The Issue The issue is whether Respondent's professional services contract should be terminated because she failed to correct certain performance deficiencies within a specified time period, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this employment controversy, Petitioner, John L. Ruis, as Superintendent of Schools, Nassau County School Board (School Board), proposes to terminate the professional services contract of Respondent, Lydia J. Parrish, a kindergarten classroom teacher employed by the School Board, on the ground she failed to satisfactorily correct "performance deficiencies" within a period of ninety calendar (school) days. In her request for a hearing, Respondent has denied the allegations. As disclosed by her counsel at hearing, she contended that the assistance given by the School Board to aid her in correcting the deficiencies was inadequate, and that certain "procedural defects" occurred during the evaluation and remediation process. Respondent has been certified as a classroom teacher for approximately twenty-nine years, and she has worked the last seventeen years as a teacher at Yulee Primary School. She is certified in elementary education and early childhood education and most recently has served as a kindergarten teacher. Prior to teaching for the School Board, she was employed for nine years in Dade County and three years in Hamilton County, Tennessee. There are fifteen public schools within Nassau County, including Yulee Primary School, a "pre-K through second [grade]" school. The School Board employs approximately six hundred teachers, and Respondent was one of ten kindergarten teachers assigned to Yulee Primary School. Under the School Board's assessment program, each teacher with a professional services contract is evaluated by an administrator at least once annually in order to determine if the teacher meets all performance standards. Respondent was employed under a professional services contract and thus was required to undergo an annual evaluation. The annual evaluation rates a teacher in eight "job context service" categories: planning/preparation; classroom management; assessment/management; intervention/direct services; collaboration; staff/development; professional responsibilities; and student growth. The evaluator then assigns each of these categories a rating code ranging from 1 through 4, which represents a rating of "unsatisfactory," "needing improvement," "effective," and "exemplary," respectively. The assignment of an unsatisfactory rating in any category results in an overall evaluation of unsatisfactory. The foregoing assessment categories and rating criteria have not been challenged by Respondent. If a teacher receives an overall evaluation rating of unsatisfactory, a professional development plan (PDP) must be established, which includes specific goals for the teacher to achieve; strategies by which these goals may be accomplished; and time lines in which such goals are to be completed. During any given school year, there were around four or five teachers employed by the School Board who had active PDPs. At Yulee Primary School, Jean Griffin, the principal, has performed most, if not all, of the annual teacher evaluations since becoming principal in school year 1993-94. In this vein, she conducted Respondent's annual evaluations for each of the school years from 1993-94 through 1998-99. For the first two years, Griffin concluded that Respondent met all performance standards. In school year 1995- 96, even though Respondent received an overall satisfactory evaluation, Griffin noted that Respondent should "continue to work more detailed plans and organization" in the classroom. The following school year, Respondent received another satisfactory evaluation but Griffin again noted that Respondent should continue to work on more detailed plans and organization. In school year 1997-98, a satisfactory rating was given even though Griffin concluded that not only had there been no improvement in the areas noted in the prior years, but additional areas of professional concern were present. By now, Griffin had also received "concerns" expressed by parents of students in Respondent's classroom and requests by students seeking to transfer out of her classroom. Griffin attempted to get Respondent to make improvements in the cited areas without having to resort to a formal PDP. To do this, as early as school year 1995-96, she enlisted the aid of the curriculum resource teacher to provide assistance to Respondent. This assistance continued on an "unofficial" basis through school year 1997-98. On November 13, 1998, Griffin made her first classroom evaluation of Respondent as a part of the 1998-99 annual evaluation. For category 1, planning/preparation, Griffin assigned a rating code of 1 (unsatisfactory) and made the following notation: Not enough activities planned to develop skill growth in students; use more learning games and use a variety of strategies to develop interest in the lessons to keep students actively engaged in the learning process. For category 2, classroom management, Griffin also assigned a rating code of 1 and made the following comments: More structure is needed in the management of her students; more accountability for student behavior; establish routines and be consistent so learning can take place. For categories 3 through 8, Griffin assigned scores of 3, 2, 2, 3, 3, and 2, respectively. Because a rating of 1 had been assigned to two categories, an overall unsatisfactory rating was given. This meant that a PDP had to be established, and Respondent would be on "performance probation" for ninety school days. Respondent's PDP has been received in evidence as Petitioner's Exhibit 6. The performance probationary period ran from November 23, 1998 until April 21, 1999, and provided a time period of ninety school days in which Respondent could correct her deficiencies. The PDP identified four teacher objectives that related to the cited deficiencies, and it detailed the activities planned to meet each of those objectives. For each activity, the PDP provided a specific anticipated completion date with a blank space to be filled in reflecting if the actual completion date was ever attained. Two activities were to be completed in December 1998; three had completion dates in January 1999; and the remaining activities were "on-going" throughout the probationary period. When the required post- evaluation conference was held on November 16, 1998, Griffin went over the PDP with Respondent, and Respondent was "amenable" to its terms. To assist Respondent during her probationary period, Griffin arranged for her to receive extensive video training and to visit another kindergarten classroom (at Southside Elementary School) to observe a teacher who had won an outstanding teacher award. She was also