The Issue Whether the Respondents committed the acts complained of in the Notices of Specific Charges filed by the Petitioner on June 30, 2005; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of these cases, the Petitioner was a duly constituted School Board charged with the responsibility to operate, control and to supervise the public schools within the Miami-Dade County, Florida public school district. Such authority includes the personnel decisions for non-instructional persons employed by the School Board. At all times material to the allegations of these cases, the Respondents were employed by the School Board as electricians assigned to work from the Coral Reef Satellite Maintenance Operations Department (Coral Reef). The Respondents received their daily assignment at the Coral Reef site and then went to the assigned job location to perform their assigned work. As part of their duties, the Respondents were required to clock in and out at the Coral Reef site. There are two time machines at the Coral Reef site and each employee is responsible for personally swiping his identification badge through the clock. The machine generates a computer record for the time of arrival and departure for each employee. Thus the daily time record can be produced for payroll purposes. Each time clock is under surveillance by a video camera system that records all activity at the time clocks. The video records each employee as he or she clocks in or out. At all times material to the allegations of these cases, the School Board’s policy required that each Coral Reef employee personally swipe his identification badge when clocking in or out. In 1982, the Respondents were arrested for vehicular theft and possession of burglary tools. The Respondents were placed on probation for one year and six months for larceny, burglary and having burglary tools in their possession. Adjudication was withheld. In 1987, the Respondents completed applications for employment with the School Board. Such applications were falsified in that they failed to disclose the arrest and criminal disposition described above. The Petitioner did not discover the falsified applications until 1997, when the fingerprinting of school personnel was required by law. Once discovered, both of the Respondents were issued a letter that directed them to “refrain from any further falsification regarding information requested of you by this employer. Failure to comply with this directive will lead to disciplinary action.” The Respondents did not dispute the prior criminal history, do not dispute that they were warned to refrain from further behavior regarding the falsification of information, and do not dispute that they are subject to the School Board rules regarding non-instructional personnel. On March 5, 2004, Frank Semberger clocked out for himself and the Respondents at 3:30 p.m. Since Mr. Semberger possessed the Respondents’ badges in order to swipe them through the time machine, it is reasonable to find that the Respondents provided the badges to Mr. Semberger. The Respondents have not suggested that their badges were either stolen or missing at the relevant time. By allowing Mr. Semberger to clock out for them, the Respondents violated the Petitioner’s time clock policy. On March 19, 2004, Ismael Perez clocked out for himself on one time clock then proceeded to the second time clock and was video recorded swiping a second time there. The time records established that Juan Perez’ badge was swiped at or near the time Ismael Perez was video-taped swiping a time clock. Moreover, the time records did not disclose a second swiping of Ismael Perez’ badge. That is to say there is no record that Ismael Perez “double swiped” his own badge. It is reasonable to find that Juan Perez provided his badge to Ismael Perez so that it could be swiped at the pertinent time. By allowing Ismael Perez to swipe his badge for him, the Respondent, Juan Perez, violated the time clock policy. By swiping his brother’s badge, Ismael Perez violated the time clock policy. The Coral Reef center uses a form described as a daily status form (DSF) to track the assignments for all tradespersons who are sent from Coral Reef to a job site. The form documents the travel time to and from the job site, the hours at the site performing the work, and the status of the work. All tradespersons are to present the DSF at the job site and have the principal or the principal’s designee sign the form. The DSF is dated (including the time of day) and signed both on arrival and at departure from the job site. Although it is difficult to locate a principal or the principal’s designee on busy days or during early morning hours (when many workers arrive at the job), the School Board’s maintenance employee handbook (which is provided to or is available and known to all trades people employed by the Petitioner) specifically requires that all daily status forms be dated and then signed by all tradespersons reporting time on the DSF. Ismael Perez knew the policy required the signature of the principal or the principal’s designee. In practice, many tradespersons do not take time to locate an appropriate signatory. Such behavior is in conflict with the policy. On March 19, 2004, the Respondents submitted a DSF that indicated they had each worked eight hours at Coral Reef Senior High School installing a new outlet to eliminate an extension cord being used to operate a fish tank. The DSF was purportedly signed by Arthur James, a zone mechanic at the school. Mr. James did not sign the DCF. Someone forged Mr. James’ signature on the form. On March 19, 2004, the Respondents did not spend eight hours at Coral Reef Senior High School installing a new outlet for the fish tank. On March 19, 2004, Julio Horstman and Martin Mikulas went to the Coral Reef Senior High School site several times attempting to locate the Respondents. No one at the site verified that the Respondents had been there on that date. Mr. James who had purportedly signed their DSF could not verify the Respondents were on the job on the date in question. On March 5, 9, 10, 11, and 29, 2004, the Respondents turned in DSFs that were not signed by authorized personnel at Coral Reef Senior High School. The name purportedly signed on the forms was a person not employed at the school. These DSFs were not completed correctly and cannot support the hours represented by them. The DSFs claimed the Respondents had spent 78 hours working on the Coral Reef Senior High School marquee. No one at the school can verify the Respondents were there for that time on the dates in question. Had the Respondents complied with the policy, gotten appropriate signatures on the DSF, the uncertainty would not exist. The time spent at the site would be easily verifiable. As it is, persons who went to the job site looking for the Respondents on the pertinent dates could not find them. The Respondents were assigned a large project at the dance studio for the Southwood Middle School (Southwood). They never completed the job. According to the DSFs submitted by the Respondents they worked 120 hours at the site over the following dates: January 26, 27, 28, and 29; March 15, 17, and 28; and April 29 and 30, 2004. Despite the number of days and the number of hours allegedly expended at the site by the Respondents, the dance instructor at the site saw them for only “a couple of hours.” Given the description of her duties and her constant presence in and near the studio during the pertinent time, it would have been reasonable for the instructor to observe the Respondents more than “a couple of hours” for a 120-hour job. Additionally, the Respondents submitted DSFs that were not signed by the Southwood principal or the principal’s designee. In fact, the DSFs submitted for the Southwood job contained the names of persons not employed at Southwood. As the names cannot be verified, the times of arrival and departure from the Southwood site cannot be verified. It is reasonable to find the Respondents again violated the DSF policy. Similar