FURNISHED: George M. Osborne, Esquire 55 Fifth Street, South St. Petersburg, Florida 33701 Mrs. Nancy Roberts 2054 119th Street, North Largo, Florida 33540 B. Edwin Johnson, General Counsel School Board of Pinellas County Post Office Box 4688 Clearwater, Florida 33518 Linda C. Rubin 1895 Golf to Bay Boulevard Clearwater, Florida Alberta Quarterman 2054 119th Street, North Largo, Florida 33540
The Issue Whether Respondent's teaching certificate should be disciplined by Petitioner, the Education Practices Commission and whether Respondent should be dismissed as an instructional employee from the Pinellas County School Board based on allegations set forth in the administrative complaint filed herein and the charges and amended notice of charges filed herein by the School Board by letters dated March 5 and July 8, 1992.
Findings Of Fact Respondent currently holds Florida teaching certificate No. 179606, covering the areas of administration and supervision, elementary education, french, spanish, special learning disabilities and varying exceptionalities. That certificate is valid through June 30, 1996. Respondent has been employed as a teacher by the Pinellas County School Board at Lealman Comprehensive Middle School (Lealman) and Tyrone Middle School (Tyrone). On November 5, 1976, Respondent received a letter of reprimand for striking a student with a belt. During various times in the 1978 and 1979 school year, Respondent appeared at work with alcohol on his breath which was noticed by administrators at Lealman. On April 30, 1987, Respondent received a letter of reprimand from Scotty East, principal at Lealman because of excessive absences and violation of school procedures. Respondent was advised to follow proper procedures for notifying the administration of his absence(s). Respondent was charged a personal day for the noted procedural infractions. During the 1986-87 school year, Pamela Coachman and Donna Strongoski were instructors at Lealman and worked with Respondent. Prior to and during the 1986-87 school year, Respondent made comments and inappropriate sexual advances to Pamela Coachman. Ms. Coachman rejected Respondent's advances. Respondent retaliated by making harassing and degrading comments such as calling her a "whore with champagne taste." Respondent's actions were offensive to Ms. Coachman. Respondent made inappropriate comments to Donna Strongoski about her appearance, the tone of her voice and her marital status. Specifically, from 1986-1988, Respondent questioned Strongoski's womanhood often telling her that she was "too strong to be a woman", that she had a voice like a man and questioned why she had never been married. Strongoski was angered by Respondent's comments. As a result of Respondent's comments to Strongoski and Coachman, they notified school administrators and district officials about his conduct. Nancy Zambeta, Director for Personnel Services, discussed the allegations with Respondent and advised him to refrain from making personal comments to colleagues and to avoid similar situations in the future. Coachman and Strongoski met with Respondent and cautioned him that they would not tolerate his behavior. Respondent received a memorandum from Lealman's principal advising him to refrain from similar behavior of a harassing nature. Respondent thereafter submitted his resignation but later rescinded it prior to the Board's acceptance. Respondent was permitted to return to employment as an annual contract teacher and was transferred to Tyrone. On March 7, 1988, Lois Beacham, assistant principal at Tyrone, observed Respondent acting in an incoherent manner and detected the odor of alcohol on his breath. Ms. Beacham requested a substitute for Respondent's class and later spoke to him about changing his behavior. Beacham advised Respondent to follow procedures to indicate absences in the future. On the same day, Tyrone's principal, Paul Brown, advised Respondent by letter not to arrive at work in an unprofessional condition (under the influence of alcohol). On January 3, 1989, Respondent requested a day off from work whereupon Principal Brown noticed that Respondent's speech was slurred and he detected an odor of alcohol on his breath. On January 4, 1989, Sandy Murray, secretary at Tyrone, encountered Respondent when he arrived at the office to pick up his paycheck. Ms. Murray noticed that the air "reeked of alcohol" around Respondent. On January 6, 1989, Steve Crosby, Director of Personnel Services for Petitioner School Board, met with Respondent to discuss allegations that Respondent reported to work under the influence of alcohol. Crosby warned Respondent that such conduct constituted poor judgment and misconduct in office and would not be tolerated by the Board. On January 25, 1989, Respondent entered into a stipulation with the Board agreeing to accept a three-day suspension without pay for reporting to work under the influence of alcohol. On April 17, 1989, Respondent encountered teachers Barbara Skatzka and Evelyn Villazon in a school hallway. Respondent improperly touched Ms. Skatzka's pants and commented that he had seen a lesbian who wore similar clothing. Respondent commented upon the fact that Ms. Skatzka was divorced, asked her if she was a lesbian and asked her if she had a man in her life. Such comments caused Ms. Skatzka to feel uncomfortable. On April 19, 1989, Charles Einsel, the Director of Personnel Services, met with Respondent to discuss the allegations. On April 25, 1989, School Superintendent Scott Rose issued a letter of reprimand to Respondent for the referenced unprofessional conduct. On June 7, 1989, Commissioner Castor filed an administrative complaint against Respondent. The complaint alleged several incidents including one that Respondent reported to work under the influence of alcohol, made improper comments to colleagues, used inappropriate corporal punishment and made improper comments to a student. On January 3, 1990, Commissioner Castor and Respondent entered into a settlement agreement to resolve the charges. The EPC accepted the settlement in its final order of February 26, 1990 (EPC Case No. 89-092-RT[PE4]). The agreement included the following provisions: Respondent received a letter of reprimand for the misconduct alleged. Respondent was placed on probation for three years. Respondent agreed to attend Alcoholics Anonymous and be subjected to random alcohol testing. Respondent agreed to undergo psychological evaluations. Respondent agreed to violate no law and to fully comply with all school rules, district school board regulations and rules of the State Board of Education. On February 4, 1990, Respondent was arrested in Pinellas County and charged with driving under the influence of alcohol. He was adjudicated guilty of the DUI charge on June 29, 1990. On February 16, 1990, Personnel Director Steve Crosby met with Respondent to discuss the arrest. Mr. Crosby subsequently issued a letter of reprimand to Respondent warning him that any future instance of poor professional judgment by him could result in his dismissal. On or about December 20, 1990, Commissioner Castor filed a second administrative complaint against Respondent. The complaint alleged that Respondent violated the terms of his EPC probation as a result of his DUI conviction. On May 7, 1991, Commissioner Castor and Respondent entered into a settlement agreement to resolve the charges. The EPC accepted the settlement on June 25, 1991. (Petitioner's Exhibit 5) The May 7, 1991 agreement included the following provisions: Respondent agreed to undergo psychological evaluations. Respondent agreed to complete two courses in the area of classroom management and techniques of instruction. Respondent agreed to submit to evaluation and counseling with a substance abuse program. Respondent was placed on probation for an additional three years to begin at the expiration of his current probation which, by its terms, ends March 3, 1993. Respondent agreed to violate no law and to fully comply with all school rules, district school board regulations and rules of the State Board of Education. During the 1990-91 school year, Kimberly Coleman worked as a teacher's aide in a class for emotionally handicapped (EH) students taught by Barbara Day. After one of the EH students was assigned to Respondent's class, Respondent approached Coleman to discuss the student although Ms. Day was the teacher who supervised that student's progress. Respondent often looked at Coleman in a sexually suggestive manner and, as a result, Coleman attempted to avoid contact with Respondent whenever possible. During the 1990-91 school year, Kenneth LeBrant, a teacher at Tyrone, while checking on plants that he planted under Respondent's classroom window, observed a student misbehave in Respondent's classroom whereupon LeBrant shouted at the student to "knock it off". At about the same time, Respondent entered his classroom, angrily belittled LeBrant and demanded that he leave his class. LeBrant felt embarrassed at being shouted at in the presence of students and returned to his classroom. Respondent later encountered LeBrant in the faculty lounge and attempted to continue to confront LeBrant in a threatening manner. Both Respondent and LeBrant received a reprimand from the principal about their conduct in the faculty lounge. During the 1990-91 school year, Respondent entered the teacher's lounge and called Larry Mann, a "judaist" in an angry manner. Respondent used profanity in his classroom during the 1991-92 school year. Specifically, on occasion he called his class a "bunch of motherfuckers" and "you white motherfuckers". On one occasion while students prepared to leave his class, Respondent said "so long, motherfuckers". Respondent also directed profanity at specific students in his classroom. On occasion, Respondent's students heard him shout at students the words "dumb motherfucker", "asshole", "fuck off", "bitch" and "dumb bitch". On one occasion, Janet Masciotra, a teacher at Tyrone, entered Respondent's classroom while he yelled at an African American male student "you dumb nigger". Ms. Masciotra was surprised at Respondent's language and left