given feedback (suggestions) from School Board and Yulee Primary School personnel who made "numerous" visits (both documented and undocumented) to her classroom during the probationary period. These personnel included Joyce Menz, who served as the School Board's director of staff and program development; Griffin; and the curriculum resource teacher at Yulee Primary School, Linda Jackson. At the outset of the process, Griffin verbally advised Respondent of the ramifications of being on probation, and the fact that she could be terminated if she did not satisfy the PDP within the specified time frame. Although the Florida Statutes require that a copy of the time lines under Section 231.29, Florida Statutes, be given to the teacher prior to the implementation of the PDP, this was not done until April 22, 1999, when a "post conference" was held. Even so, Respondent failed to demonstrate that she was prejudiced by the failure to receive a copy of the time lines, especially since this information was orally conveyed to her on November 16, 1998. Testimony by Griffin, Jackson, and Menz established that while Respondent made "some" improvement in a few areas, she still did not correct the performance deficiencies within the probationary period. Indeed, as late as April 19, 1999, or two days before the PDP ended, Griffin made a final visit to Respondent's classroom and found that the PDP deficiencies had not been corrected. For example, in the area of classroom management, which had been a long-standing problem area for Respondent, Griffin observed a number of students who were not on task while others were creating distractions in the room. This was contrary to the well-established requirement that a teacher always maintain discipline in the classroom so that the students are on task. Despite Griffin's presence, Respondent failed to correct the students' inappropriate actions that day within a reasonable period of time. On April 22, 1999, Griffin and Respondent met in a "post conference" where the results of her PDP were discussed. Respondent was told that she would not be recommended for reappointment. The next day, Griffin sent a letter to the superintendent stating that she did not recommend that Respondent be reappointed as a teacher at Yulee Primary School. This was because Respondent "did not successfully complete her [ninety] day [PDP]." The superintendent accepted Griffin's recommendation and conveyed a similar recommendation to the School Board on May 27, 1999. By then, Respondent had requested a formal hearing tocontest this action, and the School Board has deferred making a final decision until the hearing process has been concluded. At hearing, Respondent contended that she was never given "in-depth detail" advice on how to correct certain deficiencies nor was she provided with adequate assistance. In other testimony, however, she admitted that Jackson was "very helpful and very detailed" in her advice, and that her "supervisors" (including Griffin) had told her what was necessary in order to comply with the PDP. She also acknowledged that during the probationary period, Jackson was "very helpful, very precise with her explanations and her willingness to help," and that Jackson continued to make suggestions throughout the probationary period. Respondent denied that she performed unsatisfactorily during school year 1998-99. Rather, she attributed most of her difficulties to "discipline problems and because of the influx of children going in and out" of the classroom, which caused her "extra" work in terms of "prescreening" and "back testing." She admitted, however, that "in some ways," a PDP was necessary; that during the school year she "most definitely" had a problem with controlling her five year old students; and that she experienced more problems than any other kindergarten teacher at the school. She also complained that she was unsuccessful in getting an outside volunteer to assist her in her classroom; she was, however, given a "paraprofessional" from December 1998 through the rest of the school year to assist her with the extra tasks caused by the influx of non-district students. Respondent contended that except for one deficiency noted in her lesson plans, no one ever told her she was not completing her PDP tasks until late April, when she received written notice that she would not be reappointed. This assertion is not accepted in view of the testimony of the other witnesses who visited her classroom on "numerous" occasions between December 1998 and April 1999, and who gave her continual feedback and suggestions regarding her classroom deficiencies. Through her own testimony, Respondent claimed that she satisfactorily met all PDP goals. This self-serving testimony, while understandable, is contrary to the more credible evidence and the PDP itself, which shows that the last three objectives were never satisfied. Finally, Respondent asserted that a good measure of her teacher effectiveness was student progress, and that except for one, all of her students were promoted to the first grade at the end of school year 1998-99. While this may be true, a fair assessment as to whether Respondent's students are at a comparable level with other first grade students cannot be made until they are pretested at the beginning of school year 1999- 2000. That information is not of record. Moreover, in school year 1997-98, several of Respondent's students who were promoted to the first grade later experienced "problems progressing" at the higher academic level.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Nassau County enter a final order sustaining the Superintendent of School's decision to terminate Respondent's professional services contract. DONE AND ENTERED this 27th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 27th day of September, 1999. COPIES FURNISHED: John L. Ruis, Superintendent of Schools Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034-3499 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344-1951 H. B. Stivers, Esquire 245 East Virginia Street Tallahassee, Florida 32301-1263 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Education Practices Commission should take disciplinary action against the teacher certificate held by the Respondent, Allan Rubenstein, based on an Administrative Complaint charging him with violating Florida Administrative Code Rules 6A-10.081(3)(a) (failure to make reasonable effort to protect students from conditions harmful to learning or to students' mental or physical health or safety) and 6A-10.081(3)(e) (intentional exposure of students to unnecessary embarrassment or disparagement) and, therefore, violating section 1012.795(1)(j), Florida Statutes (2011) (for those rule violations). (The statutes and rules charged were those in effect at the time of the alleged violations.)
