Findings Of Fact The Respondent, Harvey R. Steckler, holds Teacher's Certificate No. 520419 issued by the State of Florida, Department of Education. This Certificate covers the area of substitute teaching. On February 5, 1985, the Respondent was employed as a substitute teacher at Brownsville Junior High School in the Dade County Public School System. On February 5, 1985, while substitute teaching in a physical education class, the Respondent was conversing with a group of minor male students. During this conversation, a minor female student passed the Respondent and the group of students. While looking at the female student, the Respondent began to make sexual remarks about her. She could hear portions of these remarks, such as "Oh, she's so fine; he had a girl on his boat and liked to eat her out; you wouldn't mind getting to her; he would like to eat her out," and other sexual comments. These remarks were also overheard by the boys in the group, as well as by the female student. The female student went to the school office and told the Principal and the Assistant Principal about the incident. They suggested to her that she write out a report on the incident, which she did. The Respondent's remarks caused the female student to be both nervous and frightened, as well as embarrassed. When the Principal of Brownsville Junior High reported this incident to the Dade County school system, the Respondent was informed that his name had been removed from the approved list of substitute teachers, pending further notice. After an investigation and several conferences, the Respondent's name was permanently removed from the list of authorized substitute teachers in the Dade County public school system. On April 24, 1985, the Respondent appeared before a publicly televised meeting of the school board to appeal the removal, but the school board took no action to reinstate him. The nature of the incident described above, together with the awareness of the incident on the part of students, staff, parents and the community, because of its publicity, so impaired the Respondent's effectiveness as a substitute teacher and as an educator, that the school board could not re-employ him in any capacity in the Dade County public schools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Teacher's Certificate No. 520419 held by the Respondent, Harvey R. Steckler. THIS RECOMMENDED ORDER ENTERED this 17th day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 17th day of June 1987. COPIES FURNISHED: William E. Williams, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Mr. Harvey R. Steckler 825 82nd Street Miami Beach, Florida 33141 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney Moenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
The Issue The issues in this case are presented upon the administrative complaint of Ralph D. Turlington, Commissioner of Education, filed against the named Respondent. Through this complaint, Respondent is accused of failure to disclose his involvement in a criminal offense in responding to Question V on his application for certification as a Florida teacher. The complaint also makes allegations related to the facts involved in the criminal offense. Based upon the purported non-disclosure and in view of the facts related to the criminal offense, Respondent is accused of violating Section 231.28, Florida Statutes, in that he obtained his teacher's certificate by fraudulent means; has been guilty of gross immorality or an act involving moral turpitude; and has evidenced personal conduct 1which reduces his effectiveness as an educator and employee of a school board. It is also alleged that Respondent's conduct is contrary to Subsection 231.09(2), Florida Statutes, in that he has failed to set a proper example for students.
Findings Of Fact On July 11, 1980, Respondent was arrested for grand theft and resisting arrest with violence. This arrest occurred in Jacksonville, Duval County, Florida. As a result of the arrest, a criminal information was filed against Respondent in Circuit Court, Fourth Judicial Circuit of Florida, in and for Duval County, Florida. The date of that information was August 8, 1980. The information accused Respondent of those violations for which he was arrested. On November 20, 1980, Respondent pled guilty to resisting arrest without violence, a misdemeanor, and lesser included offense to Count II of the criminal law information. In disposing of the plea, the Court withheld adjudication of guilt and placed Respondent on one-year probation. That probationary period expired on November 20, 1981. Subsequent to the arrest, filing of the information, and disposition of his plea, Respondent executed an application to be certified as a teacher in the State of Florida. A copy of this application may be found as petitioner's Exhibit No. 2 admitted into evidence. That application contains Question V. That question states: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Respondent's answer to this question was no. That answer was false in view of the fact of the November 20, 1980, plea to resisting arrest without violence, and the action of the Court withholding adjudication and placing Respondent on one-year probation., The non-disclosure was intentional. In the course of this proceeding, Respondent has offered no explanation for the false answer he gave in responding to Question V. The Florida Department of Education, Teacher Certification Section, received the application for teacher's certificate on March 18, 1981. After reviewing the application, and being unaware of the fraudulent answer to Question V, the State of Florida, Department of Education, issued Respondent teacher's certificate No. 467175. The certificate allows Respondent to serve as a substitute teacher. That certificate is effective from July 1, 1980, through June 30, 1985. A copy of this certificate may be found as Petitioner's Exhibit No. 1 admitted into evidence. In October, 1981, Respondent obtained a position with the Duval County, Florida School System as a substitute teacher. On this occasion, Respondent indicated that he had no prior criminal arrests. This claim was found to be false, in view of the prior arrest referred to before. When the Duval County School System ascertained the falsehood in the application for employment with their system, Respondent was dismissed on December 1, 1981. A copy of the letter of dismissal may be found as petitioner's Exhibit No. 3 admitted into evidence. Dalton Epting, Director of Certified personnel for Duval County Schools, established that Respondent would not be the type of individual who would be qualified to be a teacher in Duval County, in view of the fact that teachers are required to set examples for students on a daily basis, and individuals such as Respondent, who are dishonest, in the sense of falsifying records related to an arrest, are not acceptable teachers in the system. Mr. Epting, who is responsible for employing teaching personnel in the Duval County School System, indicated that he would not employ Respondent even if Mr. Jenkins continues to hold a valid certificate to teach in Florida. On January 5, 1982, the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, entered an order sealing the arrest record related to the aforementioned arrest for grand larceny and resisting arrest with violence.