incidents occurred on March 22, 24, 25, and 28, 2004. On each of these dates the Respondents submitted DSFs that cannot be verified. In each instance the person whose name is on the form is not an employee at the school site to which the Respondents were to work. Mr. Horstmann, who went to the job sites looking for the Respondents, could not locate them. The inclusion of a false name or the forgery of a name on a DSF is contrary to School Board policy. The Respondents knew or should have known that the submission of the DSFs without proper signatories was against policy. Article IV of the DCSMEC contract requires that employees such as the Respondents be disciplined for “just and good cause.” The DCSMEC contract does not require “progressive discipline.” At all times material to the allegations of these cases the Respondents were advised of their rights to have a Union representative present during any conference for the record (CFR) regarding the issues of these cases. Additionally, the Respondents were advised that the School Police were conducting an investigation of the matter and waived their right to representation (legal or Union) during the course of an interview with Detective Hodges. The Petitioner conducted a CFR on November 8, 2004. At that time the Respondents appeared with a Union representative. After receiving information regarding the improper time clock and DSFs, the Respondents were afforded an opportunity to explain or provide additional information that would respond to the allegations. Martin Mikulas recommended to the School Superintendent that the Respondents be terminated from their employment with the school district. That recommendation went to the School Board on May 18, 2005, and the action to suspend and initiate dismissal proceedings against the Respondents for non-performance, deficient performance, and misconduct was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a Final Order approving the suspensions and dismissals of the Respondents. S DONE AND ENTERED this 1st day of February, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2006. COPIES FURNISHED: Dr. Randolph F.Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue No. 912 Miami, Florida 33132-1394 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert A. Sugarman, Esquire Sugarman & Susskind, P.A. 2801 Ponce de Leon Boulevard Suite 750 Coral Gables, Florida 33134 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132
Findings Of Fact Mr. Schrier holds a Florida teaching certificate, No. 586600, which is valid through June 30, 1992, and covers the areas of drivers education, social studies, history, and physical education. Mr. Schrier was employed as a teacher at Palm Beach Lakes Community High School beginning in 1988 by the School Board of Palm Beach County. On September 29, 1988, a newly registered student was assigned to a world history class taught by Mr. Schrier and was given a note to take to Mr. Schrier explaining that she would be an additional student in the class. Mr. Schrier refused to admit the black female student to his class saying that his class was already too large. The student came back to the school office and she was sent back with another note instructing Mr. Schrier to admit the student, but he once again refused. On the third occasion, the student was accompanied to Mr. Schrier's class by the Vice Principal, Glen Heyward, and once again, Mr. Schrier, in the presence of the student, refused to admit the student to the class on the grounds that he already had too many students and that there were too many black students already in the class. All the students heard these comments, which were wholly inappropriate. Eventually the student was assigned to another class, which was already larger than Mr. Schrier's class. His comments had made it untenable for that student to be assigned to Mr. Schrier's class. As the result of the incident, Mr. Schrier received a written reprimand from the Principal of Palm Beach Lakes Community High School on October 10, 1988. Mr. Schrier had a history of difficulty in controlling the conduct of students in his class. It was common for students to be eating, talking or engaged in other acts of misbehavior while he was attempting to teach. On about October 31, 1990, during Mr. Schrier's second period world history class, a number of students were failing to pay attention or otherwise misbehaving and, in general, the class was loud and unruly. In the course of attempting to restore order, Mr. Schrier said to this integrated class that the black students should act like white students. All students had been unruly and it was simply not true that the black students were the only students misbehaving. This comment upset both the black students and the white students and they began to wad paper and throw it at him and to yell at him, which caused him to panic and to push a buzzer to summon the deans from the school office. The deans attempted to restore order and Mr. Schrier was unable to complete that class. Parents of both black and white students learned of the incident and objected to their children being taught by Mr. Schrier on account of his inappropriate racial remark. Black students in his class were both embarrassed and angry about his disparaging comment. As a result of disciplinary action taken against him by the School Board of Palm Beach County, Mr. Schrier's actions became generally known in the community through a story which appeared in the Palm Beach Post. It is inappropriate for a teacher to tell black students to act like white students. Discipline is imposed on the basis of misconduct, not on the basis of race. Mr. Schrier's statement embarrassed and disparaged the students and created a poor learning environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Richard Schrier, be found guilty of violating Section 231.28(1)(h), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B- 1.006(3)(e), Florida Administrative Code. It is further recommended that the Education Practices Commission issue a letter of reprimand to the Respondent, impose an administrative fine of $500 and that the Respondent shall be placed on two years probation with the Education Practices Commission. The terms of the probation shall include the requirement that the Respondent: Shall immediately contact the Education Practices Commission upon any reemployment in the teaching profession within the State of Florida, indicating the name and address of the school at which he is employed, as well as the name, address and telephone number of his immediate supervisor. Shall make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of his performance, including, but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent. Shall make arrangements for his immediate supervisor to provide the Education Practices Commission with a true and accurate copy of each written performance evaluation prepared by his supervisor, within ten days of its issuance. Shall satisfactorily perform his assigned duties in a competent professional manner. Shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006. During the period of probation shall successfully complete two college courses or the equivalent in- service training courses in the areas of cultural awareness and classroom management, with progress and completion to be monitored by the Education Practices Commission. RECOMMENDED in Tallahassee, Leon County, Florida, this 5th day of June 1992. WILLIAM R. DORSEY, JR. 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 5th day of June 1992. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Mr. Richard E. Schrier Apartment 116 500 North Congress Avenue West Palm Beach, Florida 33401 Karen Barr Wilde Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a Caucasian male born December 30, 1952. At present he is 54 years old. Petitioner holds a bachelor's degree in criminology from Florida State University, which he obtained in 1976. He also holds a juris doctorate from Florida Coastal School of Law, obtained in December 1999. In between these two degrees, Petitioner's employment history, included with his application for employment with the School District, indicates that in 1976 he worked at Graham's Dairy farm; from 1979-1980, he worked in telephone communications doing telephone installation, repair, and telephone cable splicing for an unknown employer; and in 1981 he worked for GTE of Florida performing telephone installation and repair. In 1985 Petitioner was the operations manager for Ocala Mack Sales, handling small claims and tag and title work. In 1989, he returned to the telephone industry, splicing cable. There is no indication of the time frame or duration of each job. No credible explanation was given for the significant gaps in his work history, or the reasons for leaving the various jobs listed. Beginning in 1993, Petitioner substituted for a three- month period at Fort King Middle School in Ocala, Florida. This three-month period is the only experience in the education field that Petitioner possesses. That same year, Petitioner began taking additional classes at the community college level part time in an effort to go to medical school. He also stayed home caring for his children. When he was unsuccessful in getting admitted to medical school, he turned his efforts to law school. Beginning in 2001, after graduating from law school and passing the bar exam, Petitioner worked as an attorney for the Department of Children and Families. In April 2004, he resigned in lieu of termination.1/ After an eight-month period of unemployment, he was hired in November 2004 as a corrections officer with the Florida Department of Corrections, and remains in that position today. In 2004, Petitioner began applying for teaching positions in Marion County. To that end, he has applied for and received Statements of Status of Eligibility from the Florida Department of Education indicating that he is eligible for a temporary certificate in the areas of chemistry and biology, grades 6-12, for the period June 22, 2004, through June 22, 2007. The job description for a teaching position in the School District indicates that a candidate must have a bachelor's degree from an accredited institution and be certified by the State of Florida or have district vocational certification. School District Policy 6.10 requires that all personnel be appointed as prescribed by Florida Statutes and applicable rules of the School Board and the State Board of Education. The job description also lists the following in terms of required knowledge, skills and abilities: Knowledge of child growth and development, especially of characteristics of children in the age group assigned. Knowledge of prescribed curriculum. Knowledge of current educational research. Basic understanding and knowledge of use of current technology. Knowledge of learning styles and skill in using varied teaching methods to address student learning styles. Skill in oral and written communication with students, parents, and others. Ability to plan and implement activities for maximum effectiveness. Ability to effectively assess levels of student achievement, analyze test results, and prescribe actions for improvement. Ability to maintain appropriate student supervision so that students have a safe and orderly environment in which to learn. Ability to work effectively with peers, administrators, and others. Certification by the Department of Education in the subject matter to be taught is generally required. The School District may waive certification in a particular area only when there is a critical need for teachers in that area and there are no certified teachers available. Even in that instance, the School District usually looks for a closely related certification area. For example, when trying to fill special education positions, the School District will look first for applicants certified in reading if no one certified in special education is available. In addition to certification for individual subject areas, a teacher may obtain what is referred to as a middle grades integrated certification. Someone with this certification is preferred over other applicants in a middle school setting, because they can teach science, social studies, language arts and math, giving principals more flexibility in filling positions that might include teaching in more than one area. Petitioner does not hold a middle grades integrated certification. Petitioner has applied for 32 science teaching positions, two biology positions and one chemistry position in the School District. In addition to these 35 science-related positions, Petitioner has applied for 47 additional teaching positions in the reading and exceptional education, areas for which he understands there is a critical need, and in criminology and legal systems, areas where he believes he has practical experience. Because he is not certified in these areas, they would be considered out-of-field. Petitioner could only be considered for those positions in the event that there was no qualified and appropriately certified candidate available. He has also applied for approximately 50 other positions for which he is not certified. Petitioner has received five interviews for positions within the Marion County School District. He has received no offers of employment. The School District fills vacancies for teachers in several different ways. A person already working as a teacher in the School District may request a transfer, for example, to a different subject area for which they are qualified or to a different school. Under the teachers' collective bargaining agreement with the School District, that teacher is automatically considered as the preferred candidate for any vacancy consistent with their request, unless the principal at the hiring school presents a compelling reason why they should not be hired. Under these circumstances, no vacancy would be advertised. The School District also encourages applicants to participate at an annual district-wide Job Fair. At that Job Fair, principals at different levels (high school, middle school, elementary school) are available to conduct interviews. Candidates do not necessarily interview for particular positions; they interview with whatever principals are available. Finally, applicants may be called to interview with principals for openings at individual schools, should there not be a qualified applicant requesting a transfer or under "conditional contract" with the District. Conditional contracts will be discussed in more detail below. During interviews at the Job Fair, principals use standardized interview questions that have been approved by the School District. The standardized interview questions have eight categories of questions based upon qualities one would expect to find in a teacher: 1) likes kids; 2) dependable; 3) content knowledge; 4) ability to manage; 5) motivation; 6) positive attitude; 7) team player; and 8) communication. The interviewer selects a question from each category to ask the applicant, and awards one to three points per question, based on whether the answer exceeds expectations, meets expectations or does not meet expectations. The highest total score an applicant can receive based on his or her answers to these questions is 24. Principals may only choose from the questions provided. They may clarify a question should an applicant ask them to, but they may not ask other questions. If the principal is favorably impressed by an applicant and has a vacancy at his or her school in the area for which the applicant is certified, the principal may offer that applicant a position at the interview. If they have no such position available but think the candidate would be a good hire for the School District, they may offer what is referred to as a conditional contract. A conditional contract does not entitle the applicant to a job. However, as vacancies arise within the School District, if there are individuals with conditional contracts that are qualified for the vacancies, those individuals are referred to the hiring principal for consideration. The