Findings Of Fact The Respondent is a high school English and journalism teacher, who also coached volleyball and acted as faculty adviser and sponsor of the yearbook. He holds Florida educator certificate 721989, which expires on June 30, 2019. He is certified in the areas of English (grades 6 through 12) and physical education (grades 6 through 12). Prior to the 2011-2012 school year, the Respondent's performance, in all aspects of his employment as a high school teacher, was exemplary and without incident of any kind. The Respondent's difficulties at Timber Creek began when two female high school seniors named Haley Bryant and Shannon Mullins, who were yearbook editors, complained to the school administrators that the Respondent called them to the front of his classroom in late November 2011 and offered to give them Victoria Secret lingerie. The Respondent disputes the students' versions of what happened that day. Eleven days later, the Respondent demoted the students as yearbook editors; had them do book work, instead of yearbook work during class; and denied them access to the yearbook. The students complained that the demotions and denials of access to the yearbook were in retaliation against them for reporting the alleged lingerie gift offer to the school administration. The Petitioner sides with the students' versions and takes the position that the facts justify teacher certificate discipline under rules 6A-10.081(3)(a) (failure to make reasonable effort to protect students from conditions harmful to learning or to students' mental or physical health or safety) and 6A-10.081(3)(e) (intentional exposure of students to unnecessary embarrassment or disparagement), which are parts of the Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct), governing Florida teachers. The Respondent denies retaliating against the students and explains that the demotions and access denials were not related to what they reported to the school administration. Instead, he states that he demoted them due to poor performance, as he had warned them repeatedly would happen if their performance did not improve, and that he denied them access to prevent them from sabotaging the yearbook after their demotions. According to Shannon and Haley, on Monday, November 28, 2011, the Respondent called Shannon and Haley to his desk, "out- of-the-blue," during the yearbook class, and told them he had a gift for them, if they wanted it--namely, a Victoria's Secret bra that did not fit his wife. They testified that this made them feel uncomfortable, and they did not know what to say but laughed it off and walked away. They testified that they talked it over later in the day but were afraid to tell an adult for fear of repercussions from the Respondent. The Respondent testified that Shannon and Haley's version is false. He says what actually occurred on that day was that the Respondent's yearbook class was engaged in a holiday gift exchange called "Secret Santa." Each student and the Respondent picked a name randomly and were to purchase a Christmas gift for the person whose name was picked. To help the gift-giver (the "Secret Santa"), students wrote their names and a suggested gift on the board. The Respondent became concerned when he saw that the student whose name he had picked wrote "Victoria's Secret" on the board. He testified that he summoned Shannon and Haley, told them such gifts were inappropriate and asked them to have the student who wrote it on the board to erase it and write something else. The Respondent's wife testified that the Respondent came home from school visibly upset one day and told her about his conversation with Shannon and Haley. She testified that he told her he tried to illustrate his discomfort by relating a story about how embarrassed he was to buy a Victoria's Secret gift for her once and later was too embarrassed to return it when his wife did not want it. According to the Respondent's wife, the Respondent told her that Shannon and Haley then asked if they could have the gift. The Respondent's wife then admonished him and advised him to make it very clear to them the next day that such a gift to them would be inappropriate and that he was not offering the item to them. She added that there actually was no such item, as they had donated it to a charity after the Respondent declined to return it. The Respondent corroborated his wife's testimony and testified that he followed her advice and, on November 29, erased all the Secret Santa's gift suggestions from the board; later reiterated and emphasized to Shannon how uncomfortable he was with their request for Victoria's Secret gifts the day before; and told her never to ask for them again. According to Shannon, on Friday, December 2, she went to the Respondent's classroom to retrieve some of her belongings, and the Respondent told her he had underwear to go with the bra and asked if she wanted them. She testified that she became uncomfortable, did not respond, and left the classroom. The Respondent denied that any such conversation ever took place. Shannon testified that after the alleged underwear offer, she felt it was a serious matter that made her extremely uncomfortable, and she decided to tell her parents. She testified that her parents wanted to go directly to the school administration, but she asked them to let her handle it herself. Her father testified that he contacted the school administration anyway, but there is no record or indication that Mr. Mullins contacted the school until much later in December. Shannon testified that she went to a trusted teacher, Elizabeth Eskin, on Tuesday, December 6, and told her what the Respondent had said to her and Haley. According to Ms. Eskin, Shannon was straightforward but acted upset, like it was "weighing on her and she needed a release." Ms. Eskin escorted Shannon to the school administration office where Shannon reported her version of conversations with the Respondent regarding lingerie. Haley was summoned, and she corroborated Shannon's story. Both appeared to be crying, and they seemed uncomfortable and embarrassed to the adults present, who initiated an investigation. The next day, December 7, the Respondent was summoned to be questioned by two administrators, Pat Burney and Jeffrey Boettner. They informed him that there had been a complaint against him, and they asked him if he had offered a gift to any student. They did not identify the students or tell him anything else about the complaint. The Respondent denied knowing what the complaint could be about. He wondered aloud if it could be about the yearbook class Secret Santa gift exchange, saying that there had been some conversation among the students to the effect that whoever the Respondent drew would receive something nice, that someone said something about Abercrombie, that someone