The Issue The issue is whether, as the district school board alleges, an elementary school teacher slapped a student’s face in class—an allegation which, if proved, would give the district just cause to suspend the teacher without pay for five days.
Findings Of Fact The School Board is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant, it was (and remained as of the final hearing) Beal’s employer. Beal is an elementary school teacher who, during the relevant school year (2018-19), taught a first-grade class comprising four special education students with autism, one of whom is named R.S. The incident giving rise to this action occurred on Friday, December 7, 2018. Throughout the morning that day, R.S. had been coughing intermittently, prompting Beal to admonish R.S., multiple times, about the need to cover his mouth. At some point, R.S. left his desk and approached Beal, who was sitting behind a table at the front of the classroom. R.S. positioned himself near Beal and proceeded to cough in her face. Because R.S. did not testify, there is no direct evidence regarding his intentions. It is reasonable to infer from R.S.’s conduct (and is hereby found), however, that—for whatever reasons—R.S. was deliberately directing respiratory jets towards Beal, using uncovered coughs to invade the teacher’s personal space. Beal continued to implore the student to cover his mouth and to move away from her, but to no avail. What happened next is in dispute. There were two adults in the classroom at this crucial moment—Beal and Martha Quesada, a paraprofessional who had been assigned to work one-on-one with one of Beal’s students (not R.S.). A second paraprofessional assigned to Beal’s classroom, Jeffrey Roberts, was having lunch in the media center when this incident took place. Beal testified that she began waving her hands back and forth in front of her face, to fan away the respiratory droplets from R.S.’s uncovered coughs. Beal’s testimony in this regard is credited as truthful, for the act she described is a spontaneous, self-protective response to being coughed on. Ms. Quesada testified that Beal did more than wave. She claims that Beal committed a battery upon R.S., slapping the boy across the cheek, hard enough to make a clapping sound, which she says she heard. Ms. Quesada testified that R.S. exclaimed, “Ms. Beal, you hit me!” as he began screaming loudly and inconsolably. This is obviously a serious accusation, which, if true, constitutes just cause for a five-day suspension. Although the possibility that Beal slapped R.S. cannot be ruled out, nevertheless, based upon the evidence presented, it cannot be found that, more likely than not, an attack occurred such as that described by Ms. Quesada. Her testimony is insufficiently persuasive to carry the School Board’s burden of proof. Given that the School Board’s case rests almost entirely on Ms. Quesada’s shoulders, an explanation is in order as to why her testimony comes up short. To begin, in her written statement prepared for the School Board on December 10, 2018, just a few days after the events at issue, Ms. Quesada described what she had seen as follows: “I saw Ms. Beal touching (like slapping) the left side of [R.S.’s] face and he screams and start screaming uncontrollably.” Touching is not like slapping, and yet here, in this important document, knowingly tendered as evidence during the investigation of the incident, Ms. Quesada conflated the two. This is not a minor matter, either. It is the material fact in dispute. Did Ms. Quesada see Beal merely touch R.S. and equate that with a slap? Then there are the little corroborating details about which Ms. Quesada testified, but which she failed to mention in her (nearly) contemporaneous written statement. Ms. Quesada wrote nothing about having heard the alleged slap, nor did she record R.S.’s supposed excited utterance accusing Beal of hitting him. While these are not necessary facts, they tend to make the essential allegation that Beal slapped R.S. somewhat more believable, and the School Board relies upon them. Their absence from the written statement, however, makes these seem like later embellishments, which, in turn, calls into question Ms. Quesada’s reliability as a witness. Next, a third corroborating detail contained in Ms. Quesada’s testimony is affirmatively disproved by the greater weight of the evidence. There is no dispute that after being coughed on by R.S., who was disobeying Beal’s instructions to stop, Beal left the classroom to ask Mr. Roberts to return and help her redirect R.S. (Mr. Roberts had known R.S. for a couple of years and had a good rapport with him.) Beal found Mr. Roberts in the media center, and he accompanied her back to the classroom.1 Everyone agrees that Beal was out of the classroom for about three minutes. According to Ms. Quesada, R.S. continued to scream the entire time and was still screaming when Beal and Mr. Roberts returned to the classroom. Ms. Quesada testified that Mr. Roberts tried to get the boy to calm down, failed, and thus had to remove the student, who was still screaming as he exited the room. Such behavior on R.S.’s part would be consistent with having been slapped by Beal, which is why the School Board draws attention to this aspect of Ms. Quesada’s testimony. Both Beal and Mr. Roberts, however, testified that R.S. was calm and quiet when they entered the classroom. Mr. Roberts recalled that R.S. was his usual self, exhibiting ordinary behavior. Mr. Roberts brought R.S. back to 1 The School Board emphasizes Mr. Roberts’s testimony that Beal was a “little upset” or “frustrated” when Beale approached him in the media center, as if this implies guilt. Beal’s reported mood, however, comports with the circumstances as she recounts them. Indeed, it would be surprising if Beal were not at least somewhat upset, since being coughed on at close range is annoying, as nearly everyone who has had the experience can attest. The undersigned regards Beal’s apparent frustration in that moment as a neutral fact. the library where he let the student watch a movie while he (Mr. Roberts) finished eating his lunch. During the 15 minutes remaining in Mr. Roberts’s lunch break, R.S. acted normally, and