hiring principal chooses from among those candidates with conditional contracts, and if there is only one such candidate, he or she would, absent extraordinary circumstances, get the job. Petitioner participated in the School District's Job Fair in June 2006. He was interviewed by Lisa Krysalka, the principal at Belleview Middle School. When Petitioner appeared for his interview at the Job Fair, he was not wearing a suit and did not bring a resume. Ms. Krysalka's notes reflect that he did tell her he had served as a substitute 10 years before. Based on his answers to the standardized questions, Ms. Krysalka gave Petitioner an overall score of nine. She ranked his answers as not meeting expectations for eight out of nine questions. Her scoring was reasonable in light of the answers he gave. For example, when asked to describe his classroom management plan, Petitioner indicated that he had no plan because he did not have problems with discipline. When Petitioner was asked how he would get his students excited about entering the classroom, he stated that most kids are excited already, and he would have a plan (although unspecified) and stick to it. Other answers he gave were either not responsive to the questions asked or did not relate to a school setting or to work with children. Ms. Krysalka felt some of Petitioner's responses were unrealistic and showed that he was unprepared to teach middle school in today's climate. Ms. Krysalka's assessment is reasonable. Petitioner's answers to these standardized questions do not demonstrate that he possessed the knowledge, skills and abilities required to perform as a teacher in the Marion County School District. Petitioner interviewed at individual schools outside the purview of the Job Fair. None of those interviews resulted in offers for a teaching position. While Petitioner testified that he has applied for dozens of positions, he presented evidence regarding only seven of those positions. The qualifications for the successful candidates for the positions are listed below. Petitioner admitted at hearing that he had no personal knowledge as to the qualifications of any of these candidates. He simply felt that, given the number of positions for which he applied, the only reasonable explanation for his not getting a teaching position was his age. Matthew Bates was born in 1981, and is younger than Petitioner. He has a B.A. in history and is working on his master's degree in educational leadership. He has passed the M/J Integrated Certification exam. Bates was originally hired in September 2005 at Dunellen Middle School for a "split" position, teaching both seventh grade science and language arts. Mr. Bates requested and was granted a transfer within the School District under the collective bargaining agreement to fill a vacant seventh grade science position at the same school. Consistent with the School District's collective bargaining agreement, no other candidate was considered or interviewed. Petitioner has not established that he is equally qualified or more qualified than Mr. Bates for the position sought. Ronald Long was born in February 1981, and is younger than Petitioner. Mr. Long was selected for a science position at Forest High School. He holds a B.S. degree in biology; served as a substitute teacher for the School District during the 2003-2004 school year, and was an assistant and junior varsity basketball coach at Trinity Catholic High School during that time. Mr. Long's resume also indicates that he has worked with the Boy Scouts and several basketball teams at both the high school and college level. Based on his interview and experience, Milford Lankford, the principal at Forest High School, believed Long to be the better qualified candidate. Petitioner was interviewed for the position at Forest High School. At the time of his interview, Mr. Lankford was filling two positions in the science department. The first position was filled by Mr. Downs, who was 63 years old at the time he was hired. However, based on his interview, Mr. Lankford did not feel that Petitioner had the skills necessary to be successful in the classroom. His impression was confirmed after Petitioner interviewed with his assistant principal, Ms. Bounds. Mr. Lankford had eliminated Petitioner from consideration by the time he offered the second position to Mr. Long. In any event, his determination that Mr. Long was better qualified for the position is reasonable. David Mahfood, was born in 1983 and is younger than Petitioner. He was selected for a physics position at one of the high schools in the School District. The position required that the applicant be highly qualified in and certified to teach physics, and Mr. Mahfood met those qualifications. Petitioner is not certified in physics, as required for this position. Bret Mills, born in 1982, is also younger than Petitioner. He has a middle grades integrated certification. Mr. Mills holds a B.S. in animal biology and while his resume does not reflect any teaching experience, it does reflect experience working with children in church and little league, as well as working as a literacy program leader while at the University of Florida. Mr. Mills' certification was preferable for the position being advertised. Petitioner did not establish that he was equally or more qualified than the successful candidate for this position. Michael Orloff was hired for a seventh grade science position at West Port Middle School. Mr. Orloff was born in 1958, and is four years younger than Petitioner. He has a B.S. in marketing with a minor in chemistry. He was interviewed by Greg Dudley, the principal of West Port Middle School during the Job Fair. Based upon a favorable interview, he was offered a position at that school in accordance with School District policy. There is no evidence that Mr. Dudley even knew of Toms' application at the time that he offered Mr. Orloff the job. Mr. Richard Williams was born in 1971, and is younger than Petitioner. He was offered a position teaching science at Howard Middle School. Mr. Williams holds a B.S. degree in biology and a master's degree in environmental management. He also has experience as a resource teacher with Eckerd's Youth Alternatives and served in the Peace Corps as a forestry extension agent. Mr. Williams originally worked beginning in September 2005 as a substitute teacher at Howard Middle School. He participated in the 2006 Job Fair and interviewed with the incoming principal at Howard Middle School. Based on his outstanding scores on the Job Fair Interview, he was offered a job immediately. Petitioner was not a candidate brought to the attention of the hiring principal at the time of the Job Fair. As previously indicated, Petitioner's interview scores at the same Job Fair were not impressive. Unlike Petitioner, Mr. Williams' degrees and experience are in fields related to the area he was hired to teach. Mr. Williams was the more qualified candidate for the position for which he was hired. Finally, Kristen Wood was born in 1982 and is younger than Petitioner. She was hired to teach agriculture and biology. Ms. Wood graduated from the University of Florida with a major in agricultural education and had a teaching internship in agriculture. She was also certified to teach in both biology and agriculture, and had significant experience with the Florida Future Farmers of America Association. Petitioner is not certified in agriculture and had less experience related to education. Ms. Wood was the more qualified applicant for the position sought.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint and denying Respondent's request for attorney's fees and costs. DONE AND ENTERED this 17th day of August, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 17th day of August, 2007.
The Issue Whether Respondent's teaching certificate should be revoked or otherwise disciplined on grounds that he violated Section 231.28(1), Florida Statutes (1979), as alleged, by making sexual advances toward his female students on four separate occasions.