else said something about Victoria's Secret, and that he told the students such gifts would be inappropriate. Later in the day on December 7, the Respondent emailed Messrs. Burney and Boettner his complete answer to their question. He wrote that there were numerous things over the years that could be considered gifts by him to various students, including Secret Santa gifts. None of the gifts described in the list would be considered inappropriate. He did not mention any conversations with Shannon and Haley or with his wife, which the Petitioner contends is significant, but those conversations would not have been directly responsive to the question if no such gift was offered to them. By the following day, December 8, the Respondent had figured out that the complaint probably had been made by Shannon and Haley based on things he heard other students saying. On Friday, December 9, the Respondent separated Shannon and Haley; had them do book work, instead of yearbook work during class; and denied them access to the yearbook. Shannon and Haley were very upset. They thought the Respondent appeared to be angry. Haley began to cry. The Respondent's action and the reaction by Shannon and Haley were very obvious to the entire class. Shannon texted her mother about what was happening and asked two other students to go to the office between classes (Shannon and Haley had two consecutive classes with the Respondent) to tell the administration what was going on. Shannon's mother arrived at school, and Shannon was summoned to the office. Haley was summoned a short time later and was crying when she arrived. The students told the administration that the Respondent had retaliated against them for having reported the lingerie gift offers by demoting them from their positions as yearbook editors, isolating them from the rest of the class, and denying them access to the yearbook, which was humiliating and embarrassing. In response, the administration told the Respondent that he was to pack up his things and leave the school pending an investigation and until further notice. The following week, the school principal, John Wright, interviewed the Respondent. The Respondent told him his version of his conversations with Shannon and Haley. He denied retaliating against them. Instead, he said he was following through on repeated warnings he had given both of them for inadequate performance as yearbook editors. Based on statements initially made by Shannon and Haley, the Petitioner attempted to portray them as model, high-performing, unfailingly honest students, who gave the Respondent no reason to criticize their performance as yearbook editors, which is a position usually only offered to students meeting that description. To the contrary, the greater weight of the evidence was that the Respondent and the representative of the yearbook publisher, who worked closely with the Respondent over the course of several years, had serious questions about how Shannon and Haley would perform as yearbook editors. During the spring of 2011, when they were juniors, they were invited as prospective yearbook editors for the following year to the headquarters of the publisher to learn and start to plan the next year's yearbook. On the trip, Shannon was obstinate in insisting on her preferred yearbook theme, which was "the end of the world," as supposedly predicted by the ancient Mayan calendar. Although a bad idea for a high school yearbook, Shannon could not be dissuaded and became sullen, uncooperative, and troublesome when the Respondent finally made it clear that she would not get her way. This reaction was not out-of-character for Shannon, who had similar reactions when she did not make varsity volleyball in either her sophomore or senior years. (She did not try out in her junior year.) Shannon also seemed more interested in shopping than the yearbook. Shannon was a negative influence on Haley, who tended to follow Shannon's lead. Despite these concerns, the Respondent decided to give Shannon and Haley a chance to prove themselves as editors during their senior year, in part, because there were no other rising seniors who looked to be any better prospects. As it happened, from the start Shannon and Haley did not perform well as editors, and the Respondent repeatedly warned them that he would have to remove them as editors if they did not improve. While first denying that she performed poorly or that the Respondent warned her about poor performance, Shannon later admitted that she was warned, but said she did not take the warnings seriously. Not long before November 28, 2011, the Respondent decided that he had to do something if the yearbook for 2011-2012 was going to measure up to the high standards that had been set in prior years. Instead of removing Shannon and Haley, he named a junior as co-editor. This did not sit well with Shannon and Haley. Based on past experience, it would not be out-of-the- question for Shannon to plot to get back at the Respondent using false lingerie gift allegations and other fabrications, or for Haley to go along with it. When the principal heard the Respondent's side of the story, he criticized how the Respondent handled things, even assuming he was telling the complete truth. Based on the testimony of the principal and assistant principal, John McHale, the Petitioner takes the position that the Respondent should have: just erased the blackboard with the Secret Santa gift suggestions, instead of asking Shannon and Haley to do it, and canceled Secret Santa; reported problems with the performance of Shannon and Haley to Mr. McHale, who was his direct supervisor; had "due process" meetings with Shannon and Haley and their parents before demoting them; and notified Mr. McHale before taking action to demote them. However, there were no written school policies regarding "due process" meetings or notification to the direct supervisor. Meanwhile, the Respondent had a written contract with his yearbook students, approved by the school, stating that demotion and denial of access would be a consequence of poor performance by a yearbook editor. The school referred the inappropriate gift and retaliation charges to the Orange County School District for investigation. The Respondent was placed on "relief of duty with full pay and benefits as of December 9, 2011." His principal gave him "directives" for clarification and guidance regarding expectations (which are not considered to be disciplinary in nature) and put him back to work as a teacher on January 10, 2012, except that he was replaced as yearbook sponsor. The Respondent continued to perform in an exemplary manner in all other respects for the rest of the school year. During the Orange County School District's investigation, students were interviewed and were asked whether they had any knowledge of