the room without Respondent having observed her. Throughout the period, Respondent yelled similar disparaging remarks to students who wanted to make up homework after being ill and absent from class. Respondent often times made disparaging comments to students concerning their ability to learn and referred to students as "retarded" and "EH". On numerous occasions, Respondent slept in class by putting his feet on his desk, leaning back in his chair and closing his eyes. Respondent engaged in such behavior for varying lengths of time and while so doing, his class was most often not engaged in any school related or other meaningful activity. Respondent on occasion drank mouthwash from a bottle in the presence of students. Also, during this period Respondent often asked students in his class for gum and breath mints. When he did so, students complained of smelling alcohol on his breath. During this period, Respondent also left his classroom for varying periods of time leaving students unsupervised and left school grounds during the day. Respondent was familiar with the rules and procedures in effect at Tyrone Middle School and was aware of the expected hours for instructional employees to be on campus. Respondent was often late to school and was absent without following the proper procedures of notifying the school administration. On one occasion, the school resource police officers covered Respondent's classroom during his absence. Respondent's tardiness and absences during the school day meant that other staff members had to open Respondent's classroom and supervise his students. Students and parents expressed concern throughout the 1991-92 school year that Respondent was not properly teaching his classes and that he did not assign enough work. One student asked to withdraw from his class because "nothing was really happening". Other parents expressed concern about the Respondent's use of profanity in class. One student, P.K., went home after Respondent used inappropriate language. P.K. became upset to the point of crying while telling her mother what Respondent said. P.K.'s mother was offended by Respondent's conduct. During the 1991-92 school year, Respondent engaged in inappropriate conduct toward Bennie Smith, a teacher at Tyrone. Respondent's comments to Ms. Smith included attempting to solicit her to have an affair with him. Ms. Smith told Respondent that she was married and tried to avoid further contact with Respondent. During the spring semester of 1992, Smith rushed down a hallway in order to make "dittos" for her class. Respondent called to Ms. Smith and she slowed down. Respondent caught up with Ms. Smith and brushed his genital area against her buttocks. Later in the semester, Smith and Mark Benson, another instructional employee, walked down a school corridor on the way to a meeting. Respondent, who was walking behind them, reached forward and grabbed Ms. Smith's buttocks. Because the incident happened in the proximity of students and other teachers, Ms. Smith did not confront Respondent however she later made Respondent's conduct known to administrative officials. Mark Benson observed Respondent's hand move toward Ms. Smith's buttocks and later discussed it with Smith. Josephine Trubia worked as an aide in Barbara Day's EH classroom during the 1991-92 school year. Respondent made comments about Trubia to Kimberly Coleman, the sister- in-law of Josephine Trubia. Respondent told Coleman that Trubia was a "sixties kind of woman" that "walked like she was going places". When Coleman told Respondent that Trubia was her sister-in-law, and that her husband was a police officer, Respondent backed off. Respondent made compliments to Trubia about her appearance and attire which Trubia found to be sexually suggestive. Specifically, on one occasion, Trubia went to Respondent's classroom with a student to retrieve the student's make-up work. Respondent made comments about her appearance and asked her if she would wear her black skirt and pantyhose. Respondent further asked Trubia to date him and go with him (on a date) to Tampa. Trubia declined Respondent's advances although he continued to make suggestions that they go on a date and on one occasion backed Trubia toward a wall in his classroom. Trubia returned to her classroom whereupon teacher's aide Ronnell McDaniel noticed that she was visibly upset and nervous. Trubia confided to Ms. McDaniel that Respondent had made comments about her appearance and cornered her in his classroom. The following day, Trubia reported the incident to Barbara Day and expressed concerns about Respondent. Ms. Day advised Trubia to discuss the incident with the school's administration. Trubia resigned and found employment elsewhere. Respondent's actions made Trubia feel uncomfortable and was a factor in causing her to leave her employment at Tyrone. During the 1991-92 school year, Respondent was a member of an academic team with three other teachers. In January 1992, Respondent met with the three academic team members in the teacher's lounge. Respondent appeared incoherent and spoke in a disjointed fashion. Respondent became agitated and accused the team members of "playing games". He further threatened them by remarking that things were going to get physical. Respondent's actions caused the team members to feel upset and uncomfortable causing one team member to start locking her classroom door after school. On February 20, 1992, while walking behind several teachers including Jim Joyer, David Blacuk and Richard Bessey, Respondent was heard to use profanity. On another occasion, Blacuk walked down a school corridor when Respondent stepped out of his room and used profanity such as "motherfucker" and "son-of-a-bitch" in the presence of Blacuk and other students. During a faculty meeting held in the media center after school, Respondent became visibly agitated while Blacuk spoke. Respondent stood up and stated "bullshit. This is bullshit" in a tone loud enough to be heard by everyone in the room. Carolyn Chester was employed as an aide at the media center during the 1991-92 school year. On a Monday morning in January, Ms. Chester went to Respondent's classroom to retrieve some video equipment. Ms. Chester encountered Respondent outside his classroom door as he approached from the parking lot. Respondent angrily told Chester not to play games with him and shouted that he did not have the equipment. Ms. Chester returned to the media center and told media specialist Sheila Chaki about the incident. A few minutes later, Respondent entered the media center and again spoke to Chester in a loud and angry manner. Respondent had also became upset about the S.O.S. table which was set up in the media center with self-help books for students. Respondent threw down a flier about the S.O.S. table and stated "this is bullshit, too". Respondent's conduct in the media center was observed and heard by Ms. Chaki and several students who were present. During the 1991-92 school year, staff members detected the odor of alcohol on Respondent's breath. Article XVI, Section E of the agreement between the School Board and the Pinellas County Teachers Association provides that "teachers are to treat other employees of the system in a professional manner at all times". According to Miller, the principal at Tyrone, Respondent's sexually offensive actions and confrontational conduct caused morale problems among some staff members at Tyrone. Respondent's use of profanity directed toward students and his sleeping while in the classroom undermined the confidence of parents and caused a disruption in the educational process. Doctor Howard Hensley, superintendent of schools for Pinellas County, and who was qualified as an expert in the area of education and education administration, testified as to the manner in which Respondent's conduct reduced his effectiveness as an instructional employee. The Pinellas School Board expects its instructional employees to be role models and to avoid the use of profane language as it fails to set a proper example as role models for students. The use of racial epitaphs and derogatory comments are also counter- productive to Pinellas County School Board's policies and its attempts to promote cultural diversity and tolerance among its students. Likewise, vulgar language directed toward other members of the school staff is unacceptable in that it harms the ability of staff members to work together cooperatively. Inappropriate and threatening comments reduce the effectiveness of the person making the comments and adversely affect staff morale. The Pinellas County School District intends that all employees feel comfortable in their work places and that they be free from sexual harassment and confrontational conduct from its fellow employees. Sexual harassment of staff members violates this intention and possibly subjects the district to legal liability. Sleeping in class violates the School Board's expectations that its teachers supervise and set a good example for students. Vulgar language directed towards students violates the expectations of the Pinellas School District in that it sets a poor example for students and reduces that teacher's effectiveness. Individual ridiculing of a student by the use of profane or disparaging comments subject the students to embarrassment. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Pinellas County School Board, enter a Final Order terminating the professional service contract between Respondent Jerome W. Jackson and the School Board of Pinellas County, Florida. Petitioner, Betty Castor as Commissioner of Education, the Education Practices Commission, enter a Final Order revoking Respondent's teaching certificate for a period of seven (7) years to be followed by a three (3) year period of probation with the Education Practices Commission upon his recertification following the period of revocation. The terms of the probation shall include the requirement that Respondent follow such terms and conditions imposed by the Education Practices Commission. DONE and ENTERED this 7th day of December, 1992, at Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1992.