Findings Of Fact Based upon the evidence presented at hearing, including consideration of the validity and demeanor of witnesses, the following facts are determined: Respondent, Lawrence Longenecker ("LONGENECKER"), at all times material hereto held a Florida teacher's certificate: Certificate No. 283801, Post Graduate, Rank II, valid through June 30, 1986, covering the areas of secondary biology, junior high science, guidance, and junior college. (Joint Exhibit 1.) LONGENECKER was employed as a science teacher at Madeira Beach Middle School, a public school in Pinellas County, Florida, during the 1976-1977 and 1977-1978 school years, until his resignation in January, 1978. (Joint Exhibit 1.) I. Longenecker's Sexual Advances Toward Three Female Students The COUNCIL alleged, and has established that LONGENECKER made sexual advances toward three (3) female students on four separate occasions. The first incident occurred during the early morning of January 1, 1977. Robin Hamilton, an eighth grade student of LONGENECKER's at Madeira Beach Middle School, had just finished babysitting for LONGENECKER on the evening of December 31, 1976. While driving her home, LONGENECKER stopped behind a Publix Supermarket across from Madeira Beach Middle School, and asked her if he could "take her up on her offer", referring to his missing a chance to kiss her during a friendly mistletoe Christmas celebration at school earlier in the day. Thinking little of it, she said "okay"; he then kissed her. Five minutes later, he said, "What about one for the good luck of next year--in ninth grade?", and kissed her again. She let him. He then continued driving her home, but took a longer route than required. She told him, "This isn't the right way" home, and he answered, "Don't worry about it, I'll take you home." He then kissed her on the lips, again, putting his arms around her and pulling her closer. She became scared, and insisted he take her home, which he then did. She reported the incident to her parents the next day, and they insisted she tell the school principal; she then reported the incident to John Larson, the assistant principal. LONGENECKER denies having made these advances toward Miss Hamilton. However, her demeanor was direct and detached; she evinced no bias, interest, or motive to falsify, and her testimony is accepted as persuasive. (Testimony of Hamilton.) The second incident involved LONGENECKER and Elizabeth Karen James, another eighth grade student at Madeira Beach Middle School. He taught science, and she was his student assistant who helped prepare the laboratory, grade papers, and take roll. During January or February, 1977, she was working alone in the back room of the science laboratory; she had her face toward the wall and was leaning against a table. LONGENECKER, while attempting to show her something, leaned heavily against her--the lower part of his body pressing against her lower back side--and placed his hands on her shoulders. The continued pressure of his body against hers--for 2 to 3 minutes--made her scared. While this was going on, he continued to instruct her on preparing the lab for the next day. She waited until he was through and then quickly left the room. Later, she reported the incident to her parents. Approximately 2 to 3 weeks later, the third incident occurred when she was, again, working in the laboratory, and standing two feet from the door. She was leaning against the counter; he came up behind her and leaned heavily against her, in the same manner as he had done previously. She became scared, turned around, and tried to leave. He took her hand, and asked her to remain because he wanted to show her something else. LONGENECKER denies having made sexual advances toward Miss James. However, her testimony was not tainted by bias, intent, or motive to falsify; she evidenced no ill-will or hostility toward LONGENECKER, and her testimony is accepted as persuasive. (Testimony of James.) In February or March, 1977, Miss Hamilton and Miss James separately reported the above incidents, involving LONGENECKER, to John Larson, the school's assistant principal. Larson spoke with Dr. Robert Moore, the principal, and they both met with LONGENECKER to discuss the complaints. Dr. Moore expressed his concern over the alleged behavior and explicitly warned LONGENECKER that such conduct was unethical and jeopardized his teaching position. LONGENECKER neither admitted or denied the accusations, but listened, quietly. (Testimony of Moore, Larson, Longenecker.) The fourth incident occurred approximately nine (9) months later, on or about December 3, 1977, and involved Sharon O'Connell, a ninth grade student at Madeira Beach Middle School. LONGENECKER was her science teacher; she was a good student and liked him as a teacher. On the evening of December 3, 1977, Miss O'Connell was babysitting for LONGENECKER. LONGENECKER and his wife returned home at approximately 12:30 a.m., and he drove her home. Instead of taking her directly home, he took her to Madeira Beach Middle School, ostensibly to "pick up something." (Tr. 87.) When they arrived, he took her on a tour of new buildings that were being constructed at the school. It was a cold evening, and he put his arm around her, as if to keep her warm. He moved closer to her, as she was leaning against a wall, and pressed his lower body against her buttocks area. At the same time, he put his hands underneath her arms and rubbed her breasts. She tried to tighten her arms, and became scared; he acted like nothing out of the ordinary was occurring, and continued to talk of the construction work. They then walked to another area of the school, where he leaned her against a door, and repeated his earlier conduct--pressing his lower front against her buttocks and fondling her breasts. He was breathing heavily, and Miss O'Connell was embarrassed and scared. She then pulled away, and asked him to take her home. After several requests, he complied. She reported this incident to her parents, who immediately contacted the Superintendent of Schools. LONGENECKER denies having engaged in this conduct toward Miss O'Connell. Her testimony is, however, accepted as persuasive; she was visibly embarrassed by having to describe this incident, but expressed no hostility toward LONGENECKER; indeed, she indicated sympathy for his plight. (Testimony of O'Connell.) II. Effect of Incidents Upon Longenecker's Effectiveness as a School Board Employee After the incident involving Miss O'Connell was reported, LONGENECKER was called to Dr. Moore's office and confronted with the accusation. LONGENECKER neither admitted, nor clearly denied, the accusation. He was asked to resign immediately, which he did. Since that time, he has held several jobs in commercial establishments, and his efforts to find work as a teacher have been unsuccessful. (Testimony of Moore, Larson, Longenecker.) LONGENECKER's complained-of actions toward the three female students seriously reduces his effectiveness as a teacher at Madeira Beach Middle School and the immediate area. His misconduct has become generally known to faculty members, students, and their families, and his reemployment as a teacher at Madeira Beach would be opposed by parents and students. (Testimony of Moore.)
Conclusions Respondent is guilty, as alleged, of violating Section 231.28(1), Florida Statutes (1979). Due to the repetitive nature of his misconduct and the prior practice of the Board of Education in cases such as this, Respondent's teaching certificate should be permanently revoked.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Lawrence LONGENECKER's teaching certificate No. 283801 be permanently revoked. DONE AND ENTERED this 25th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of August 1984.
The Issue Whether there is just cause to terminate the Respondent, Ronnie Bell (Respondent), from his employment with the Petitioner, Miami-Dade County School Board (Petitioner or School Board).