when it was time to go back to class, R.S. expressed no fear or reluctance, returning to Beal’s room without incident. In addition to these chinks in Ms. Quesada’s credibility armor are her immediate responses—or rather nonresponses—to Beal’s alleged abuse of R.S. It is undisputed that after Beal left the classroom, leaving Ms. Quesada in charge, Ms. Quesada did not use the telephone at her disposal to call security or request other help. Nor did she try to calm or examine R.S., whom she claims had just been slapped and was screaming. Ms. Quesada did not tell Mr. Roberts about the alleged attack when he returned to the classroom. Indeed, Ms. Quesada did not rush to inform anybody about what she allegedly had witnessed, including R.S.’s mother, whom she knew and could have approached when R.S. was picked up after school. Instead of promptly reporting the alleged incident, Ms. Quesada waited until after her shift had ended to call Maria Henao, the autism coach, who happened to be traveling at the time and unable to come to the phone right away. The two did speak the next day (Saturday), which was when Ms. Quesada first notified the School Board that she had seen Beal slap R.S. Ms. Quesada’s unhurried reaction to the alleged slap seems incommensurate with relative urgency of the situation. One would expect an adult eyewitness to classroom child abuse by a teacher to respond with a bit more vigor. Had Ms. Quesada intervened with alacrity, a timelier, and perhaps more fruitful, investigation would have been possible. Finally, there is some reason to believe that Ms. Quesada might be biased. At hearing, Ms. Quesada implied that a son of hers had died as a consequence of unreported child abuse, and she forthrightly acknowledged that, because of this personal tragedy, her “jobs” are to “protect the kids” and “to come forward no matter what” if she sees someone hurt a child. In light of these facts, it is reasonable to discount Ms. Quesada’s testimony somewhat to account for the possibility that she might assume the worst when it comes to uncommon adult-child interactions, such as the one at issue, and to resolve doubts and uncertainties in favor of the child and against the adult. Of course, none of the foregoing necessarily means that Ms. Quesada is not telling the truth, at least as she perceived the incident. Taken together, however, these considerations negatively affect the weight of her testimony, which to repeat is essentially, albeit not entirely, uncorroborated. The corroborating evidence, such as it is, consists of two hearsay declarations by R.S. One is the excited utterance, which was mentioned above. The other is R.S.’s alleged reaction to being asked by Ms. Henao, on the Monday following the alleged incident, why he had coughed in Beal’s face. According to Ms. Henao, R.S. answered this question by placing his hand on his cheek, becoming upset, and saying, “ow.” It should be added that this alleged communication occurred while Ms. Henao was walking R.S. back to class after his formal interview in connection with the investigation of Beal stemming from Ms. Quesada’s accusation, during which R.S. had said nothing about being slapped. These hearsay declarations were deemed admissible and considered.2 The undersigned considers R.S.’s alleged hearsay statements to be of little probative value because there is persuasive evidence that, at the time of the incident, R.S. was prone to exaggerating the effects of ordinary, harmless physical contact. Nichole Sanders, a teacher who was not involved in the subject incident, testified credibly that on several occasions around that time, R.S. declared that Ms. Sanders was hurting him, when in fact she was merely 2 R.S.’s excited utterance is admissible under an exception to the hearsay rule. § 90.803(2), Fla. Stat. The nonverbal conduct described by Ms. Henao (which the undersigned has treated as having been intended by R.S. as an assertion) is admissible to “supplement” Ms. Quesada’s testimony. § 120.57(1)(c), Fla. Stat. This case serves as a reminder that admissibility and credibility are not synonymous. holding his hand.3 This tendency to exaggerate, coupled with the fact that R.S.’s statements are only hearsay, after all, is enough for the fact-finder to give this evidence very little weight. The bottom line is that Ms. Quesada’s thinly corroborated testimony, which is compromised by the several credibility defects described above, is insufficiently persuasive to support a finding that Beal slapped R.S. as charged. That said, Beal was not an especially effective witness, either. She was at times overly defensive and a little evasive. To be fair, however, being accused of child abuse, the undersigned imagines, is likely to negatively affect a party’s demeanor on the stand. Therefore, these factors do not compel a significant credibility discount. More troubling, in contrast, is Beal’s equivocation regarding whether her hand or fingers made contact with R.S. during the incident. Beal at times has denied that she touched R.S. and at other times allowed that her fingertips might have made contact with him inadvertently. Mr. Roberts testified that, on the next Monday after the incident (which was by then under investigation), Beal told him that she “might have” slapped R.S. on the hand, or even in the face. At hearing, Mr. Roberts emphasized that “might” was the “key word.” While Beal has expressed uncertainty about whether she touched R.S. that morning, she has consistently denied slapping the student. In this regard, Mr. Roberts’s testimony conflicts with Beal’s. Arguably, Mr. Roberts’s 3 The School Board argues that Ms. Sanders’s testimony does not establish that R.S. lied about being touched, as opposed to exaggerating the effects of the physical contact. This is true as far as it goes. But Beal is not charged with merely “touching” R.S. She is accused of intentionally slapping the student. Ms. Sanders’s testimony establishes that R.S. was capable of dramatizing a nonharmful touch and, in fact, did so several times in her presence. If, as is possible, Beal had made incidental, harmless contact with R.S. while waving her hands in defensive response to his purposeful, uncovered coughing