inappropriate cell phone communication with the Respondent. The students searched their phones to find texts that might be deemed inappropriate. The evidence suggests that cell phone texting was a common means of communication among the Respondent, Shannon, and Haley. There was no convincing evidence that texting, per se, was inappropriate. The Petitioner questions the appropriateness of two text communications and takes the position that they justify teacher certificate discipline under rules 6A-10.081(3)(a) or 6A-10.081(3)(e). One September 2011 text stated that the Respondent was "pissed" about the failure of the yearbook editor to meet a deadline. The Petitioner takes issue with the language used. (Incidentally, this text and others in evidence corroborated the Respondent's testimony that he was indeed upset with Shannon and Haley for their poor performance as editors and their disrespect for him as teacher and yearbook sponsor.) In an exchange in November 2011, the Respondent received a text from Shannon that included "SMH." The Respondent answered "SMFH." The Respondent testified that he is not text-savvy and was not aware that there was a commonly understood vulgar meaning of those texts. He testified that he ignorantly and naively thought they meant "something like . . . see my hand" and "see my face and hand." The Respondent's testimony on this point seemed improbable, but not completely implausible. The evidence was not clear and convincing that he knew the vulgar meanings at the time. Regardless whether the Respondent knew the vulgar meanings of SMH and SMFH, the evidence was not clear and convincing that by using them and the word "pissed" one time, the Respondent failed to make reasonable effort to protect students from conditions harmful to learning or to students' mental or physical health or safety, or intentionally exposed students to unnecessary embarrassment or disparagement. On June 6, 2012, the Respondent acknowledged receipt of a written reprimand from his principal. The reprimand, dated January 10, states that it summarizes a meeting between the principal and the Respondent that took place on January 5 and refers to the directives given to the Respondent by the principal on January 10. It is unclear why the Respondent did not acknowledge receipt of the reprimand until June. The reprimand is for the inappropriate use of poor judgment in interactions with students. It cites to the following provision of the Principles of Professional Conduct: "The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity." This is not a ground for proposed discipline in this case. The Respondent decided not to return to Timber Creek High School for the 2012-2013 school year. Instead, he took a job teaching, coaching volleyball, and sponsoring the yearbook at Father Lopez Catholic High School (Father Lopez High School) in Volusia County. The evidence was that he has performed in all three roles in an exemplary manner at Father Lopez High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission dismiss the charges. DONE AND ENTERED this 31st day of August, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2015. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 (eServed) Carole C. Schriefer, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714-2033 (eServed) George F. Indest, III, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714-2033 (eServed) Ritisha K. Chhaganlal, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714-2033 Cheryl L. Wolf, Esquire Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue posed for decision herein is whether or not the Petitioner, State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools (Petitioner or Board), properly denied issuance of a license to Respondent to operate a school, as defined in Subsections 246.201-246.231, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, the following relevant facts are found: The Board is an agency of the State of Florida charged with the administration and processing of licenses for schools falling within the guidelines of Subsection 246.215(1), Florida Statutes. On February 14, 1978, Earl R. Edwards, Executive Director of the Board issued a report on Respondent's license application for licensure, and the Board recommended denial of such based upon, inter alia, the fact that the Respondent failed to provide certain information, as required by Chapter 6F-5.01(1)(g)4,A- Specifically, the Petitioner's curriculum catalog failed to contain information relative to: A school calendar, including legal holidays, and beginning dates for courses. Chapter 6F-5.01 (1)(g)4c, Florida Administrative Code. A school policy relative to a record of progress kept by the school and available to the student. (Chapter 6F-5.01(1)(g)4f, Florida Administrative Code.) The school's refund policy, Chapter 6F-5.01 (1)(g)4, (i). As such, there is a stated failure to comply with the provisions of Chapter 6F-5.01(1) (f)11. The school's policy relative to the granting of credit for previous training as set forth in Chapter 6F-5.01(1)(g)4,1, Florida Administrative Code. The school's policy relative to granting an award for successful completion of the course. (Chapter 6F-5.01(1)(g)4,m.) Respecting the Respondent's failure to abide by a permissible refund policy, Karen Fishbaum, of Lauderhill, Florida, contacted Respondent at the subject school during December of 1977. Miss Fishbaum expressed interest in becoming a model. She was shown around the school by Mr. R.E. Denson, the school director and owner. Miss Fishbaum tendered to Mr. Denson a $75.00 check and signed a contact to enroll in the school. She was given a course outline, an introductory letter, and a receipt for the $75.00 enrollment fee. Within 72 hours, Miss Fishbaum advised the Respondent of her desire to cancel her enrollment, as provided for in the school's enrollment contact. This cancellation was effected a telephone call and a telegram to Mr. Denson prior to the expiration of the three-day grace period allowed for cancellation. Mr. Denson advised Miss Fishbaum that he was entitled to retain approximately $25.00 of the amount which she paid for tuition. Within a few days, Miss Fishbaum received a check drawn by Respondent in the amount of approximately $50.00, representing Respondent's refund of her tuition. According to Miss Fishbaum, the Respondent explained to her that her course of instruction would last approximately 30 hours. Miss Fishbaum later enrolled at the Gayle Carson Modeling School in Hollywood, Florida, during the spring of 1977. Earl R. Edwards, the Board's Executive Director, is in charge of administering exams, analyzing and otherwise approving applications for licensure by the Board. Mr. Edwards first came in contact with the Respondent, Cinderella Modeling and Finishing School, during mid-February of 