The Issue Whether Respondent's teaching certificate should be suspended or revoked, or the Respondent otherwise disciplined, pursuant to Chapter 231, Florida Statutes, as set forth in the Administrative Complaint dated April 9, 1981. This case arises as a result of an administrative complaint filed by the Commissioner of Education on April 9, 1981 against the Respondent Isome Francis, a physical education instructor at St. Johns Elementary School, Quincy, Florida. The complaint consists of twenty-one substantive counts of alleged misconduct on the part of Respondent at various times from 1975 through the 1979-80 school year. These generally include several allegations that Respondent made improper advances toward female students; that he pulled the teeth of various students; that he left the playground area unsupervised on a number of occasions, during several of which students injured themselves; that he failed to file accident reports concerning student injuries; and that he administered "unusual" corporal punishment and other methods of discipline against students at various times. The complaint recites that Respondent is therefore in violation of Section 231.28(1), Florida Statutes, in that he is guilty of gross immorality, moral turpitude, conduct which seriously reduces his effectiveness as an employee of the School Board, and incompetency to teach and perform duties as such an employee. It also alleges that his actions were contrary to Section 231.09, Florida Statutes, in that he failed to set a proper example for students, and Section 231.27, Florida Statutes (apparently referring to Section 232.27, F.S.) in that he failed to follow provisions of law in administering corporal punishment. In his answer to the complaint, Respondent denied all of the substantive allegations, except those dealing with extraction of loose teeth. Respondent admitted that he assisted students in that regard at various times, but denied any wrongful actions in so doing. He further defends on the ground that the charges should be barred by the agency's failure to assert them within a reasonable time from their occurrence. Respondent requested an administrative hearing on the charges. The final hearing was originally scheduled for September 10, 1981, but was continued until September 29, 1981, at the request of Petitioner. It was continued again until October 6, 1981, upon a determination that the hearing properly should be held in Quincy rather than Tallahassee due to the numerous witnesses expected to testify at the hearing. Post-hearing Memorandums filed by the parties have been fully considered and those portions thereof that have not been adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact The various paragraphs of the Administrative Complaint are set forth verbatim below and Findings of Fact are keyed thereto for the purposes of clarity. Respondent Isome Francis has been a teacher since 1963 and employed by the Gadsden County School Board since 1968. He is employed under a continuing contract. At all times relevant to this proceeding, he served as a physical education teacher at St. Johns Elementary School, Quincy, Florida. He holds Department of Education Teacher Certificate No. 138822, valid through June 30, 1982. (Testimony of Respondent, pleadings). Paragraph 2 of the Administrative Complaint states as follows: Respondent on or about the 1975-76 school year on several occasions directed a female, then a student at St. Johns Elementary School, to sit next to him while he observed the rest of the class participate in activity on the physical education field. Upon her obeying such direction, he would make observations about her body and fondle her breast. He was later observed by the female student standing over another female student while zipping up his pants and instructed her that she was not to tell what she had witnessed. Although the above allegation was apparently based upon expected testimony of Brenda Cooper, the alleged victim of the fondling incident who was also the supposed witness to the actions of Respondent with another student, she disavowed a pretrial statement to that effect and denied that the alleged incidents had occurred. Respondent testified in denial of the allegations. (Testimony of Cooper, Respondent, Petitioner's Exhibit 3) There is insufficient evidence to warrant a finding that Respondent committed the alleged acts or made the statements attributed to him. Paragraph 3 of the Administrative Complaint states: Respondent in the 1977-78 school year offered a 13 year old female student of St. Johns a ride home and then diverted her to his home where he hugged and kissed her. After such student later graduated, he asked her to date him. Willie Ruth Wilson, who is sixteen years old, testified in substance as follows: Some three years ago when she was thirteen years old, she left school and while standing on a street corner in Quincy, Respondent stopped, at which time she asked him for a ride home. After getting in the car, Respondent asked her to go to his house to meet his wife. She agreed, and when they arrived at his house, he unlocked the door and asked her to have a seat. No one else was in the house at the time. Upon sitting down, Respondent came over to her, hugged her and kissed her once. The phone then rang and Wilson got up and left the house. At some point during or after the alleged incident, Respondent asked her if she would go out with him. Wilson did not report the incident to anyone because Respondent was not a teacher in her school. At the hearing, Respondent denied that the incident took place and stated that when Wilson had attended St. Johns Elementary School, she had not wanted to participate in his physical education classes and did not receive good grades in that class. (Testimony of Wilson, Respondent) The evidence is deemed insufficient upon which to base a finding that Respondent committed the act alleged or made the statement attributed to him. Paragraph 4 of the Administrative Complaint states: In the 1979-80 school year, Respondent zipped up the front of the jeans worn by a female Special Education student at St. Johns Elementary who possessed the capability of self help. Furthermore, the zipping was used as a guise for further intimacy. Two years ago, when Twanda Ray was a ten-year-old special education student at St. Johns Elementary School, she asked Respondent, during an outdoor physical education class, to zip up her blue jeans for her. The zipper was located in the front of the jeans. Twanda was capable of zipping her own jeans, but asked Respondent to assist her. Another student who was present at the time testified that Respondent had called Twanda over to him and zipped up her jeans. At the hearing, Respondent testified that he had no recollection of such an incident, although on numerous occasions children came to him for assistance with zippers on their clothing. Twanda's father, Jesse Ray, is of the opinion that Respondent is a good physical education teacher and has never had any complaints against him. (Testimony of A. Ray, Murphy, J. Ray) Although the evidence is considered sufficient to find that Respondent zipped up the front of Twanda Ray's jeans two years ago, insufficient evidence has been presented to warrant a finding that he did so "as a guise for further intimacy", rather than merely assisting the student. Paragraph 5 of the Administrative Complaint makes reference to alleged complaints against Respondent during the 1977-78 school year concerning extraction of students' teeth, for which he received a memorandum from the school principal on April 10, 1978. The memorandum stated that "It is best for all concerned for you to cease pulling the teeth of children at school". (Petitioner's Composite Exhibit 2, Testimony of Smoak) Paragraph 6 of the Administrative Complaint states: In the 1978-79 school year during school hours, Respondent pulled the two front teeth of a St. Johns Elementary first grader without permission or knowledge of the of the student's parents. The student reports that the teeth were not loose. No evidence was presented concerning this allegation. Paragraph 7 of the Administrative Complaint states: In the 1978-79 school year during school hours, Respondent pulled a tooth of a St. Johns Elementary student without the permission or knowledge of the student's parents. Carla Edwards is a nine-year-old fourth grade student at St. Johns Elementary School. When she was in second grade, and while on the playground in Respondent's physical education class, Respondent extracted her loose tooth after he saw the tooth "shaking" while she was talking to him. Carla's father is of the opinion that the tooth was pulled prematurely because the adult replacement tooth grew in crooked, requiring orthodontic work. He has a pending lawsuit against the County School Board based on the incident. Carla has had toothaches in the area where the tooth was removed. (Testimony of Carla Edwards, Carlton W. Edwards) Paragraph 8 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent pulled a tooth of a St. Johns Elementary student without the permission or knowledge of the student's parents. A letter of reprimand was issued wherein Respondent was ordered by his superior to stop the practice of pulling teeth. On some unknown date approximately two years ago, Respondent extracted a loose tooth of Natasha Strong, a first grade student at St. Johns Elementary School. Her mother did not object to Respondent's action because she had told all of Natasha's teachers, including Respondent, to do "whatever needed to be done" with respect to her child. Nevertheless, Iris B. Smoak, Principal of the school, wrote a letter to Respondent on February 25, 1980, that "Since it is unlawful for you to pull teeth, I am advising you to discontinue this practice immediately". Respondent's testimony at the hearing included a denial that he had pulled Natasha's tooth. (Testimony of N. Strong, M. Strong, Respondent, Davis, Petitioner's Composite Exhibit 2) It is found that Respondent pulled the tooth of Natasha Strong during the school year in question, but did so with the prior implied consent of the child's mother. Paragraph 9 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent pulled the tooth of two first graders at St. Johns Elementary without the permission or knowledge of the student's parents. Respondent told one of the students that if she told others that she pulled her own tooth he would buy her a coke. During the 1979-80 school year, Respondent pulled the loose tooth of Tracy Frierson, a first grade student at St. Johns Elementary School. The tooth was hurting Tracy, and she asked Respondent to extract it. She told her mother about the incident. The mother had not authorized Respondent to take such actions with regard to her daughter, but made no complaint. Tracy first told her teacher that Respondent had pulled the tooth, but then said that she had done it herself. Members of the class corrected her in this regard, and she later told the teacher that Respondent had told her he would buy her a coke if she said she had pulled her own tooth. (Testimony of T. Frierson, A. Frierson, Morell) Respondent pulled the loose tooth of Doris Marshall, a third grade student at St. Johns Elementary School, when she was in the first grade. She reported the incident to her teacher. (Testimony of D. Marshall, Morell) Paragraph 10 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent pulled the tooth of a St. Johns Elementary School student without the permission or knowledge of the student's parents. Respondent told student that he would spank the student if the student did not allow him to pull the tooth. Two years ago when Demetrius Reeves was a student in the second grade at St. Johns Elementary School, Respondent came up to him on the playground and asked him to open his mouth because he wanted to put his thumb in the boy's mouth. Demetrius told him he did not want him to pull his tooth, but Respondent removed the tooth by use of his thumb. The tooth was not loose and it bled a little after its removal. Demetrius told his mother about the incident and that Respondent had told him if he didn't let him pull the tooth, Respondent would talk to his grandfather. The mother observed that the tooth was missing at the time she saw Demetrius on the day of the incident. She had not given Respondent permission to extract teeth from her son. Respondent denied at the hearing that he had pulled the tooth of Demetrius Reeves, however, his testimony is not considered credible in this respect. (Testimony of D. Reeves, Donna Reeves, Respondent) Paragraph 11 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent pulled the tooth of a St. Johns Elementary student without the permission or knowledge of the student's parents. Respondent pulled the tooth of Diane Jones, a second grade student at St. Johns Elementary School two years ago at her request. The incident occurred while the students were in line having returned to the school from physical education class. Diane's teacher observed Respondent put his finger in her mouth and "pop" a tooth out. It was bleeding and the teacher informed Diane to tell her mother about the matter. (Testimony of Jones, Maker) Paragraph 12 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent caused a student of St. Johns Elementary to pull two teeth of another St. Johns Elementary student during school hours, without the permission or knowledge of the student's parents. No evidence was presented at the hearing concerning this allegation. Paragraph 13 of the Administrative Complaint states: In the 1979-80 school year, Respondent took crutches from a fourth grade student at St. Johns Elementary School and told the student to "walk like a man". The student was under doctor's orders to keep all weight off his leg because stitches had become infected and to use the crutches at all times. When the student told Respondent this, Respondent returned the crutches to the student. The evidence regarding this allegation is conflicting. It is found, however, that during the 1979-80 school year, Derrick Jackson, a fourth grade student at St. Johns Elementary School, arrived at the school one morning on the school bus. Derrick was using crutches at this time due to the fact that he had previously cut his knee and had stitches in the wound. Two students assisted him in leaving the bus. They first gave his crutches to Respondent who was standing several feet away from the bus, and then helped Derrick get off the bus. Several teachers nearby heard Respondent coax Derrick to walk on his leg so it would not become stiff. At this point in time, Respondent still had one of Derrick's crutches. Derrick told him about his injury, and Respondent returned the other crutch to the boy. (Testimony of Morell, Batts, D. Jackson, H. Jackson, Barnes, Respondent) Paragraph 14 of the Administrative Complaint states: From the school year 1974-75 through school year 1978-79, St. Johns Elementary students reported that Respondent frequently left his physical education classes unsupervised and unattended. Several injuries occurred and disagreements arose between Respondent and witnesses as to the filing of accident reports. On several occasions from 1977 to 1980, various teachers found Respondent absent from the playground when they took their classes to physical education class. They would either have him paged on the public address system, or wait for his arrival, which sometimes took up to 15 minutes. One teacher observed him reading under a tree some 20 to 30 feet away from the playground. Sometimes Respondent left the playground for approximately half the class period and the students dismissed themselves at the conclusion of the class. Although Respondent conceded at the hearing that he had left the playground on occasion, it was often due to the fact that the principal had called him to the office to administer first aid to injured students. On other occasions, Respondent had other obligations, such as telephone calls, the requirement to use the bathroom, and other legitimate reasons. Due to the poor condition of the playground, which contains holes, rocks, and is in general disrepair, Respondent routinely splits classes on the usable areas of the playground in order that they will not be injured. Some teachers leave their class at the playground early during the noon hour prior to the 1:00 P.M. physical education class. At such times, Respondent will have perhaps three or four groups of students there at the same time. He does sit under a tree and