The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed by the Petitioner against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent held Florida Educator's Certificate number 852375, valid through June 30, 2006, and covering the area of specific learning disabilities. At all times material to this case, the Respondent was employed as a teacher in an exceptional student education class at Middlebrook Middle School in the Orange County School District. Her students were 13 to 14 years of age. On more than one occasion during January of 2005, the Respondent read sexually explicit material from a book called "Dumb as Me" to her classroom. The book, admitted as the Petitioner's exhibit, includes graphic and explicit sexual content and frequent use of vulgar language. The classroom paraprofessional reported the matter to the school's principal, Valeria Maxwell. Ms. Maxwell went to the Respondent and discussed the report. During the discussion, the Respondent acknowledged that she read from the book to her students. Ms. Maxwell testified that the Respondent had not been authorized to read the book to her class. There is no evidence that the book was part of any lesson plan created by the Respondent. Ms. Maxwell testified that the students interviewed reported being embarrassed by the Respondent's reading the book to them during class, but none of the students testified at the hearing. Ms. Maxwell also testified that the Respondent's use of the text in the classroom seriously reduced the Respondent's effectiveness as a teacher and created a condition in the classroom that was harmful to learning. The Respondent's employment with the Orange County School Board was terminated on June 14, 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order determining that the Respondent has violated Subsections 1012.795(1)(c), (1)(f), and (1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a) and revoking the Respondent's educator's certificate. DONE AND ENTERED this 24th day of June, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 24th day of June, 2008. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Cynthia Bradford 428 Los Altos Way, No. 201 Altamonte Springs, Florida 32714 Cynthia Bradford 30700 Wekiva River Road, No. 395 Sorrento, Florida 32776-9003 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Deborah K. Kearney, 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
The Issue Whether the Respondent's teaching certificate should be suspended, revoked, or otherwise disciplined based upon the allegations of Petitioner Castor's Administrative Complaint executed on May 26, 1988. Whether Respondent's continuing contract with the Collier County School Board should be terminated based upon the allegations set forth in the Notice of Intent to Take Action dated June 10, 1988. Whether the School Board properly suspended the Respondent without pay.
Findings Of Fact The Respondent holds Florida Teaching Certificate #117082. During the August 1987-June 1988 school year, the Respondent was employed as a second grade teacher at Highlands Elementary school by the School Board of Collier County. The Respondent had continuing contract status which she had received prior to July 1, 1984. The Respondent was suspended as an employee with pay effective January 1, 1988. The reason for this suspension by the School Board was the pending investigation by the Department of Health and Rehabilitative Services regarding alleged child abuse to a child in the Respondent's classroom. A second suspension without pay for which no reasons were given occurred on September 1, 1988, and was made retroactive to August 16, 1988. The Respondent was not given prior notice the School Board's plan to consider her employment status during a meeting in September 1988. She was notified after the fact, by letter dated September 2, 1988. On November 17, 1987, the principal asked to see the Respondent's grade book. The grade book, as reviewed by the principal on November 17, 1987, contained very few recorded grades for the initial marking period and the portion of the second quarter which had already passed. After the grade book was returned on November 17, 1987, the Respondent made additional entries for the second marking period. The principal reviewed the grade book again on November 18, 1987. Shortly thereafter, when the principal asked the Respondent to demonstrate that the new entries were related to exams or class work evaluated by her, the Respondent was unable to do so. During the administrative hearing, no evidence was presented which would justify the assigned grades on the report cards or in the grade book. It was not demonstrated that there was a correlation between the marks given and the level of skills demonstrated by students on either exams or seatwork for the dates recorded. The Respondent did not administer corporal punishment to any second grade students during the 1987-1988 school year. The Respondent did pinch the child Lucretio Gutierrez on his outer lower left thigh while he was seated in a reading group session on December 7, 1987. The general location where the child was touched was the outer seam of his long dungarees. The Respondent did not slap this child on the arm on another occasion during the 1987-1988 school year. The pinching of the child Lucretio Guiterrez did not occur in a setting where the child was being punished. The child was reading out loud for the teacher. During the performance, the Respondent reached over and squeezed his leg in a manner the child described as a "pinch." The incident did not rise to the level of child abuse, either physical or mental, as defined by Florida Statutes. No physical or mental harm occurred to the child as a result of the incident. No other children were inappropriately touched or pinched by the Respondent in the 1987-1988 school year. The Respondent did not make inappropriate and profane comments to students in her second grade classroom. She did not tell the students they would "go to hell" if they did not complete their reading assignments. She did not tell the students that they would "go to hell and burn forever, but their souls would never die" if they did not abide by the rules. The children were not told that they would "go to hell" if they did not complete their reading assignments. The Respondent did not describe a lurid tatoo to the students, nor did she state that she was going to have a similar tatoo place upon her "titty." When a student note was confiscated by the Respondent which included the sentence "I like your dick," the Respondent did not make comments to the class such as, "This is not something you should do now, but its okay when you get older." She did not explain that "it gets better as you get older." The Respondent did not mentally abuse, as defined by Florida statutes, any of the children in her classroom.