The Issue The issues for determination are whether Respondent threatened to shoot students with a firearm located in his vehicle that he parked on campus, and whether the acts proved during the administrative hearing constitute just cause to terminate Respondent's professional services contract pursuant to Subsection 1012.33(6)a), Florida Statutes (2006).1
Findings Of Fact Respondent has taught diesel mechanics at the Ridge Vocational Technical Center (Ridge Center) in Polk County, Florida, for over 12 years. Respondent teaches diesel mechanics pursuant to a professional services contract. By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent that she was suspending Respondent from his employment with pay. The letter also states that, on June 12, 2007, the Superintendent would recommend to Petitioner that Petitioner terminate the professional service contract of Respondent. On June 12, 2007, Petitioner followed the recommendation of the Superintendent. The letter dated May 14, 2007, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of his employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: On May 11, 2007, an investigation revealed that you had a 9mm pistol in the front seat compartment of your personal vehicle. When asked if you understood that it was against School Board policy to bring a weapon on campus, you indicated that you were aware of the policy. You were arrested by the Winter Haven Police Department for having a weapon on campus. The arresting officer also indicated that further charges may be made against you regarding threatening comments that you allegedly made to the students. * * * Your conduct in this situation is aggravated by the fact that you made reference to the weapon and threatened to use it against students and by the fact that you admitted you were aware that bringing the weapon onto campus was a violation of both state law and Board policy. This was a knowing, intentional act on your part involving students and constitutes just cause for termination. It is undisputed that Respondent possessed a firearm on the Pine Ridge campus on Friday, May 11, 2007. On the morning of May 11, 2007, Respondent placed a 9mm pistol into its holster and put both items into the center console of his truck. Respondent drove the truck to work and parked the truck in the Ridge Center parking lot. The truck was parked approximately 25 feet from the school. The pistol was securely encased and not readily accessible for immediate use within the meaning of Subsections 790.001(16) and (17). The possession of a firearm on the Ridge Center campus violated the written policy of Petitioner. In relevant part, the policy provides: It is the expressed policy of the Polk County School Board that no weapons/firearms shall be taken upon school property by any one other than law enforcement personnel. . . . Petitioner's Exhibits 8 and 10. The charging document notifies Respondent of several aggravating factors that are alleged as grounds to support a finding of just cause to terminate Respondent's employment. The document alleges that the violation of the written school policy was a knowing and intentional act; that Respondent made reference to the weapon and threatened to use it against students; and that the possession of the firearm by Respondent was unlawful. The violation of the written school policy was knowing and intentional. Respondent knew of the written school policy prohibiting the possession of firearms on campus but brought the firearm to school in his truck to take with him that night to a weekend job discussed in subsequent findings. Respondent did not make reference to the firearm and threaten to use it against students. The accusing student complains that Respondent referred to the firearm and threatened to shoot students on May 10, 2007. However, there is no evidence that Respondent possessed a firearm on campus on May 10, 2007. The weight of the evidence does not support the testimony of the accusing student that Respondent threatened to retrieve his firearm from his truck and shoot Pine Ridge students on May 10, 2007. On the afternoon of May 10, 2007, Respondent was grading papers in his classroom at the Ridge Center. Several male students outside of the classroom were using long broom handles to "sword-fight." Respondent readily admits that he yelled words from his classroom on May 10, 2007, to the effect that, "I'm going to shoot all of you guys one of these days if you don't straighten up." Respondent did not make reference on May 10, 2007, to the firearm he possessed on campus on May 11, 2007. The admitted statement was not a threat to shoot students and did not expose any student to conditions harmful to his or her physical or mental health. Respondent continued grading papers, and Respondent and the students remained on campus until shortly after the school day ended at 2:00 p.m. One of the students playing in the hall on May 10, 2007, testified that Respondent said, "The next one of y'all that breaks a broomstick, I'm going to go to my truck, I'm going to get my nine and come back and shoot you." The student further testified that he asked Respondent, "You're going to shoot them?" and that Respondent replied, "Yeah, I'm going to shoot them." The testimony of the accusing student is not credible and persuasive and conflicts with material facts in the record. Respondent did not possess a firearm in his truck on May 10, 2007, when he allegedly threatened to fetch the firearm. A finding based on the testimony of the accusing student would require the trier of fact to ignore the weight of the other evidence as well as the candor, forthrightness, and cooperative nature of the testimony of Respondent. The accusing student is an older high school student with a history of discipline problems at the Ridge Center. The accusing student did not return to the Ridge Center after May 10, 2007, and, on the date of the hearing, was no longer pursuing a trade or degree in any school. He is hoping to enter a military academy within five months of the date of the hearing. Testimony from the accusing student that he did not return to the Ridge Center for fear of Respondent is not persuasive. The accusing student was a problem for other teachers and administrative staff at Pine Ridge, and the testimony of teachers and administrators shows they preferred that the student had never attended the Ridge Center. Petitioner did not prove that possession of the firearm on campus on May 11, 2007, was unlawful. Rather, the evidence and relevant legal authority discussed in the Conclusions of Law shows that the firearm was in Respondent's truck on Friday, May 11, 2007, for a lawful purpose pursuant to Subsection 790.115(2)(a)3. Respondent was scheduled to work that weekend on a truck delivery route that would take him into Liberty City, Florida, between midnight and 5:00 a.m. Respondent drove directly from the Ridge Center to his weekend job and took the firearm on his truck delivery job for self defense. Local law enforcement officials arrested Respondent for allegedly committing a third degree felony in violation of Section 790.115, Florida Statutes (2006).2 At the conclusion of the criminal investigation, not only were additional charges for threats against students not filed against Respondent, as alleged in the charging document in this proceeding, but the state attorney refused to prosecute Respondent on June 12, 2007. It is unclear from the record whether Petitioner knew of the decision of the state attorney on June 12, 2007, when Petitioner terminated Respondent's employment, in relevant part, for the unlawful possession of a firearm on May 11, 2007, and alleged threats against students. The criminal investigation began on May 10, 2007, when local law enforcement officials received an anonymous telephone complaint sometime concerning the alleged threat by Respondent. On May 11, 2007, an officer from the Winter Haven Police Department (Department) visited the Ridge Center to investigate the complaint against Respondent. The police officer questioned Respondent on May 11, 2007, and Respondent acknowledged that he had a pistol holstered and securely encased in his truck in the campus parking lot. Respondent took the officer to the truck, directed the officer to the location of the firearm in the center console, and otherwise fully cooperated in the investigation. The police officer arrested Respondent for possessing a firearm on a school campus in violation of Section 790.115. The Department conducted a full investigation, Respondent fully cooperated in the investigation, and the state attorney dismissed the charges against Respondent on June 12, 2007. Relevant legal authority is discussed further in the Conclusions of Law. At the hearing, Petitioner submitted evidence intended to prove the presence of several aggravating factors that the charging document does not allege. These un-alleged aggravating factors are that Respondent previously possessed an unloaded hunting rifle on campus in Respondent's truck; violation by Respondent had impaired Respondent's effectiveness as a educator; and Respondent failed to protect students from conditions harmful to their physical or mental health. The charging document does not provide Respondent with notice that Petitioner intended to submit evidence at the hearing of the un-alleged aggravating factors. However, Respondent did not object to questions asked during the hearing pertaining to the un-alleged aggravating factors. The ALJ admitted the relevant evidence and considered the evidence in this proceeding. The evidence supports a finding of only one unalleged aggravating factor in this proceeding. Sometime before May 11, 2007, Respondent possessed an unloaded hunting rifle in the back of his truck while the truck was parked on the campus of the Ridge Center. The events of May 10 and 11, 2007, and the prior possession of a hunting rifle did not expose any student to conditions harmful to his or her physical or mental health and did not seriously impair Respondent's effectiveness as a teacher. The testimonies of the director of the Ridge Center and a fellow teacher show that Respondent has consistently been an effective and competent teacher at the Ridge Center. Respondent has no prior discipline in his employment history.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 6th day of December, 2007.
The Issue The issue is whether Respondent is entitled to an athletic coaching certificate, as described in section 1012.55(2), Florida Statutes, and Florida Administrative Code Rule 6A-4.004(4).
Findings Of Fact Early Life: 1960-1978 Petitioner was born on December 22, 1960. Petitioner is the youngest of five sons born to a Bahamian mother, who worked as a beautician, and a Jamaican father, who worked as a custodian. Petitioner's four older brothers have all earned college degrees. Petitioner's oldest brother served as an Army psychiatrist. Two other brothers also served in the military: one as a comptroller and the other as a Navy pilot. Petitioner's youngest brother is the executive director of a well-known hotel on Miami Beach. Petitioner grew up in the Liberty City section of Miami and graduated from Miami Beach Senior High School in 1978. Liberty City was a dangerous area in which to live with gunfire a familiar sound to residents. Two years after Petitioner graduated, Liberty City and other parts of Miami were torn by race riots. Unlike all of his siblings, Petitioner has never attended college. After high school, Petitioner worked as a washer and cook at a local hospital, but continued to pursue his real interest, which was performing as a disc jockey (DJ). Interning nights at a local radio station, Petitioner acquired enough experience to start a mobile DJ business in Liberty City and Miami Beach, where he worked on weekends. Criminal History: Essentially 1979-1986 Respondent's characterizations of Petitioner's criminal history as "extensive," in the Amended Notice of Reasons, or, worse, "storied," in his proposed recommended order at page 7, are unsupported by the record. As explained in the Conclusions of Law, only two criminal incidents are relevant, and they are misdemeanors that occurred over 25 years ago. The rest of Petitioner's criminal history consists entirely of arrests for which the charges were later dropped, except for a 1986 case in which the court withheld adjudication on a felony weapon charge to which Petitioner's