read a newspaper during the lunch hour on occasions. (Testimony of B. Thomas, A. Thomas, Batts, Adams, S. Barnes, Russ, Kelly, Respondent) Paragraph 15 of the Administrative Complaint states: Respondent, during the 1976-77 school year, failed to file an accident report on a student at St. Johns Elementary who broke an arm during Respondent's class and was taken to the hospital. It is reported by students that the class was unattended at the time of the accident. According to the students, Respondent frequently left the class toward the end of each period and when the bell rang, the students would dismiss themselves. Pamela Washington, now a ninth-grade student, broke her arm on the playground while a fourth-grade student at St. Johns Elementary School. She was engaged in sports activity at the time. Respondent was present at the time of the accident, and insured that the child was taken care of, and that the principal was informed. Respondent testified that he filed an accident report on the incident. (Testimony of Washington, Respondent) Paragraph 16 of the Administrative Complaint states: Respondent, during the 1979-80 school year, failed to file an accident report on a St. Johns Elementary student, who, after being instructed by Respondent to run barefoot, ripped her toenail on a rock. The student's classroom teacher had to file the accident report after attempts on her part to get Respondent to file the report had failed. Respondent later told the classroom teacher that he had confirmed with the student's parents that the accident had happened while the student was at home. The student reported the accident happened at school. The student's mother reported that Respondent had not contacted her regarding the accident. In April, 1980, Deani Weston was a six-year-old first grade student at St. Johns Elementary School. At some time during that month, she went to school wearing shoes with heels which were too high to participate in sports activities during a physical education class. Respondent advised her to remove her shoes while she was running with the other children. She did so and, while running, injured her toe on a rock. Respondent administered first aid to the child. The first grade teacher observed Respondent treat the injury on the playground, and asked him to file an accident report, but Respondent did not do so. He later told the teacher that a report should not be filed because he had talked to the child's parents and found out that the toe had been originally injured at home, and then reinjured on the playground. However, the teacher had observed that Deani's toe was not injured prior to going out to the physical education class. Deani's mother had no knowledge that the child had injured her toe at home, but saw her with a bandage on her toe covering an injury which she said had been received at school. (Testimony of Weston, Jones, Davis, Respondent) Paragraph 17 of the Administrative Complaint states: Respondent's principal reported to the Superintendent in November, 1975 that reports of unusual corporal punishment and other methods of discipline had been alleged against Respondent. During the 1974-75 school year, Respondent hit a St. Johns Elementary student in the head with a broomhandle. The student is unaware of what caused Respondent to act in this manner. Respondent was reprimanded and a report was placed in his file. Christopher Scatlock, a sixteen-year-old eleventh grade student at the present time, formerly attended St. Johns Elementary School. He testified that on an undisclosed date in the spring he was attending the sixth grade and started running from the physical education classroom when the bell rang. He was told to stop by Respondent. Christopher complied, at which time Respondent hit him on the head with a broomstick, causing a knot to appear on his head. When he returned home that day, the boy told his foster parent about the incident and she observed the knot on his head whereupon she notified the principal of the school. Respondent denied this incident at the hearing. It is found that there is insufficient evidence to establish that he committed the alleged act. (Testimony of Scatlock, Roberts, Respondent) Paragraph 18 of the Administrative Complaint states: During the 1974-75 school year, other complaints came from parents regarding Respondent's method of discipline including whipping a child with a stick and making the child run excessive punishment laps around the track. No evidence was presented at the hearing concerning these allegations. Paragraph 19 of the Administrative Complaint states: Respondent in the school year 1976-77, instructed a St. Johns Elementary student to keep running track even though she complained of being tired and ill. The student subsequently passed out. No evidence was presented concerning this allegation. Paragraph 20 of the Administrative Complaint states: Respondent in the school year 1978-79, warned two St. Johns Elementary students not to talk. When the students persisted, Respondent took their heads and knocked them together with sufficient force to cause one of the students to cry. Charles Green, an eleven-year-old fifth grader at St. Johns Elementary School, testified that about a year ago, he and another student, Rhonda Robinson, were talking in class at which time Respondent knocked their heads together. Charles further testified that Rhonda cried, but that he was not hurt by Respondent's actions. Respondent testified at the hearing and denied that the incident occurred. (Testimony of Green, Respondent) There is insufficient evidence upon which to base a finding that Respondent committed the act alleged. Paragraph 21 of the Administrative Complaint states: Respondent, during the 1979-80 school year, paddled a St. Johns Elementary student who is known by the staff to have asthma, and who was under doctor's orders to not become overly excited. The paddling was for untimely completion of an assignment. Insufficient competent evidence was presented at the hearing to support this allegation. (Testimony of McMillan, Respondent's Exhibit I) Paragraph 22 of the Administrative Complaint states: Respondent, during the 1979-80 school year, ignored a classroom teacher's request that a St. Johns Elementary student be excused from track because of a recent illness. The Respondent insisted upon the student's participation in the physical education activities. Insufficient evidence was presented at the hearing to support this allegation. (Testimony of Roberts, McMillan) Although there is no express policy on extraction of students' teeth by instructors in the Gadsden County School System, teachers fall under the general prohibition set forth in Chapter 231, Florida Statutes, which requires them to treat students humanely. Rules of the Gadsden County School Board require that corporal punishment be administered to a student only upon authorization by the school principal, and in the presence of another adult member of the professional, instructional, or administrative staff. Punishment must be administered on the posterior with every reasonable effort made to avoid striking the person elsewhere. In the opinion of the Gadsden County School Board Superintendent, striking a child with a broomstick on the head would be in violation of corporal punishment policies and would interfere with the effectiveness of the individual as an employee of the school board, as would kissing a student under questionable circumstances. In the past, the Gadsden County School Superintendent has not recommended any disciplinary action against Respondent to the School Board due to insufficient evidence obtained regarding several complaints. (Testimony of Bryant, Bishop, Petitioner's Exhibit 1) Respondent has received satisfactory performance evaluations since 1966, and excellent evaluations during the period 1980-81. A parent testified at the hearing as to his observation of Respondent's performance as a supervisor of athletics, and is of the opinion that he does good work. A fellow teacher testified that the children like Respondent and enjoy his classes. The present principal of the St. Johns Elementary School, who has served in that capacity since August, 1980, has received no complaints regarding Respondent, and considers him to be a very good teacher. (Testimony of J. Ray, Green, Kelli, Respondent's Exhibit 2) Respondent conceded at the hearing that he had extracted students' teeth on a number of occasions, but never did so without the child's permission, or if it seemed dangerous to do so. He recited that the children often came to him for help since he had been involved in Boy Scouts and Little League activities. He stated that in some cases the teeth would be hanging by a thread and, in one instance, a child had rotten teeth and had cut his tongue on one of them, so he removed it to prevent further injury. Respondent taught health classes and was generally called upon by the principal to provide first aid to injured students. Respondent denied pulling any teeth after receiving the letter from Principal Smoak directing him to cease that practice. (Testimony of Respondent)
Recommendation That no disciplinary action be taken against the teaching certificate of Respondent, Isome Francis. DONE and ENTERED this 29th day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 29th day of December, 1981 COPIES FURNISHED James G. Mahorner, Esquire 107 South Bronough Street Tallahassee, Florida 32301 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Pamela Cooper, Esquire 213 South Adams Street Tallahassee, Florida 32301 Donald L. Griesheimer, Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
Findings Of Fact Respondent is Lawrence J. Ferrara. He holds Florida teaching certificate number 150262, issued by the State of Florida, Department of Education. He is certified to teach social studies, grades 7-12. He has not been assigned to teach outside of this subject area at any time relevant to this proceeding. While Respondent's performance for the school years 1981-82 through 1985-86 is at issue in this proceeding, a review of his annual evaluations for the years 1966 to 1986 indicate a continuing problem in the control of students in the classroom and teaching effectiveness. Respondent was assigned to teach at John I. Leonard High School beginning with the 1970-71 school year and remained in this assignment until his suspension on February 19, 1986. John I. Leonard High School consisted of a 40 acre campus, 145 teachers, and about 2,200 students during the 1985-86 school year. Luke Thornton has served as principal of John I. Leonard High School since October 22, 1981. In dealing with employees, he follows guidelines set out in the collective bargaining agreement with the Classroom Teacher's Association. He is also guided by district school board policy, administrator's directives and the John I. Leonard High School Teacher and Student Handbooks. Thornton has several assistant principals, including "deans", who are authorized to counsel and reprimand employees. Deans are, however, primarily responsible for discipline of students and working with parents. Guidance counselors at the high school are also known as Senior High Counselors. They provide individual and group counseling to students, interpret test results and assist students in career planning. Guidance counselors may counsel other staff members when need arises. While designated department chairpersons within the school have authority to counsel with teachers in their respective departments, the chairpersons do not have the authority to reprimand or evaluate teachers. The chairperson for the social studies department at John I. Leonard High School is Catherine Thornton (no relation to the principal, Luke Thornton). As the chairperson, Ms. Thornton reviews lesson plans of all 16 teachers in the department to assure that objectives of the unified curriculum program are covered by the teacher. This action is mandated by the school board. Teachers are required to prepare lesson plans one week in advance. They must also prepare emergency lesson plans which can be used by a substitute teacher in the event the teacher is unexpectedly absent. Course assignments within the social studies department are recommended by the chairperson and reviewed by the assistant principal assigned to that task. The entire schedule is eventually approved by the principal. Textbooks are issued to each teacher within the social studies department by the chairperson. The teacher returns the books at the end of the semester or school year. If books are not returned, the teacher must collect the cost of the missing textbook from the student responsible for it. The 1981-82 School Year During the 1981-82 school year, Respondent was assigned three 9th grade American government classes and two 11th grade history classes. Respondent's hours of work, to accommodate this teaching schedule, were normally 9:45 a.m. until 5:15 p.m. In previous years, Respondent's assignment had been all 11th grade classes and his hours were normally 6:45 a.m. through 2:15 p.m. Shortly after the beginning of the school year, Luke Thornton became principal. Respondent sought to have his assignment changed by Thornton. The principal denied the request and told Respondent the subject would be revisited at the semester's end. At the end of the semester, Thornton again denied Respondent's request for change in course assignment due to disruption that would be caused in the master schedule, concerns about Respondent's performance, and what Thornton considered to be an excessive amount of failing grades received by students in Respondent's classes during the first nine weeks of the previous semester. During the fall semester, Respondent was absent on several occasions. After the refusal of his request at the end of the semester for a change of his teaching assignment, Respondent took a leave of absence for the entire second semester. During Respondent's absences in the 1981-82 school year, Mary Sandt substituted as the teacher of his classes. Lesson plans were available during the first semester. However, no lesson plans were provided for the second semester. Respondent did not provide any assistance to the substitute teacher in this regard, although testimony of Sandt establishes that other teachers normally provided such assistance. More than any other teacher during the 1981-82 school year, Respondent referred students from his classes to the deans for disciplinary reasons. The referrals were for minor infractions such as talking out of turn, sharpening pencils, and squeaking chairs. Sometimes he referred groups of students for discipline. Earl Higgs, a dean during this school year, discussed ways of handling minor infractions with Respondent. Higgs advised Respondent to review the John I. Leonard Handbook discipline provisions. Respondent was not responsive to these recommendations. Higgs was required to review class rules with Respondent's students on at least three occasions as a result of being called to the class by the Respondent because the class was out of control. Initially, Mary Sandt had some disciplinary problems with Respondent's classes during her substitute teaching for him, but the deans provided her with assistance in gaining control. Thereafter, she was able to control the students with only minor problems. Before referring students, Ms. Sandt attempted to resolve discipline problems in the class. If unsuccessful, she documented her action on a discipline referral slip. Respondent did not follow this procedure. Luke Thornton's first evaluation of Respondent following the 1981-82 school year noted Respondent had a considerable amount of discipline problems with 9th and 11th grade students. In addition, it was noted that students have "difficulty understanding his approach to teaching." Respondent's ineffective working relationship with associates and his failure to attend open house and graduation functions at the school were also noted. The evaluation reflected no areas of strength beyond the observation that Respondent "uses various methods and materials." The 1982-83 School Year The chairperson of the social studies department recommended that Respondent be assigned all 9th grade American Government classes for the 1982-83 school year. The recommendation was approved by Assistant principal Shirley Jackson and by Luke Thornton, the principal. Respondent felt "absolutely demoralized, devastated and dehumanized" and worthless in the eyes of fellow teachers as a result of his assignment to teach 9th grade. The 1982-83 school year