The Issue Whether Petitioner should be granted an educator's certification although he allegedly engaged in inappropriate conduct on May 8, 2002, in violation of Section 1012.795(1)(c), Florida Statutes.
Findings Of Fact On or about May 8, 2002, Deputy Kevin Mason of the Hillsborough County Sheriff's Office stopped a person named David Cheesman for consuming alcohol within 500 feet of a bar, which is prohibited by local ordinance. Deputy Mason "patted down" Cheesman and discovered he was in possession of pills he recognized as clonazepam. Cheesman informed the deputy he had received the pills from Petitioner who was standing nearby. Petitioner had, in fact, given the clonazepam pills to Cheesman. Petitioner had a prescription for the pills. His psychiatrist had just lowered the dosage from 2 mg to 0.5 mg. However, Petitioner had five of the 2 mg pills left. It was those five pills he gave to Cheesman. Petitioner knew the pills were antiseizure and antistress medication, since they had been prescribed by his psychiatrist. Petitioner knew the pills could not be purchased without a prescription. Petitioner was arrested for delivery of a controlled substance, a felony, and also for drinking within 500 feet of a bar, a misdemeanor. The delivery of a controlled substance charge was eventually dropped in criminal court, and Petitioner pled nolo contendere to the misdemeanor. At the time of his arrest, Petitioner was employed as a teacher in the Hillsborough School District working under a temporary certificate. Petitioner's arrest was reported in a local newspaper. As a result of his arrest, Petitioner was suspended without pay, pending further investigation. Petitioner's contract of employment with the Hillsborough School District was not renewed as of July 31, 2002. Teachers in Hillsborough are expected by the public to hold themselves as upstanding citizens, and the delivery of controlled substances and drinking within 500 feet of a bar is not acceptable conduct. Petitioner's inappropriate conduct on May 8, 2002, was an act involving moral turpitude.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Petitioner did violate the provisions of Section 1012.795(1)(c). It is further RECOMMENDED that a final order be issued denying the issuance of a teaching certificate to Petitioner; that Petitioner be prohibited from reapplying for a period of one year; and that should Petitioner reapply, the certificate be issued subject to such conditions as the Education Practices Commission may specify. DONE AND ENTERED this 19th day of September, 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 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399 Bruce Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Arthur Therrien, Jr. 2114 Village Avenue South Tampa, Florida 33612 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building 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 Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Philip James Chase, II, was employed under a continuing contract as a classroom teacher at Dunedin High School (DHS) in Dunedin, Florida. The school is under the jurisdiction of petitioner, School Board of Pinellas County (Board). During school year 1990- 91, respondent was a physical education and driver's education teacher and also served as wrestling coach. He has been an employee of the Board since 1975 and a teacher since 1971. The facts underlying this controversy are relatively simple. On December 18, 1990, respondent was seated at his desk in the DHS physical education office talking to two students. At the same time, several other students were in line to weigh themselves on a weight scale which was located a few feet from respondent's desk. After one student had jumped on the scale, respondent, without looking up, said to the students still in line, "on the scale gently, please". The next student in line, Derek Carson, ignored respondent's instructions and jumped on the scale causing a loud banging noise. Respondent rose out of his chair and at the same time gently swung his foot and hit Carson's buttocks. He also told Carson, "I told you gently, please." Carson immediately launched into a tirade of verbal obscenities at the top of his voice against respondent. Realizing that Carson was obviously upset, respondent initially ignored the remarks, but after the verbal abuse continued, he told Carson that he (Carson) ought to try to talk to him in that manner "on the street". Carson then departed. At no time did Chase become upset or lose his composure during the incident, and he drew praise for his cool demeanor from his department chairman who was an eyewitness to the incident. There is no competent evidence that Carson "reasonably interpreted" respondent's remarks as "fighting words" as charged in the suspension letter. 