Findings Of Fact The Petitioner is the authorized entity charged with the responsibility to operate, control and supervise the public schools within the Miami-Dade County school district. Such authority includes the discipline of employees of the School Board. At all times material to the allegations of this case, the Respondent was an employee of the School Board. As an employee of the School Board, the Respondent was subject to the laws, rules, and terms of the union contract pertinent to employment with the Petitioner. Nick JacAngelo is the principal of Miami Coral Park Senior High School. Mr. JacAngelo was directly responsible for the employees at the school and personally knows the Respondent. The Respondent began work at Miami Coral Park Senior High School on October 11, 2004. Employed as a custodian at the school, the Respondent was responsible for cleaning the areas assigned to him. According to Mr. JacAngelo, it came to his attention that the Respondent’s work area was not being properly cleaned and maintained. On November 19, 2004, Mr. JacAngelo informed the Respondent that his work was substandard and unacceptable. Mr. JacAngelo informed the Respondent that his work would need to improve. Additionally, the Respondent was advised as to the standard of work that would be required and expected of him in fulfilling his custodial responsibilities including job attendance. A second conference was conducted with the Respondent on December 7, 2004, to again reiterate the duties and expectations for him. The Respondent did not improve his job performance. In addition to his failure to maintain his assigned area, the Respondent was excessively absent from the work site. On January 13, 2005, the Respondent was again informed of a need to improve his job attendance and work performance. Moreover, the Respondent was advised that he could not leave the work site without authorization prior to the termination of his workday. It was expected that the Respondent perform his duties and attend to his assigned area for the entire workday. The Respondent’s work performance and attendance did not improve. On January 28, 2005, the Respondent was cited for poor job performance and insubordination in his continued refusal to improve his effort. On February 14, 2005, Mr. JacAngelo met with the Respondent to address his insubordination, defiance of authority, failure to complete assigned areas of custodial responsibility, and his unauthorized departure from the work site. Because the Respondent wanted to have his union representative present during the discussion the meeting was rescheduled. The parties met on February 15, 2005, to review the items noted above. At that time, the Respondent was reminded that his workday departure time was 11:30 p.m. He was to present for work at 2:00 p.m., take no more than half an hour break for his meal, and remain onsite the entire time. The Respondent’s work performance did not improve over time. On May 12, 2005, he was observed to be in his vehicle the majority of the work shift. He did not perform his work assignment and made no explanation for his failure to clean his area. This incident was memorialized in a memorandum dated May 18, 2005. As to this and other previous incidents, the Respondent did not deny the conduct complained. Based upon the Respondent’s failure to improve, his continued poor work performance, his numerous opportunities to correct the deficiencies, and his insubordination, Mr. JacAngelo recommended that the Respondent be terminated from his employment with the school district. Mr. JacAngelo had attempted verbal counseling, written memorandums, and official conferences with the Respondent. None of the efforts to remediate Respondent’s work performance proved successful. Mr. Carrera is the principal at South Hialeah Elementary School. Mr. Carrera was the Respondent’s supervisor at a work assignment prior to his reassignment to Miami Coral Park Senior High School. According to Mr. Carrera, the Respondent constantly left his work site early, failed to clean his assigned area, and admitted to stealing a police surveillance camera (there had been 70 cases of theft in the area the Respondent was responsible for so the police set up a camera). In short, the Respondent’s work performance at South Hialeah Elementary School was unacceptable. The Respondent was warned during his tenure at South Hialeah Elementary School that continued failure to perform his work appropriately would lead to disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing the Respondent from his employment with the school district. S DONE AND ENTERED this 5th day of June, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronnie R. Bell 16220 Northwest 28th Court Miami, Florida 33054 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue Should discipline be imposed on Respondent's Florida Educator's Certificate No. 878226, based upon the allegations in the Amended Administrative Complaint, Case No. 034-0140-Q, before the State of Florida, Education Practices Commission?
Findings Of Fact Respondent holds Florida Educator's Certificate No. 878226, covering the areas of chemistry, which is valid through June 30, 2004.2/ At all times pertinent hereto, the Respondent was employed as a science teacher at Gulf Coast High School Charter, in the Escambia County School District. STIPULATED FACTS Gulf Coast High School (GCHS) conducted a field trip to Pensacola Beach on May 10, 2002. No certified lifeguards were employed by GCHS for the May 10, 2002 beach field trip. GCHS conducted a similar field trip to Pensacola Beach in April 2001. For the April 2001 (trip), GCHS claims it employed two certified lifeguards. Fifty-eight students attended the May 10, 2002 beach field trip. The following eight GCHS employees accompanied the students to the beach: Russell D. Bourne, Transportation Supervisor --"Mr. Bo" Deanna Jones, Science Teacher Felicia Churchwell, English Teacher Anthony Bassett, Social Studies Teacher Alphonso Lewis, Behavioral Tech Minnie Robertson, Secretary/Attendance Clerk Ray Steven White, Student Services Specialist Melvin Burnett, Behavioral Tech Mr. Burnett left the field trip around lunch time, before the drowning took place. For each student attending the beach field trip, parents signed a field trip authorization form and attached a $5.00 payment for expenses. The beach field trip form specifically stated the student would be going to the beach and that a "certified lifeguard would be on duty." Although the field trip was planned by Assistant Principal Kevin Jones, the person in charge at the beach was Felicia Churchwell, a second-year English teacher. Ms. Deanna Jones took no part in planning the field trip. Both Assistant Principal Kevin Jones and Trip Supervisor Churchwell attended last year's beach trip (the 2001 trip) and knew lifeguards were on duty at that time. Neither Assistant Principal Kevin Jones, nor any other employee of GCHS polled students to ascertain whether students could or could not swim. Neither Assistant Principal Kevin Jones, nor any other employee of GCHS polled employees to ascertain whether the employees attending the field trip could or could not swim. Prior to leaving the school on May 10, 2002, the fifty-eight students were shown the safety video: A Safe Visit to the Beach. The video described the meaning of the beach flag system and provided information on how to manage dangerous surf conditions such as rip tides. Aside from a viewing of the video, Assistant Principal Kevin Jones' only other precautionary instruction to the students was that they were not to go into the water deeper than their navels. The students boarded two GCHS buses and were taken to the gulf side of the beach near the entrance to Fort Pickens. They arrived at the beach at approximately 10:30 a.m. Ms. Deanna Jones immediately advised Ms. Churchwell and other staff that no lifeguards were on duty and yellow flags were flying. Ms. Churchwell stated that she was not concerned that a lifeguard was not present. Students remained in the water for nearly an hour and a half before being called out of the water for a lunch break. All students left the water for lunch. The students were permitted to return to the water following the lunch break at approximately 12:45 p.m. Two staff members, Ms. Deanna Jones and Mr. Alphonso Lewis, stayed at the pavilion. Mr. Lewis was cleaning up from lunch and Ms. Jones was watching the students who were still eating. The remaining staff members returned to the beach to monitor the students who were either sitting or standing near the water's edge observing the students. Some students began to go out into deeper water, venturing beyond the sandbar approximately ten to fifteen yards from shore. At that time Social Science teacher Anthony Bassett began to yell to the students to get out of the water. Students Isaiah Baker, Colan White, Johnny Smith, Ryan Dumas and the decedent, Earl Beasley, were together in the