in her personal space, it would be consistent with R.S.’s known behavior for him to have screamed “Ouch, you’re hurting [or hitting] me,” or words to that effect. testimony concerning Beal’s qualified “admission” corroborates Ms. Quesada’s testimony about the incident. As the fact-finder, the undersigned considers the “admission,” as recounted by Mr. Roberts, to be insufficiently probative to tip the scale in the School Board’s favor. There are two reasons for this. First, the “admission” is hearsay,4 and, hence, the possibility exists that Beal’s words lose some subtlety of the speaker’s intended meaning when filtered through a third party, even a relatively friendly one such as Mr. Roberts. Second, the “key word”—might—softens the “admission” to the point that it is not really an “admission” in the sense of being a concession to the truth of the matter. Regarding Beal’s credibility, the bottom line is this: she failed to prove her innocence. Fortunately for Beal, however, she was not required to do so. Beal has consistently denied having slapped R.S., which is the gravamen of the charges against her. The School Board failed to prove by a preponderance of the evidence that Beal did, in fact, slap the student. Beal’s shortcomings as a witness do not make the School Board’s evidence more persuasive; the result, rather, is that the entire record, including Beal’s testimony, is insufficient to support a finding that, more likely than not, Beal slapped (or did not slap) R.S. on December 7, 2018. DETERMINATION OF ULTIMATE FACT The School Board has failed to prove its allegations against Beal by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order exonerating Pamela D. Beal of all charges brought against her in this proceeding, rescinding the suspension, and awarding Beal back salary and benefits as required under section 1012.33(6)(a). DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 4th day of January, 2021. COPIES FURNISHED: Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 (eServed) Maya A. Moore, Esquire Douglas G. Griffin, Esquire Andrew Carrabis, Esquire Broward County School Board 600 Southeast Third Avenue, Eleventh Floor Fort Lauderdale, Florida 33301 (eServed) Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue As to DOAH Case No. 00-3581, the issue is whether the Respondent's employment with the Petitioner, the School Board of Miami-Dade County, Florida (School Board), should be terminated for the reasons set forth in the Notice of Specific Charges. As to DOAH Case No. 00-5123PL, the issue is whether the Education Practices Commission should take disciplinary action against the Respondent's teaching certificate for the reasons set forth in the Administrative Complaint dated November 21, 2000.
Findings Of Fact 1. The Petitioner, School Board, is authorized to operate, control, and supervise the public schools within the school district of Miami-Dade County, Florida. As such, it is charged with the responsibility for all personnel decisions for the school district. 2. At all times material to this matter, the Petitioner, Tom Gallagher, as Commissioner of Education, was authorized by Florida law to recommend cases for disciplinary action to the Education Practices Commission.* 3. At all times material to this matter, the Respondent, Edward Cohen, held Florida Educator's Certificate No. 640334 valid through June 30, 2001. Such certificate authorized the Respondent to teach physics in grades 6 through 12. 4. At all times material to this matter, the Respondent was employed pursuant to a professional service contract as a teacher assigned to Homestead Middle School, a public school within the Miami-Dade school district. As such, the Respondent was subject to the rules and regulations of the State of Florida and the School Board. 5. Prior to March 8, 2000, several female students enrolled in the Respondent's class at Homestead Middle School complained to an assistant principal regarding the Respondent's behavior and comments in class. 6. The students expressed their discomfort with the manner in which the Respondent held their hands, or touched their backs, or commented on their romantic interests or other topics not related to their studies. In essence, the students wanted the touches and comments to stop. 7. The students did not allege sexual contact with the Respondent. The conduct was more subtle: a handshake held longer than greeting required, a pat on the back more stroking than normal, or an arm/shoulder rubbed. The discomfort stemmed from the continuing pattern of the behavior despite the students having pulled away or having told the Respondent to stop. 8. The students were not disruptive in class, did not conspire to cause the Respondent problems, and were not racially motivated. They were simply middle school girls venting their discomfort at the situation. 9. As is the normal practice when confronted by complaints against a teacher, the assistant principal asked the girls to complete written statements outlining the basis for their concerns. 10. The complaints also alleged that the Respondent had ignored one male student who was beaten up by other students while in the Respondent's class. All of the girls identified the male student by name. 11. The assistant principal advised the Respondent that the students had made allegations and requested a written statement in response. Instead of attempting to work with the administrator regarding the complaints, the Respondent assumed a defiant and defensive attitude. 12. Over the course of the next few days a new principal was assigned to Homestead Middle School. When the new principal, Mrs. Reineke, arrived for duty she was unaware of the student complaints and had never met the Respondent. 13. When a parent of one of the girls confronted Mrs. Reineke with a demand for action regarding the complaints, the principal initiated a formal review of the matter. Allegations of inappropriate statements or touches are always taken seriously. Mrs. Reineke was obligated to follow-up with a prompt review of the complaints. 14. When the Respondent learned that an investigation would result he requested that "the offending or offended students" be removed from his class or that he be moved to another location. 