The Issue The issue is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact At all times material here Respondent was, and continues to be, an employee of the Hernando County School Board (HCSB) as a member of the instructional staff. Respondent is employed under a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with a male, minor student. Apart from the allegations raised in this case, Respondent has been a satisfactory and effective employee of HCSB. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher with regular classroom duties. He eventually became the technology resource coordinator at Powell Middle School. As such, he no longer had regular classroom duties. Throughout his teaching career, Respondent frequently tutored and mentored students who needed help. Even without regular classroom duties Respondent continued to help students. Such help continues today. In fact, Respondent is known and respected by peers and parents for the mentoring and tutoring he gives to students and the success he has had with troubled students. Beginning in January 1995, Respondent served as director of an after-school program at Powell Middle School. HCSB and the local YMCA sponsored and funded the after-school program until sometime in the Spring of 1996 when the program was discontinued. Respondent was in large part responsible for the successful creation, organization, and operation of the after-school program. The after-school program began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after-school activities, like swimming lessons, took place on the premises of the YMCA. The after-school program participants enrolled in the off-campus activities rode a school bus from the school to the various activities in remote locations. Respondent directed the after-school program initially from his classroom in the science building of Powell Middle School and, subsequently, from a room used as a computer lab, adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the after-school program were stored in the computer lab storage rooms. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room, and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the Summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to his cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. C.B. was a very troubled young man. He regularly skipped school, lied, and ran away from home. His home life included physical and mental abuse. His relationship with his parents was poor. His grades were very poor and he was on a track for dropping out of school. In 1995, C.B. was not one of Respondent's regular students. He was a participant in the after-school program. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the after-school program. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. He sometimes would curl up into a fetal position and cry uncontrollably. Respondent often helped C.B. get through these episodes. With help from his counselors and encouragement from Respondent, C.B. stayed at camp for eight weeks. Gradually, Respondent learned of C.B.’s troubled home life and felt sympathy for him and wanted to help. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited since C.B.’s multitude of statements regarding multiple alleged incidents of sexual activity between Respondent and himself were highly inconsistent and consisted of changeable details which showed the implausibility, if not impossibility, of such activity occurring. In fact, all of C.B.’s allegations suffer from this infirmity. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the Fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the after-school program activities both on- and off-campus. There was some indication that C.B. was not permitted to go home after school unless someone was present at the home. Respondent regularly drove C.B. home following the close of the after-school program. Respondent worked one-on-one with C.B. to improve his grades. Respondent also worked one-on-one with other students during the same time period. He set up a program for C.B. that required C.B. to obtain the signatures of his teachers on an attendance and work form. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B. also was tutored by Jen O’Connor during the after-school program. C.B.'s grades improved markedly and he made the honor roll during the first grading period of his 8th grade year. Respondent encouraged C.B. to set high school graduation as a goal which would cause C.B. to be the first in his family to remain in school and graduate. C.B. testified that during the after-school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence and again lacks credibility. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. The Disney trip was an incentive for good progress which had been agreed to earlier that year by C.B.’s parents. Respondent and C.B. traveled in Respondent's pickup truck and shared the expenses of the trip. C.B. left with enough money to buy a one-day pass to one of the three Disney parks. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Disney was running a special promotion for Florida residents. For a small increase in the price, a Florida resident could purchase a pass to all three Disney parks for a year. Respondent wished to go to all three parks but could not do so unless C.B. was able to take advantage of the Disney promotion. Respondent and C.B. paid their entrance fee for all three parks with Respondent providing the difference in price. They entered one of the theme parks as soon as it opened for business. The evidence did not show that there was anything inappropriate about the ticket upgrade or Respondent making up the difference in price. The purchase of the pass was in no way harmful to C.B. With so many people around, there was no privacy or expectation of such in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Family Services. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. At the end of his eighth grade year, C.B. was promoted to ninth grade and would be attending Springstead West High School. At the time, both C.B. and his parents expressed great appreciation over the help Respondent had given to C.B. That summer C.B., with the permission of his parents, again attended camp at a reduced rate. He went to Vermont early so that he could earn money working at camp before it opened. During his stay at the camp, Respondent "fronted" C.B. the money to buy a portable CD player, CDs, and some articles of clothing with the understanding that C.B. would repay Respondent later from the funds C.B. had in his camp account. In fact, C.B. did repay Respondent for these items. Additionally, Respondent permitted C.B. to use his credit card to order and purchase items from a catalog over the telephone. Again C.B. paid Respondent back. There was no evidence that these purchases were improper or harmed C.B. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. There was no evidence the scholarships to camp Respondent provided during any of the summers at question here were improper. If anything, the scholarships benefited C.B. and the other boys who received them. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996, for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead West High School. C.B. would occasionally contact Respondent for help. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch necessary for towing Respondent’s boat. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons as he had for those of other young people. Again, no evidence demonstrated that such lessons or the payment for scuba lessons were inappropriate or in any way harmful to C.B. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent or have a scuba lesson that weekend because he was on restrictions at home. Respondent was invited to and attended C.B.’s stepmother’s birthday party on September 17, 1996. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. The calls totaled about $300.00. Initially, C.B. had hidden the bill from his parents. C.B.’s stepmother discovered the bill. After a confrontation with his parents over the telephone bill, C.B. ran away from home. For the next few days, C.B. was living with friends. There was no evidence that Respondent knew where C.B. was staying or that once he discovered his whereabouts that Respondent withheld that information from anyone. Respondent was eventually asked to help locate C.B. On September 21, 1996, Respondent went to C.B.'s home. C.B.’s father asked Respondent what he thought should happen with C.B. regarding living at home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor and their son and daughter were close friends of Respondent. They are good, decent people. The son, Sean O'Connor, was away at college. The daughter, Jennifer or Jen, still lived at home. C.B.'s parents agreed to let C.B. live with the O’Connors on a trial basis provided that C.B. remain on restrictions within the O'Connor home for a period of time and pay back the telephone charges he had incurred. The O'Connors did not live within the Springstead West High School District. C.B. did not want to talk to his parents. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Further the parents did not provide C.B. any money for lunch while he was at the O’Connors. Again it was up to both Respondent and the O’Connors to provide C.B. with lunch money. C.B.’s parents were aware of the need for transportation and lunch money but did not offer to provide or provide any of these needs while C.B. was at the O’Connors. In fact, C.B.’s parents did not attempt to visit C.B., communicate with C.B., or be otherwise interested in C.B.'s well-being during his month long stay at the O’Connors. Respondent also purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. All of these provisions were reasonable for C.B. There was no evidence which showed these items were improper gifts on the part of Respondent or could reasonably be anticipated to cause harm to C.B. On the contrary, these "gifts" were beneficial, if not necessary, to C.B. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his stepbrother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996, was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connors' residence then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connors' home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On October 23, 1996, there was an ESE staffing meeting at Springstead West High School regarding C.B. The meeting was related to C.B.'s special education program. At some point prior to the meeting, the assistant principal was asked to investigate the fact that C.B. was living at the O'Connors and attending a school outside the zone in which the O'Connors lived. Normally, the principal would not be at a staffing meeting. He did not participate in any decision regarding C.B.'s education. Both Respondent and Mrs. O'Connor were invited to attend the meeting by C.B.'s stepmother. All three people attended the meeting along with appropriate education staff. The meeting grew heated over the issue of out-of- district attendance with Respondent becoming exacerbated with the principal and calling him a "liar" and addressing the principal forcefully while getting up out of his chair. The principal became verbally forceful with Respondent. Eventually, both calmed down. Forcefully stating a position is not coercion and the evidence did not show that either Respondent’s or the principal's behavior was either coercive or oppressive, especially since the principal later was instructed by the Superintendent to apologize to Respondent for his behavior during the meeting. During the meeting, C.B.'s stepmother decided it was time for C.B. to return home. She was prepared to take C.B. home that night after the meeting. She asked Respondent to leave her son alone. However, apparently her words were spoken out of exasperation since C.B., who was at the school, left with Respondent and Mrs. O’Connor at the conclusion of the meeting with C.B.'s mother's consent. C.B. had an appointment with a therapist that evening. C.B.'s father would pick C.B. up at the O'Connors the following day. On Thursday, October 24, 1996, C.B.'s father went to the O'Connors to pick up C.B. and move him back home. When the father arrived at the O'Connors' home, C.B. attempted to have a heart-to-heart talk with his father. C.B. wanted to know why his father always sided with his stepmother against him. He also told his father that he did not want to return home. His father told C.B. that he was coming home and that he could either come home the easy way or the hard way. When the father insisted that C.B. return home, C.B. went down the hall and ran out into the backyard of the O'Connors' home. C.B.'s father went out the front door and around the corner of the O'Connors' house. C.B.'s father caught up with C.B., grabbed him from behind, pulled him to the ground, straddled him and, while holding C.B. on the ground with a knee in C.B.'s pelvic area, repeatedly punched C.B. in the face with a closed fist and an overhead strike. C.B.'s father picked his son up by the collar and drug him over to a metal fence. C.B. was trying to push his father’s hands away. His father grabbed C.B. by the neck and slammed his head into the metal fence approximately three times. He struck C.B. about three more times in the face with a closed fist. At that point, a witness to the struggle grabbed C.B.'s father from behind in a half nelson and pulled him off of C.B. Once