1/ Since the incident occurred in the presence of a number of students and two members of the faculty, it may be reasonably inferred from the evidence that Carson was embarrassed by the incident. The student then reported the incident to the principal, John McLay, who investigated the matter and initially concluded that respondent should be given a written reprimand. However, after McLay learned that Carson's grandparents (guardians) had filed a complaint with the Board, he turned the matter over to the Board for further action rather than handling it at the local school level. Because the Board's superintendent has proposed to increase the severity of the penalty from a reprimand to a three day suspension, Chase has requested this hearing. 2/ According to McLay, the faculty is given specific training at the beginning of each school year on how to resolve conflicts of this nature and is warned that a student may react negatively to physical discipline. He added that a teacher should never place his hands on a student for any reason unless the teacher is in fear of bodily harm or is trying to break up a disturbance among students. McLay also placed importance on how the student perceived the actions of the teacher. In other words, if the student perceived a light tap from the teacher as being deliberate or malicious when in fact the teacher was only kidding, McLay felt the action by the teacher would probably be unjustified. He agreed, however, that other factors, besides the student's perception of the incident, were also relevant to a final determination. McLay also emphasized the importance of teachers maintaining a good rapport with a student's parents since the education of the child required their cooperation. Further, the Board's director of personnel services, Steven Crosby, established that the incident undermined the parents' confidence in respondent. He characterized the action of respondent as "poor judgment" and one which diminished his effectiveness as a teacher. This testimony on the issue of teacher effectiveness is accepted as being more credible than that offered by a student and fellow teacher who testified on respondent's behalf. Crosby added that simply because Chase was a coach who worked in a more informal atmosphere than did other teachers did not excuse his conduct. Crosby noted that school policy generally calls for a three day suspension without pay for a teacher "who has struck a student". Although Chase had previously been given a reprimand for using poor judgment in 1988, Crosby felt that such a penalty was especially appropriate here without regard to the previous reprimand because Chase "had lashed out at a student, physically, out of frustration or during a time of upset." However, as noted in a prior finding, Chase did not tap the student on his buttocks out of anger or because of frustration. Two witnesses to the incident described the kick to Carson's buttocks as having insufficient force to cause any injury to the student. This was not credibly contradicted. Further, one witness characterized the kick as actually being a "tap" while the other stated he was under the impression respondent was kidding when he swung his foot towards the student. Respondent added that the kick was intended to be "negative reinforcement" after his verbal instructions were ignored. He now agrees that it was a mistake to touch the student in that manner and recognizes that he violated school policy. Other than the reprimand in 1988, respondent has an unblemished tenure with the school system. The Board has adopted a Code of Student Conduct (Code) which prescribes the type of disciplinary action permitted to be taken by school personnel against students. Section (7)(a) of the Code provides as follows: (7) DISCIPLINARY ACTION AND PROCEDURES: (a) TYPES OF DISCIPLINARY ACTION PERMITTED The following types of disciplinary action may be considered. 4. Corporal Punishment: For purposes of this code, corporal punishment shall refer to physical punishment (as) opposed to other forms of punishment. The use of corporal punishment is not permitted as a type of disciplinary action. (emphasis added) Thus, corporal punishment of any form is prohibited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office and that he be given a written reprimand. DONE and ENTERED this 26th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1991.