plea is not in the record and a 2009 arrest for unpaid child support for which the purge amount was about $10,000. On August 28, 1979, Petitioner, then 18 years old, was arrested in Dade County for reckless display of a firearm and possession of over five grams of marijuana, both felonies. The marijuana charge--Petitioner's only arrest for drugs or alcohol--was dismissed, but Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and fined $25. This incident will be referred to as the "1979 Misdemeanor." In a letter dated May 7, 2009, to the Miami-Dade School Board Executive Director of Fingerprinting, Petitioner stated that he was in the backyard of his parents' home with one of his brothers and in possession of a bb gun. The small fine corroborates Petitioner's explanation. It is therefore found that a "bb gun" was the weapon in question, although Petitioner's letter misstated that all charges were dropped. On February 12, 1985, Petitioner was arrested in Dade County for loitering and prowling and carrying a concealed weapon, the former a misdemeanor and the latter a felony. By operation of a deemed admission to Respondent's Requests for Admission, Petitioner, while a passenger in a vehicle, was found in possession of a semi-automatic weapon concealed in a ski mask. The misdemeanor charge was dismissed, but the court withheld adjudication of guilt on the felony charge and imposed a fine of an unspecified amount. The record does not disclose Petitioner's plea to this charge. In his May 7, 2009, letter, Petitioner explained that, while he was DJing in a park without a permit, he had a concealed weapon without a permit, but misstated that both charges were dropped. On November 18, 1985, Petitioner was arrested in Dade County for inciting rioting, a felony. This charge was dismissed. In his May 7, 2009, letter, Petitioner explained that he was DJing in a park and was arrested because the music was too loud. On October 4, 1986, Petitioner was arrested in Hillsborough County and charged with grand larceny with a firearm, a felony. Based on a guilty plea, Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and sentenced to time served. This incident will be referred to as the "1986 Misdemeanor." In his May 7, 2009, letter, Petitioner stated that he was DJing a party in Tampa when a group of men started to beat a young woman in the parking lot. When security refused to intervene, Petitioner displayed a firearm to break up the crowd. Petitioner's letter misstates that the charge was dismissed. His explanation fails to account for the portion of the charge involving grand larceny, but makes sense when applied to the charge of which Petitioner was convicted. On December 13, 1987, Petitioner was arrested in Dade County for two or three counts of aggravated assault with a weapon and possession of a weapon to commit a felony, all felonies. These charges were dismissed. In his May 7, 2009, letter, Petitioner explained that a large fight broke out at a skating rink, but surveillance video revealed that he had not been involved in the fight, nor had he possessed a weapon. On or about June 15, 1993, Petitioner was arrested in Cook County, Illinois, and charged with disorderly conduct. This charge was dismissed. In his May 7, 2009, letter, Petitioner stated that he was staying at the Ritz in Chicago. While shopping along the riverfront, a law enforcement officer asked him if he could afford to shop there. A confrontation ensued, and the officer arrested Petitioner, but the charge was later dropped. On May 17, 1994, Petitioner was arrested in Dade County and charged with aggravated assault with a weapon, a felony. The charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight had broken out at a house party, and the police arrested everyone in attendance. There is no record of a 1997 arrest for battery. There is an arrest in July or October 1996 for battery in Louisiana, but Petitioner pleaded not guilty, and the charge was dismissed. In his May 7, 2009, letter, Petitioner mentioned a 1997 case involving a nightclub fight with which he had not been involved. A week later, a complainant claimed that Petitioner had hit him, but the charge was dismissed. On July 5, 1999, Petitioner was arrested in Dade County and charged with battery, a misdemeanor, which may have been raised to aggravated battery, a felony, by the prosecutor. Either way, the charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight broke out at a nightclub, but witnesses verified that Petitioner had not hit the complainant, who originally said that another person had hit him. On October 6, 2002, Petitioner was arrested in Dorchester County, South Carolina, and charged with aiding or procuring a person to expose private parts in a lewd and lascivious manner--namely, the insertion of a soda bottle by two strippers into the vagina of a member of the audience who climbed onstage during a performance, as well as several acts of unspecified obscenities by two male members of the audience with the aforesaid strippers. The charge was that these unlawful acts were in the presence of and with the encouragement of Petitioner. The South Carolina documentation is contradictory as to disposition. The most plausible rendering of the disposition comes from the general sessions docket, which reports that, on October 13, 2003, this charge was dismissed with leave to restore, if Petitioner violated an agreement not to appear in South Carolina for five years at a revenue-producing event. Another document completed by the court clerk states that Petitioner was sentenced to six months in the state Department of Corrections, based on a plea not otherwise described, but the sentence was suspended for five years, pursuant to the agreement identified above. A partial transcript of the October 13, 2003, court proceeding quotes the judge as saying that the state was nolle prossing two charges, and the court was sentencing Petitioner to six months on apparently a third offense, even though nothing in the other documents describes three charges, but the judge suspended the sentence for five years, subject to the above-identified agreement. As noted in the Conclusions of Law, the burden of establishing what took place in South Carolina falls on Respondent. Nothing in the record supports the judge's reference to three charges, which renders the judge's description of events unreliable. The most that can be said of the South Carolina incident is that a lone charge was dropped, subject to reinstatement, if Petitioner made a revenue-producing appearance in South Carolina for five years. The evidence fails to establish any finding of guilt by the court, plea of guilty by Petitioner, or subsequent reinstatement of the charge. In his May 7, 2009, letter, Petitioner stated that the club owner had performers on stage, but Petitioner had nothing to do with their performance. Petitioner testified that he had been paid merely to appear at the club and sign autographs. On February 17, 2009, Petitioner was arrested on a writ of bodily attachment in connection with a finding of contempt of court for failing to pay child support. The purge amount was $10,223.36. The disposition of this matter is unclear, although it is obvious that Petitioner was arrested for an unpaid child-support obligation and was released, presumably after paying the purge amount or such lower amount as the court deemed fit. Luke Records and 2 Live Crew: 1987-1992 After graduating from high school, Petitioner grew his DJ business to the point that, by 1987 or 1988, he had started Luke Records, Inc., a record company devoted to the production and sale of hip-hop music. Using funds provided by his brothers, Petitioner eventually employed over 40 persons in Miami and elsewhere around the United States. The growth of Luke Records was largely the result of its association with 2 Live Crew (2LC), a hip-hop group known for its sexually explicit songs. Not yet under contract with a record company, 2LC visited Petitioner in Miami, where the parties agreed to a recording contract. Petitioner appears to have quickly assumed substantial business and performance roles with 2LC and wrote some of the songs that the group performed. Serving as the frontman for 2LC, Petitioner was prominent in the group's performances, which, according to Petitioner, featured dance music informed by the twin themes of sex and comedy. Clearly, 2LC's songs were dance music that featured sex. Regardless of the role of comedy in 2LC's music, Petitioner himself acknowledges that its sexual themes rendered the music inappropriate for minors. The evidentiary record does not include the lyrics to 2LC's songs, but the more offensive titles include vulgar references to male and female genitalia and a reference to women as "hoes," meaning "whores, as well as at least one album cover featuring Petitioner surrounded by scantily clad women. Given the explicit sexual content of the titles and lyrics, Petitioner helped promote the use of parental advisory stickers to be applied to albums, tapes, and CDs, including those of 2LC, that contained lyrics inappropriate for minors and thus constituted a form of adult entertainment. On the other hand, two unimpeachable sources--the United States Supreme Court and the Eleventh Circuit Court of Appeals--found serious elements in at least certain of the 2LC songs of this era. In a copyright infringement case that arose after Luke Records had sold over 250,000 copies of 2LC's adaptation of Roy Orbison's, "Oh, Pretty Woman," the Supreme Court held, in a case of first impression, that commercial parody could be protected under the fair-use exception to copyright law. Describing the song itself, the Supreme Court opinion states: While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works. Campbell v. Acuff-Rose Music, 510 U.S. 569, 583 (1994). In Luke Records v. Navarro, 960 F.2d 134 (11th Cir.) (per curiam), cert. denied, 506 U.S. 1022 (1992), Petitioner and others won a reversal of a district court declaratory judgment that the 2LC musical recording, "As Nasty As They Wanna Be," was obscene under state and federal law. In another case of first impression--this time applying the obscenity test in Miller v. California, 413 U.S. 15 (1973), to a musical composition containing instrumental music and lyrics--the appellate court relied on the testimony of two newspaper music critics that the subject music possessed serious musical or artistic value. More interestingly, the court relied on the testimony of a Rhodes scholar who was soon to undertake employment as an assistant professor of political science at Columbia University. This testimony, which focused on the lyrics, traced "As Nasty As They Wanna Be" to three oral traditions of African-American music: the "call and response," "doing the dozens," and "boasting." Noting that the lyrics of "As Nasty As They Wanna Be" reflected many aspects of poor, inner-city blacks, this witness added that some of the lyrics contained statements of political significance or used literary devices, such as alliteration, allusion, metaphor, rhyme, and personification. Assuming without deciding that the trial judge had correctly determined that "As Nasty As They Wanna Be" met the first two prongs of the Miller test--i.e., the work as a whole appeals to prurient interest based on contemporary community standards and the work depicts in a patently offensive way sexual conduct specifically defined by state law--the appellate court rejected the trial court's determination that "As Nasty As They Wanna Be" fails the third prong of the Miller test--i.e., that it "lacks serious artistic, scientific, literary or political value." 