the father had released his grip and stepped back, the witness let go of C.B.'s father. During the first part of the struggle, C.B.'s father was calling his son a "fucking asshole" and "dirty little bastard." C.B. was yelling that he wanted to kill himself, wanted to get this over with, and hated himself. The father's response was that he could help his son end his life, that he had a gun back at the house, and "you know, we can get this on right now, let's kill you, let's get it over with." Almost immediately after being pulled off, C.B.'s father attacked his son again, grabbed him by the collar and struck him several more times in the face with a closed fist and slammed his head into the ground several times. The witness grabbed C.B.'s father again and tried to pull him off. C.B.'s father did not want to disengage and resisted the witnesses' efforts. The witnesses forced C.B.'s arms off his son and held him. At some point during the struggle, Mrs. O'Connor had come into the backyard. C.B. grabbed Mrs. O'Connor around the ankles and would not let go. C.B. was crying saying he wanted to die and "stop it, stop it, please." Mrs. O'Connor was yelling at C.B.'s father to stop. C.B.'s father still had C.B. by the belt loop and the neck. He had one knee in C.B.'s back. He was grinding C.B.'s head into the ground. The witnesses was forcing C.B.'s father's arms off C.B. Mrs. O'Connor told her daughter, Jen, to call the police. At that point, C.B.'s father let go of C.B. and ceased his attack. All of the blows which the father hit his son with were full force punches. C.B. was bloodied and bruised by his father. Photographs taken show extensive bruising on C.B.'s face. Incredibly both C.B. and his stepmother deny the physical effects of the struggle that night. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with Jen O'Connor. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with or meet with her alone. Because he would not meet with his stepmother alone, he met with her in the presence of the school resource officer. Because C.B. refused to go home, C.B. was taken to a youth shelter in Pasco County, known as the Run-Away Prevention (RAP) house. C.B. ran away from the shelter that night at about 1:00 or 2:00 a.m. C.B. turned to the only adults he knew who could safely contact for help. C.B. called the O'Connors from a pay phone at a mini market in Pasco County. Respondent was at the O'Connors at the time. Both Respondent and Mrs. O'Connor went to pick up C.B. Respondent drove because Mrs. O'Connor did not drive. They picked C.B. up at the mini market in Pasco County. Both discussed with C.B. where he could go. Because of the incident with C.B.'s father, C.B. could not return to the O'Connors' house. Respondent suggested that he return home. However, C.B. rejected that suggestion, saying he would immediately run away again. Additionally, Respondent and Mrs. O'Connor very reasonably believed it would not be physically safe for C.B. to return home. All decided that C.B. would go to the home of another teacher. When they arrived at the teacher's home, some discussion occurred about C.B.'s predicament. There was some discussion about emancipation, but the discussion was purely theoretical. C.B. was given the number for the Domestic Violence Hotline so that he could call and report his father and perhaps obtain some protective services from the state. Neither the teacher nor her roommate, who was also a teacher, reported C.B. to the police or advised his parents of his whereabouts. They did not so report because they reasonably feared for his safety. This was the last time that Respondent had any material contact with C.B. The next day C.B. left the teacher's house and stayed with a friend that he generally stayed with when he ran away. The friend was known to his parents and the friend' house was within a mile of C.B.'s home. Interestingly, C.B. continued to sporadically attend school while on runaway status until he was prevented from riding the bus to school by a bus driver. During the time C.B. was on runaway status, no one asked Respondent if he knew where C.B. was or if he could guess where he might be. Moreover, under these facts, Respondent did not have the duty to report any such information about C.B. On October 29, 1996, and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Family Services each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father made his first court appearance, with some direction on what needed to be said to the state attorney from Detective Baxley, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father and that the "fight" was his fault. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.1 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early Fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct involving masturbation of Respondent's penis in Respondent's science classroom or the computer room at Powell Middle School during after-school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. None of these various accusations were credible. Finally, there was no credible evidence that Respondent interfered with the relationship between C.B. and his parents in a manner which could reasonably be foreseen to harm C.B. Moreover, there is nothing in the statutes or rules of DOE which, absent harm, purports to make interference with a parent's custody or ignoring a parent's wishes a violation of those rules subject to discipline. Respondent met A.P., a sixth grade student at Powell Middle School, in 1995 as a participant in the after-school program. A.P. was a very out-going person, who demanded attention. He was also known for lying, especially when seeking attention. At times, Respondent, as director of the after-school program, had to discipline A.P. A.P. did not find Respondent to be strong, mean, violent, or scary. He never heard Respondent swear, tell dirty jokes, talk dirty, or threaten anyone. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during the after-school program. Respondent frequently gave A.P. a ride home after the after-school program. Respondent offered A.P. a scholarship to attend Camp Sangamon in the Summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the Fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the after-school program. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the Summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the Fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room. At one point, A.P. also admitted to a teacher and a guidance counselor that he had lied about these incidents. Again the greater weight of the evidence shows that Respondent did not engage in any sexual activities with A.P. or engage in any improper behavior or relationship with A.P. Respondent never harmed A.P. in any way. J.K. was another student attending the after-school program at Powell Middle School. He went to school with both C.B. and A.P. He also attended Camp Sagamon during the summer for at least one summer. While at camp, J.K. testified that one time Respondent, while sitting on the porch of his cabin, asked him about what he thought about two men being together. However, J.K. does not remember what the specific words were. J.K. did not particularly respond and left. Nothing was said about anybody having sex. The statement did not have a sexual connotation. Clearly, no violation of the statutes and rules is supported by such a vague, out-of-context statement. J.K. also recalled one incident when Respondent accidentally bumped into J.K. while he was in the storage room. The incident occurred when J.K. came out from behind the door to the storage room while Respondent was entering. The back of Respondent's hand brushed J.K.'s groin area. Respondent was startled by the encounter, jumped back and said excuse me to J.K. Again, nothing in this incident even remotely supports a violation of statute or rules. Finally, J.K. testified about Respondent teasing him about not skinny-dipping while at summer camp. The episode occurred while J.K. and Respondent were on Respondent's boat with a group of other people. None of the others overheard the conversation or were in a position to overhear the conversation. There is nothing in the episode which suggests that the teasing was overbearing or disparaging. Again, no violation of the rules or statutes was shown.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Education enter a final order finding Respondent not guilty of any violations alleged in the Administrative Complaint and dismissing the Administrative Complaint. Jurisdiction is reserved over the issue of attorney fees should the parties not be able to agree on such. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2002.
Findings Of Fact At all times material hereto, Respondent was an instructional employee of the School Board of Dade County. In that capacity, Respondent was employed on an annual contract basis at Rainbow Park Elementary School from the beginning of the 1974-1975 school year through the end of the 1976-1977 school year. During this period, Respondent was placed on continuing contract on the recommendation of Andel W. Mickens, Principal of Rainbow Park Elementary School. During the 1976-1977 school year, after he had been placed on continuing contract, Respondent, while employed as a physical education instructor at Rainbow Park Elementary School, was involved in an altercation with students from another school in which Respondent suffered some injury, the nature of which is unclear from the record. It is, however, clear that after this altercation, Respondent's effectiveness as an instructor at Rainbow Park Elementary School, suffered dramatically. After the incident, Respondent was unable to control or discipline students in his classes, and was, therefore, unable to adequately organize students for instructional work. In fact, the school principal or another member of the administrative staff was required to be present in Respondent's classes to insure that some instructional progress could occur. As a result, the principal of Rainbow Park Elementary School recommended at the conclusion of the 1976-1977 school year that Respondent be transferred to another school. Respondent was transferred to Crestview Elementary School for the 1977-1978 school year. However, problems which had initially surfaced while he was still at Rainbow Park Elementary School continued at the new location. Respondent was instructed by the principal of the Crestview Elementary School that uniforms were not to be utilized as part of that school's "after-school programs", and that "all-star" games against other schools in the area were not to take place. Respondent, in direct disregard of these instructions, collected monies from students at Crestview Elementary School for the purchase of uniforms, and scheduled "all-star" games between Crestview Elementary School and other area schools. In the scheduling of these games, Respondent did not obtain the prior permission of, nor in fact did he consult, the principal of Crestview Elementary School. One of the "all-star" games was cancelled by the principal when he learned, the day before the game was to be played, that it had been scheduled by Respondent. When it was discovered that Respondent had collected monies for the purchase of uniforms for use in the after-school program, he was directed to return these monies to the individual students. In addition, Respondent on several occasions left classes unsupervised during his tenure at Crestview Elementary School. One of these occasions occurred when Respondent was contacting students scheduled to participate in the aforementioned "all-star" game. Another of Respondent's problem areas while at Crestview Elementary School dealt with his inability to organize his classes. Students were observed climbing trees during times when they should have been participating in Respondent's physical education class. A representative from the Area Office of the Dade County School Board specializing in physical education was called in specifically to consult with Respondent concerning the organization of his classes. Few, if any, of the consultant's suggestions were implemented by Respondent, whose classes remained disorganized. Finally, notwithstanding direct instructions to the contrary, Respondent allowed one of his physical education classes to participate in "tackle" football. There was no equipment at Crestview Elementary School to insure that participation in this type of activity would not result in injury to elementary school children. In fact, one child was injured in the course of one of these games, and reported this fact to the principal, who then prevented Respondent from continuing these activities. Although Respondent started the 1977-1978 school year at Crestview Elementary School, he was returned at the request of the Crestview principal to Rainbow Park Elementary School on November 9, 1977. The principal of Rainbow Park Elementary School, who had earlier suggested that Respondent be given a continuing contract, testified that Respondent appeared to be a "totally different person" upon his return to Rainbow Park Elementary School. She testified that Respondent evidenced irrational and bizarre behavior, and, on one occasion after a teacher-principal conference, Respondent snatched written suggestions concerning conduct of his classes from her hand, ripped them up before her and stalked from the room. Respondent could not control discipline in his