The Issue The issue is whether the Petitioner is entitled to receive a Florida Educator's Certificate, or whether he should be denied a certificate based on the allegations in the Amended Notice of Reasons dated January 30, 2006.
Findings Of Fact Petitioner, Allen Dubois, (Petitioner or Mr. Dubois) received his bachelor's degree in physical sciences and chemistry, with a minor in mathematics in 1972. From 1972 to 1992, he worked for the United States Postal Service and as a tennis instructor. In 1992, Mr. Dubois received his master's degree in health education and nutrition, and began teaching in New York City high schools. Mr. Dubois was licensed to teach in New York with a certificate of qualification (CQ), the equivalent of a provisional or temporary teaching certificate. In New York, the CQ differs from other types of temporary teaching certificates only because it allows someone who may not be teaching full-time to have additional time to meet the requirements to secure a permanent teaching certificate. In April 1994, Mr. Dubois filed an application with New York State Education Department for a permanent certificate to teach biology and general sciences in grades 7-12. In March 1994, a sixteen-year old female student alleged Petitioner had engaged her in an inappropriate relationship and forced her to have sexual intercourse with him. Mr. Dubois was placed on paid leave through the end of the school year, June 1994. Mr. Dubois denied the allegations, and continues to maintain the allegations are false. He does admit to having had several conversations with the student that made him feel "uncomfortable," that included information about her mother's boyfriend and her showing him pictures of her baby. He concedes that, on a Friday evening following a sports event at the school, she walked with him some distance from the school to his parked car and that he offered her a ride. Mr. Dubois said that as she was getting in the car, "[w]e saw the bus coming and then she decided to take the bus." Mr. Dubois admitted calling the girl's house a day or two after he offered her a ride, but stated that she was not there and he talked to her grandmother. After that, Mr. Dubois continued to have conversations with a member of the girl’s family. The allegations were investigated and presented to a grand jury that, in October or November 1994, failed to indict Mr. Dubois. After he was fired from his job as a teacher by the Board of Education of New York City, Mr. Dubois apparently did not pursue the matter at a hearing, as he could have, but instead moved to Florida in December 1994, where he has lived since then. When he first came to Florida, Mr. Dubois was employed with the State Department of Labor and Employment Security. Among other duties, Mr. Dubois provided seminars and workshops on how individuals could file applications for employment with the State of Florida. Since that time, he has gone on to work for another state agency and, at some time, also taught at a community college in St. Lucie County. On July 22, 2003, Mr. Dubois filed an application for a Florida Educator's Certificate. On the application, he listed his teaching experience in New York City. Question #29 on the application is titled "Revocation" and requires a yes or no response to the following question: "Have you ever had a teaching certificate revoked, suspended or denied by any state, or is there any action pending against your certificate or application? If YES, you must give the state, reason, and year in which your certificate was revoked, suspended, denied, or in which action is pending against your certification or application." Petitioner answered "no" to the question. A letter, dated October 3, 1995, from New York City investigators to the New York State Commissioner of Education indicated that Mr. Dubois was “. . . currently suspended from service.” There is no evidence that the City had the authority to suspend his certificate. In fact, the letter was intended to give notice to the State so that it could take disciplinary action against the certificate. On June 12, 1996, the Commissioner of Education of the State of New York filed a Notice of Substantial Question as to Moral Character, charging Mr. Dubois with having sexual intercourse with the sixteen-year old female student on or about March 25, 1994. The Notice offered an opportunity for a hearing, if requested within 30 days. Mr. Dubois received the Notice, but testified that he did not recall responding to it. He did recognize a letter, in his hand writing, that he must have written on or about September 26, 1996, ". . . acknowledging that New York is questioning my moral character" and asking the New York authorities to contact the attorney who handled the criminal charges against him. Mr. Dubois testified that he had a telephone conversation, in 1998, with an attorney for the New York State Department of Education, who indicated that he had been unable to contact the criminal attorney who previously represented Mr. Dubois. Mr. Dubois testified that, ". . . it was not my intention to pursue a teaching license in New York. At that point in 1998 I was not inclined to want to become a public school teacher." As a result of the telephone discussion, Mr. Dubois entered