15. Although Mrs. Reineke inquired into the possibility of moving the Respondent to another location, the School Board policy (approved by the teachers' union) prohibited a move at that time during the school year. 16. Additionally, as there was no basis upon which to justify removal of the students from the class, Mrs. Reineke elected to change the Respondent's teaching schedule effective March 20, 2000. 17. This decision was necessitated by the Respondent's refusal to allow the students who had complained against him into his class. Subsequent to their filing the written statements against him, the Respondent sent three of the girls to the office. Further, the Respondent verbally advised an assistant principal that he would not accept them back into his class. 18. When the Respondent learned of Mrs. Reineke's proposed solution (the schedule change), he advised her that he would not accept the change and claimed it was a "racial move." 19. In an effort to resolve the conflict, Mrs. Reineke met with a union steward and agreed to modify the schedule change to assure that the Respondent was qualified to teach all of the subjects on the modified schedule. Nevertheless, the Respondent refused to accept the change. 20. The Respondent would not admit the complaining students back into class, would not accept the schedule change as proposed by the principal (and negotiated by the teacher's union representative), and the investigation of the underlying allegations against the Respondent had not been completed. Given these facts, Mrs. Reineke sought support and assistance from the School Board’s region office. 21. On March 21, 2000, when the Respondent reported to school and again refused to teach his scheduled classes, he was removed from the school and placed on alternative assignment effective that date. Mrs. Reineke also referred the Respondent to the Employee Assistance Program (EAP). 22. As Mrs. Reineke could discern no reason for the Respondent's refusal to accept the schedule change or allow the students back into class, it was hoped that the services available through the EAP might assist the Respondent. 23. The Respondent did not participate in the EAP and continued to allege that Mrs. Reineke's actions were racially motivated. 24. There is no rational or factual basis for the Respondent's claim that the principal's conduct was racially motivated. None of the students' complaints related to the Respondent's race. Persons of the Respondent's race testified as to the factual matters in dispute in this cause and none of them supported the Respondent's claim of racial bias or motivation. 25. Eventually, the investigation resulted in the matter being referred to the School Board's Office of Professional Standards. That office, as required by law, then referred the case to the Education Practices Commission. 26. In completing the investigation of the Respondent's conduct, the following improprieties were substantiated. First, in shaking hands with female students the Respondent would hold the hand longer than necessary for a formal greeting. In fact, requiring students to shake hands in greeting was unnecessary. That the female students were made uncomfortable by the practice should have demonstrated its inappropriateness. It is undisputed that female students would pull away from the Respondent when the hand was held an inappropriate length of time. 27. Second, the Respondent rubbed or patted backs or shoulders in an improper stroking manner causing female students to be uncomfortable. Such conduct was only directed to female students and was inappropriate. 28. Third, the Respondent made improper comments to the students regarding how gay men contract AIDS through anal sex. 29. The Respondent made inappropriate comments to students unrelated to the subject matter taught regarding sexual behavior. He disparaged one student for alleged sexual conduct and falsely attributed her vomiting to pregnancy. 30. When directed to admit complaining female students back into his class, the Respondent refused to do so. Such directive was reasonable in nature and given with and by proper authority. 31. When directed to adhere to an amended schedule change, the Respondent refused to do so. Such directive was reasonable in nature and given with and by proper authority. 32. When a male student was being beat-up by students in the Respondent's class during class, the Respondent failed or refused to intercede on the male student's behalf. 10 33. Parents of students in the Respondent's class lost confidence in his effectiveness to perform as a teacher given the Respondent's acts, omissions, and inappropriate comments. 34. Administrators who attempted to resolve the dispute lost confidence in the Respondent's effectiveness to perform as a teacher, given his refusal to work with the system to effect a mutually agreeable solution to the problem presented by the students' complaints and his refusal to comply with directives. 35. On June 7, 2000, school administrators conducted a final conference for the record (CFR) with the Respondent. This CFR, held at the district level, reviewed the findings of the investigation, reiterated the Respondent's repeated failures to comply with directives issued, and addressed future disciplinary action. 36. Subsequently, the principal recommended that the Respondent's employment with the school district be terminated. This recommendation was reviewed and supported by the region superintendent who is of the same race as the Respondent. According to the region superintendent, the Respondent's refusal to follow directives of the principal as outlined above is so egregious that termination became the school district's only option. 37. In response to the recommendation, the Respondent labeled the administrators "liars" and continued to falsely malign the principal as a "bigot." The Respondent did not and 11 has not recognized the inappropriateness of his sexual comments to students or his refusal to accept the complaining students back into his class. His assertions regarding the schedule change that was initiated and offered to accommodate his concerns pending the investigation were unpersuasive.