960 F.2d at 138 (citing Miller, 413 U.S. at 24). After 2LC: 1992-2008 Petitioner and 2LC parted ways in 1992. Three years later, Petitioner and Luke Records, Inc. filed for bankruptcy, which resulted in the assignment of all masters and copyrights owned by Petitioner or Luke Records, Inc., to a company formed by a former in-house counsel of Luke Records. Thompkins v. Lil' Joe Records, Inc., 476 F.3d 1294, 1299-1301, and 1314n.22 (11th Cir. 2007). To some extent, perhaps due to the bankruptcy, Petitioner lost exclusive use of names associated with him, such as "Uncle Luke." As an asset of Petitioner, the Luther Campbell brand suffered a loss in value. The evidentiary record provides an incomplete picture of what Petitioner did during the ten years following his departure from 2LC. The arrests and Petitioner's explanations suggest that he DJed at house parties, made paid appearances at autograph-signing events, and attended nightclubs, although whether as a performer, audience member, or promoter is not clear. Petitioner released four hip-hop albums from 1992-2006. As always, Petitioner remained in Miami. In 1991 or 1992, Petitioner was among the persons who started the Liberty City Optimist youth football program. Competing with the local John Doe gang, Petitioner and other founders of the Optimist youth football program got kids off the dangerous streets and onto the football field. During the early years of his involvement with the youth football program, Petitioner invested considerable time and money, contributing at least $80,000. Petitioner helped lobby the Miami-Dade County Commission for what was eventually an expenditure of an estimated $14 million in facilities to serve organized football at local parks. Now, the Liberty City Optimist youth programs serve 6000 boys and girls, from 4-16 years of age, through a variety of sports and academic programs. Petitioner's wife, a local attorney and former FSU cheerleader, chairs the Liberty City Optimist youth cheerleading program. Although there have been some football-famous graduates of the program, such as Chad Johnson, the program's larger success is that 90 percent of the first group of youth to complete the program started college. Until 2005, Petitioner was not directly involved with the children in the Optimist youth programs. In 2005, realizing that his entertaining career had "taken a turn," Petitioner began coaching an Optimist youth football team. As he dialed up his involvement with youth, Petitioner tapered off his performances and appearances. Petitioner's two most recent albums are Somethin' Nasty, which was released in 2001, and My Life and Freaky Times, which was released in 2006. In contrast to the earlier cover art of 2LC, the cover art for the last album depicted Petitioner surrounded by fully clothed women. But some of Petitioner's titles would fit easily among the oeuvre of 2LC in its heyday. Somethin' Nasty includes "Suck This Dick," "We Want Big Dick," and "Hoes," and My Life and Freaky Times includes "Pop That Pussy" and "South Beach Bitches." In 2008, Petitioner made his last appearance, to date, with 2LC, at what was limited to an autograph-signing event. At the beginning of this period of Petitioner's life, in 1993, he became acquainted with James Harbor, Jr. Mr. Harbor was working for a state representative and met Petitioner through Congressman Alcee Hastings. Mr. Harbor later did an internship with Petitioner. Still later, Mr. Harbor was elected as a state representative from Palm Beach County and enlisted Petitioner in get-out-the-vote campaigns throughout Florida. Interestingly, Mr. Harbor testified that, as part of a voter-recruitment campaign, Petitioner appeared "in character." Mr. Harbor stressed repeatedly the distinction between the public persona of Petitioner and his private personality. Not a party person, during the time that Mr. Harbor has known him, Petitioner has always been "structured," hard-working and responsible, respectful toward women, and a firm disciplinarian when it came to his children. Mr. Harbor's testimony about the distinction between Petitioner's public persona and private personality finds support throughout the record, including a careful examination of the timelines. The 1979 Misdemeanor and 1986 Misdemeanor both involved weapons, not sex, and 2LC's main theme appears to have been sex, not violence or weapons. Whatever image of garish defiance that Petitioner may have cultivated during his 2LC-era, by the start of that era, he was never arrested again on charges that resulted in an admission of guilt, a no-contest plea, or a finding of guilt, except for the child-support arrest. Although the certification of Petitioner must take into consideration his public persona, to the extent that it still derives from his short-lived career with 2LC, there is no indication over the past 20 years that, outside of his performances and appearances, Petitioner has resembled the sex- song impresario, whom he portrayed with 2LC and in his later albums. High School Football: 2009-Present Starting in the 2009-10 school year, Petitioner turned from coaching Optimist youth football to coaching local high school football. During the 2009-10 and 2010-11 school years, Petitioner served as an assistant football coach at Miami Central Senior High School, where his wife teaches a law class. For the 2011-12 school year, Petitioner served as an assistant football coach at Miami Northwestern Senior High School. Although he would be willing to work as an unpaid volunteer, Petitioner has been required, due to insurance requirements in the school district, to accept the pay of a part-time contract football coach, which is $1000-$1200 per year. No longer living in Liberty City, Petitioner lives closer to another Miami-Dade County high school whose students are less exposed to violence and less at-risk than the students attending Miami Central or Miami Northwestern. Nearby Broward County public high schools do not require an athletic coaching certificate because school district policy allows a volunteer to coach. But Petitioner has decided to help the most vulnerable, most at-risk students from the inner-city neighborhood where he grew up. Petitioner has served these students in ways that other persons would find difficult, if not impossible, to replicate. Trying to combat the sense of hopelessness that sometimes afflicts at-risk youth, Petitioner has worked at both schools to install a sense of school pride in football and academics. When he arrived at Miami Central, the school was an F school, but Petitioner joined a school-wide effort to improve learning conditions, and, when he left two years later, the school was a B school. Similarly, when Petitioner arrived at Miami Northwestern, it was a D school, but it earned a B during the most recent school year. Miami Northwestern is located directly across the street from housing projects, and its students are regularly the targets of violence, often involving weapons. About one-quarter of its students are required to attend gun programs. The football team includes many homeless children and children with children. In the month preceding the hearing, two Miami Northwestern students had been killed. On a positive note, about 70 percent of the 95 students on the Miami Northwestern football team are graduates of the Optimist youth football program. Also, as many as 90 percent of the students who played on the high school football teams that Petitioner has coached are attending college. The students with whom Petitioner works appreciate his dedication and hard work. They know that Petitioner has spent his entire life in Miami and has known some hard times. Generally, they know that, before they were born, Petitioner had been a celebrity as a member and promoter of a hip-hop group, itself known for its frank defiance of convention, at least in terms of graphic sexual language. As Petitioner testified, his students' mothers know Petitioner from when he was a DJ on a streetcorner, through his association with 2LC and discovery of new talent, such as the hip-hop artist Pitbull, and now from his work with youth. This familiarity presents unique mentoring opportunities to Petitioner. For instance, Petitioner knew one student's father, who later went to prison where he was murdered. One day, the student's mother approached Petitioner and asked him to tell her child about the good things that his father had done before he went to prison and died. Reflecting Petitioner's dedication to at-risk youth, for at least the past four years, Petitioner has rented one or two 15-passenger vans and, at his expense, transported interested players to schools in the southeast where they might be able to attend college. Petitioner does not reserve his attention to potential stars; instead, he tries to find colleges and junior colleges at every level that might be interested in admitting an individual student. Steven Field, the head coach of the Miami Northwestern football team, testified on Petitioner's behalf. Coach Field, who has most recently coached at University of Miami and Hampton University in Virginia, also coached at Miami Central from 2000- 2004. Coach Field testified that Petitioner is an "essential" member of his coaching staff, not for his name or past career, but for his way with the students. Petitioner leads by example and always fulfills any promises that he makes to the students--things that may otherwise be lacking in the lives of some of these inner-city youth. According to Coach Field, Petitioner's "no-nonsense, professional" style of dealing with the students commands their attention and respect. For example, as the coach in charge of the weight room, Petitioner does not allow swearing. When one student became disrespectful to another coach, Petitioner ordered the student to leave the premises. Neither Petitioner nor Coach Field would allow 2LC music to be played in the weight room due to its inappropriate adult content. Petitioner testified that, in trying to save students, he will "talk 'till I'm blue in the face," revealing not only the necessary dedication, but, more importantly, the insight that that there are no shortcuts or quick fixes in trying to communicate with at-risk children. Reinforcing the realism evident in Petitioner's testimony, Coach Stevens described his and Petitioner's efforts with the students as not much more than reinforcing the notions of living right at home and "getting your books at school." Coach Stevens stressed that he and Petitioner do not concentrate exclusively on the students who are talented enough to play football in college. At least a half dozen students are in felony programs. With these students, Coach Stevens testified that he and Petitioner do not speak about "getting into Georgia Tech"; they speak about finishing high school and getting a job. Coach Stevens has never heard Petitioner speak to the students about mistakes that he has made, nor does he wish Petitioner to do so. Coach Stevens, Petitioner, and the other coaches try to set a positive tone, so they talk to the students about what they need to do, not about mistakes that the students--or coaches--may have made in the past. However, if the school resource officer tells Petitioner about problems that an individual student is having, Petitioner will talk to the student one-on-one. In such conversations, Petitioner does not shy away from relating personally to what the student is going through. The Application Received on April 27, 2010, the Application answers "yes" to the following questions: Have you ever been found guilty of a criminal offense? Have you ever had adjudication withheld on a criminal offense? Have you ever pled guilty to a criminal offense? The Application answers "no" to the following questions: Have you ever been convicted of a criminal offense? Have you ever pled nolo contendere to a criminal offense? The Application lists the following arrests and states that the disposition of all charges was dismissal, except for the South Carolina charge, which is reported as "guilty/adjudication withheld": Miami--8/79--reckless display of firearm Miami--2/85--loitering/prowling Miami--11/85--inciting riot Miami--12/87--aggravated assault Hillsborough--12/87--aggravated assault Miami--5/94--aggravated assault Miami--7/99--battery Dorchester County--10/22--"dissem promote" The Application is flawed in its disclosure of Petitioner's criminal history. As alleged in the Amended Notice of Reasons, the disclosure of the "loitering/prowling" arrest fails to mention the felony weapons charge, which was part of the same incident, and thus fails to note that the court withheld adjudication on this charge. Also, as alleged in the Amended Notice of Hearing, the Application fails to disclose the 1986 Misdemeanor, which occurred in Hillsborough County. Although the Application discloses a Hillsborough County arrest, it seems to confuse the incident with a later arrest in Dade County, but, more importantly, omits mention of the finding of guilt on this misdemeanor weapon charge. However, these flaws do not prove that Petitioner intentionally concealed information or was less than honest in completing the Application. Obviously, he