into an agreement with the New York State Education Department that provides as follows: This is written confirmation of the fact that the parties have agreed to settle this matter and not proceed to a hearing under the provisions of Part 83 of the regulations of the Commissioner of Education. The Education Department will withdraw the Part 83 charges now pending against Allen J. DuBois in return for the surrender of his certificate of qualification of a teacher of biology and general science 7-12 and the withdrawal of his pending application for permanent certificate in the same areas. Allen J. DuBois, by this agreement, neither admits nor denies the allegations in the Notice of Substantial Question dated June 12, 1996, but acknowledges that he is unable to defend against them at this time. Upon surrender, the Department will notify all licensing and credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teacher Education and Certification (NASDTEC) and advise them of the surrender and withdrawal but will not otherwise disclose nor make public the contents of this agreement or the charges contained in the Notice unless required by law or upon an order of a court of competent jurisdiction. Allen J. DuBois reserves his right in the future to apply to the Education Department for certification as a teacher in biology and general science 7-12 or any other area and will be held harmless from any changes in the educational requirements subsequent to the date of this agreement. However, in the event he makes application for certification in the future, the Education Department reserves its rights under Part 83 of the Regulations including the right to hold a hearing on the issues raise in the Notice. In furtherance of this agreement, Mr. DuBois, shall forward the original certification document to the education department within thirty (30) days or, if said document cannot be located, then he will provide a written statement to that effect. As provided in the agreement, the State of New York filed a form with NASDTEC, reporting that the nature of its action on the CQ was a denial. There is no evidence that Mr. Dubois received a copy of the document. Concerning the agreement, Mr. Dubois said, in his deposition, that he felt “railroaded” into signing it without legal advice, and that (although explicit in the agreement) he did not know that there would be a report to some national network that might keep him from ever getting a teaching job any place in the United States. The NASDTEC document that appeared to contradict the information on his application was received by Respondent, prompting a further investigation of his Florida application. Mr. Dubois testified that he answered "no" to Question 29 on the application because he never had a permanent teaching certificate in New York. He denied that he thought his "provisional status" constituted a certificate. He claimed not to ". . . know that New York City passed something on to New York State," although the agreement he signed was with state authorities. In any event, based on the fact that the CQ was surrendered and the application for a permanent teaching certificate was withdrawn, Mr. Dubois maintains that he did not have to respond affirmatively to the question that was so narrowly worded as to only ask about certificates that were "revoked, suspended or denied" and suggested that "[m]aybe the State of Florida . . . needs to reword the questions on the application. " In an Amended Notice of Reasons dated January 30, 2006, Respondent notified Mr. Dubois that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Amended Notice of Reasons cited six statutory violations and four rule violations as grounds for the denial: Statute Violations Count 1: The Applicant is in violation of Section 1012.56 (2) (e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character. Count 2: The Applicant is in violation of Section 1012.56(12)(a), Florida Statutes, which provides that the Department of Education may deny an Applicant a certificate if the department possesses evidence satisfactory to it that the Applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate. Count 3: The Applicant is in violation of Section 1012.795 (1)(a), Florida Statutes, in that he obtained or attempted to obtain an educator's certificate by fraudulent means. Count 4: The Applicant is in violation of Section 1012.795 (1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude. Count 5: The Applicant is in violation of Section 1012.795(1)(f), Florida Statutes, in that he has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 6: The Applicant is in violation of Section 1012.795 (1)(I) [sic], Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Rule Violations Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 8: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 9: The allegations of misconduct set forth herein are in violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Applicant has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment of discrimination. Count 10: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage. Respondent offered no competent evidence that Mr. Dubois engaged, as alleged by New York authorities, in any inappropriate relationship with a student and