1976. Respondent was notified of its necessity to file an application and receive licensure by the Board. Respondent, at that time, was given a copy of the pertinent Florida Statutes and the rules and regulations relative to licensure requirements. Despite such notice, Respondent continued to operate with a license until he was enjoined by the Circuit Court in and For Dade County, Florida. (Petitioner's Exhibit No. 7). It was based on such acts and conduct that the Board, during its March, 1978 meeting, denied granting a license to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the action of the agency in denying licensure to the Respondent be sustained. DONE and ENTERED this 29th day of September, 1978, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1978. COPIES FURNISHED: Gene T. Sellers, Esq. Office of the General Counsel Knott Building Tallahassee, FL 32304 R.E. Denson, School Director Cinderella Modeling and Finishing Schools of Coral Gables 276 Miracle Mile Coral Gables, FL 33134 Mr. Earl Edwards Executive Director of the State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools Knott Building Tallahassee, FL 32304 =================================================================
Findings Of Fact At all times material hereto, Respondent was employed by the School Board of Dade County as a classroom teacher. During the 1980-1981 school year, Respondent was assigned to Southwood Junior High School as a science teacher. During that school year, Dr. E. L. Burck was the principal at Southwood. In August, 1980, Respondent applied for a part-time position teaching photography during the evenings at Robert Morgan Vocational Technical Institute. When Dr. John D. White, the vice principal at Robert Morgan, hired Respondent, he explained to Respondent that it would be necessary for Respondent to qualify for a teaching certificate in the area of photography. Respondent told White that he believed he was certifiable based upon his work experience and indicated to White that he would pursue the necessary steps to obtain his certification. At the time that White hired Respondent to teach part-time during the fall 1950 semester, White knew that Respondent was employed full-time at Southwood. During the fall 1980 semester, the administrators at Robert Morgan determined they wished a full-time program at Robert Morgan and decided that if enough students would be generated, they would need a full-time photography teacher in January, 1981. The possibility of a full-time position was discussed with Respondent. Respondent decided that if he could obtain a full-time position at Robert Morgan in January, he would pursue obtaining certification; however, if he could not obtain a full-time position, he would not pursue obtaining certification since it was difficult to teach full-time at Southwood in addition to part-time at Robert Morgan. During December, 1980, while enrollment was underway at Robert Morgan and it appeared probable that a full-time photography position would become available, Respondent spoke with Dr. Burck at Southwood regarding the possibility of transferring to Robert Morgan on a full-time basis beginning January 5, 1981, the first day of classes following the Christmas, 1980, vacation. Burck explained to Respondent the procedures relating to such a transfer of assignment and further explained that he needed to have definite information as soon as a final decision had been made so that he could initiate procedures for obtaining a teacher to replace Respondent. Just prior to Christmas vacation, Dr. White (as the potential "receiving principal") and Dr. Burck (as the potential "sending principal") discussed the possibility of the full-time photography class and the possibility of Respondent's transfer to Robert Morgan to teach that class. White explained that he did not yet know if the full-time class would materialize but that he would give Burck two weeks' notice in order that Burck could find a replacement teacher. Burck conveyed to Respondent the content of this conversation and advised Respondent that until such time as the class materialized and Respondent was replaced at Southwood, Respondent was still a staff member at Southwood and Burck expected to see him on January 5, 1981. Respondent did not report for work at Southwood on Monday, January 5, 1981, and failed to advise anyone at Southwood that he did not intend to return to teach his classes. Burck and another employee of Southwood attempted to locate Respondent. On January 6, 1981, White ascertained that there was sufficient enrollment for the full-time photography teacher's position at Robert Morgan. He instructed an employee at Robert Morgan to process the necessary paperwork to hire Respondent full-time. It was discovered that Respondent did not have, nor had he applied for, his vocational certificate covering the field of photography. Since White had told Respondent in August, 1980, to obtain certification and Respondent had apparently done nothing to do so, White gave to Respondent a deadline of Friday, January 9, 1981, to obtain verification of his ability to secure the proper teaching certificate. Also on January 6, 1981, White and Burck discussed Respondent's employment. White advised Burck that Respondent was teaching part-time at Robert Morgan and that there appeared to be a problem with Respondent's certification. Burck then talked with Respondent, and Respondent told Burck that he was teaching at Robert Morgan as a full-time instructor and that the certification problem would be resolved shortly. Burck told Respondent he needed an immediate resolution because Respondent's students at Southwood were without a regular teacher. Burck reminded Respondent that Respondent's assignment was at Southwood and that no transfer had been officially requested or granted. Burck contacted Dr. Thomas Peeler, South Area Director, and requested Dr. Peeler's assistance in resolving Respondent's status. On January 7, 1981, Dr. Peeler contacted White at Robert Morgan and advised White that Respondent was not reporting to work at Southwood. White had assumed that Respondent was reporting to his assigned school. Peeler instructed White to advise Respondent that he was to report to work at Southwood the following day. On January 7, White told Respondent to report to Southwood the following day. On January 8, White again advised Respondent that he was to report to work at Southwood. On January 9, White released Respondent from his part-time teaching assignment at Robert Morgan since Respondent had not achieved either obtaining the required certification or obtaining verification that he was in fact certifiable. Also on January 9, Burck contacted Respondent and advised Respondent that he had not been transferred and was still assigned to Southwood. On Monday, January 12, 