has had many arrests, so the potential for confusion or even omission exists, and there are comparatively few inaccuracies. On these facts, it is found only that Petitioner filed an inaccurate application, but not that he filed an application with fraudulent or dishonest intent. Petitioner: At Present Petitioner does not pose a risk to the safety of the students entrusted to him. For the past seven years, Petitioner has had significant direct contact with vulnerable youth without any reported problems. In light of this critical fact, the 1979 Misdemeanor, 1986 Misdemeanor, and Petitioner's former involvement with 2LC and the adult entertainment industry lose whatever contrary predictive value that they might otherwise have. Simply put, Petitioner does not resemble the youth who committed the 1979 Misdemeanor or 1986 Misdemeanor or the man who performed with and promoted 2LC 20 years ago. Petitioner resembles the middle-aged man who released sexually explicit songs in 2001 and 2006, but this is addressed below. As noted in the Conclusions of Law, good moral character requires consideration of a person's honesty, fairness, and respect for the rights of others and the law, so consideration of student safety, although important, is not sufficient. But the 1979 Misdemeanor and 1986 Misdemeanor, as old misdemeanors, provide insufficient support for a finding that, today, Petitioner lacks honesty, fairness, or respect for the rights of others and the law. Nor do these criminal offenses support findings that Petitioner has been guilty of gross immorality or moral turpitude, as those terms are defined in the Conclusions of Law. Likewise, Petitioner's 2LC career 20 years ago and even his more recent releases of 2LC-like albums in 2001 and 2006 do not support a finding that he lacks honesty, fairness, or respect for the rights of others and the law or that he is guilty of gross immorality or moral turpitude. For the reasons noted above, the redeeming value to be found in the releases means that they do not violate the law, provided they also conform to any laws restricting their dissemination, such as not to minors or not on television during certain hours of family viewing. Absent an attempt to market the offensive material in some broadly accessible fashion, such as on billboards or the sides of public buses, such non-obscene works similarly do not violate the rights of others. As noted above, the flaws of the Application do not support a finding of dishonesty or fraud. But, in his proposed recommended order, Respondent fairly questions Petitioner's initial refusal to identify his Application at the hearing. This failing of Petitioner, as well as the two others discussed in the succeeding paragraphs, cannot serve as standalone grounds for denial because: 1) they arose at the hearing and thus were not available as grounds in the Amended Notice of Reasons and even if alleged, they do not rise to the level of a lack of good moral character, as in a lack of honesty or fairness. But they do provide part of the justification for adding conditions to any certificate issued to Petitioner. Petitioner's failure at the hearing initially to identify his Application was not due to any confusion. There were not multiple versions of applications from which to choose. There was one Application on the table, and Petitioner initially testified, more than once, that he could not identify it. The temptation appeared palpable for Petitioner to off-load the responsibility for an obviously flawed application onto someone else who may have completed it for Petitioner, who nonetheless signed it. Cannily, Respondent's counsel moved for a summary order. The Administrative Law Judge warned Petitioner that the Division of Administrative Hearings lacked jurisdiction in the absence of an application. Petitioner and his attorney made good use of a short recess to confer. After the recess, Petitioner identified Respondent Exhibit 1 as the Application that he had filed for an athletic coaching certificate. Petitioner's second failing of this type, also noted in Respondent's proposed recommended order, consists of his unwillingness to own up to his role or roles in any of the salacious songs that he has performed or produced. While it is possible that Petitioner might not have been responsible for the more salacious songs performed by 2LC, he clearly was responsible for the five sexually graphic titles on the two most recent, post-2LC albums, which, as discussed above, were released in 2001 and 2006. Petitioner's third failing of this type occurred when he testified about his bad period from 1979 to 1986. Petitioner admitted only to not living a "perfect" life and associating with bad persons. This seems a little lean for two misdemeanor weapons convictions and a withholding of adjudication of guilt on a felony weapon charge--all in the span of seven years. As Respondent points out, Petitioner has displayed minimal contrition for the bad choices that he made during this period. At minimum, he missed an opportunity to describe how he has changed when he "admitted" only that he was not perfect or implied that his legal problems were caused by bad associations. In these three instances, Petitioner sought to escape personal responsibility by claiming or implying that other persons prepared the flawed Application that he was somehow compelled to sign, other persons forced him to perform songs with five salacious titles in 2001 and 2006, and other persons got him into trouble during the bad period over 25 years ago. Although not evidence of a lack of honesty, Petitioner's failure to affirmatively own up to these acts suggest a lack of self- insight and perhaps even a misapprehension of the extent to which he must subject himself to the regulatory oversight that is imposed on applicants for certificates and, later, certificateholders. The other justification for adding conditions to any certificate issued to Petitioner is the prospect of his return to adult entertainment. In addition to part-time coaching at Miami Northwestern, Petitioner also owns a company, Luke Holdings, which deals in movie scripts and produces elements of television commercials, among other pursuits in the entertainment industry. In recent years, extreme examples of adult entertainment, such as pornography, have emerged bearing the Luther Campbell brand, but Petitioner denied that he has been involved in the production of such material. His denial is credited, although it would have been more persuasive, absent Petitioner's failings described in the preceding paragraphs. As noted above, Petitioner lost exclusive control of his brand after the bankruptcy in 1996, and, presumably, given the shadowy nature of the pornography industry, illegal use of his name is not out of the question. The distinction between past and present involvement in adult entertainment is an important one. In a recent case, EPC did not treat past involvement in the adult entertainment industry the same as involvement while a certificateholder. See In re: The Denial of the Application for Teacher's Certificate of Shawn J. Loftis, EPC Case No. 11-0464D (April 5, 2012) available at http://www.myfloridateacher.com/discipline/icmsorders/101-2590- FO-040512155402.pdf). In Loftis, Respondent denied Mr. Loftis's application for a Florida Educator's Certificate on the grounds of a lack of good moral character, gross immorality, and moral turpitude, as well as personal conduct that seriously reduces one's effectiveness as a school board employee, which violates section 1012.795(1)(g). The factual bases for the denial was that, between 2006 and 2008, Mr. Loftis had appeared in over 20 pornographic films featuring him engaged in explicit sexual activity, and the films were still available for viewing, including on the internet, although this employment had ended prior to Mr. Loftis's temporary employment as an instructor in Miami-Dade County public schools. After an informal hearing, EPC ordered that Mr. Loftis be allowed to continue to pursue certification. EPC stated that, if "found qualified," Mr. Loftis would be issued a Florida Educator's Certificate, subject to the conditions that he obtain from an approved, Florida-licensed provider written verification that he poses no risk to children and is capable of assuming the responsibilities of an educator and that, upon employment that requires possession of a Florida Educator's Certificate, Mr. Loftis be placed on probation, subject to the following conditions: 1) he immediately notify the DOE investigative office upon employment or termination of employment requiring a Florida Educator's Certificate; 2) his immediate supervisor send annual performance reports to the DOE investigative office; he pay EPC $150 for the costs of monitoring his probation; and 4) he violate no law or rules, satisfactorily perform all assigned duties in a professional manner, and bear all costs of compliance with the final order. The Loftis final order illustrates EPC's ability to issue a conditional certificate, even without a finding that the applicant had failed to meet the qualifications for certification. In considering the requirement stated in section 1012.795(1)(g) concerning personal conduct that seriously reduces the effectiveness of the certificateholder as a school board employee, the Notice of Reasons in Loftis, when compared to the Amended Notice of Reasons in the subject case, more closely approaches the most elastic requirement of Florida Administrative Code Rule 6B-1.006(3)(a) that a certificateholder (or applicant) "[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety." Juxtapose this broader, objective requirement of protecting the student from conditions harmful to learning or harmful to the student's mental health with: 1) Petitioner and Coach Field's efforts to inculcate in their at-risk students such values as strength of character, perseverance, dedication, and hard work in the pursuit of ambitious goals and 2) the future release of more artistic or entertainment efforts along the lines of "Suck This Dick," "We Want Big Dick," "Hoes," "Pop That Pussy," and "South Beach Bitches." Consider the bewildering effect on students if, one afternoon, in the weight room and on the field, Coach Campbell were to promote rectitude and grit and, that night, the same man were to don the garb of the sex-song impresario and promote the escapist pursuit of sexual gratification. The addition of music or elements of African boasting and literary allusion in, say, "Pop That Pussy" or "Suck This Dick," which would rightfully spare these works from successful prosecution as obscenity, would not have any bearing on the extent to which the superficial appeal of this form of adult entertainment could undermine the hard, patient work of these students' coaches, teachers, and parents in trying to shape them into responsible young men. Impressionable inner- city youth might be easily confused by these competing messages, as they compared the paltry sums paid their contract coaches and modest sums paid their regular coaches and teachers with the riches lavished upon the producers of adult entertainment. Although the Loftis final order emphasizes that the applicant no longer is engaged in the making of pornographic films, neither that authority nor the record in this case provides a sufficient basis for attaching a condition to Petitioner's certificate prohibiting his engaging in the adult entertainment industry. Such litigation awaits another day and, one hopes, another certificateholder than Petitioner or Mr. Loftis. However, conditions attached to Petitioner's certificate could focus his attention on the ethical obligations that he has assumed as a certificateholder and the very real possibility that that his return to the performance or production of adult entertainment, while a certificateholder, would be at crosspurposes with the broad mission of education and expose his certificate to suspension or revocation. Petitioner should receive an athletic coaching certificate because he generally meets the substantive certification requirements that call for consideration of such broad criteria as good moral character and the absence of gross immorality and moral turpitude, he possesses unique attributes for reaching at-risk, inner-city youth, and he has demonstrated his commitment to, and effectiveness with, working with these children for at least seven years.