produced numerous complaints about Respondent's teaching. His teaching technique essentially consisted of giving students a text book reading assignment and have them answer review questions at the end of the chapter. Students completed these assignments in class time while Respondent read the newspaper or listened to the radio. Students cheated on many occasions in order to complete their work by passing answer sheets around the classroom while Respondent was present. Respondent sometimes gave lectures to his classes. Many times the lectures had nothing to do with the course content. Respondent discussed a lawsuit he had initiated against the school board without relating it to the lesson content. He repeatedly told his students they were immature, he hated them and he preferred to teach upperclassmen. Respondent would tell students to be quiet or find the answer in the book when they asked for assistance. Respondent called students names such as "jackass" and "jerk" in class. Students did not pay attention to Respondent because they found his classes boring. Respondent's general reputation among students was that he was not a good teacher; that he treated students in the same manner each year, and that he was "weird." Many of Respondent's students tried to transfer out of his class. Reasons given to Pat Konttinen a school guidance counselor, for requesting transfers included no motivation for students, inability to understand Respondent's lectures when he gave them, Respondent's failure to lecture on the subject matter, testing students on materials not covered in class, and that the class was boring. Ms. Konttinen discussed specific complaints of students with Respondent, but he did not change his teaching style. The testimony of students concerning the 1982-83 school year reveals that they have had no other teachers at the school who taught as poorly as Respondent. Respondent had the highest rate of textbook losses for the 1982-83 school year. During the first semester of the 1982-83 school year, Ms. Sandt again substituted for Respondent when he was absent. No lesson plans were available contrary to the requirement that such plans be provided. Respondent also failed to complete emergency lesson plans. Ms. Sandt wrote lesson plans and gave assignments when substituting because she had no idea when he would return. When Respondent did return, he threw assignments completed by the students in the trash because Sandt had not graded the work. Substitute teachers do not normally grade papers. The students felt the substitute teacher, Ms. Sandt, was a better teacher than Respondent. During Respondent's absences, Ms. Sandt experienced no discipline problems. Earl Higgs, in his capacity as dean, continued during the 1982-83 school year to receive numerous discipline referrals from Respondent. In each case, Higgs asked students for their side of the story and advised Respondent of actions taken on referrals. These referrals indicated that Respondent did not have proper control of his classes. Students were referred for minor disciplinary matters because Respondent did not want to handle problems on his own. Students who were referred for discipline by Respondent were either never previously referred by any other teacher, or, at most, referred one other time. Respondent continued to send groups of students to the dean. Sometimes the students would get out of control talking and laughing in class because "they could get away with it." On occasion, Respondent would shut the door to the classroom, close the windows and turn off the air conditioner as punishment for the class until the class was in control. On one particular occasion, Luke Thornton walked back to Respondent's room with four girls after they complained that Respondent would not open the room windows and the air conditioning was not working. On arrival at the room, Thornton found the room extremely hot. Respondent was wearing a sweater and the room windows were closed. The principal opened the windows to prevent students from passing out in the heat. Respondent improperly grabbed a student by the arm to discipline him during the 1982-83 school year. Bruises were left on the arm. After an investigation, Respondent was counseled concerning the incident. In his 1983 evaluation of Respondent, Luke Thornton noted that Respondent had knowledge and understanding of his subject matter, maintained an appropriate appearance, possessed appropriate educational qualifications and adhered to the defined duty day. The principal noted no other areas of strength. Numerous performance deficiencies were noted in a sheet attached to the 1983 evaluation form. Specific recommendations for improvement were cited. In regard to teaching technique, Respondent was informed he should vary methods of instruction. Consistency in discipline standards was noted as a way to improve classroom environment. Respondent was urged to strive to achieve rapport with peers and parents, as well as to timely submit lesson plans. Luke Thornton held several conferences with Respondent to discuss the deficiencies noted in the 1983 evaluation. Respondent was not receptive to suggestions. He complained of unfair treatment in course assignments and repeatedly discussed his lawsuit against school officials. Respondent continued to maintain he was better suited to teach 11th graders, although he was certified to teach 9th and 11th graders. The principal told Respondent to be responsible to his students regardless of other personally perceived problems. He also told Respondent that he should work to improve performance. While there is no significant technical difference in teaching either 9th or 11th grade, there is a difference in maturity levels of the students in each grade. Such a difference in maturity levels requires a difference in teaching style. Pat Martin, a guidance counselor, testified that ninth grade boys "get a little antsy" and have to be motivated by the teacher. This testimony was corroborated by Assistant Principal Earl Higgs who preferred to teach 9th graders but conceded they required more assistance and can be more difficult to handle. The 1983-84 School Year Respondent remained in the same teaching assignment during the 1983-84 school year. He did not request a transfer to another school, nor did he request a schedule change. Testimony of students of Respondent for 1983-84 school year was consistent with the testimony of his students from the 1982-83 school year. Respondent's teaching techniques did not vary from the previous year. Respondent's attitude remained unchanged in the 1983-84 school year as he continued to advise his students that they were immature and that he preferred to teach upperclassmen. Students requested transfers at an increased rate from Respondent's classes, indicating that Respondent was unresponsive and they did not know how they were doing in his class. Respondent was advised of student and parent complaints by guidance counselors Pat Konttinen and Melinda Wong. They observed no change in his behavior. Two written complaints were received by Ms. Wong concerning Respondent's behavior in the classroom. Respondent did not issue required progress reports to students at the proper time to advise them whether they were failing. When several students were failed by Respondent, they complained about this fact. Luke Thornton discussed this problem with Respondent. Respondent had the second highest rate of textbook losses for the social studies department. Students defaced a number of books due to Respondent's improper storage of the books. Respondent continued to ignore requests to make lesson plans available. As of February, 1984, Respondent had turned in three lesson plans for a 20 week time period. By June, 1984, Respondent had completed five lesson plans when he should have completed a total of 36 lesson plans. The lesson plans completed by Respondent were usually unsatisfactory. Respondent was on leave for approximately three weeks during the Spring semester of this school year. The substitute teacher was Robin Thomas. Respondent left no lesson plans, nor did he have emergency lesson plans available as required. Catherine Thornton, the department chairperson, provided Ms. Thomas with assistance. Thomas created lesson plans, gave assignments to students and corrected the results even though she was not required to do so. She had no problems with discipline in any of Respondent's five classes. She was 21 years old at the time. When Respondent returned to the class after his absence, the students did not want him back and told Respondent to go away. Respondent did not consider Thomas' graded assignments. Students were required by Respondent to repeat the work previously given by Thomas. Also, after returning to school, Respondent requested lesson plans from Ms. Thomas contrary to normal procedure. On several occasions, David Culp, a dean at the school, was advised by Respondent that he, Respondent, refused to teach the class. Students also told Culp that Respondent would stop teaching. Culp received numerous complaints from parents about the lack of teaching their children received from Respondent. Respondent refused to grade papers on one occasion. He also refused to sign a withdrawal slip for a student even though requested to do so by Culp's office. Both Culp and Earl Higgs received frequent discipline referrals from Respondent. Higgs, serving his last semester as dean during the first semester of the 1983-84 school year, testified that Respondent's referrals did not diminish while he was a dean. Culp became a dean beginning with the 1983-84 school year. Culp's testimony was consistent with that of Higgs concerning the type of referrals Respondent sent to him. Culp was also called to Respondent's room to assist Respondent in regaining control of the class. According to Culp, he routinely visited Respondent's class because of his personal observation that Respondent did not have adequate control of students and the atmosphere in the classroom was so hostile that learning could not take place. Culp discussed Respondent's large number of discipline referrals with Respondent. Culp, like Higgs, had many more discipline referrals from Respondent than other faculty members. Culp estimated 25 per cent of all referrals received by him were from Respondent with the remaining 75 per cent split among the remaining 139 faculty members. Students continued to complain that Respondent did not open windows or turn on the air conditioner when requested. A parent's complaint regarding Respondent's discipline techniques was filed with Luke Thornton. Respondent began to come to work late and leave early. This action was noted and Respondent was warned to adhere to the defined duty day. On April 25, 1984, Luke Thornton placed Respondent on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure as a result of Respondent's continuing problems. The purpose of the program is to provide assistance to teachers with performance problems. Respondent was given a detailed written summary of all deficiencies noted in his performance and given until October 16, 1984, to correct those deficiencies. Among the deficiencies noted were failure to use acceptable teaching techniques, lack of a positive classroom environment through use of acceptable control, lack of professional and effective working relationships with peers and failure to submit proper records. Respondent believed the NEAT procedure was a "device used to get rid of tenured teachers, especially those who made waves." He characterized the "T" in NEAT for "termination," not "time". Respondent's evaluation for the 1983-84 school year noted that the same deficiencies pointed out previously still existed. The evaluation noted that Respondent possessed appropriate educational qualifications and used good oral and written language. Among other subjects, Respondent was criticized for having an inadequate variety of methods and materials, inadequate planning, using inappropriate language with students, discussion of inappropriate topics with students during class time, unwillingness or inability to work effectively with parents, unwillingness or inability to provide a positive learning environment, failure to submit proper records, failure to comply with defined duty days, and failure to have an effective relationship with colleagues. He was admonished to avoid improper language with students, to maintain appropriate standards of discipline and to promote a positive relationship between students and teacher. The 1984-85 School Year At the beginning of the 1984-85 school year, Luke Thornton asked Respondent what assistance he could offer Respondent that had not yet been provided. Respondents refused the principal's offer of assistance. Based on testimony of students who had him as a teacher for the 1984- 85 school year, Respondent's teaching methods did not vary. Students again confirmed that Respondent told them he hated 9th graders and felt they were immature. Students also confirmed that when given worksheet assignments, some students would cheat while Respondent read the newspaper, listened to the radio or looked out the window. Respondent continued to refer to his lawsuit against the school board and school officials during class time. He also discussed with his students the qualifications of another teacher in the social studies department. Respondent's general reputation among his students was that he was boring and no one liked or respected him. Instead of paying attention to Respondent, some students would sleep or "horse around." Students indicated they did not learn anything or learned very little because Respondent did not teach. Also, these students had not encountered any other teachers at the school with teaching problems like those of Respondent. Complaints by students regarding Respondent's refusal to open windows and doors for air continued. On one occasion, Respondent told the class the air conditioner was not working, but refused to open windows because the students were too loud. Respondent refused to give credit for assignments given by the substitute teacher. He refused to issue progress reports. He refused to change a student grade after being directed to do so by Luke Thornton, although such change was appropriate. Guidance counselors continued to receive requests from students seeking transfers from Respondent's class. A new guidance counselor for the 1984-85 school year, Pat Martin, received reports that Respondent constantly talked about his lawsuit during class time. Another guidance counselor also received numerous self-referrals from Respondent's students who were concerned that they were not learning American government, the course subject matter, and that Respondent was talking about his court case. Martin, who had formerly served as a social studies teacher at the school with Respondent, was unable to discuss complaints she received with Respondent. He would not communicate with her and requested she not be allowed to sit in parent conferences with him. As a result, Martin was forced to communicate with Respondent in writing. She handled several complaints of students and parents in this manner. Guidance counselor Elizabeth Konen informed Respondent of complaints from students and parents. Usually, Respondent advised Konen he had no time to participate in conferences with the parents and students. In some instances, Respondent would not respond to parents requests that he contact them. At other times in parent conferences, Respondent would discuss his personal problems with the administration rather than the student's problems. Respondent improved in this school year slightly on textbook accountability, but books and desks continued to be defaced. He also continued to disregard his defined duty hours. Respondent did not turn in any lesson plans during the entire school year. At the conclusion of the year, he turned in a complete set of plans. Those plans did not meet requirements of indicating what part of the unified curriculum objectives had been met. In addition to David Culp, who continued to receive a large number of student discipline referrals from Respondent, Sandra Cowne was assigned to be a dean. Ms. Cowne's testimony is that 35 to 45 percent of her time was spent dealing with referrals by Respondent. Cowne noted 75 per cent of those referrals could and should have been handled by Respondent. Cowne requested students who were referred by Respondent to write out the details of the incident where the student's version differed with that of Respondent. Usually, Respondent