Conclusions For Petitioner Timothy A. Pease, Esquire School Board of Miami-Dade County School Board Miami Dade 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 For Petitioner Charles T. Whitelock, Esquire Commissioner of Whitelock & Associates, P.A. Education: 300 Southeast 13th Street Fort Lauderdale, Florida 33316 For Respondent : Edward J. Cohen, pro se 19707 Southwest 118th Place Miami, Florida 33177
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order sustaining the suspension and termination of the Respondent's employment contract. Further, it is recommended that the Educational Practices Commission suspend the Respondent's teaching certificate and require him to complete an approved course in professional ethics. 14 DONE AND ENTERED this 17 day of June, 2001, in Tallahassee, Leon County, Florida. . D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Divisio Administrative Hearings this 2 j ay of June, 2001.
The Issue Whether or not Donald Eugene McKinney was arrested by vice squad officers H.R. Hall and J.N. Henry of the Jacksonville Sheriff's Office, Duval County, Florida, at the St. Johns Marina men's room, and was charged with exposure of sexual organs on September 24, 1976 and entered a plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior as set out in Section 798.02, Florida Statutes, and due to the above alleged misconduct, has failed to perform his duties as an educator as described in Section 231.09(2), Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not Donald Eugene McKinney was arrested by vice squad officers H.R. Hall and H.N. Henry of the Jacksonville Sheriff's Office, Duval County, Florida, at the St. Johns Marina men's room, and was charged with exposure of sexual organs on September 24, 1976 and entered a plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior as set out in Section 798.02, Florida Statutes, and through these acts has violated the substantive provisions of Section 231.28, Florida Statutes and subjected himself to the penalties contained in that section. Whether or not on September 24, 1976, Donald Eugene McKinney solicited sex with an undercover officer, H.R. Hall, and through the above alleged misconduct, has failed to perform his duties as an educator as described in Section 231.09(2), Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not on September 24, 1976, Donald Eugene McKinney solicited sex with an undercover officer, H.R. Hall, and through the above alleged misconduct, has violated the substantive provisions of Section 231.28, Florida Statutes and subjected himself to the penalties contained in that section.
Findings Of Fact The Respondent, Donald Eugene McKinney, is the holder of Florida Teacher's Certificate Number 178946, Special Postgraduate Rank 1A, and was employed with the Duval County Florida Public School System on September 24, 1976, and prior to that date. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated November 15, 1976, addressed to the Commissioner of Education. Upon examination of the recommendation, the Commissioner of Education found probable cause for revocation of the Respondent's teacher's certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, Florida Administrative Code. This determination by the Commissioner was made on January 27, 1977. Subsequently, a petition for revocation of the teacher's certificate was filed on March 7, 1977, and amended on July 12, 1977. The Respondent answered the original petition by denying the allegations, and stood mute on the allegations found in the amendment to the petition. The allegations contained in the original petition and the amendment to the petition are identified in the section of this recommended order entitled ISSUES. The hearing has been referred to the Division of Administrative Hearings pursuant to the action of April 19, 1977, in which the Professional Practice Council relinquished jurisdiction over the hearing process and requested the hearing to be conducted by the Division of Administrative Hearings. On September 24, 1976, officer H.R. Hall of the Jacksonville Sheriff's Office vice squad was on duty at the St. Johns Marina, which is located in Jacksonville, Florida. This marina is part of an overall public park known as Friendship Park. The purpose of officer Hall being on duty was to investigate cases of alleged homosexual activity, which were occurring in the men's restroom at the marina. This restroom is available for public use. A rough description of the inside of the restroom is seen in Respondent's Exhibit No. 1 admitted into evidence. This exhibit describes the location of the sinks, urinals and toilets found in the facility. The room is approximately 18 feet long and 10 feet wide. At around 3:30 p.m. on the aforementioned date, officer Hall entered the restroom and took a position against the far wall which faces the two toilets. These toilets are located in stalls, and there are partition walls separating the toilets and the toilet near the door from the two urinals. There were no doors on the toilets on the day in question. Officer Hall observed a male seated on the first toilet fondling his penis, to the extent that the man had achieved an erection. At this point the Respondent had also entered the restroom and was standing by the area of the sinks. McKinney had observed officer Hall watching the man in the first toilet stall and was of the opinion that the man and officer intended to commit some form of sexual activity. Because of this opinion, McKinney made some comment that it was alright for Hall and the other unidentified male to do so and he, McKinney, would wait. Prior to this brief conversation with officer Hall, McKinney had been in the restroom and observed that the two toilets were being used and observed officer Hall standing in the restroom. He had left the restroom and come back and that was the point at which he engaged officer Hall in the conversation. The purpose that McKinney had for coming to the restroom was twofold. He felt that he needed to use the facilities for the intended purpose, but also indicated that he understood that homosexual activity occurred in that location and he expected that he might be able to engage in that activity with someone once he entered the facility. There is some difference in testimony as to the time that McKinney came to the location, his estimate being approximately 3:45 p.m. and officer Hall's estimate being between 3:30 p.m. and 3:45 p.m. By either account, McKinney had come to the location after completing the assigned duties of his employment for that day. (On September 24, 1976, McKinney was actively employed as and administrative assistant