classes and would, on occasion, scream and curse at his students. On one occasion, Respondent used excessive physical force in removing a student from one of his classes to the principal's office. Respondent would often not be in place to receive his classes when they were brought to him by the classroom instructor, and, on occasion would bring his classes back from the physical education fields before their class time was completed. Respondent's classes were disorganized to the point that activities occurring in his classes bore no resemblance to lesson plans. The principal of Rainbow Park Elementary School attempted to assist Respondent in organizing his classes by making suggestions and calling in consultants from the Area Office, but Respondent refused to accept constructive criticism. As a result, the principal of Rainbow Park Elementary School again requested that Respondent be transferred, which, in fact, occurred on December 12, 1977, when Respondent was reassigned to Carol City Senior High School. Respondent was employed at Carol City Senior High School from December 12, 1977 through the end of the 1977-1978 school year. At this new location, Respondent again encountered problems with school administrative and instructional personnel. According to the principal of Carol City Senior High School, Respondent repeatedly arrived late for classes, and submitted only "sketchy" lesson plans for his classes. In addition, the principal of Carol City Senior High School requested that Respondent be transferred to another school when it came to his attention that Respondent had attempted to "recruit" athletes from another area high school in order for them to participate in athletic programs at Carol City Senior High School. Respondent continued to experience problems with controlling his classes, and with using profanity toward students and members of the school administration. On one occasion, Respondent, a physical education teacher, called the chairman of the Physical Education Department at Carol City Senior High School a "mother fucker" in the presence of other teachers and students, and told him "to sit [his] ass down." Respondent continued to react negatively to evaluations or critiques, and, on one occasion snatched an evaluation from the hands of an assistant principal at Carol City Senior High School, and used profanity in response to that negative evaluation. At the beginning of the 1978-1979 school year, Respondent was assigned to Carol City Elementary School. Although there is no reason clearly reflected in the record, Respondent was transferred from Carol City Elementary School to Parkway Junior High School on October 27, 1978. The principal at Parkway Junior High School was the assistant principal at Carol City Senior High School with whom Respondent had had earlier difficulties. Respondent continued to experience these same difficulties at Parkway Junior High School. The school's principal received a complaint shortly after Respondent's conduct of his classes. Specifically, the complaints concerned Respondent's lack of control of students in the classes, and his failure to remain in the area where his classes were meeting. The school principal contacted Respondent to attempt to arrange a conference with other instructional personnel to resolve these problems. However, when the principal spoke with Respondent, Respondent began to use abusive language toward him. The school principal advised Respondent not to report back to Parkway Junior High School, but instead to report directly to the Area Office. Respondent indicated that he would not report to the Area Office, whereupon the principal advised him that if he returned to Parkway Junior High School, he would be arrested. Respondent then advised the school principal that if he had him arrested " . . . I will kill your mother fucking ass." Thereafter, Respondent was suspended as an instructional employee, and these proceedings ensued. Both Petitioner and Respondent have submitted Proposed Findings of Fact in this proceeding. To the extent that proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact Gonzalo Lazaro Carmona was a student at Miami Jackson Senior High School during the 1984-85 school year until his assignment to the alternative school. On October 31, 1984, Carmona was placed on indoor suspension for cutting class and failure to complete an assignment. Carmona was placed on indoor suspension on November 28, 1984, following three incidents in that month. He was referred for discipline on November 9, 1984, for general disruptive behavior and failure to complete an assignment; November 14, 1985, for general disruptive behavior; and November 28, 1985, for being in an unauthorized area, specifically the girls' locker room. On February 6, 1985, Carmona was placed on outdoor suspension for general disruptive behavior, defiance of school authority and assault on a teacher. Again on March 8, 1985, he was suspended for assault on a teacher. Carmona was disciplined on March 13, 1985, for general disruptive behavior, defiance of school authority, and rude and discourteous behavior. On April 2, 1985, he was reprimanded and warned for defiance, cutting class, and leaving class without permission. An outdoor suspension was given for general disruptive behavior and failure to complete an assignment on April 25, 1985. Finally, on May 17, 1985, Carmona assaulted a teacher, Ms. Sweats, in the classroom. Carmona was being disruptive in class. Ms. Sweats tried to reprimand him. Carmona then made a fist, used profanity, and threatened the teacher. Carmona was placed on a ten-day outdoor suspension. It was also recommended that Carmona be reassigned to the alternative school program. While enrolled at Miami Jackson, Carmona was not successful academically. His final grades for the 1984-85 school year were C (Math), F (Personal Fitness), F (Biology), C (Arts and Crafts), F (Life Management), and F (Fundamentals CM2). At various times during the school year, Carmona was counseled regarding his failure to complete assignments and he was given an academic advisement conference. Despite these efforts by the school personnel, Carmona failed to put forth effort to improve his academic performance, as evidenced by his effort ratings of 3 in all the classes he failed. Carmona's mother signed a request for transfer to the opportunity school program on March 14, 1985. However, she is unable to read English and did not fully understand the importance of signing the request. She intended that the request be used to scare her son into improving his behavior. The recommendation to assign Carmona to the alternative school was based on his history of disruptive behavior and his lack of academic success, and not on the request his mother signed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Gonzalo Lazaro Carmona to the alternative school program at Douglas MacArthur senior High School - North. DONE and ORDERED this 26th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING, 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 26th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire Suite 800, 300 Executive Plaza 3050 Biscayne Blvd. Miami, Florida 33137 Mrs. Caridad Cabrera 2025 NW 28 Street Miami, Florida 33142 Dr. Leonard Britton Superintendent of Schools School Board of Dade County 1450 NE Second Avenue Miami, Florida 33132 Ms. Maeva Hipps School Board Clerk Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue presented herein concerns the appeal filed by Respondent of the school board's assignment of Respondent to J.R.E. Lee Junior High School, an alternative school placement.