did not indicate on the referral form that any action had been taken by him, or whether he had provided instruction to his students about expected and acceptable behavior. Students admitted to administrators that they deliberately "egged" Respondent on, particularly when he made personal comments about them. They also complained that Respondent would shut the windows and make them sit in the heat for discipline, or that he would turn off the air conditioner. They complained that Respondent made them write sentences as punishment, an inappropriate method of discipline. Cowne dealt with several problems when it became apparent Respondent did not have control of his classes. She assisted Respondent in calming classes down and restoring order. The disruption caused by discipline problems adversely affected the amount of learning that took place in Respondent's classroom. Luke Thornton decided to extend the NEAT Procedure to the cover the entire 1984-85 school year. During this time, numerous conferences were held and memos provided to Respondent concerning a multitude of problems. Respondent was observed in class by three administrators. The first observation was conducted on September 19, 1984, by H. W. Berryman, an assistant superintendent and area administrator. An employee of the Palm Beach County School District for 24 years, Berryman has evaluated the performance of principals, teachers, department heads and directors. In his memo to Luke Thornton following the observation, Berryman noted that too much time was taken with roll call and students were not attentive to Respondent's lecture. Berryman was concerned that students in the class were not involved in the total learning process. Berryman stated that he foresaw Respondent "in serious difficulty in managing conduct of students and considered this his most urgent need for growth." On October 4, 1984, Respondent was observed by Dr. Mona Jensen. Jensen is a consultant, certified by the Florida Performance Measurement System (FPMS). The FPMS was designed to determine effective teaching behaviors. Jensen also trains other administrators in the use of FPMS, both locally and statewide. The FPMS utilizes a written instrument called a Summative Observation Form. This form is used to evaluate teacher performance by recording the types of effective and ineffective behaviors observed in four domains: management of student conduct, instructional organization, presentation of subject matter and communication skills. Jensen has previously observed teachers with performance problems on the NEAT procedure. The report provided by Jensen to Respondent and Luke Thornton was based on actual behaviors of Respondent which she observed. Jensen noted in the report that students were talking to one another and not participating in the activity at hand. Jensen provided specific recommendations for improvement in all the areas addressed by the Summative Observation Form. According to Jensen, the main problem with Respondent's teaching technique was the lack of several positive teaching behaviors. She offered Respondent a conference and assistance, but he rejected her offer. Respondent was also observed by Lois Biddix on October 29, 1984. She is a FPMS certified state trainer and is authorized to train administrators to observe teachers. Biddix used the Summative Observation Form in her observation of Respondent. Biddix provided a written summary to Respondent and to Luke Thornton. She observed students talking and engaging in activities unrelated to the lesson. The atmosphere in the classroom, she observed, was sedentary and lethargic. Students suffered from boredom and frustration caused by Respondent's lack of enthusiasm and failure to introduce new content into the lesson. Biddix's observation of students talking, putting on makeup and sleeping are consistent with those of Berryman and Jensen. Biddix's concern was that students were not involved in the learning process. Her recommendations for improvement were consistent with those noted by Jensen. Dr. Jensen completed a second observation of Respondent on January 31, 1985. Again, she provided a written summary of her observations to Respondent and Luke Thornton. On this occasion, Respondent was presenting a lesson and students were not paying attention or participating in the class discussion. Respondent became frustrated with a student who made a personal remark to him. Jensen's recommendations for improvement were basically the same as those proposed by her in October, 1984. She again offered to arrange a conference with Respondent to discuss recommendations and he again spurned her offer. In response to a recommendation by Earl Higgs that Respondent observe successful teachers in their classrooms, Respondent advised that he wanted to observe Catherine Thornton and Mike Lott. Respondent did not associate with these teachers professionally or otherwise. Both Lott and Catherine Thornton requested that Respondent not be allowed to observe their classes. This request was honored by Luke Thornton because he was aware that Respondent disliked these two teachers. Respondent's annual evaluation for the 1984-85 school year indicated the atmosphere in his class was not conducive to learning. He was criticized again concerning the discipline of his class. It was also noted that he continued to make unprofessional comments to his students despite warnings not to do so. Luke Thornton had reviewed specific incidents of such conduct with Respondent during the school year. The evaluation also noted Respondent's failure to adhere to defined duty days after warnings, other poor work habits (i.e., lesson plans) , and his inability to get along with his peers. The 1985-86 School Year Luke Thornton extended the NEAT procedure for Respondent through November 1985, with the hope that Respondent's performance would improve. In the August 19, 1985 letter, Thornton stated: In order to assure that you are given every opportunity to be successful, I am extending the NEAT procedure to November 1, 1985. If at that time, the deficiencies consistently noted . . . continue to exist, I will make my recommendation to the superintendent concerning your employment status with the Palm Beach County School Board. The testimony of Respondent's students for the first semester of the 1985-86 school year confirm that Respondent did not change his teaching techniques despite suggestions given to him for improvement. 9l. One student testified that on the first day of class Respondent told the students they were immature. Other students testified to Respondent's repeated statements that they were immature, childish and that he did not like them. Further, Respondent continued to discuss his problems with the administration during class time. Classroom temperature remained uncomfortable. Respondent advised students to complain to the administration. In one instance, a student vomited in the classroom, creating a foul odor. Although students complained about the smell and administrators located another available classroom, Respondent refused to move his classes. Students testified that Respondent's reputation among them was that he was a "jerk" and a bad teacher who was not liked or respected. Several students stated that they would not want Respondent as their teacher again. He had a bad attitude and they either did not learn anything or they did not learn as much as they felt they should. Respondent did display improvement in taking roll call issuing progress reports, adhering to defined duty days and reducing the number of failures in his classes. He continued to fail to attend open house and to provide adequate lesson plans. In addition to Ms. Cowne and Mr. Culp, Linda Chubbuck was assigned as dean at John I. Leonard High School for the 1985-86 school year. Chubbuck received referrals of students from Respondent which were usually for such minor infractions as talking in class, refusing to be quiet, or not writing "punishment sentences". Student and parent complaints were received by the deans as a result of Respondent continued making students write repetitious sentences. Groups of students were still referred by Respondent. On two occasions, Chubbuck was referred nine to ten students at one time. Cowne was referred six students at one time. The groups were usually referred by Respondent because the students were not being quiet, would not settle down or were otherwise causing disruption. The students who were referred to the deans described Respondent's classes as chaotic. They described Respondent as "caustic and cutting with them." Further, Respondent did not take action to control his classes and rarely instructed students concerning behavior. The deans continued to answer Respondent's requests to come to his class to settle the class down. David Culp saw no improvement in Respondent's ability to control his classes over a three year period. Respondent continued to have more referrals than other teachers, and it was difficult to support Respondent's actions. Due to the constant chaos in Respondent's classes, the deans concluded that very little learning could be taking place. The number of referrals from those classes decreased sharply after Respondent was later suspended from the school. Guidance counselors continued, during this school year, to receive the same type of complaints about Respondent as they had in the past. The only difference was the names of the students making the complaints. The guidance counselors concluded that Respondent was not benefiting students emotionally or academically. Dr. Mona Jensen conducted her third and final observation of Respondent on December 2, 1985. She observed that Respondent's pattern of instruction had not changed. She determined his lesson plan to be insufficient. Respondent had not added any of Jensen's prior recommended positive behaviors to his technique. Respondent continued to fail to provide motivational or positive reinforcement to his students. Jensen concluded that Respondent's "teaching behaviors" were ineffective, ranking Respondent below average as a teacher. Jensen testified that a teacher's behavior should not change based upon the quality of the students. Further, a professional should not allow personal problems with the administration to interfere with providing successful opportunities to students. H.W. Berryman conducted a second observation of Respondent in December, 1985. Berryman was more complimentary of Respondent than was Jensen. Berryman noted Respondent had improved in getting instruction started in the class. He also commended Respondent's knowledge of the subject matter, but noted Respondent seemed to be writing off a majority of the students in the class by allowing them to be inactive and uninvolved in the learning process. Respondent did not communicate well with other social studies teachers at any time at issue in this cause. No improvement of Respondent's behavior in this area was noted during the first semester of the 1985-86 school year. He had heated words for Catherine Thornton, the department chairperson, and expressed his disdain for her. He accused another teacher of theft of a map from his classroom. The atmosphere of the workroom for social studies teachers at the school was hostile and uncomfortable when Respondent was there. Respondent continued to perceive his assignment to teach 9th graders to be a demotion. His peers did not agree. Testimony of teachers indicates that each level of teaching has unique problems. Some teachers volunteered to teach 9th grade. Respondent had difficulty with the administration over reserved parking spaces for the deans, refusing to refrain from parking in the places reserved for them until ordered by Luke Thornton to park elsewhere. The school's security officer was asked by Respondent to investigate the theft of pens and pencils from his desk, as well the source of a stick figure drawing of Respondent. The security officer had not received similar requests from other teachers. An evaluation of Respondent on November 18, 1983, noted he did not have an up to date plan book; that parent complaints about Respondent's unwillingness to work to resolve student problems had been received; and that Respondent remained unable to have a positive relationship with coworkers. Respondent was on the NEAT procedure for a total of 16 academic months. During that time, Respondent's teaching style did not change. He continued to make disparaging remarks to students, failed to provide classroom management and failed to improve his peer relationships. He did not attend open house functions, and failed to maintain adequate lesson plans. Parent and student complaints about him did not diminish. District administrators and school personnel were unable to influence Respondent to change his behavior. Due to Respondent's inability to change and the finding that Respondent was damaging students, Luke Thornton recommended Respondent be terminated from employment. Respondent was suspended in February of 1986, and subsequently terminated from employment by the school board. In Luke Thornton's professional opinion, which is credited, Respondent performed incompetently as an educator from the fall of 1981 until his termination. Further, Respondent's personal conduct during that time seriously reduced his effectiveness as an employee of the district school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate. DONE AND ENTERED this 24th day of August, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of August, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner submitted 128 proposed findings of fact. Those findings are treated as follows: 1. Included in finding 2.-3. Included in part in findings 1-3, remainder rejected as unnecessary for conclusion reached. 4.-5. Included in findings 4-5. 6. Included in findings 6-7. 7.-8. Included in findings 9-10. Included in finding 12. Included in finding 11. Included in part in finding 6, remainder rejected. Included in finding 7. Addressed in findings 13-14. 14.-15. Addressed in finding 14. 16. Included in finding 15. 17.-18. Addressed in findings 16 and 14. Included in finding 17. Included in finding 18. 21.-22. Included in findings 18-19. 23.-24. Included in findings 20-21. Included in finding 23. Included in finding 24. Included in finding 25. 28.-30. Included in findings 26-28. Included in finding 29. Included in finding 30. Rejected as unnecessary to conclusion. 34.-35. Included in finding 32. 36.-37. Included in findings 33-34. Included in finding 31. Included in finding 36. 40.-41. Included in findings 37-39. 42.-43. Included in findings 41-42. 44. Addressed in part in finding 43. Remainder rejected as unnecessary to conclusion. 45.-55. Included in findings 44-54. 56.-57. Addressed in finding 55. Included in finding 56. Included in finding 48. 60.-61. Included in findings 56-57. 62. Included in findings 58-59. 63.-64. Included in findings 60-61. 65.-66 Included in finding 62. 67.-70. Included in findings 63-66. 71.-75. Included in findings 67-70. 76.-83. Included in findings 72-77. 84.-85. Included in finding 76. 86. Included in finding 71. 87.-94. Included in findings 77-83. 95.-128. Included in findings 85-111, except for a portion of proposed finding 122 which is rejected as unnecessary for conclusion reached. RESPONDENT'S PROPOSED FINDINGS Respondent submitted 145 proposed findings of fact. They were encompassed in 52 pages and are treated as follows: 1.-19. Rejected as unnecessary to conclusion reached and cumulative. 20.-24. Included in part in findings 13-14, and 21; remainder rejected as unnecessary to conclusion. 25. Addressed in part in finding 15. Remainder unnecessary for conclusion. 26.-28. Rejected as unnecessary for conclusion reached. 29.-31. Addressed in part in finding 20. Remainder rejected as unnecessary to conclusion. 32.-33. Included in findings 37-38. 34. Included in finding 60. 35.-36. Included in part in finding 88, remainder rejected as unnecessary to conclusion. 37.-38. Included in part in finding 108, remainder rejected as unnecessary to conclusion. 39.-40. Included in part in findings 3133, remainder rejected as unnecessary to conclusion. 41.-52. Rejected as unnecessary to conclusion reached. Included in part in findings 20-22, remainder rejected as unnecessary to conclusion reached. Rejected as unnecessary to conclusion reached. Included in part in finding 40, remainder unnecessary to conclusion. Included in finding 23 in part, remainder rejected as unnecessary to conclusion. 57.-63. Rejected as unnecessary to conclusion. 64.