to the principal of Windy Hill Elementary School, Duval County, Florida). After McKinney spoke to Hall, officer Hall followed the unidentified male out of the restroom. While officer Hall was outside the restroom, McKinney entered one of the toilets and seated himself. Again, there is a difference in testimony between McKinney and Hall as to exactly which of the two toilets he sat on, McKinney and Hall as to exactly which of the two toilets he sat one, McKinney saying that he was in stall number two identified on the diagram and Hall saying that he was located in number one. Regardless of the true location, officer Hall stood and observed McKinney masturbating while McKinney was seated on the toilet, with his penis exposed. At that point of observation McKinney had an erection. McKinney then stood up and moved to the location of the urinals. He did not expose his sexual organs while moving from the location of the toilets to the location of the urinals. Once he was standing at the urinal, McKinney removed his penis from his pants and masturbated. This was observed by officer Hall. During the course of McKinney's activity at the toilet and at the urinal, other persons were coming in and out of the restroom. After Hall watched McKinney at the urinal for a brief period of time, he motioned by a gesture of his head, that McKinney should follow him outside. McKinney's testimony was that he thought that the officer might wish to perform some homosexual activity with him, specifically oral sex, and he followed Hall outside. McKinney recalls that the officer suggested that he go to the officer's car. To which McKinney recalls responding that he felt that it was too dangerous and that he had better go home. Officer Hall does not recall that conversation. Officer Hall and McKinney do agree that at some point after they arrived outside the restroom, McKinney said "I'm not looking to suck, I want to be sucked." At this point in time, officer Hall identified himself as a police officer and arrested the Respondent for exposure of his sexual organs. Subsequent to the arrest, within approximately a week, the Respondent resigned his position with the Duval County School System. He then took a job with the School System in Mecklenburg County, North Carolina. There was no testimony that the incident in the restroom was ever revealed to the public in general or to the members of the faculty at the Windy Hill Elementary School, children, or parents of those children. The only persons that were informed of the incident were those persons in administration who were working directly in the personnel and security department, and the principal of Windy Hill Elementary School. Buford Galloway, Director of Evaluation, Duval County School Board, Duval County, Florida, offered testimony in the hearing. He indicated that he had investigated approximately 30 cases of homosexual activity by personnel of the school system in Duval County, to include six or eight cases of lewd and lascivious conduct. Mr. Galloway indicated that in those instances where the homosexual activity became a matter of public knowledge, the effectiveness of the teacher was reduced. Potentially he felt that effectiveness of a teacher would be reduced in a situation such as the Respondent's should it become a matter of public knowledge. As stated before, the incident involving the Respondent has not become a matter of public knowledge, in either Duval County, Florida or Mecklenburg County, North Carolina. Continuing an examination of the question of reduced effectiveness, there was not testimony offered which competently spoke to the quality of McKinney's performance in his duties after the events of September 26, 1976. His stay in Duval County was only for a short period of time before resigning, and not sufficient enough to allow a competent opinion on his performance there. For the remainder of the 1976-77 academic year, following his resignation in the Duval County School System, the Respondent served as an elementary teacher in the Mecklenburg County School System. No officials from Mecklenburg County testified about his effectiveness in their system. After his arrest, the Respondent was charged with engaging in lewd and lascivious behavior in violation of Section 798.02, Florida Statutes. He entered a plea of guilty in absentia and paid a $25.00 fine in response to the charges. The subject plea was entered on October 12, 1976. On May 18, 1977, an order of expungment was issued in accordance with Section 901.33, Florida Statutes, a copy of this order of expungment may be found as Respondent's Exhibit No. 2 admitted into evidence. Based upon these facts the Petitioner, has made a series of charges. The initial contention by the Petitioner is that the Respondent has violated Section 231.09(2), Florida Statutes, based upon the arrest of September 24, 1976, for the incident previously reported in these facts, and the plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior, a violation of Section 798.02, Florida Statutes. (The Petitioner is limited specifically in this contention, to any violation which might be shown under Section 231.09(2), Florida Statutes. This limitation is established by the answer to Interrogatory No. 8, propounded by the Respondent to the Petitioner. This answer to the Interrogatory serves as a bill of particulars and identifies Section 231.09(2), Florida Statues, as the basis of the claim in paragraph 3., of the original petition. Therefore any consideration of other subsections of Section 231.09, Florida Statutes, other than Section 231.09(2), Florida Statutes, is barred). The particular subsection, i.e., Section 231.09(2), Florida Statutes states the following: "EXAMPLES FOR PUPILS. - Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate by precept and example, the principals of truth, honesty and patriotism and the practice of every Christian virtue." In the case of Meltzer v. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), that Court held Section 231.09(2), Florida Statutes to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc reported, at 553 F. 2d 1008, the Unites States Fifth Circuit Court of Appeals granted rehearing with the right for oral argument and the opportunity to submit supplemental briefs, with the date of the oral argument to be announced in the future. The rehearing has not been held at the time of this recommended order. Consequently, the undersigned will report whether the evidential facts ad demonstrated, establish a violation under the language of Section 231.09(2), Florida Statutes, with the caveat that this section may not withstand the final order of the court in Meltzer, supra. Should Section 231.09(2), Florida Statutes, be upheld, the act of being arrested and pleading guilty to a violation of Section 798.02, Florida Statutes, would not violate Section 231.09(2), Florida Statutes. A violation would not be established because the order of expungment of May 18, 1977, entered in accordance with Section 901.33, Florida Statutes, would not allow punishment on the basis of the entry of the plea, because the order places the Respondent in the same position he would be in had the crime never occurred. This expungment would not prohibit the assessment of a penalty under the terms of Section 231.28, Florida Statutes, based upon the underlying evidential facts in the incident that led to the arrest and subsequent plea herein. These facts establish that the Respondent failed to labor faithfully and earnestly for the advancement of the pupils in their deportment and morals, in accordance with Section 231.09(2), Florida Statutes, assuming this latter section is constitutional. The evidential facts spoken of are those pertaining to the Respondent's motivation in coming to the Marina and what he did while in the restroom. No other violation of Section 231.09(2), Florida Statutes, under this contention, has been proven. Another contention found in the petition is that the matters pertaining to the arrest on September 24, 1976, and subsequent plea of guilty on October 12, 1976, as established above, constitute a substantive violation of Section 231.28, Florida Statutes, and would lead to action against the license on that basis. In pertinent part, Section 231.28(1), Florida Statutes, and would lead to action against the license on that basis. In pertinent part, Section 231.28(1), Florida Statutes, states that the license can be suspended or revoked provided: "It can be shown that such person obtained a teaching certificate by fraudulent means, has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the state board of education or the school board of the district in which he is employed." For reasons stated above, the order of expungment of May 18, 1977, together with the fact that the Respondent was never convicted of Section 798.02, Florida Statutes, would prohibit the revocation of his certificate on that basis alone. Nonetheless, based on the evidential facts set forth in the preceding paragraph, the Respondent, " . . . has been guilty of gross immorality or an act involving moral turpitude . . .," Section 231.28(1), Florida Statutes. These evidential facts do not show that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, according to the terms and conditions of Section 231.28(1), Florida Statutes, and no other substantive provisions of Section 231.28(1), Florida Statutes, have application. Moreover, although Section 231.28(3), Florida Statutes, states that a plea of guilty in any court, to one of the offenses listed in Section 231.28(1), Florida Statutes, constitutes a prima facie proof of grounds for revocation of the certificate, this is effectively rebutted by the expungment of May 18, 1977. The third overall claim against the Respondent was that he solicited sex with officer Hall which is contended as a violation of Section 231.09(2), Florida Statutes. In addressing this contention, the discussion of the constitutionality of Section 231.09(2), Florida Statutes, entered into before would have application in considering this third point. Therefore, assuming that the section is held to be constitutional, the Respondent solicited sex with the undercover officer and by doing so has failed to labor faithfully and earnestly for the advancement of the pupils and their deportment and morals, in violation of Section 231.09(2), Florida Statutes. This solicitation is established by the Respondent's conduct with the officer in the restroom and by his activities outside the restroom in stating that "I'm not looking to suck, I want to be sucked." Petitioner has failed to establish a violation of any other substantive element of Section 231.09(2), Florida Statutes. Finally, Petitioner has claimed through petition that the Respondent violated the conditions of Section 231.28, Florida Statutes, by soliciting sex with the undercover officer, Hall. In considering the particular language of Section 231.28(1), Florida Statutes, the conduct of the Respondent discussed in the above paragraph, constituted an act of gross immorality and an act involving moral turpitude, as stated in Section 231.28(1), Florida Statutes. These evidential facts do not show that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board according to the terms and conditions of Section 231.28(1), Florida Statutes. There has been no showing of any further violation of Section 231.28(1), Florida Statutes, by the act of soliciting sex with the undercover officer, as described in the preceding paragraph.
Recommendation It is recommended that the Florida Teacher's Certificate Number 178946, Special Postgraduate Rank 1A, held by the Respondent, Donald Eugene McKinney, be revoked, and that the revocation take effect, notwithstanding the eventual outcome of the consideration of Section 231.09(2), Florida Statutes, taking place in the case of Meltzer v. Board of Public Instruction of Orange County Florida, etc., et al., supra, and the Respondent's previous excellent employment record. DONE and ENTERED this 6th day of September, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1501 Tallahassee, Florida 32302 L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207
Recommendation Based upon the foregoing, it is recommended: That Laurie J. Oldock be found guilty only of attempting to use a person under eighteen to deliver a controlled substance, and that the other charges set forth in the Notice of Intent to Take Action be dismissed. That Laurie J. Oldock be dismissed as an employee of the School Board of Collier County, as set forth in the Stipulated Disposition. RECOMMENDED this 10th day of July, 1990, in Tallahassee, Florida. Administrative Hearings Parkway 32399-1550 of the Administrative Hearings July, 1990. VERONICA E. DONNELLY Hearing Officer Division of The DeSoto Building 1230 Apalachee Tallahassee, FL (904) 488-9675 Filed with the Clerk Division of this 10th day of COPIES FURNISHED: James H. Siesky, Esquire Siesky and Lehman, P.A. 700 Eleventh Street South Suite 203 Naples, Florida 33940 Jerry Berry, Esquire 2500 Airport Road South Suite 309 Naples, Florida 33962 Dr. Thomas L. Richey, Superintendent Collier County School Board 3710 Estey Avenue Naples, Florida 33942 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 ================================================== ===============