Recommendation It is RECOMMENDED that EPC issue an athletic coaching certificate to Petitioner, subject to the following conditions: The certificateholder shall be placed on probation for five years, immediately upon issuance or, if later, employment that requires a certificate. Upon issuance of the certificate and on each anniversary of issuance, during the term of probation, EPC or its agent shall contact the Department of Revenue and inquire if Petitioner owes any child support arrearages. Upon receipt of written notice of such arrearages from the Department of Revenue or a circuit court, EPC shall immediately suspend the certificate until the arrearages are paid in full. The payment of a purge amount that leaves an arrearage owing does not satisfy this condition. Within six months of issuance of the certificate and within six months of each anniversary of issuance, during the term of probation, Petitioner shall complete 10 hours in coursework in the area of ethics with emphasis on the Principles of Professional Conduct, Florida Administrative Code Rule 6B-1.006 and shall deliver to the DOE investigative office written proof of such coursework. At the start of every school year, during the term of probation, Petitioner and his immediate supervisor will sign a statement certifying that each has read the Principles of Professional Conduct and deliver the signed statement to the DOE investigative office within 20 days of the first day of school. The supervisor's statement shall confirm that he or she understands that his or her professional obligations include the obligation of Rule 6B-1.006(5)(l) that he or she "shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules." Petitioner's statement shall confirm that he understands that his professional obligations include the obligation of Rule 6B-1.006(3)(a) that he "shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/ or physical health and/or safety." If Petitioner's immediate supervisor changes during the school year, the new supervisor shall sign a supervisor's statement within 30 days of his or her assumption of supervisory duties over Petitioner and deliver the signed statement to the DOE investigative office within 60 days of his or her assumption of supervisory duties over Petitioner. Within 30 days of the preparation and delivery of an evaluation to Petitioner, during the term of probation, he shall submit a copy to the DOE investigative office. During the term of probation, if Petitioner becomes actively involved in the adult entertainment industry, in any manner, he shall notify the DOE investigative office, in writing, within 30 days of first involvement. For the purpose of this paragraph, the performance or production of a sexually explicit song that would be inappropriate for the football team weight room or the appearance at an autograph- signing event promoted on the basis of Petitioner's former involvement with 2LC is active involvement in the adult entertainment industry. During the term of probation, the certificateholder shall reimburse EPC or its agent its reasonable costs of monitoring. If any of these conditions, except for the condition stated in paragraph 2, are not timely performed by Petitioner or, if applicable, his supervisor, EPC may suspend the certificate until Petitioner demonstrates compliance (or the term of the certificate expires) or, at its discretion, revoke the certificate. DONE AND ENTERED this 15th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2012. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244 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 Michael John Carney, Esquire Kubicki Draper, P.A. Wachovia Bank Building, Suite 1600 One East Broward Boulevard Fort Lauderdale, Florida 33301 mjc@kubickidraper.com Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 charles@ctwpalaw.com
The Issue Whether Respondent's educator's certification should be sanctioned for the alleged violation of Section 1012.795(1)(i), Florida Statutes, specifically Rule 6B-1.006(3)(a) and (e), Florida Administrative Code, Principles of Professional Conduct for the Education Profession in Florida.
Findings Of Fact No evidence was offered by Petitioner establishing that Respondent, Donna C. Buhmeyer, holds or held a Florida Educator Certificate during the times relevant to Petitioner's allegations. However, Respondent did admit that DOAH had appropriate jurisdiction over this matter and that Respondent is subject to the provisions of Section 1012.795 in Respondent's Pre-Hearing Statement, Part F. At all times relevant hereto, Respondent was employed as a kindergarten teacher at Sand Pine Elementary School (Sand Pine) in the Pasco County School District during the 2001-2002 school year. Teachers at Sand Pine are required to report at 8:30 a.m. and are responsible for the care of students in their classes while the students are in their classroom or at recess. Teachers are not responsible for students while the students are at lunch, art class, physical education or music class. Students start arriving at 9:25 a.m. and are considered tardy at 9:45 a.m. Lunchtime for Respondent and her students was scheduled from 11:03 a.m. to 11:33 a.m., followed by ten minutes of recess. At Sand Pine during the 2001-2002 school year, teachers were required to report on August 6, and students reported on August 13, 2001. Kindergarten was made up of three primary teams, with 130 children divided among the teams. Development assessments of the kindergarten students are performed in the first few weeks, after which students are moved to new classes based upon developmental status. Parents are notified of this change by school officials. After this move, each teacher has a home base list of students, a language arts list, and a math list. These three lists may be different, and each teacher is responsible only for the students on each list during that particular class block. The Sand Pine handbook regarding student supervision states: "Each teacher is responsible for the students assigned to his/her care during the time scheduled." Respondent received this handbook, and the handbook is on-line for teachers to review. Teachers formally review the handbook during pre- planning. The handbook encourages teachers to count their students when they take the students off the playground to make sure they always have all of their children during the time scheduled. Teachers at Sand Pine are required to take roll at the beginning of each class so that teachers will recognize whether students on the class list are actually in the class. Teachers are responsible for students during the period of time when students are scheduled to be with that teacher. During lunch, the teacher brings her students to the cafeteria. While the students are in the cafeteria, the personnel assigned to the lunch room are responsible for the children. The teacher returns to the cafeteria to pick up the students. It is the teacher's responsibility to escort her class out of the cafeteria to where recess takes place. Respondent's pertinent student lists were not offered into evidence by Petitioner; however, on August 23, 2001, there were 20 students assigned to Respondent's home base class, and B.B. was one of those students. On August 23, 2001, at about 12:00 noon, Pasco County resident Andrea DaSilva (DaSilva) found Sand Pine kindergarten student B.B. playing in the grass in front of his residence located across the street from DaSilva's driveway. DaSilva attempted to locate B.B.'s mother, but found she was not at home. DaSilva contacted officials at Sand Pine by phone and notified them that B.B. was at her home. After DaSilva's call to the school, Assistant Principal Sara Lynn Pabst was sent to DaSilva's house. She met B.B. for the first time, retrieved him and returned him to the school. Pabst reported that B.B. was not angry, was not crying and appeared only a little disheveled, as if he had been playing outside on a hot day. DaSilva has no personal knowledge of B.B.'s whereabouts on August 23, 2001, prior to finding him in the grass across the street from her house. Pabst has no personal knowledge of Respondent's or B.B.'s whereabouts at anytime prior to retrieving B.B. from DaSilva's house. She has no knowledge of when or if B.B. went to school or lunch on August 23, 2001, how he got there, when or if he left school, or from where he left school. She had no knowledge who was responsible for him at the time he was found off of the school campus. Meanwhile, shortly after 12:15 p.m., Principal Ginny Yanson went to Respondent's classroom and asked Respondent if B.B. was present. Respondent answered that B.B. was present and called out his name for him to come forward. However, B.B. was not present at that time. Yanson met with B.B. in her office, upon his return to the school, and spoke with him regarding his breaking the rules by leaving the campus at Sand Pine and the consequences for doing so. B.B. was sent to another teacher's class for the remainder of the day. Yanson has no personal knowledge of Respondent's or B.B.'s whereabouts at anytime prior to meeting with B.B. in her office. She has no knowledge of when or if B.B. went to the school or lunchroom on August 23, 2001, how he got there, when or if he left school, or from where he left school. She had no knowledge who was responsible for him at the time he was found off of the school campus. Jill Brown, B.B.'s mother, was notified by school officials of her son's violation of Sand Pine rules on the date of the incident. She did not visit the school until the following day. Brown has no personal knowledge whatsoever of her son's activities on the date in question or who may have been responsible for him throughout the school day. She does not have personal knowledge of Sand Pine's class assignments or faculty structure during the 2001-2002 school year. Although Pabst acknowledges her significant familiarity with and obligations under Section 39.201, which requires the mandatory reporting of child abuse, Pabst did not call the abuse hotline to report Respondent because it was her belief that B.B. had not been abused, abandoned or neglected by Respondent. Although Yanson also acknowledges her significant familiarity with and obligations under Section 39.201, Yanson did not call the abuse hotline to report Respondent nor did she direct anyone to do so because it was her belief that B.B. had not been abused, abandoned or neglected by Respondent. The evidence is not clear and convincing that Respondent was responsible for B.B. at the time he was found off of the school grounds on August 23, 2001, or that Respondent failed to supervise B.B. on that date.