-65. Included in part in finding 93, remainder rejected as unnecessary to conclusion. 66.-73. Rejected as unnecessary to conclusion reached. 74. Included in part in finding 113-114, remainder rejected as unnecessary to conclusion. 75.-80. Rejected as unnecessary to conclusion. Addressed in finding 45. Rejected as unnecessary to conclusion reached. 83.-84. Included in part in finding 46, remainder unnecessary to conclusion reached. 85. Rejected, unnecessary. 86.-87. Addressed in part in findings 46 and 57, respectively; remainder rejected as unnecessary to conclusion. 88. Included in part in finding 88. Remainder unnecessary. 89.-90. Rejected as unnecessary to conclusion reached. 91.-96. Included in part in findings 34-35, remainder rejected as unnecessary. 97.-100. Rejected as unnecessary to conclusion reached. 101.-102. Included in part in finding 14, remainder unnecessary to conclusion. 103.-107. Rejected as unnecessary to conclusion. 108.-113. Included in part in findings 58-59, and 79; remainder rejected as unnecessary to conclusion. 114.-118. Rejected as unnecessary to conclusion. 119.-120. Included in part in finding 87, remainder rejected as unnecessary to conclusion. 121.-123. Rejected as unnecessary to conclusion reached. l24.-125. Included in part in finding 80. Remainder rejected as unnecessary to conclusion. 126.-129. Included in part in findings 81-84, remainder rejected as unnecessary to conclusion. Included in part in finding 67. Remainder rejected as unnecessary to conclusion. Included in part in finding 86, remainder rejected as unnecessary to conclusion. Rejected, unnecessary to conclusion and cumulative. Included in part in finding 88, remainder rejected as unnecessary to conclusion. Included in part in finding 89, remainder rejected as unnecessary. 135.-136. Rejected, unnecessary to conclusion reached. 137.-141. Included in part in findings 102-103, remainder unnecessary to conclusion. 142.-143. Included in part in finding 85, remainder rejected as unnecessary to conclusion. 144.-145. Included in part in finding 110, remainder rejected as unnecessary. COPIES FURNISHED: J. David Holder, Esquire 325 John Knox Road Suite C-135 Tallahassee, Florida 32303 Thomas W. Young, III, Esquire 208 West Pensacola Street Tallahassee, Florida 32301 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator. Professional Practices Services Department of Education 319 W. Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 =================================================================
Findings Of Fact The Respondent was a noninstructional employee of the School Board of Date County, Florida at all times material hereto, and was assigned to Thomas Jefferson Junior High School as a teacher's aide. The Respondent has six years' experience as a teacher's aide with the Dade County School System. He has a high school education and thirteen months of college, as well as twelve months of technical training, including studies in psychology. The Respondent has never, in all the time he has been employed in the Dade County School System, had any complaints lodged against him for aggressive or violent conduct and has never been previously involved in an incident in which he struck a student, although on one occasion he had to defend himself when a student attacked him. On September 22, 1980, the Respondent escorted some students to a physical education class on the school athletic field. While he was attempting to get the complaining student, Jose Velez, to return to the classroom, that student threatened him with violence and ultimately physically attacked the Respondent. Mr. Turnquist had to restrain the student and escort him to the school office for imposition of disciplinary measures regarding his behavior. The Petitioner's first witness, Gloria Randolph, is the Assistant Principal for Curriculum and Teacher Morale. She supervises the Exceptional Student Department, as well as the teachers' aides, and is acquainted with the protagonists in the subject incident. She observed the Respondent enter the school office with the student, Jose Velez, conversing in loud voices, both the Respondent and Velez appearing quite agitated. The Respondent told her that he "brought this boy up here and want something done about it." The Respondent and the subject student, at that time, were standing about five feet apart. She stepped between them, but the student kept advancing and she had to shove him back repeatedly. The student, Velez, acting in an aggressive, mocking manner, urged the Respondent to hit him, and threatened him with bodily harm. The tension between the two kept increasing, with the ultimate result that the Respondent struck the student with a light blow to the cheek. According to both Petitioner's witnesses, the student seemed relieved at that point and immediately calmed down. Witness Randolph acknowledged that the Respondent exercised good judgment, up until the point of striking the student, because he followed appropriate procedures in bringing the student to the office for disciplinary measures to be taken, and did not indulge in an argument with the student, although she did feel it was poor judgment for him to strike the student. The student, Jose Velez, is at least six feet in height and is considerably taller than the Respondent. Petitioner's witness, Marilyn Mattran, a teacher at Jefferson Junior High School, who was in the office and observed the subject altercation, established that Velez repeatedly threatened the Respondent with physical harm and that the student engaged in most of the yelling and in the aggressive behavior she observed. She corroborated the fact that when the Respondent actually struck Velez, that he immediately calmed down. She also corroborated the testimony of witness Randolph, as well as the Respondent's witness, Leah Alopari, that Jose Velez is an emotionally disturbed student who has an extensive history of aggressive, violent behavior and has made a practice of threatening students and teachers with physical violence and harm, even to the extent of threatening the use of a deadly weapon. He has, on occasion, done physical violence to other children. These three witnesses all acknowledged that the Respondent has never in the past, in their experience, demonstrated poor judgment in his conduct toward and transactions with students or teachers. Leah Aloari is the Respondent's supervising teacher. Jose Velez was one of her students, and she corroborated the fact, demonstrated by the other witnesses, that this particular student was aggressive, difficult to control and prone to engage in violent behavior. The Respondent assisted her in helping discipline her students, with the academic program and in escorting children to and from lunch, classes and the athletic field. She has never observed the Respondent engage in violent behavior in his relations with teachers or students, nor commit an act which exhibited poor judgment or misconduct in the course of his duties. As indicated above, the Respondent has had an exemplary record in his six years with the Dade County School System. Jose Velez, on the other hand, has been a constant disciplinary problem as acknowledged by the Petitioner's and Respondent's witnesses. The Respondent has a chronic neck injury involving a pinched nerve in the neck, and genuinely believed himself to be in danger of physical assault and harm by Velez when the incident occurred in the office. He believed it unwise to retreat in the fact of Velez's threats and aggressive advance upon him because he felt Velez was about to physically attack him. The Respondent did not feel that the other teacher and the Assistant Principal, who were the only other persons in the office at the time, could have restrained or adequately controlled Velez alone if he had retreated. There is no question, especially in view of the fact that the Respondent had already been assaulted by the student on the athletic field, that he genuinely believed that the situation called for him taking steps to defend himself. His act of self-defense in striking the student was itself marked by some restraint in the sense that he withheld striking the student with as much force as he was capable of. There is no evidence that he caused any permanent harm to the student. Indeed, even the Petitioner's witnesses established that it had the beneficial effect of calming the student down and preventing any further violent conduct on his part or possible injury to the students, the Respondent, others present, or possible damage to the Petitioner's property in the immediate vicinity. The undersigned considers it significant also that the student, although initially complaining of the Respondent's action, did not appear and testify at the hearing in furtherance of his complaint against the Respondent and that there was no significant physical injury inflicted upon Velez.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. Respondent, who has no prior disciplinary history, holds Florida Educator's Certificate 709850, covering the area of mathematics, which is valid through June 30, 2014. The Events The incident that gives rise to this proceeding occurred during the morning of April 8, 2011, at Dillard High School ("Dillard"), where Respondent has taught mathematics since 2004. At that time, Respondent was lecturing to his Algebra I honors class, which comprised approximately 15 students. During the lecture, one of the male students, 15-year- old D.P., took out his cell phone and viewed it, contrary to one of Respondent's classroom rules. Respondent immediately directed D.P. to put the phone away, and the student complied; a few moments later, however, D.P. again took out his phone, which resulted in the same reaction from Respondent. For reasons known only to D.P., he took out his phone a third time——conduct that prompted Respondent to confiscate the item. Later, during the same class period, D.P. inquired of Respondent as to when his phone would be returned. Respondent replied that the phone could be retrieved at the end of the day from Mr. Levinsky, one of Dillard's assistant principals. None too happy with this turn of events, D.P. stewed for several minutes, at which point he got up from his table and approached the front of the room, where Respondent was seated behind his desk. Suspecting that D.P. might attempt to recover the phone (which lay on Respondent's desk), Respondent picked it up. At that point, and in an audacious move, D.P. grabbed Respondent's cell phone off the desk and stated, in an angry tone, that he would return Respondent's phone when Respondent relinquished possession of his (D.P.'s). Understandably disinclined to negotiate, Respondent calmly directed D.P. to return his property. D.P. refused. Respondent again asked, to no avail, that D.P. place the phone on the desk. After a third request, which, like the others, went entirely unheeded, Respondent stood up, walked around his desk, positioned himself near D.P., and instructed D.P.——for the fourth time——to put down the phone. D.P. complied, only to pick up the phone once again just seconds later. (While doing so, D.P. remarked that he was not going to return Respondent's "mother-fucking phone.") It is at this point that the witness' accounts diverge: D.P. and student S.H. contend that Respondent reached out with one hand and, in an unprovoked act of violence, grabbed D.P. by the throat and pushed him backwards, which resulted in D.P. falling over several desks that had been placed together; students A.A., R.B., and A.P. claim that Respondent, without provocation, slammed D.P. onto the desks after taking hold of the student's throat; finally, Respondent asserts——as corroborated by student T.F.——that D.P. moved toward him in a threatening manner and that he (Respondent) simply defended himself5/ by extending his arm, which made contact with D.P.'s upper chest or neck area. Respondent and T.F. further testified that, as a result of the defensive contact, D.P. moved backward and either tripped or fell over the desks. Before the undersigned resolves the question of how D.P. wound up on the floor, a brief rehearsal of the relevant subsequent events is in order. Moments after the physical encounter, Respondent informed D.P., who was uninjured, that he intended to escort him to one of Dillard's administrators. Enraged, D.P. removed his shirt and followed Respondent into the hallway; as D.P. did so, he directed several vulgar threats toward Respondent, such as, "I'm going to fuck you up" and "I'm going to kill you." Moments later, Respondent encountered one of Dillard's security guards, Noel Buhagiar, from whom Respondent requested assistance. Mr. Buhagiar proceeded to restrain D.P., at which point Respondent made his way to school administration. Once in the front office, Respondent provided a brief description to Mr. Levinsky (as noted previously, an assistant principal) concerning his incident with D.P. Mr. Levinsky instructed Respondent to return to class and issue D.P. a referral. While en route to his classroom, Respondent walked by D.P., who, still restrained, repeated his earlier crude threats. From what can be gleaned from the record, D.P.'s behavior ultimately earned him a five-day suspension from school. Shortly after the incident, Respondent was questioned by Edward Jackson, a school resource officer assigned to Dillard. During the interview, Respondent explained that D.P. had approached him in a "fighter's stance" and that, as a result of this aggressive behavior, he feared for his safety and used an open hand (which made contact with D.P.'s neck) to ward D.P. away. Subsequently, Officer Jackson conducted an interview of D.P. in the presence of Mr. Levinsky and the student's father, during which D.P. provided a description of the incident that largely coincided with Respondent's version of events. These statements were credibly recounted during the final hearing by Officer Jackson, who testified: The child told me, in front of his father, and A.P. [Levinsky], that there was a conversation about a cell phone. He went to get his cell phone back, in an aggressive manner, and that's when [Respondent], fearing for his safety, extended his arms out, and I guess in such force, that he caused the student to fall over some chairs. I then asked, well, Mr. [Levinsky] asked the student, did at any time, did [Respondent] use his hand to choke, choke you. And D.P. answered, to the question, indicating that [Respondent] did not use his hands to choke him. And that was said in front of his father, and in front of Mr. Levinsky, so, there was no choke at all. Final Hearing Transcript, p. 173 (emphasis added). Upon the conclusion of his investigation, Officer Jackson charged D.P. with misdemeanor assault,6/ at which time the matter was forwarded to the State Attorney's Office.7/ Ultimate Findings It is determined, as a matter of ultimate fact, that Petitioner has failed to adduce clear and convincing evidence of the Amended Administrative Complaint's principal allegation—— namely, that Respondent grabbed D.P. in a "choking manner and pushed him onto [a] desk." In so finding, the undersigned rejects the testimony of Petitioner's witnesses on this issue, which, for several reasons, is less persuasive than that of Respondent and T.F. First, had Respondent committed the act alleged, it is reasonable to expect that D.P. would have suffered some form of harm, particularly since Respondent, a football coach, outweighed D.P. by at least 608/ pounds. Yet, and as D.P. conceded during the final hearing, he sustained no marks, bruises, or injuries of any kind.9/ In addition, D.P.'s present description of the event is highly dubious in light of Officer Jackson's credible testimony, which establishes D.P.'s admission during the police interview that he (D.P.) had moved toward Respondent aggressively and that Respondent had merely extended his arm for protection. Finally, D.P.'s wholly outrageous conduct, both before and after the incident——taking Respondent's property and refusing to return it, removing his shirt, and threatening to "kill" Respondent——is far more suggestive of his culpability as the aggressor. Owing to the undersigned's crediting of Respondent's final-hearing testimony, it necessarily follows that Respondent's report of the incident to law enforcement, in which he claimed self-defense, was in no manner false or dishonest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the Amended Administrative Complaint. DONE AND ENTERED this 30th day of May, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 30th day of May, 2013.