water. No staff person observed the decedent in any danger. No staff person observed the decedent drown. Staff at the beach determined the decedent was missing only after students leaving the water indicated the decedent was missing. Initially GCHS staff believed the decedent could have been in the rest room. When the decedent could not be located, Anthony Bassett called 911. No GCHS personnel, except Alphonso Lewis, entered the water to search for the decedent. Mr. Lewis traveled to the sand bar, but was discouraged from going further by another GCHS employee due to the dangerous surf. Mr. White searched the water visually through the zoom feature on his camera. Rescue personnel arrived with jet skis about ten minutes after the 911 call was made. The decedent's body was found submerged ten to fifteen minutes later approximately fifty yards off shore. Rescue personnel performed CPR at the scene and Life Flight took the decedent to Gulf Breeze Hospital. Earl Beasley was pronounced dead thirty minutes later. ADDITIONAL FACTS On February 26, 2002, Respondent commenced her employment at GCHS. During employment at GCHS Respondent had not been told about school policies in relation to serving as a chaperone on a field trip for the student body. The persons responsible for planning the May 10, 2002 outing for the school were Kevin Jones, the assistant principal, and Felicia Churchwell, an English teacher. Mr. Jones and Ms. Churchwell did not delegate to Respondent any planning or organizational responsibilities associated with the field trip. In that connection, Respondent was not called upon to determine whether the students could swim. Respondent was not called upon to arrange for a lifeguard to be in attendance at the outing. Assistant Principal Jones did not attend the field trip. Ms. Churchwell was placed in charge of the field trip and served as supervisor at the beach. Respondent had no supervisory authority or control over other persons who served as chaperones on the field trip. Respondent was required by Assistant Principal Jones to attend the field trip as a chaperone. Assistant Principal Jones had informed Respondent of the duty to act as chaperone a couple of days before the field trip. It was the intent of Assistant Principal Jones that all students who would participate in the field trip watch the video on safety. After the students watched the video Mr. Jones told the students that they should not go deeper in the water than their belly buttons. Earl Beasley did not view the safety video. But he was allowed to go on the field trip. There is no indication in the record that Respondent participated in the decision to allow Mr. Beasley to participate in the outing without a knowledge of the instruction presented in the safety video. When the party arrived at the beach, there was a lifeguard stand but no lifeguard. The lifeguard stand had a sign displayed indicating that the lifeguard was not on duty. A yellow flag was displayed reminding swimmers to proceed with caution. When Respondent told other chaperones, to include Ms. Churchwell about the absence of the lifeguard, those other persons responded that they knew that the lifeguard was not on duty. Before lunch Respondent spent time down by the water watching students in her role as chaperone. Some students were in the water, others were not. Some students were observed violating the assistant principal's instruction not to go deeper than their belly buttons. Respondent called out to those students who exceeded the depth allowed. The students came closer to the shore where they could understand what was being said. Respondent then told them that Mr. Jones had said that they could not go above their belly buttons. Beyond the time at which she had offered this reminder to stay within the bounds for depth, Ms. Churchwell allowed the students to return to the deeper water. Later in the morning Respondent reminded the students another time to not go so deep in the water. By that point the water was becoming more choppy. A short time later the students were called for lunch. The students went to a location behind the sand dunes away from the beach, where a picnic area was located to have their lunch. The students were required to remain out of the water for a period of time beyond the point in time when they ate their lunch. From the picnic area, one could not see the immediate shoreline because of the dune height. Respondent remained in the picnic area after lunch to watch some students who had remained in that area. Respondent became aware that Earl Beasley was missing when people began to approach the picnic area by coming across the boardwalk that topped the dune. These persons were trying to find the missing student in the restroom areas adjacent to the picnic area. Respondent was told words to the effect that Earl Beasley was in the water and in distress. Having been told about Mr. Beasley's circumstances, Respondent returned to the beach. She observed that the water was even rougher than it had been before. Respondent was prepared to assist in the attempt to rescue Mr. Beasley. She decided against this course given the water conditions. The efforts of others to save Mr. Beasley were not successful.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered dismissing Counts 1 through 3 of the Administrative Complaint, upon a finding that Respondent has not violated Section 1012.795(1)(f) and (i), Florida Statutes (2002), nor has she violated Florida Administrative Code Rule 6B-1.006(3)(a).3/ DONE AND ENTERED this 13th day of April, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 13th day of April, 2005.
Findings Of Fact Petitioner is an adult black female. At all times material, she was employed by Respondent, School Board of Nassau County, as a Guidance Counselor at Fernandina Beach High School. Petitioner was initially employed by the Respondent in 1959 as a teacher of physical education, but she has been a guidance counselor in her present location since the 1972 school term. Her total tenure with the School Board is approximately 29 years. She is certified in Administration and Supervisory Guidance, Physical Education, Health Education, and Driver Education. On June 28, 1989, the Respondent posted/published an advertisement for the newly created position of "Assistant Principal-Student Services" (AP-Student Services) at Fernandina Beach High School. The new position had come about through a study commission. The membership of the commission included Fernandina Beach High School Principal William R. Fryar. The commission had been appointed by Respondent's Superintendent Craig Marsh. Over the course of a year, the commission had developed the criteria and threshold qualifications for the new position along with other proposed staffing changes. The method by which a person would be hired for any such position with Respondent would include meeting the threshold qualifications, passing successfully through an interview panel, interviewing with Principal Fryar, being recommended by Principal Fryar to Superintendent Marsh, and being recommended by Superintendent Marsh to the School Board. The School Board would do the ultimate hiring. The threshold qualifications for the position vacancy, as stated in Respondent's June 28, 1989 announcement included the following: a) three years counselling experience preferred at 9-12 level; b) hold or be eligible for Level I certificate; c) hold or be eligible for Florida Counselor certification; and d) experience in managing student data entry, Florida experience preferred. On July 24, 1989, Petitioner applied for the position vacancy. She was the only one of Respondent's employees who met the foregoing qualifications. Only one other person, a white male, submitted an application in response to the June 28, 1989 position vacancy announcement. The white male was from out of state but eligible for in-state certification. Both Petitioner and the sole other applicant met the published/posted threshold qualifications. Petitioner and the sole other applicant were individually interviewed by a three person interview panel made up of three state certified interviewers. Two interviewers were white females and one interviewer was a black male. All the interviewers were employed by the Respondent. The white male applicant received a slightly higher interview score than did Petitioner, but neither scored outside the average range. The interview scores were not passed on to Dr. Fryar, and the committee did not relay any recommendation to hire either applicant. Dr. Fryar did not interview either applicant because there were only two applicants and because neither applicant had been recommended by the interview panel. Consequently, neither Petitioner (a black female) nor the white male was selected to fill the vacancy. The Respondent had previously and consistently hired only from a field of three or more applicants. Page 3, Section II. C. 12. of the School Board of Nassau