1981, Dr. Peeler, the South Area Director, ordered Respondent to report to his teaching position at Southwood on Tuesday, January 13. Later that same day, Dr. Burck ordered Respondent to return to work on the 13th. Respondent told Dr. Burck that he would not return to work. On January 13, Dr. Peeler wrote Respondent, ordering him again to immediately report to his teaching assignment at Southwood. Peeler advised Respondent that his failure to report could result in suspension. In view of Respondent's continued refusal to obey orders, and in view of Respondent's advice to Burck the evening of January 12 that he would not report to Southwood to fulfill his teaching duties, a replacement teacher was located to fill Respondent's position as a science teacher at Southwood. Between January 5, 1981, and January 30, 1981, Respondent did not report to his assigned teaching position despite repeated orders from his superiors, Respondent knew that his place of employment had not been changed, and Respondent was absent from his teaching duties without leave. On January 30, 1981, a conference was held among Mr. Eldridge Williams, the Executive Director of the Office of Personnel for the Dade County Public Schools, Dr. Thomas Peeler, the South Area Director, and Respondent to discuss Respondent's repeated failure to report to work and Respondent's employment status. At that meeting, Respondent offered to return to work at Southwood on February 2, 1981; however, his position had been filled. Insofar as payroll status, Respondent was classified as absent without leave. No alternate position was available for placement of Respondent through the remainder of the 1980-1981 school year. On March 9, 1981, Patrick Gray, the Assistant Superintendent in the Office of Personnel, wrote Respondent regarding the south area supervisor's recommendation that Respondent be suspended or dismissed from employment. Gray's letter ordered Respondent to immediately return to Southwood or to resign or to retire in order that his employment status could be resolved. At the time he wrote that letter, Gray was not aware that Respondent's position at Southwood had been filled. In response to his letter of March 9, Gray received a letter from Respondent dated March 16, 1981, requesting another conference. A second conference between Respondent and Eldridge Williams was scheduled for April 2, but Respondent refused to meet with only Williams. Accordingly, a conference was scheduled for April 17, 1981, with Patrick Gray, Eldridge Williams, Dr. Peeler and Respondent. As a result of that conference, Respondent submitted a leave request dated April 22, 1981, requesting leave for the period of April 27, 1981, through the end of the school year in June, 1981. This request for leave was approved by Gray on August 7, 1981, retroactive for the period requested. A formal letter of reprimand dated October 13, 1981, was issued to Respondent as a result of his insubordination in refusing to report as ordered to Southwood Junior High School. During the 1981-1982 school year, Respondent was assigned to Redland Junior High School as a science teacher. Utilizing proper procedures, Respondent was absent on September 16, September 28, October 6, October 22, October 23, October 26, October 27, October 28, October 29, October 30, November 2, November 3, November 4 and November 5, 1981. On September 28 and October 6, Respondent utilized personal leave. On the other 12 days, he utilized sick leave. On November 5, 1981, Respondent advised Judy Cobb, Assistant Principal at Redland Junior High School, that he was looking for another job. Cobb advised Norman Lindeblad, Principal of Redland Junior High School, of this conversation with Respondent. On Friday, November 6, 1981, Respondent advised Lindeblad that he would not be returning to his teaching assignment at Redland Junior High School. Respondent told Lindeblad to fill Respondent's teaching position, and Lindeblad advised Respondent that he could not do so without receiving such directive in writing. Lindeblad advised Respondent that he expected Respondent to report to his teaching position on Tuesday, November 10, 1981, absent some other resolution of the problem such as approved personal leave or resignation. Late in the evening on November 9, 1981, Respondent telephoned Lindeblad at home and advised Lindeblad that he would not report on Tuesday, November 10, 1981, to teach his classes. On Tuesday, November 10, 1981, Respondent once again advised Lindeblad that he would not return to his teaching position at Redland. Respondent scheduled an appointment with Lindeblad on November 11 to finally resolve his status, and Lindeblad advised Respondent that unless verification of illness was provided, Lindeblad would commence recording Respondent's leave as leave without pay beginning on Friday, November 6, 1981. On November 11, 1981, Respondent appeared at Redland Junior High School and gave to Lindeblad a memorandum authorizing Lindeblad to replace Respondent in his science teaching position as of Wednesday, November 11, 1981. On November 16, 1981, the personnel office received an application for leave without pay from Respondent, which application was dated November 11, 1981, and which application requested leave effective November 11, 1981, due to Respondent's ill health. The portion of the application for leave requiring the signature and recommendation of the principal was not completed. Although the application required a statement from a physician justifying the request if the request were based upon ill health, Respondent provided only a short letter signed by a therapist possessing a degree in education stating that Respondent felt stress and frustration. No information regarding any physical symptoms, diagnosis or prognosis was volunteered. Since proper procedures require the principal's recommendation for extended leave, Lindeblad was asked to provide his recommendation to the personnel office. On November 18, 1981, Lindeblad sent a memorandum to the Office of Personnel stating that he did not recommend approval of leave for Respondent since no statement from a physician had been provided to verify Respondent's alleged ill health and because Lindeblad felt that the Respondent had begun unauthorized leave before he even requested leave. On November 19, 1981, Patrick Gray advised Respondent that Respondent's request for leave was not approved. Respondent was further advised that since he refused to carry out his teaching assignments for the second year in a row and since Respondent was simply attempting to obtain a teaching position in an area for which he was not certified and could not be certified, then Respondent's options were limited to either resignation or suffering suspension and dismissal proceedings. Respondent did not resign, and dismissal proceedings were initiated. Respondent was absent in accordance with proper procedures for the 14 days ending on November 5, 1981, as set forth in Paragraph numbered 24. Commencing on November 6, 1981, Respondent was absent without leave. Although Respondent eventually obtained verification of his work experience for the addition of photography to his teaching certificate, as of October 1, 1981, Respondent was still not certifiable for the reason that he still needed three full years of teaching experience and 14 semester hours of credit in vocational education courses. By the time of the final hearing in this cause, Respondent had still not obtained a teaching certificate enabling him to teach photography.