The Issue The issues are whether Respondent committed the act alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(c) and (i), Florida Statutes (2003), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and the entire record in this proceeding, the following Findings of Fact are made: At all times pertinent to this proceeding, Respondent held a Florida Educator's Certificate No. 891417. Respondent was first employed as a teacher at River Ridge Middle School ("River Ridge") in the Pasco County School District in August 2003, under a ten-month contract. During the 2003-2004 school year, Respondent taught sixth-grade geography at River Ridge. On April 15, 2004, during the five-minute period while classes were changing and before the fourth-period class started, Respondent left his classroom to go to the faculty bathroom. Prior to leaving the classroom, Respondent announced to the class that there would be a "pop quiz" that day and told them to sit down, study their notes, and/or read the book. Respondent was gone no longer than five minutes. When Respondent returned to the classroom, M.M. and one of his friends, another student, were standing up "play fighting." This "play fighting" involved the two students pushing each other. Upon observing the two students pushing each other, Respondent reasonably, but mistakenly, believed the two students were fighting and took immediate action consistent with that belief. Respondent approached M.M. and the other student and yelled at them, "Break it up!" Respondent then pushed or grabbed M.M.'s shoulder, pivoting him around Respondent, in an attempt to separate him from the other student. Immediately thereafter, while Respondent was turning toward the other student, he heard a commotion, which presumably was M.M. falling on the floor.2/ Immediately after Respondent grabbed or pushed M.M., he (M.M.) fell on the floor. Prior to landing on the floor, M.M.'s back hit the corner of a nearby table.3/ As a result of hitting the table, M.M. testified that he had a bruise on his back. However, there was no evidence to substantiate this claim, including evidence as to the severity of that alleged injury or whether it required medical attention. When M.M. got up from the floor, Respondent walked M.M. over to his seat. At first, M.M. sat in his assigned seat, but then he got up from his seat and "got in Respondent's face." During this confrontation, Respondent told M.M. that he was tired of dealing with him and to go to the principal's office. Initially, M.M. didn't move, but just stood there facing Respondent. Eventually, M.M. left the classroom and went to the principal's office. However, before he left the classroom, M.M. told Respondent, "I'll get you." M.M. was embarrassed by the incident. When M.M. arrived at the principal's office, he told John Joens, the school principal, that Respondent had pushed him down. In addition to M.M.'s verbal account of the incident, he also gave Principal Joens a written statement concerning the incident.4/ After Principal Joens listened to M.M.'s account of the incident, he also discussed the incident with Respondent. Respondent told Principal Joens that he was trying to break up a confrontation between M.M. and another student. To do so, Respondent explained that he grabbed M.M. by the shoulders, pivoted the student around behind him [Respondent] to move M.M. behind him, and then turned back to the other student. In discussing the incident with Principal Joens, Respondent also reported that after M.M. fell to the floor, he told M.M., "I know you're embarrassed but you have to go sit down." Finally, with regard to students who may have seen the incident, Respondent told Principal Joens that given the seating arrangement in the classroom, most of the students could not have had a clear vision of what happened. After listening to Respondent's explanation about the incident, Principal Joens' primary question to Respondent was how the student ended up on the floor. However, Respondent was unable to answer that question, because he was not sure how M.M. ended up on the floor. After listening to Respondent's explanation, Principal Joens could not understand or determine how M.M. had ended up on the floor. Therefore, in an effort to ascertain what had actually happened, Principal Joens decided to identify and interview as many students as possible who were eyewitnesses to the incident. As part of his investigation of the subject incident, Principal Joens interviewed 16 or 17 students who were in Respondent's fourth-period class on April 15, 2004. He also had the students to prepare and give him written statements about what, if anything, they observed relative to the incident. After Principal Joens completed his investigation, which consisted of input from M.M., information provided in student interviews, and Respondent's explanation and responses, he still could not determine how M.M. landed on the floor. On the day of the incident, except for two student desks and two tables, where a total of four students sat, the front of all of the student desks faced south; the backs of those desks faced north, which was the area of the classroom where the incident occurred. Therefore, in order to observe the incident, the students sitting at their desks would have had to get up from their seats or turn around in their seats. Two of the students who were in Respondent's fourth- period class on April 15, 2004, testified at this proceeding. Both students were credible witnesses. However, given the lapse of time since the incident (almost four years) and the proximity of their desks to the area where the incident occurred, it is understandable that there were details that they could not clearly recall, if they ever knew those details, or the sequence of the events. J.W., a student in Respondent's fourth-period class on April 15, 2004, recalled that when Respondent entered the classroom that day, he approached M.M. and two other students who were pushing each other around and told them, "Break it up!" J.W. also testified that "they [presumably Respondent and M.M.] were arguing and Respondent pushed M.M. down and M.M. fell on the floor." When J.W. observed the incident, he was sitting at his desk, which was three rows from the area of the classroom where the incident occurred. J.W. testified that in order to see the incident, he had to turn around in his seat or look over his left shoulder, since the back of his desk faced the area where the incident occurred. D.L., a student in Respondent's fourth-period class on April 15, 2004, testified that she recalled that Respondent pushed M.M. on the shoulder area and then M.M. hit the table and then fell to the chair. She did not recall M.M. falling or ending up on the floor. Furthermore, D.L. did not know the reason Respondent pushed M.M. or even if there was a reason for pushing him. When D.L. observed the incident, she was sitting at her desk, which was in the last of five rows of desks in Respondent's classroom and the row farthest from the area in the classroom where the incident occurred. The back of D.L.'s desk faced the area where the incident occurred, and in order to see the incident, she had to turn around. According to Principal Joens, the only reason an adult "gets between two students is to provide . . . [for] the safety of that student or the other student's [safety]." In this case, Principal Joens testified that he does not believe that any student's safety was in danger and, thus, there was no need for Respondent to touch M.M. and "use that force." Two days after the incident, Respondent resigned from his teaching position at River Ridge. During the eight months that Respondent was teaching at River Ridge, Principal Joens observed Respondent while he was teaching and interacting with the students. Principal Joens described Respondent's interactions with students during those observations as positive. Moreover, two former students who were in Respondent's fourth-period class on April 15, 2004, testified that Respondent was a good teacher.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of April, 2008.
The Issue Whether just cause exists to suspend Respondent, a teacher, for ten days without pay for putting hand sanitizer in a student’s mouth.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District in 2007. In October 2019, she was teaching at PPMS as a science teacher. Prior to the incident involved in this case, Respondent received no discipline from the Board. Respondent is an experienced teacher who has been trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent received training concerning ethics relative to her position with the District as a teacher. Respondent has been through the orientation process for new employees of the District three times. The Incident Giving Rise to Discipline On October 14, 2019, Respondent was teaching a science class of approximately 30 sixth and seventh grade students. In this class was sixth grade student X.S., who was being verbally disruptive. Although X.S. was not cussing, Respondent told him that he needed to have his “mouth washed out with soap.” Respondent reached behind herself to grab a bottle on her desk which was either hand soap or hand sanitizer. X.S. and Respondent walked towards each other. X.S. challenged Respondent to “Do it!” Respondent raised the bottle to X.S.’s mouth and pumped in a substance from the bottle. X.S. bent over and spit on the floor. Respondent asked X.S. what he was doing, and he stated that he got hand sanitizer in his mouth. As X.S. stood up, X.S. was observed wiping his mouth and Respondent told him not to spit on the floor. X.S. left the classroom to go to the bathroom and rinse his mouth. His fellow students immediately began talking about the incident while Respondent returned to her desk. The Investigation X.S. did not immediately report the incident because he did not want to anger his foster mother. However, on the day after the incident, October 15, 2019, three students approached PPMS Principal Aronson and Officer Michaels and reported that Respondent had squirted hand sanitizer into X.S.’s mouth. Officer Michaels spoke to the students and X.S. individually and asked them to provide written statements regarding what they observed.1 Principal Aronson and Officer Michaels questioned Respondent regarding the incident. When approached by Officer Michaels, Respondent asked, “What is this about?” He responded that, “this is about squirting hand sanitizer into a student’s mouth.” Respondent said, “It wasn’t hand sanitizer. It was soap.” Respondent did not deny squirting something into X.S.’s mouth to either Principal Aronson or Officer Michaels. Principal Aronson asked Respondent to leave campus. He accompanied her to her classroom and observed a bottle of hand sanitizer on her desk. Principal Aronson also contacted Human Resources to report the incident and spoke to Human Resources Manager Jose Fred who handled overseeing the investigation from that point forward. 1 These written statements, Exhibits 11 through 16, were admitted over Respondent’s objection that they contain impermissible hearsay and are unduly prejudicial because these students refused to attend their scheduled depositions or appear for final hearing. However, their general descriptions of the incident were corroborated by the deposition of student J.C., as well as in part by Respondent. As discussed in Florida Administrative Code Rule 28-106.213(3), hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in sections 90.801-.805, Florida Statutes. On October 15, 2019, Respondent was issued the one-day stay at home letter from Mr. Aronson titled “Assignment to Your Residence with Pay for October 15, 2019.” On October 15, 2019, Respondent was also issued a letter advising her that she was assigned to her residence for October 16 and October 17, 2019. Mr. Fred, under the supervision of Vicki Evans-Paré, Director of Employee and Labor Relations, compiled written statement of six students, took a written statement of Respondent on October 17, 2019, and drafted an Investigative Report dated October 18, 2019, which substantiated violations of applicable rules and Board policies. In her statement to Mr. Perez, Respondent claims it was X.S. who put his hand on hers and pulled the bottle to his own mouth and that she did not squirt anything. However, the remainder of her statement is consistent with the students’ reports of the incident.2 Post-Investigation Due Process On October 30, 2019, Respondent was provided with a Notice of Pre- Determination Meeting, which provided her with the allegations of misconduct. Respondent was provided with a copy of the entire investigative file and time to review it with the representative of her choice. Respondent attended a Pre-Determination Meeting on November 9, 2019, to give her the opportunity to provide any additional information, dispute, and explain or elaborate on any information contained in the Investigative Report. The Employee and Labor Relations (“ELR”) Department enlists the Employee Investigatory Committee (“EIC”) which reviews all of ELR’s case 2 At final hearing, Respondent testified that the bottle was never near the student’s mouth. This is wholly inconsistent with her prior written statement to Mr. Perez, her deposition testimony, and the statements of the students. This conflict negatively impacted Respondent’s credibility. files, inclusive of all documents maintained by ELR, of anything that might lead to suspension or termination, to make a suggestion to the Superintendent, if the allegations are substantiated. Once the EIC decides that the allegations are substantiated and recommends discipline, Ms. Evans-Paré takes the entire employee investigative file, inclusive of the EIC’s recommendations, to the Superintendent who then makes the ultimate recommendation for employee discipline. On November 22, 2019, Respondent was provided with supplemental information to the investigative file and provided an opportunity to respond to the documents by December 6, 2019. On December 9, 2019, Respondent requested that her response be placed in her file. She wrote “in response to the copies of the information from the District that is being used as evidence against me …” after reviewing the case file, complained that only six of 22 students were interviewed or provided statements and it was not an ethical, random sample of the class. Respondent also alleged that the documents had been altered; however, she did not provide any evidence of such during the final hearing or within the response. On December 6, 2019, Respondent again provided a response to the student witness statements to ELR wherein she stated “I have 22 students in my class, only 6 students filled out statements? You have 3 black children submitted in reporting, of which one is not accurate. Yet, they are the minority in this class, of which, 2 out of the 6 statements were from Hispanic students. It is surprising that not a single white student in my class noticed the incident.” On January 24, 2020, Respondent was notified that the Superintendent would recommend her a ten-day suspension without pay to the Board at its February 19, 2020, meeting. On February 19, 2020, the School Board adopted the Superintendent’s recommendations to suspend Respondent without pay for ten days. Respondent’s Post-Suspension Status Respondent’s suspension by the Board was picked up by the Associated Press and reported across social media and traditional media platforms locally and nationwide. Ms. Evans-Paré testified that typically, when a teacher is alleged to have done something inappropriate with students, the District cannot have the teacher in a classroom around students, so the teacher is reassigned to another location. Respondent was reassigned to adult and community education, so she was in a no-student contact position. Respondent was then moved into Human Resources Funding 9920 status due to the press and comments from the parents received by Principal Aronson and her inability to be returned to PPMS. This allowed Principal Aronson to hire another teacher to take her place. Respondent has not been back in the classroom as a teacher for the District since October 15, 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the ten-day suspension without pay and return Respondent to the classroom. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 867 West Bloomingdale Avenue, Suite 6325 Brandon, Florida 33508 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
The Issue The issues presented for determination are the following: Whether Respondent has violated rules of the School Board of Palm Beach County so as to constitute misconduct in office. If Respondent has committed misconduct in office, what penalty is to be imposed, including whether Respondent is entitled to back pay and in what amount.