County Human Resource Management Manual (Adopted 12/11/86; Revised 6/22/89) provides, "The selection system includes the recommendation of three to five candidates to the superintendent." Superintendent Marsh's personal preference also was to not hire for any position unless there was a field of at least three applicants who had successfully passed the interview panel stage. On August 3, 1989, the position vacancy remained open and the Respondent published a readvertisement for the position. The threshold qualifications and the duties projected for this position remained identical to those published in the June 28, 1989 announcement. Respondent received only one application in response to the August 3, 1989 advertisement. That applicant subsequently withdrew. When he was not hired, the white male applicant had asked not to be notified of future advertisements. Petitioner did not apply in response to the August 3, 1989 readvertisement although she was still interested in the position, because she had not received the second advertisement. Petitioner discovered she had not received the second advertisement and was upset about it because Respondent had notified her that her first application would be kept on file for a year. After the second advertisement netted no applicants, the same consideration of not hiring from a field of applicants of less than three still obtained. Presumably, that consideration would have prevailed even if Petitioner had re-applied in response to the second advertisement. Originally, the belief had been that the AP-Student Services should be required to hold a counselling certificate because he or she would oversee three counsellors in addition to being required to devise, upgrade, and maintain student data bases on a computer. However, because Dr. Fryar and Superintendent Marsh and their advisers believed there was a greater need to develop a data base on the students than to have yet another counselor, Dr. Fryar and Superintendent Marsh incorporated the duties of the Fernandina Beach High School's data systems manager into the threshold qualifications for AP-Student Services. Also, in order to widen the potential field of applicants, they revised the requirement of counselor certification out of the threshold qualifications. Neither revision was done by running the idea through a committee again. On October 16, 1989, the Respondent advertised the AP-Student Services position for a third time. In an effort to get more and better applicants, this third advertisement was circulated differently than the two prior advertisements. Respondent devised a new distribution system for its third advertisement. Under the new system, the specific schools received the posting directly rather than having it funneled to them through the district. For the reasons indicated above, the threshold qualifications for the position as advertised the third time were different from those stated in the June 28, 1989 and August 3, 1989 postings in the following particulars: a) the requirement of guidance certification was eliminated; b) "three years counseling experience preferred at 9-12 level" was amended to read "three years counselling and/or other student services experience preferred at 9-12 level"; c) the requirement of "hold or be eligible for Florida Counselor certification" was deleted in its entirety; and d) the requirement of "experience in managing student data entry Florida experience preferred" was amended to read, "experience with computerized data systems: Florida experience preferred." In response to the October 16, 1989 vacancy posting, the Respondent received approximately 10 applications. Eight of the ten applicants were interviewed. Petitioner timely submitted her application in response to the October 16, 1989 vacancy posting. Petitioner met the changed threshold qualifications and was interviewed. On November 1, 1989, interviews were conducted with eight applicants, including Petitioner, all of whom met the threshold qualifications. The interviewees consisted of five white males, one white female, one black male, and Petitioner, a black female. The interviewers were all certified interviewers, and this time the interviewers were selected from outside the school district, so they were not Respondent's employees. The interviewer pool was racially mixed. Three interviewers interviewed each applicant. Not all interviewees were interviewed by the same interviewers. Petitioner was interviewed by Cathy Merritt, Bob Kuhn, and Doris Thornton. Ms. Thornton is black. At the conclusion of the interviews, the interviewers, through data integration, by consensus and not by averages, awarded a consensus score to each applicant in each of fourteen categories. The three applicants with the highest scores consisted of one black male and two white males. Petitioner's scores were lower than those of the top three applicants and in the average range. Principal Fryar interviewed the three highest scoring applicants without benefit of knowing their scores. However, the applicant ultimately appointed to the position did, indeed, have the highest scores among all the applicants. His scores were all above average. The procedure used to fill the new position is called "target selection," and is enumerated in the School Board's Human Resource Management Plan, which plan is mandated pursuant to Section 231.087, F.S. and approved by the Florida Council on Educational Management. Petitioner was not selected for the position of AP-Student Services. She was notified on November 10, 1989 of the selection of one of the three finalists, a white male, Richard Galloni. Prior to his promotion, Mr. Galloni was chairman of Fernandina Beach High School's mathematics department and served as the school's data systems manager. On December 28, 1989, Petitioner timely filed a charge of racial discrimination with the Florida Commission on Human Relations pursuant to Section 760.10, F.S. alleging that she had been discriminatorily denied promotion to the position of AP-Student Services. All of the administrators of Fernandina Beach High School are white. Approximately, 8% of the teaching faculty is black. Twenty-five per cent of the student body is black. Greater percentages of blacks in each category exist in other schools in the County.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing the Petition. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of April, 1992. ELLA JANE P. DAVIS, 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 2nd day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4323 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-9, 11-21, and 23: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 10: Rejected as not supported by the record. Covered in Findings of Fact 13- 15. 22: Covered as modified to more correctly reflect the record in Findings of Fact 10-12. See also Conclusions of Law. Respondent's PFOF: 1-7, 10, 11-12, and 14: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 8, and 13: Rejected as subordinate and unnecessary. 9: Accepted in part and in part rejected as not supported, by the record as a whole, as covered in the recommended order. COPIES FURNISHED: Harry Lamb, Jr., Esquire Perry & Lamb, P.A. 605 E. Robinson Street Suite 630 Orlando, Florida 32801 Marshall E. Wood, Esquire 303 Centre Street Suite 200 Post Office P Fernandina Beach, Florida 32034 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Craig Marsh, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034
The Issue Whether the Petitioner committed the violations alleged in the Administrative Complaint dated October 25, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Education Practices Commission ("EPC") of the Department of Education is the state agency with the authority to suspend or revoke the teaching certificate of any person holding such a certificate in the State of Florida. § 1012.795(1), Fla. Stat. The Commissioner of Education is the state official responsible for making a determination of probable cause that a teacher has committed statutory or rule violations based on the investigation conducted by the Department of Education. § 1012.796, Fla. Stat. Mr. Mitchell holds Florida Educator's Certificate No. 715339. At the times material to this proceeding, Mr. Mitchell was employed as a teacher by the Palm Beach County School Board.3 T.P. was born on March 19, 1984, and she was a student at Palm Beach Lakes High School in January 2000. T.P. met Mr. Mitchell in January 2000. At the time, Mr. Mitchell was 29 years old and was a teacher at J.F.K. Middle School. T.P. withdrew from school in June 2000. Mr. Mitchell and T.P. applied for a marriage license on July 28, 2000, and were married on September 25, 2000. On May 29, 2001, T.P. gave birth to a son, who was Mr. Mitchell's child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing all charges against Michael Mitchell. DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 1st day of June, 2007.