Findings Of Fact Based on the entire record compiled herein, including the testimony of Peter Hoffman, Assistant Principal at Centennial Junior High School, I hereby make the following relevant findings of fact. On approximately August 26, 1983, Respondent, Tracy Jean Hidalgo, was assigned to attend Centennial Junior High School. Upon arriving for enrollment at Centennial, within six days of her enrollment, four fires were set in the bathrooms at Centennial Junior High School. Respondent admitted setting the fires when questioned by Assistant Principal Hoffman. Once the fires were set at Centennial Junior High, the regular school program was suspended and the students evacuated the building until the fires were brought under control. As stated hereinabove, Respondent or a representative on her behalf did not appear at the hearing to offer any testimony respecting the charges which prompted Respondent's administrative assignment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's appeal of the school board's assignment of her to the school system's opportunity school program at J. R. E. Lee Junior High School be DENIED. RECOMMENDED this 10th day of February, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, 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 10th day of February, 1984.
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue Whether Respondent committed the offenses alleged in the Amended Notice of Specific Charges and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. The Petitioner has rule making authority and the authority to enter into collective bargaining agreements. At all times pertinent to this proceeding, the parties were bound by the provisions of the collective bargaining agreement between the United Teachers of Dade and the School Board. Pursuant to Section 1 of Article V, Petitioner has the exclusive right to suspend, dismiss, or terminate an employee for "just cause." The term "just cause" as defined by Section 3(D) of Article XXI of the contract: . . . includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009 (Florida Administrative Code). Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4A-1.21, which sets forth the expected conduct of employees as follows: All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4C-1.02, which sets forth the expected conduct of non-instructional personnel as follows: The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur. One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms the wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state. Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4-1.08, which prohibits violence in the workplace as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public School employees have a right to work in a safe environment. Violence or threats of violence by or against students and employees will not be tolerated. Article VIII of the collective bargaining agreement addresses the subject of a “Safe Learning Environment.” Section 1(A) of Article VIII provides, in pertinent part, as follows: “A safe and orderly learning environment is a major priority of the parties. ” At all times pertinent to this proceeding, Respondent was employed by Petitioner as a school security monitor. The job description of a school security monitor provides the following basic objectives and responsibilities: BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures the appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school administration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the presence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gatherings (before, during, and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Respondent was initially employed by Petitioner as a temporary custodian in February 1988, and assigned to Madison Middle School (Madison). In June 1988, Respondent was employed as a school security monitor at Madison, where he remained until December 1993. At all times pertinent to this proceeding, Thelma Davis was the principal of Madison. In December 1993, Respondent's assigned post was near a gate in close proximity to the chorus room. J. B. and K. A. were female students at Madison during the school year 1993-94. J. B. was born March 8, 1981. In December 1993, J. B. was a twelve year-old seventh grader and a member of the chorus class taught by Edward G. Robinson. In early December 1993, Respondent made a series of inappropriate comments and gestures of a sexual nature to J. B. when she passed his assigned post. Respondent winked at J. B. as she passed his post and blew her kisses. On one occasion, he asked if she was a virgin. On another occasion he asked her the color of her underwear. On another occasion, he made a statement as to how warm they would be under covers together. K. A. overheard Respondent say to J. B. that he and she would be warm under the covers together. J. B. became visibly upset the day Respondent asked her the color of her underwear. Mr. Robinson observed J. B. crying. J. B. thereafter told Mr. Robinson about Respondent's comments and behavior. Mr. Robinson reported the information to the principal. A day or two later, J. B., accompanied by K. A., again complained to Mr. Robinson about Respondent's comments and behavior. Mr. Robinson again reported the information to the principal, and an investigation was instigated. The investigation was conducted under the supervision of Captain Arnie Weatherington, an experienced law enforcement officer employed by the Dade County School Police. In December 1993, Respondent was removed from the school campus and reassigned to the Region III office. The investigation was closed in May 1994 as being substantiated. In light of the substantiated findings, Ms. Davis recommended that Respondent's employment with the Petitioner be terminated. Louise Harms of the Petitioner' Office