Findings Of Fact At all times material hereto, Respondent, Dr. James McCabe, was employed by Petitioner, Palm Beach County School Board, as the Assistant Principal for Student Services in charge of special education at Crestwood Community Middle School. In this capacity, Respondent's duties include the supervision of the students and teachers in special education. He is responsible for parent contact and involvement in addition to student discipline. He manages the dropout prevention and honors program. Additionally, he has other administrative duties which relate to the migrant and alternative education programs. Although he is primarily assigned to the special education program, he assists in other areas such as school-wide discipline. On December 14, 1989, in the early afternoon, Respondent was called to Mr. Mundt's shop class with Mrs. Satchel, another Assistant Principal for Student Services, by the school's walkie-talkies. Responden1t was informed by Mr. Mundt, the shop teacher, that a baseball card worth in excess of $50 was missing. The baseball card had been displayed in the same class during the beginning of the period. The period was split by a lunch break. It was after the students returned from lunch that Respondent and Ms. Satchel were called to investigate its loss. The parties stipulated that, "Presumably, it [the card] had been taken by someone in the class." According to Respondent, the card was owned by a student with cerebral palsy. The student was limited physically and could not participate in sports at the school. He collected baseball cards as his sport. When they arrived, Respondent took charge of the male students while Ms. Satchel assumed the responsibility for the female students, as the logical separation of duties. Respondent asked the boys to go to one side of the room and told them that he would like the baseball card to appear on the table. He told them he would turn his back to them, and that if the baseball card appeared, that would be the end of it. Respondent then turned his back, and the baseball card did not appear. Prior to this incident, thefts of other valuable merchandise had occurred around the area of the shop class. A wallet was stolen from a teacher's car which was parked immediately outside the shop class just a week prior to the incident at issue. Respondent did not think that a particular student had stolen the card. Instead, he reasonably suspected that someone in the group had taken it. The period was coming to an end and another class was due in the room. Respondent did not attempt a lesser method of searching the boys for the baseball card, nor was a lesser method of searching the boys proven at the hearing. Instead, Respondent, in accordance with the procedure at Crestwood, instructed the boys to all go down to the clinic which is not within the immediate vicinity of the shop class where they were temporarily detained. He chose to remove the boys from the classroom because he did not want to subject them to the confusion from the incoming class or to any unnecessary embarrassment which might be caused by questioning them in front of it. He also wished to protect the learning environment for the incoming students. The clinic is a three room complex. To avoid unnecessary embarrassment of the students, Respondent took one student at a time into one of the outer rooms of the complex. He then asked the student to remove his shirt. He felt the shirt and handed it back to the student. He then requested their shoes and socks and handed those back after searching them. He then asked for the students outer pants. He did not request that any student remove his undergarments; their underpants and undershirts or T-shirts, if any, remained on. As Respondent completed his check of each piece of clothing, he handed the article back to the student. If the student was slow in completing his dressing, he then asked that student to finish dressing in the back of the room. At times, while the slow student was completing his dressing, the next student was asked to come in and commence the disrobing procedures. At times, more than one student was in the room. One was tying his shoes while the other was handing his shirt to Respondent. Respondent believed that he had the right to search the students to the extent necessary after having received instruction to that effect from school security and after having read the school board rule on detention, search and seizure. He apologized to the group for having to perform the search in this manner which was necessary under the circumstances. According to Respondent, sometime during the search, a couple of boys came into the room and asserted that one of the boys, who had not been searched at the time, had the card. The boys suggested that Respondent search just this one student and stop the search of each student. In reply, Respondent said, "I don't want to embarrass him anymore than anybody else. I really don't want to put any suspicion on him. Let's just take him in the normal course of events, when his turn comes up," and continued the search of each student in his charge. Each student cooperated with Respondent. Out of the twelve or thirteen students involved, only one student objected to the search procedure. In response to the objection, Respondent gave the student the opportunity to call the school security or to call his mother and ask her to come to the school. The student chose neither option and participated in the search. As Respondent reached the last student, Mr. Hagan, the principal at Crestwood, came into the room and asked Respondent to step outside. He told Respondent that he did not see how the school could benefit from the search and told him to stop the search. The baseball card had not been located at that point. Respondent stopped immediately. If Mr. Hagan believes that a teacher or administrator is not effective at his school, there is a procedure for asking that teacher or person to be removed from the staff. Mr. Hagan chose not to commence the procedure in this instance. Prior to this incident, searches of students occurred at Crestwood, but no search had involved the removal of the students clothes. The guidelines for detention, search and seizure of students in the Palm Beach County School District is contained in Palm Beach County School Board Rule 5.18(5). The rule authorizes school personnel, such as Respondent, to temporarily detain students for questioning, upon reasonable indication of wrongdoing, and to search, to the extent necessary, students upon reasonable suspicion of illegal activity. The rule, however, does not establish the permissibility or impermissibility of any specific search procedure, i.e., pat down, strip search or other means of locating the missing items. Although the School Board gives periodic seminars, and Respondent has attended every seminar at which his attendance was required, no seminar has given specific instruction on the procedures to be used when searching students. Respondent had read the rule on detention, search and seizure prior to the December 14 incident. Also, prior to the incident, Respondent had requested the advice of the school security director assigned to Crestwood, Mr. Willie Noland, about his right to search and has discussed procedure relating to specific incidents with Mr. Noland. From Mr. Noland, Respondent was assured that he had the right to search students. One incident, in particular, on which Respondent sought Mr. Noland's advice involved a student who allegedly had threatened another student with a knife. Respondent was asked to look into the threat fifteen minutes prior to the end of the school day. When Respondent asked the student if he had a knife, he voluntarily emptied his pockets. Respondent did not ask him to remove his clothes. Unfortunately, the student did have a knife lodged in the mid-seam of his trousers. After that incident, Mr. Noland advised Respondent that students do not hide things in their pockets. Instead, Mr. Noland recommended checking down in the student's waistbands and in their shoes and socks for the missing items. Mr. Hagan had also informed the school personnel not to be alone with students and to avoid situations which could be embarrassing. His purpose in giving the admonition was to avoid the potential for child abuse allegations. It was with the direction given by Mr. Noland and Mr. Hagan, combined with Respondent's understanding of the governing rules, that he undertook the type of search he performed. With reasonable concern that he might be subjecting himself to a potential child abuse allegation and in a diligent attempt to locate the missing baseball card, Respondent chose to ask the students to remove their clothes, rather than search the clothes while on their bodies. Under the circumstances, the search procedure was necessary and reasonable. After the December 14 incident, Respondent, as was his usual behavior, cooperated completely with the directives of his superiors. He voluntarily completed an incident report in which he related the facts surrounding the search. An investigation into the incident by the School Board was performed, and a report from the investigation was given to the Superintendent of the Palm Beach County School District. Without performing a personal investigation, talking with Respondent or with Respondent's coworkers about the incident, the Superintendent suspended Respondent and recommended to the School Board that Respondent be suspended without pay and terminated. The Superintendent based his recommendation on his belief that Respondent's conduct violated the school board rule and the Code of Ethics and Principles of Professional Conduct for educators in Florida to the extent that his effectiveness in the school system was impaired. The School Board accepted Respondent's recommendation and this proceeding ensued. At the time of the incident, Crestwood had four assistant principals in addition to Respondent. At the hearing, three of the four, each of whom had worked with Respondent, had observed Respondent and had shared responsibilities with him, unanimously agreed that his performance in the school system up to the time of the incident was effective and each agreed that they would not object to his return to the school. The fourth was not asked the questions at the hearing. Also, approximately eighty signatures appear on a petition in support of Respondent's effectiveness from the faculty and staff of Crestwood to Petitioner dated January 17, 1990. l6. Since 1964, except for a brief period, Respondent has been involved in education and primarily working with, teaching about or studying exceptional students. His tenure in the Palm Beach County School District began as Director of Special Education in September 1, 1981 where he was assigned until June 30, 1983. From August 1983 to June 1986, Respondent served in the capacity of a Specialist in Education. In July, 1986, Respondent was appointed as an Assistant Principal at Gove Elementary School. At the request of Mr. Hagan, Respondent was transferred to the Crestwood Community Middle School in January, 1987 and has served in his present capacity since then. While employed as an assistant principal, Respondent has received nothing but outstanding evaluations. Respondent holds a regular instructional certificate in the area of administration and supervision. Respondent is a credible individual, and an experienced educator who has the interest of his students as his main concern. At no time during the incident in question, did Respondent intend to embarrass or disparage any of the students. Instead, in his best professional judgment, under the circumstances, he attempted to protect the students from unnecessary embarrassment and made reasonable efforts to protect the learning environment of all the affected students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Palm Beach County issue a Final Order reinstating Respondent with full back pay and benefits retroactive to January 24, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1990. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1990.
The Issue The issue is whether the district school board has just cause to dismiss an instructional employee for just cause, where it has alleged that the teacher engaged in verbal altercations with students, calling them names and attempting to provoke them to anger.