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent is not guilty of violating Section 1012.795(1)(i) or Rule 6B-1.006(3)(a) of the Principles of Professional Conduct for the Education Profession in Florida, and, therefore, Petitioner's Administrative Complaint must be dismissed. DONE AND ENTERED this 7th day of October, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Robert E. Sickles, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Tampa, Florida 33602 William L. Yanger, Esquire William L. Yanger, P.A. 201 North Franklin Street, Suite 3010 Post Office Box 1077 Tampa, Florida 33601-1077 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact At all times relevant hereto James E. Wilkins, Jr. was a continuing contract teacher employed by the Pinellas County School Board. He has been employed in the field of education since 1950 and has been employed by the Pinellas County School Board since 1964. During the school year 1983-84 Wilkins was employed as a guidance counselor at Tarpon Springs Middle School. During the school year 1984-85 Wilkins was employed as a biology teacher at Tarpon Springs High School. While serving as counselor at Tarpon Springs Middle School several girls in the sixth grade came to Wilkins for assistance in deterring one of their classmates from pilfering makeup and shoes from their lockers. They had previously gone to another counselor for help in the matter but she had declined to intervene. They were sitting in Wilkins' office with the suspected culprit. After listening to part of the girl's complaints and in order to assure accuracy in recreating the proceedings, if necessary, Wilkins took out his tape recorder, placed it on his desk, asked the girls if they objected to having the conversation taped and after receiving no objection turned on the tape recorder. Wilkins testified that he asked the girls as a group if they objected to their statements being recorded and no one objected. One of the students present confirmed that Wilkins, during the course of their discussion, took his tape recorder out of his desk and asked them if they had any objection to having their comments taped. All said no. Later the suspected culprit went to another counselor and complained that she was afraid she was going to get beat up and that Wilkins had tape recorded the meeting without her permission. During the investigation which followed Wilkins acknowledged that he had in fact tape recorded the session after asking them if anyone objected. He did not poll the students to ask each one individually if she objected to the tape recorder. All were aware the conversation was being taped. Harry Danielson, Supervisor of guidance, Pinellas County School System, also questioned Respondent regarding the taping incident. Danielson's testimony that Respondent admitted to him that he taped the girls without their permission was explained by Respondent as a misunderstanding on his part as he thought Danielson asked if he had obtained written permission to tape the conversation. Danielson testified that the code of ethics of the counseling profession proscribes taping students without their knowledge or permission and that counselors are usually advised to get permission in writing before taping students. Danielson also opined that a counselor should not become involved in investigating a theft. This incident constitutes a part of the letter of reprimand issued by the superintendent on November 20, 1984. While at Tarpon Springs Middle School, Wilkins hung on the wall of his office a Ph.D. diploma from Loyola University of Paris, France. Earlier Wilkins had heard that he could perhaps obtain such a degree and did not see this university listed as a diploma mill and as not accredited. He forwarded to Loyola University transcripts of all courses he had taken including more than sixty hours of courses he had completed subsequent to completing his master's degree. These curricula were "evaluated" by Loyola University and Wilkins was issued a Ph.D. degree. He presented the information to the school board clerk handling post graduate records for Pinellas County teachers and requested the information be sent to the Department of Education in Tallahassee for evaluation. The Department advised that Loyola was not recognized as an accredited school and the degree would not be recognized by the Department. Respondent took no further action but to ask the clerk if the transcripts submitted to Loyola should be removed from his personnel file. She told him that would not he necessary. Subsequently the principal at Tarpon Springs Middle School saw the diploma on Mr. Wilkins' office, checked some information that he had that described Loyola University of Paris as a diploma mill and reported the "spurious" diploma to Nancy Zambito, Director of Personnel Services, Pinellas County School Board. Ms. Zambito questioned Respondent about the degree. He readily acknowledged that he had not taken any courses at Loyola and the degree was issued based on transcripts he had sent to Loyola for evaluation. Ms. Zambito on May 31, 1984, issued Wilkins a letter of reprimand (Exhibit 1) for unethical behavior and poor judgment. This incident also constituted a ground for the reprimand issued to Respondent by the Pinellas County Superintendent of Schools on November 20, 1984 (Exhibit 4), and as one of the charges in the suspension letter dated June 25, 1985. James Gregory, principal at Tarpon Springs Middle School 1983-84, gave Respondent a less than satisfactory evaluation in two areas as a result of the taping of the meeting with the students and for obtaining the diploma from Loyola University. At the close of this school year Gregory recommended that Respondent be removed from a counseling position and returned to the classroom as a teacher. As a result of this recommendation Respondent was transferred to Tarpon Springs High School as a biology teacher for the 1984-85 school year. Gregory opined that investigating theft is not part of the duties of a counselor but belongs solely in the realm of the administrative assistants. (TR. p. 19 Vol. I) During school year 1984-85 Leroy Birch was sitting next to the projector in Respondent's class when slides were being shown. Someone had smeared one of the slides and Birch and others were laughing. Birch was not sitting fully in his seat. Respondent thought Birch had smeared the slides and put his hand on Birch's shoulder to push him back down in his seat. Birch told Respondent to "take his god damn hand off my shoulder." Respondent, when questioned by administrative personnel about this incident, acknowledged that he had placed his hand on Birch's shoulder near a "pressure point" but that he did not squeeze the pressure point. Birch testified to no numbness or pain resulting from a squeezing of the pressure point. Birch further testified that Respondent had disciplined him and that he hated Wilkins when he was disciplined. Birch was one of many who testified Respondent used "damn" and "hell" in class more than other teachers. Ann Marie Levy was a student in Respondent's class in 1984-85 school year. She was copying notes from the overhead as she was supposed to be doing when Respondent slapped her on the shoulder to get her attention when he thought she was writing a note to a classmate. Ann Marie was more surprised than hurt by this incident which was observed by others in the class. Respondent has no recollection of striking Ann Marie but, if he did, it was accidental when he was trying to get her attention and not as a punishment nor intended as a punishment. This incident was the other striking episode referred to in Exhibit Ann Marie also testified that she never liked Respondent and that he expected a lot from his students. Ronald Cohalla was in Respondent's class last year (1984-85) and testified that while he was talking to another student Respondent told him if he didn't be quiet he would "deck him". Ron also testified that Respondent threw an eraser at him twice and that Respondent used curse words more than other teachers. During both of these eraser "throws" Ron was sitting at his desk in the front row some four or five feet from Respondent and talking to another student. On neither throw did the eraser get beyond Respondent's desk. Respondent denies ever telling Cohalla he would deck him if he didn't be quiet. Respondent is 6'1" tall and weighs 350 pounds. He was once a wrestling coach and is obviously well coordinated for a man his size. Had he attempted to throw an eraser at Cohalla, it is quite certain he could have hit Cohalla from a distance of four feet. The same credence, none, is given to Cohalla's testimony that Respondent threatened to deck him as is given to the testimony that Respondent threw an eraser at Cohalla. Several witnesses testified that Respondent had called them stupid. On cross examination these students testified that in response to a question Respondent frequently said "that's a stupid question." Respondent denies ever calling a student stupid. Many of the witnesses called by Petitioner testified that Respondent used "damn" and "hell" more than other teachers in class, that he was short in patience and frequently raised his voice in class. Many considered him a strict and demanding teacher. Respondent acknowledged that he often raised his voice to quiet down an unruly or a noisy class but did not consider this to be different than other teacher's reactions to noisy classes. Amy Levinson, who thinks Respondent is not a good teacher acknowledged that when Respondent raised his voice in class it was because the class was unruly. Use of the words "hell" and "jackass" by Respondent in class was one of the charges in Exhibit 4. No evidence was presented that Respondent used the word "jackass" in class. During the 1984-85 school year while Respondent was teaching biology at Tarpon Springs High School, Kirsten Kissinger testified she was embarrassed by Respondent once when she had stomach cramps. She asked Respondent if she could go to the bathroom then changed her mind and asked if she could go to the clinic. Respondent asked her why and she told him she had cramps. Respondent asked her to repeat her reason which she did. Kristen felt embarrassed by having to repeat her reason and thought other students were laughing at her. Another student in the class with Kristen, Stephanie Salsgiven, has no recollection of the incident in which Kristen states she was embarrassed. Respondent has been teaching middle grade and high school girls in Pinellas County Schools for more than twenty years. His testimony that anytime a girl tells him she has cramps she automatically gets permission to leave the class is more creditable than is testimony that Respondent would intentionally embarrass a female student. During a biology class at Tarpon Springs High School a discussion about mammary glands was held and one girl asked what Respondent had said. Two witnesses testified they overheard Respondent reply to this question "mammary glands -- I hope you develop some soon." The student to whom this comment was allegedly made did not appear as a witness and Respondent denies ever making such a statement to one of his students. One of these accusing witnesses also testified that Respondent had responded to a black male in the class and in a remark to him Respondent referred to the black's flat nose. John Thompson, the person referred to, testified that no such incident occurred. Once during one of Respondent's classes one student, apparently trying to be facetious, asked Respondent what obese meant. Respondent patted his stomach and replied that is what I am as are a few others in the class. Cynthia Shindler testified that Respondent specifically named her and John Thompson as obese people -- much to her embarrassment. John Thompson testified Respondent did not refer to him by name as obese. Respondent denies referring to anyone other than himself as being obese. No evidence was submitted that Respondent ever sent students on errands with unopen notes about other students or that the taping incident involved another teacher as alleged in the dismissal letter. On one occasion while passing down the corridor at Tarpon Springs High School, as Respondent passed an area known as "Greek corner" he heard someone call out in a loud voice "fat ass." Respondent did not stop. When Respondent returned a few minutes later he stopped near Greek corner to talk to a student in one of his classes. He again heard someone call out "fat ass" and, from the tone of the voice suspected Philip Stavrakis who was in the group. When Respondent called Phillip aside to admonish him Philip became very abusive and disrespectful. Respondent took Philip to the office for discipline. When he arrived he was unable to find anyone in the Dean's office to take Philip. Respondent told Philip to sit down while he looked for a dean. Philip sat on a table instead of the chair indicated and continued his harangue with Respondent. Unfortunately Respondent had also become very angry at the disrespect and abuse he was receiving from Philip and also raised his voice trying to get Philip to do as he was told. Dr. Van Fleet heard the commotion outside and emerged from behind the closed door of her office to see Respondent and Philip facing each other near the table and yelling loudly. She moved between them and told Respondent she would take over and Respondent departed. Philip contended he was not the one who had called Respondent "fat ass" and resented being so accused. Philip Stavrakis told Respondent he would get Respondent in trouble.