forced her to have sexual intercourse with him. One of Respondent's witnesses testified that she believed the alleged victim has been located and would be available to testify, if needed, but that was not done. Respondent offered no competent evidence that Mr. Dubois' answer to Question 29 was an intentional fraudulent misrepresentation. Mr. Dubois was not credible when he asserted, in a 2006 deposition, (1) that he thought his CQ was not a teaching certificate, (2) that he did not expect New York City to pass information to New York State (although he signed the agreement with the State), or (3) that he was not aware that a report would be sent to a national network. He is correct, however, that the CQ was surrendered and the application was withdrawn, in exchange for not having an action against him proceed to hearing. Because he has no current certificate of application, there is also no action pending against either of these. Without having to answer yes to Question 29, Mr. Dubois did not have to give information concerning the matters that could be the subject of a hearing only if he ever again applies to teach in New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner be issued a Florida Educator's Certificate. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 19th day of December, 2008. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, 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
The Issue The issue in this case is whether Respondent violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2006), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. In accordance with the Order of Pre-hearing Instruction entered in this cause the parties submitted a Joint Pre-hearing Stipulation. Included in that document were the following stipulations of fact: Respondent holds Florida Educator’s Certificate 798852, covering the area of Athletic Coaching, which is valid through June 30, 2012. At all times pertinent to the allegations in the Administrative Complaint in this case, Respondent was employed as an Exceptional Student Education Teacher at Atlantic High School in the Volusia County School District. C. W. was a sixteen-year-old female student at Atlantic High School. On or about December 2, 2008, while C. W. was in another teacher’s geometry class, Respondent sat next to C. W. at a table toward the rear of the class. Respondent initiated an exchange of notes (sic) between himself and C. W. The note stated: Respondent: What’s your boyfriends name? Student: Don’t have one why? Respondent: I don’t believe that!! Student: Why not???? Respondent: Because you look like you should have one! Student: Why do I need one LOL no guys are attractive here . . . why do I look like I should have one? Respondent: I never said you needed one!! You just have that look and I can’t say why. Student: ooo so there’s a look that people have when they have a b/f or g/f. Why can’t you say why? Respondent: You are too sexy not to have a ton of guys chasing after you and one of the (sic) should have caught you. If I was in high school I would most definitely be one of them. Student: haha well its not like that at all. They are all UGLY Respondent: So what are you looking for? A super model? The above-referenced note between Respondent and C. W. was inappropriate. C. W. put the note away and did not respond to Respondent’s last inquiry. Respondent attempted to retrieve the note from C. W. C. W. kept the note and turned it in to school administration and reported the Respondent’s conduct. As a result of the foregoing exchange, the student, C. W., was very uncomfortable. She began to think that Respondent had been "coming on" to her. Although Respondent denied that assumption, he acknowledges that the exchange was inappropriate and in poor judgment. Further he acknowledged that the exchange had left C. W. uncomfortable. At no time has Respondent ever denied that the exchange took place and he has not attempted to avoid punishment for the incident. After the exchange and becoming aware of C. W.'s unease, Respondent made every effort to avoid C. W. so that neither would be uncomfortable. To that end the school administration moved Respondent from the classroom where C. W. was assigned, to another classroom. Respondent was disciplined by the school district and remained at Atlantic High School for the remainder of the school year. C. W.'s mother believes Respondent should have been removed from the school. When he was not, ultimately C. W. transferred to another school to complete her senior year. C. W. believes that she was treated unfavorably by students who endorsed Respondent and did not support her decision to report the note-writing incident. Respondent was previously disciplined by another school district for whom he worked. The prior disciplinary event also led to action by the Education Practices Commission. The prior act was dissimilar in facts to the instant case. Respondent is a well-educated and experienced teacher. He holds bachelor and master degrees. Respondent became a teacher in 1998 and has been continuously employed by various school districts since that time. Additionally, he taught at a detention center for youthful offenders for approximately one year. In short, Respondent should have