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 Delucia’s employer. As an instructional employee of the School Board, for which he has worked for more than 15 years, Delucia holds a professional services contract that automatically renews each year and may be terminated only for just cause. During the relevant school year, 2019-2020, Delucia was assigned to Piper High School, where he taught Digital Information Technology. In this proceeding, the School Board seeks to terminate Delucia’s employment for just cause based on two similar, but unrelated classroom incidents, which occurred, respectively, on September 26, 2019, and November 14, 2019. Both situations are simple and straightforward, involving discrete teacher-student confrontations of short duration. The first incident involved a ninth-grade student named K.L. Here is what the School Board alleges took place on September 26, 2019: K.L. was out of his seat during class. Delucia approached the student and stated to K.L., “come here dummy.” Confused, K.L. asked Delucia what he said and Delucia replied, “come here dummy” and “idiot” to K.L. Upon the repetition of the statements to K.L., the verbal confrontation escalated. K.L. told Delucia to “watch his mouth” while Delucia kept repeating the statement “you are a dummy” to K.L., while laughing. On the day of the incident, K.L. gave the school police a written statement describing the “altercation” (as the School Board calls it) in his own words: I was up out of my seat, and Mr. Delucia said “come here dummy.” I ask[ed] him to repeat what he said and he said the same “come here dummy.” I told him to watch your mouth and [he] kept repeating “you are a dummy” many times and I lost my temper and I said next time [you] say that I am going to knock the glasses off your face. Comparison of K.L.’s statement1 to the School Board’s allegations shows that the School Board not only accepted K.L.’s testimony as a credible account, but also cleaned him up as a witness, omitting the undisputed fact that K.L. threatened (in more violent language than his statement admits) to hit Delucia in the face. Delucia wrote a contemporaneous description of the event, too, in a Student Referral Form accusing K.L. of committing disciplinable conduct. This account, which Delucia submitted at 10:32 a.m. on September 26, 2019, immediately after the incident occurred, reads as follows: Student [K.L.] was out of his seat all class. He was told to sit down numerous times. He is constantly touching other students. Then student was argumentative. Then student threatened [me, saying], “I will smack the fuck out of you,” when told to sit down and be quiet … . Then he walked out of class. Out of assigned area, insubordination, disruptive to class and threatening teacher. 1 K.L’s contemporaneous statement, like that, as well, of the student involved in the other incident, Z.L., was made not only to inculpate Delucia, but also (it is reasonable to infer) to exculpate himself, for K.L. knew by then that he was in trouble over the confrontation. The student in such a situation has both the motive and the opportunity to stick it to the teacher—and he has little or nothing to lose by doing so. While these factors, of themselves, do not necessarily discredit the students’ statements, it should be recognized that K.L. and Z.L. are not disinterested eyewitnesses; to the contrary, each was well-placed to make self- serving statements to the school police, which the undersigned has kept in mind in making credibility determinations. Delucia’s statement leaves out the undisputed fact that he (Delucia) used the word “dummy” in this transaction with K.L.2 The dispute regarding Delucia’s use of this word is not over whether he uttered it—he did—but, rather, about whether Delucia intended to disparage K.L.’s intellectual abilities when he said it. Based on conflicting evidence, the following findings are made. The incident involving K.L. began with K.L.’s misbehavior, i.e., being out of his seat and goofing around with classmates, instead of sitting at his desk and working on his assignment. Delucia told K.L. to sit down, which was a reasonable exercise of authority. The student refused to comply, however, choosing instead to give the teacher backtalk. Delucia directed K.L. to stop acting like a dummy. K.L. responded as if Delucia had insulted his intellect— but he had not. Based on the greater weight of the persuasive evidence, it is found that, more likely than not, Delucia merely instructed to K.L. to quit playing the fool, which was the meaning of the word “dummy” in this context.3 It is likely, moreover, that K.L. was aware of this at the time but 2 Delucia’s contemporaneous statements in this referral and a later one relating to the other alleged victim, student Z.L., were made not only when the respective incidents, which had occurred minutes earlier, were fresh in the teacher’s mind, but also prior to any dispute regarding whether the teacher had committed a disciplinable offense. It is unlikely, therefore, that Delucia wrote these statements in hopes of getting himself out of trouble. Moreover, the fact that these statements were written in the heat of the moment, before time for reflection, cuts against the inference that Delucia was launching preemptive strikes—that is, going on offense in anticipation of the students’ reporting him. Indeed, it seems more likely that a teacher in Delucia’s shoes, if he had a guilty mind about the incidents, would not have written the referrals, the better to let the matters drop. These factors are indicia of reliability, albeit not guarantees, which have been considered in evaluating the credibility of Delucia’s contemporaneous statements. 3 To underscore the difference, imagine a teacher telling the class that a student who has just given the wrong answer to a problem is a dummy. In that context, the remark clearly would impugn the student’s intelligence, in an insulting and embarrassing fashion to boot. Such an act of cruelty probably would warrant discipline against the teacher absent extenuating circumstances. The bottom line is that “dummy” is not so intrinsically disparaging that bad intent may be inferred without knowing how it was used; its utterance, therefore, should not result in the speaker’s termination, irrespective of motive, intent, and context. seized on Delucia’s maladroit expression4 as grounds for further disruption and defiance. K.L. escalated the situation by advancing on the teacher’s desk, leaning into Delucia’s personal space, and threatening to “slap” or “smack” the teacher’s “fucking” glasses off his face. While there is some slight disagreement between witnesses as to K.L.’s exact words, the evidence is overwhelming that K.L. threatened to strike Delucia in the face, and that he menacingly used the angry F-word as an intensifier in doing so. The school administration obviously believed Delucia’s testimony that K.L. had dropped the F-bomb because K.L. was later suspended for two days over his use of profanity during the incident.5 After K.L. threatened to hit Delucia, the teacher called security for assistance. Before the security guard could arrive, however, K.L. left the classroom, and the incident ended. The School Board presented some evidence that, as K.L. walked out, Delucia followed him and tauntingly called him a “pussy” to provoke a fistfight. This strikes the undersigned as essentially a separate charge, which was not pleaded in the Amended Administrative Complaint. In any event, the persuasive evidence fails to establish these unpleaded allegations by the greater weight, and thus it is not found that Delucia tried to goad K.L. into fighting by calling him a “pussy.” 4 Delucia has acknowledged that he should have used different language. This practically goes without saying. Obviously, to avoid unfortunate misunderstandings, teachers should refrain from using terms, like “dummy,” which have shades of meaning ranging from playful to insulting depending upon a multitude of social cues. 5 It is curious, however, that the School Board nevertheless credited K.L.’s description of Delucia’s conduct as more credible than the teacher’s own testimony in this regard, given that K.L.’s threat of violence against Delucia comes close to satisfying, if it does not meet, the definition of a criminal assault. See § 784.011(1), Fla. Stat. The fact that K.L. (unlike Delucia) arguably committed a misdemeanor offense during this confrontation casts doubt on K.L.’s reliability as a witness. At hearing, Delucia vented his frustration that the administration had failed to punish K.L. for perpetrating an intimidating threat of violence against a teacher in the classroom. To this, the undersigned adds his bewilderment that the School Board would hand a potentially dangerous student like K.L. the power to cost a teacher his livelihood and possibly his career. The incident of November 14, 2019, involved a student named Z.L., who came to class that day without his student identification badge, which is required for entry pursuant to school policy. The School Board alleges in its Amended Administrative Complaint the following material facts: Delucia asked student Z.L. to put his student identification on his person. Z.L. was working on a class assignment and did not respond immediately. Delucia then stated to Z.L., “Now you brat.” Delucia further stated, “If you would listen and stop being stupid you would hear me.” Confused, Z.L. stated, “I’m stupid?” To which Delucia replied, “Yes, look how stupid you look, little brat.” Delucia then directed Z.L. to leave his classroom. Z.L. obliged and started to leave the classroom. As Z.L. was leaving the classroom, the argument escalated. Delucia confronted Z.L. and stated, “You’re nothing but a pussy.” When this was said, Z.L. confronted Delucia where further words were exchanged and Delucia dared Z.L. to hit him. Z.L. stated he would not hit Delucia. As such, while laughing, Delucia called Z.L. a “pussy” for not hitting him. Security had to be summoned to the classroom. Delucia wanted Z.L. arrested and in hand cuffs. The District’s allegations closely follow Z.L.’s contemporaneous account of the incident (and concomitantly reject Delucia’s). In his handwritten statement for the school police, dated November 14, 2019, Z.L. recalled: I was sitting down doing work then he said wheres your I.D. then i showed him it he said put it on I said OK then he said now you brat and i said one sec because I was typeing something and he said if you would listen and stop being stupid you would hear me and I said “im stupid?” and he said yes look how stupid you look. Then he kept arguing with me I said shut the fuck up. He said oh ok little brat then someone was talking to me then he said you wanna talk get out then i said ok when I was walking out he said “your nothing but a pussy” I said Im a what? then he kept moving up then he said “A pussy” then I went in his face then he said, “what you wanna do” then that’s it[.] At 9:35 a.m., right after the incident, Delucia submitted a Student Referral Form on Z.L., stating as grounds, the following: Student [Z.L.] tried to come into class without an ID. Told to get one. He argued with me. Then when he came in he was told to put it on. He refused. He was told to stop whining about it and put it on. Then he said, “If you don’t shut the fuck up I will slap the fuck out of you.” [I] called for security and student kept disputing the class. I stood in the hallway and the student kept talking. Then I held the door open waiting for security and the student said, “You bitch ass nigga, I will slap the fuck out of you. You are a pussy.” I heard about you and you are on probation. Then he said, “what the fuck are you looking at?” I said, “Nothing.” He then got in my face under the camera and in front of the security guard, Rod. He kept getting in my face about two inches away and cursing and threatening me. Rod took him away. Z.L. was given a five-day suspension for using profanity in front of a staff member. Based on the conflicting evidence presented, it is found that Z.L. arrived at class on November 14, 2019, without his ID badge. Following school policy, Delucia refused to allow Z.L. to enter the classroom without identification. The teacher instructed Z.L. to leave and return with a temporary ID sticker. Z.L. grumbled about this, arguing that he would be late for class if required to obtain a temporary ID, and that his other teachers did not enforce the ID requirement. Z.L. ultimately complied, however, and departed. When Z.L. returned, he held a temporary ID sticker in his hand but refused to peel off its paper backing and put the sticker on his shirt, which is how the temporary ID is supposed to be worn. Delucia directed Z.L. to wear the temporary ID properly, but Z.L. obstinately refused to comply, forcing Delucia to repeat this reasonable command several times, to no avail. Z.L. defiantly informed Delucia that he would put the sticker on when he was ready, as opposed to when the teacher wanted him to do so. Delucia advised Z.L. that he would call security and have the student removed for noncompliance with the ID rule and warned Z.L. not to make a stupid decision. At this point, Z.L. erupted and began threating Delucia with violence. The undersigned finds that Delucia’s statement in the Student Referral Form, as set forth above in paragraph 12, credibly records Z.L.’s abusive and vulgar language. Like K.L.’s threatening behavior in the earlier incident, Z.L.’s combative conduct arguably constituted a criminal assault. It is understandable, therefore, that Delucia wanted Z.L. to be arrested. Harder to understand is why the School Board would regard Delucia’s justifiable desire to see Z.L. brought to justice as grounds for disciplining the teacher. The persuasive evidence does not establish, by the greater weight, that Delucia called Z.L. a “pussy,” tried to pick a fight with the student, dared Z.L. to hit him, or laughed about the situation. To the contrary, the likelihood is that Z.L. attributed his own conduct to, and projected his own motives on, the real victim (Delucia), and the School Board took the ball and ran with it. DETERMINATION OF ULTIMATE FACT The School Board has failed to prove its allegations against Delucia 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 Eric Delucia of all charges brought against him in this proceeding, reinstating him to his teaching position, and awarding Delucia back salary and benefits as required under section 1012.33(6)(a). DONE AND ENTERED this 29th day of March, 2021, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2021. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Phillip James is certified by the Florida Department of Education to teach in the area of mental retardation, and is employed under continuing contract with the petitioner Pinellas County School Board. He has been teaching for approximately nine years. The Paul B. Stevens Exceptional Student Center has various grade levels for educably mentally handicapped students (those with an IQ level ranging between 55 and 68), trainable mentally handicapped students (IQ range between 25 and 55), and profoundly mentally handicapped students (IQ range between O and 25). During the 1981-82 school year, respondent taught in the grade level for students classified as educably mentally handicapped. For the 1982-83 school year, he was assigned to a class containing seven profoundly mentally handicapped students. Howie, one of the students in respondent's class, cannot speak intelligibly, read, write or go to the bathroom by himself. While it is difficult to get Howie to show any response to outside stimuli, he is not difficult to control and is not considered dangerous. On one occasion, respondent was working with Howie attempting to get him to put pegs in the holes of a pegboard. When Howie did not perform the task, respondent took ahold of Howie's hair on his head and yanked his head back by the hair. Howie responded by whimpering, or crying. On another occasion, respondent performed this same "technique" in front of another teacher to illustrate that he was able to get a response from Howie by pulling his hair. Respondent admitted that he did, in fact, pull Howie's hair on several occasions as an aversive therapy technique to elicit response from him. Respondent did not attempt to obtain approval from school authorities prior to initiating such a technique. Student Pam wears a diaper and is often difficult to change. On one occasion, the respondent's teacher's aides were having trouble holding Pam on the changing table, and asked respondent to help them. Respondent came over to the table and tapped Pam lightly on the mouth. Pam's mouth began to bleed. One teacher's aide testified that the tap to the mouth which she observed was not hard enough to cause bleeding, but that respondent told her that he had hit Pam in the mouth earlier. Respondent explained that while he was holding Pam's hands, she was trying to get away from him and pulled his hands toward her mouth in a forceful manner. Student Andrea is in a wheelchair, wears diapers and cannot speak, read or write. She has a self-abusive habit of placing her little finger into her eye socket behind her eyeball, causing her eyeball to bulge out. In order to discourage this behavior, respondent struck Andrea's arm while she was poking her eye so as to drive her finger deeper into her eye socket. It was anticipated by the respondent that this procedure would cause Andrea pain and that she would then voluntarily withdraw her finger from her eye. Respondent had not attempted to obtain prior permission from school officials to modify Andrea's behavior by this method. Student Della is confined to a wheelchair, cannot read, write or speak and wears diapers. She exhibits extreme sensitivity to tactile stimulation. On one occasion, when changing Della's diapers, respondent took the masking tape with which the diapers are secured and pressed it down on Della's leg, which was covered with long, fine hair. Respondent then ripped the tape off Della's leg, causing her to flinch. Respondent admitted that he did stick tape on Della's leg and then pulled it off, but explained that he did this to "desensitize" her. No prior authorization was requested or obtained for this procedure. Appropriate methods of managing student behavior at the Paul B. Stevens Exceptional Education Center were explained to teachers in staff meetings. While aversive therapy is permitted, the appropriate manner of implementation is to begin with the least restrictive method of placing the student in a "time out" room to reduce inappropriate behavior. This is the maximum amount of restraint authorized, absent a written behavior plan for the individual student. Such an individual behavior management plan must receive prior approval from either the school's Principal or Behavioral Specialist after observation of the student and input from various sources other than the teacher seeking to initiate the plan. Respondent was aware of this school policy.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Phi1lip James be found guilty of misconduct in office and gross insubordination and that he be dismissed, effective October 28, 1982, as a member of the instructional staff of the School Board of Pinellas County. Respectfully submitted and entered this 31st day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1983. COPIES FURNISHED: Usher L. Brown, Esquire Associate General counsel P. O. Box 4688 Clearwater, Florida 33518 Lawrence D. Black, Esquire 152 Eighth Avenue SW Largo, Florida 33540 Mr. Scott N. Rose Superintendent School Board of Pinellas County, Florida 1960 East Druid Road P. O. Box 4688 Clearwater, Florida 33518