of Professional Standards conducted a Conference for the Record (CFR) with Respondent on May 3, 1994. During the CFR, Ms. Harms advised Respondent as to the findings of the investigation. Respondent remained assigned to the Region III office until February 1995, when he was involuntarily transferred to Westview Middle School. The investigation into this incident was closed by Respondent’s reassignment to Westview. There was no formal recommendation at that time by the Superintendent or by the Office of Professional Standards that Respondent’s employment be terminated for his misconduct at Madison. At Westview, Respondent had the responsibility to patrol the outdoor areas of the campus. He was given a walkie- talkie and a golf cart to assist him in performing his duties. Respondent’s instructions as to the cautious and safe use of the golf carts included the explicit instructions that children were not permitted to ride in a golf cart or to sit in a parked golf cart. During the school year 1996-97, Respondent's assigned responsibilities included patrolling the physical education area. During the 1996-97 school year, John McHale was a physical education teacher at Westview. His responsibilities included taking attendance, maintaining control of the class, and following the district curriculum. In November 1996, Mr. McHale's physical education class and three other classes that were taught by a Ms. Roque, Patricia NewKirk, and Nathaniel Stephens were held on an outdoor basketball court. On November 13, 1996, Mr. McHale was in charge of his own class and, in her absence, Ms. Roque's class. Mr. McHale's class and Ms. Roque's class were assembled on the basketball court so Mr. McHale could take roll. In addition, Mr. Stephens' class was assembled on the basketball court so Mr. Stephens could take roll. While Mr. McHale was in the process of taking roll, Respondent began joy riding in his golf cart. He rode onto the basketball court around and between the two classes under Mr. McHale's supervision. Students jumped on the golf cart. Respondent talked to students. Mr. McHale approached Respondent, told Respondent that he needed to get the classes under control, and asked Respondent to get the golf cart off the basketball court so he could do his job. In response, Respondent stated: "Take your ass back to your class. No bald-headed white man telling me what to do."2 Tempers flared, Respondent got off the golf cart, and the two men approached one another. Mr. Stephens, who is larger than either Respondent or Mr. McHale, stepped between the two men with his back facing Respondent. Respondent struck out at Mr. McHale with a closed fist, making contact with Mr. McHale’s shoulder. Mr. Stephens separated the two men and took Mr. McHale to the locker room. Respondent did not have any justification for driving the golf cart onto the basketball courts while the physical education classes were using the courts. That conduct disrupted the classes that were using the courts. Mr. McHale reported the incident to Darrel Berteaux, the school principal. Mr. Berteaux requested that the DCSP conduct an investigation. The investigation into this incident was conducted by Lieutenant Oryntha Crumity, an experienced law enforcement officer employed by the Dade County School Police. During the course of the investigation, Respondent contacted several of the student witnesses and asked each student whether the student was on his side. By making such contact, Respondent attempted to intimidate these student witnesses. Approximately a month after the incident, Mr. Berteaux received reports that Respondent had approached several student witnesses. He immediately requested that Respondent be transferred from Westview. Respondent was thereafter transferred from Westview. Proceedings to terminate his employment were initiated following a review of these matters by the Petitioner's legal staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's employment. DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1998
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes. The Board is charged by law with direction and control of all grades Kindergarten through 12 for all public schools in Broward County. The Board is required by statute to promulgate rules and regulations establishing attendance zones for schools under its control. During the latter part of 1981 and early 1982, the Board performed a review of attendance areas for the 1981-1982 school year in order to determine whether changes should be made for the 1982-1983 school year. In making these determinations, it is the Board's established policy to consider the following factors: overcrowded schools; improved utilization of present facilities; maintenance of a "unitary school system"; safety for students as pedestrians; feeder patterns; transportation costs; newly established schools; consolidation of small school attendance areas; and, community involvement. The dispute in this consolidated proceeding arises from the Board's rezoning decision for the 1982-1983 school year relating to four high schools, Pompano Beach High School; Ely High School; Plantation High School; and Dillard High School. On March 30, 1982, at a special meeting, the Board approved its superintendent's school boundary proposal, as reflected in the rule here being challenged. On April 12, 1982, an advertisement advising the general public of the proposal appeared in the local newspaper, in compliance with the requirements of Chapter 120, Florida Statutes. The effect of the proposed high school boundary changes, insofar as here pertinent, is to remove approximately 125 ninth grade students from Ely High School and to replace them with approximately 72 ninth grade students currently zoned to attend Pompano Beach High, among whom are various of the Petitioners in this proceeding; and further, to remove approximately 81 ninth grade students from Dillard High School and to replace them with approximately 100 ninth grade students currently zoned to attend Plantation High School, including certain other of the Petitioners in this proceeding. One of the Board's primary policy considerations in proposing the challenged rules for adoption is the maintenance of a "unitary school system." Among the policy tools utilized by the Board to maintain what it perceives to be a "unitary school system" is retention of the existing student racial balance at Dillard and Ely High Schools. During the 1981-1982 school year, the student population at Ely High School was 52 percent black, while blacks comprised approximately 72 percent of the student population at Dillard High School. Because of the tremendous increase in the predominantly white population of western Broward County, and the