known better than to engage in note writing with C. W., and should not have initiated the note. In addition to distracting C. W. during a class when she should have been allowed to engage in learning, Respondent's conduct in continuing the note writing was immature and contrary to meaningful teaching practices. Respondent has always achieved acceptable performance evaluations. Despite the unrelated lapses in judgment resulting in disciplinary actions, Respondent has continued in employment with the school district. At no time has Respondent ever attempted to touch C. W. inappropriately. At no time did Respondent actually verbally speak to C. W. The entire inappropriate exchange consisted of note writing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a panel of the Education Practices Commission enter a final order finding Respondent guilty of violating the standards of conduct applicable to educators in Florida, found in Florida Administrative Code Rules 6B- 1.006(3)(a), and 6B-1.006(3)(e), imposing an administrative fine in the amount of $2,000.00, and requiring a period of probation not less than one year under the terms and conditions deemed most appropriate by the panel. DONE AND ENTERED this 28th day of April, 2010 in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2010. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Education Practices Commission 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Joan Stewart, Esquire FEA/United 300 East Park Avenue Tallahassee, Florida 32301 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marion Lambeth, Bureau Chief Bureau of Professional Practice Service Department of Education Turlington Building, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year. The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department. In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district. In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued. The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers. Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation. In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer. All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence. On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years. Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large. On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education. On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges. In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate. The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay. DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida. COPIES FURNISHED: William E. Williams, Esquire Rex D. Ware, Esquire 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32399 P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of July 1987.
The Issue Should the Respondent have discipline imposed on her Florida Educator's Certificate 753123?
Findings Of Fact Stipulated Facts: The Respondent holds Florida Educator's Certificate 753123, covering the area of Primary Education, which is valid through June 30, 2002. At all times pertinent hereto, Respondent was employed as a Second Grade teacher at Martin Luther King Elementary School (MLK), in the Duval County School District. Additional Facts: At the time of hearing Respondent had been a teacher for 17 years, most recently as fifth grade teacher at MLK. On February 5, 1999, R.M. was a student in Respondent's second grade class. During the school day the class members had been generally disruptive and disrespectful to the teacher. This conduct continued after the lunch break. As a consequence, Respondent turned down the lights in the classroom and required the students to put their heads down on their desks to allow them to re-group. R.M. disobeyed this instruction. Respondent walked to the desk of R.M. Again she told R.M. to put his head down on the desk. He did not. Respondent took her hand and begin to push on the back of R.M.'s head. During this time R.M. was physically resisting Respondent by trying to keep his head up and away from the desktop. In effect he was pushing back against the pressure created by Respondent. Eventually, Respondent stopped pushing R.M.'s head. When she released R.M.'s head after exerting pressure that was resisted by R.M., the sudden change in momentum caused R.M.'s chin to strike the desktop chipping two teeth. R.M. did not bleed but he could feel a chipped tooth. R.M. told Respondent that he thought she had chipped his tooth. Respondent looked at R.M.'s mouth and commented that there was no chipped tooth. When R.M. arrived home he told his mother about the incident. His teeth have been temporarily corrected pending a permanent solution when he has fully matured. The act of pushing R.M.'s head down which caused him to strike his chin and chip his teeth was not an appropriate choice for discipline or control.
Recommendation Based on the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation in Counts I through III and suspending Respondent's teaching certificate for a period of 30 days. DONE AND ENTERED this 28th day of April, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Hearings Hearings Division of Administrative 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 this 28th day of April, 2003.