declining school age population of eastern Broward County, where both Dillard and Ely High Schools are located, the Board has a long-standing policy of busing white high school students from the west to maintain the desired racial composition at Dillard and Ely. This problem is not limited to high schools alone. System-wide, approximately 6,000 students are bused from non-contiguous areas in Broward County for purposes of racial integration. Unlike Petitioners in this case, however, approximately 80 percent of those students who are bused are black. If the proposed high school boundary changes are adopted, the Board has reasonably estimated that the student population at Dillard High School will remain approximately 72 percent black, while the percentage of black students at Ely High School will increase by approximately 2 percent. A further factor in the Board's proposed high school boundary change as it relates to the four high schools involved in this proceeding is the problem of under-enrollment. Ely High School has a realistic program capacity of 1,800 students. However, during the 1981-1982 school year there were only 1,519 students enrolled at Ely. Pompano Beach High School had a student population of 1,456 students for the 1981-1982 school year, despite a student capacity of 1,950. Dillard High School's 2,307 student capacity was utilized by 2,075 students during the 1981-1982 school year. 1,812 students attended Plantation High School in 1981-1982 in a school facility designed to accommodate 2,000 students. With or without the proposed boundary changes, all four of these schools will remain under capacity for the 1982-1983 school year. It appears that the primary reason for the rezoning proposal contained in the rules here under attack was the Board's decision to replace certain students attending Dillard and Ely High Schools with other students, including the Petitioners herein, who had previously been zoned to attend Plantation High School or Pompano Beach High School. Students who are being reassigned from Dillard High School and Ely High School to other area schools reside some distance further from Dillard and Ely than do the students being reassigned from Plantation and Pompano Beach High Schools. One result of the proposed zoning changes will, therefore, be a reduction in the distance which students will have to be bused, and a concomitant reduction in transportation costs. Once the decision had been made to curtail longer distance busing, the Board was faced with the dual problem of maintaining desired racial composition and preventing under enrollment at Dillard and Ely High Schools. The choice of reassigning the students from Pompano Beach and Plantation High Schools was a reasoned and logical decision reached after considering a multitude of alternatives suggested by consultants and a very lengthy process of public participation. The curtailment of unduly lengthy student busing, with its accompanying social and economic cost was a logical policy alternative which is clearly supported by facts of record in this proceeding. Petitioners Theodor Huber and Suzan Huber, his high school age daughter, currently reside within a school boundary designated for attendance at Pompano Beach High School for the 1981-1982 school year. If the proposed rule is adopted, they will be rezoned to attend Ely High School for the 1982-1983 school year. Petitioners Janyce Becker, for herself and on behalf of her minor child, Page Becker, and Karen Coates, for herself and on behalf of her minor child, Peter Coates, reside within present school boundaries for Plantation High School, but, if the proposed rule is adopted, they will be rezoned to attend Dillard High School for the 1982-1983 school year. Petitioner Plantation Residents' Association, Inc., is a Florida corporation, comprised of persons with children of school age who have attended and are attending public schools in Broward County, Florida. Members of this organization have children who will be rezoned from Plantation High School to Dillard High School for the 1982-1983 school year, should the proposed rule be adopted. There is no showing in the record of this proceeding that adoption of the proposed high school boundary attendance zones will have any economic impact on the Petitioners involved in this proceeding. Further, there has been no showing that the notice requirements of Chapter 120 54, Florida Statutes, have in any way been violated by the Board
The Issue Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida. At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS). At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes. Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years. During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average. Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983. On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS. During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year. By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications. As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing. As a result of the investigation and hearing, John V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file; Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year. By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High School. This letter also advised Respondent of his right to contest the Superintendent's decision. By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter. Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment. When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School. On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days. Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment. On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination. McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?" McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet." On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong. Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr. Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999. None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system. Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks. After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated. Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine. After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School. Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's remarks or behavior caused fear or disruption in the work environment within the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent. DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Harry A. Blair, Esquire 2180 West First Street, Suite 401 Fort Myers, Florida 33901
Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