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of gross insubordination, incompetency, willful neglect of duty and absence without leave; dismissing Respondent from employment by the School Board of Dade County; and denying Respondent's claim for back pay. DONE and RECOMMENDED this 21st day of January, 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 21st day of January, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Robert F. McKee, Esquire 341 Plant Avenue Tampa, Florida 33606 Leonard Britton Superintendent of Schools Dade County Public Schools Lindsay Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
Findings Of Fact Respondent was employed by the Bradford County School Board as a cosmetology instructor on a continuing teaching contract at the Bradford-Union Area Vocational-Technical Center (Va-Tech Center) in Starke, Florida, for the school year 1983-1984. Respondent's class was designed to prepare students to become licensed cosmetologists. On one occasion prior to Christmas, 1983, Mary Lee Wolf and Rose Smith, students of Respondent, brought an unopened bottle of wine onto the Vo-Tech Center grounds and presented it to Respondent during a class. There is no evidence that Respondent solicited the gift. Subsequently, on another date and after class hours, students Mary Lee Wolf, Tina Moyer, Bonnie Banks and Respondent's teaching aide, Helen Van Wart, opened the bottle and drank wine from cups in Respondent's presence. Respondent was served a cup, but there is no direct, credible testimony that Respondent personally consumed any wine. There is no evidence that any of those who consumed the wine were minors. In February 1984 the Ace Beauty Company, in conjunction with the Florida Cosmetology School Association, put on the Florida Sunshine Trade Show in Tampa, Florida. Attendance by students in Respondent's class at this particular trade show was encouraged by Respondent and pre-authorized by the Vo- Tech Center Director, David B. Smith, Jr. Mr. Smith made no provisions for a teacher's aide to fill in for Respondent on Monday, February 13 and Tuesday, February 14 because Respondent informed him that all but one or two of her students would be attending the trade show from February 11 through February 14, 1984. In fact, seven students did not attend and those who attended returned late February 13. On Friday, February 10, 1984, Mr. Smith approved use of the Vo-Tech Center van for Respondent's field trip, provided only Respondent drive the van. The same day, Respondent gave Mr. Smith a signed Application for Leave, requesting leave from February 11, 1984 through February 14, 1984. Past experience indicated trade shows may exceed the printed agenda. Saturday morning, February 11, 1984, Respondent and the eleven students travelling to the cosmetology show in Tampa, met in the Vo-Tech Center parking lot to board the van. While passing luggage to the Respondent for loading into the van, Bonnie Banks saw liquor bottles protruding from paper bags and remarked to Respondent that it looked like a party was planned. Respondent did not answer her Various students drank mixed alcoholic beverages from paper cups while standing near the van. Those involved took some care to shield their activities from Respondent and there is no direct credible evidence in the record to indicate Respondent was present or observed this alcoholic consumption on the school parking lot. Before climbing aboard the van, several of the students heard Respondent comment to the effect that the students were all adults and she expected them to behave that way. Some interpreted this to mean they were being given tacit permission to drink alcoholic beverages; others interpreted it as a warning either not to drink alcoholic beverages on the trip or not to let Respondent observe them drinking, if they did. Some of the students drank mixed alcoholic drinks from paper or plastic cups in the van while Respondent drove the van to Tampa. Mary Lee Wolf "tasted" some Kahlua liquor from a bottle in a brown paper bag. At one point, another liquor bottle in a brown paper bag rolled forward on the floor near Respondent in the driver's seat and Respondent passed it back to students behind her with an admonition to the effect of "keep it down back there." While it is unclear whether this comment was directed to Ms. Wolf or to someone in control of the rolling bottle, of those students who observed the bottle incident, all understood Respondent's comment to mean "don't let the liquor be seen" as opposed to "stop drinking and don't be so loud." While en route to Tampa, Respondent stopped in Gainesville, Florida, to refuel. At this stop, students Paula Tanner, Bonnie Banks, and Kay Kane left the van, purchased a six pack of beer at an adjoining convenience store and brought it back in a brown bag to the van. Respondent was in an adjoining bakery and did not see the beer loaded. Thereafter, various students drank beer from paper and plastic cups while Respondent drove the van. There is no evidence that any of these students was a minor and there is no direct, credible evidence Respondent consumed any alcoholic beverages in the van. Also at the Gainesville stop, Respondent drove from the gas pumps to another parking location without closing one of the van doors. The open door contacted the bumper of a parked car. There was little or no visual damage to the van but the students had difficulty closing the door again. Respondent had the necessary minor repair work done to the van in the Vo-Tech mechanical shop upon her return but did not report the accident to Director Smith. When Respondent unloaded the van in Tampa, several beer cans littered the van floor and a liquor bottle was dropped and broken in proximity to Respondent. Upon arrival in Tampa, Respondent registered in the Hyatt Regency Hotel, where the trade show was located. For financial reasons, several students had pre-registered in the less expensive Econo-Lodge some distance from the trade show. Respondent permitted Rose Smith to transport these students to and from the Econo-Lodge accommodations to the cosmetology show at the Hyatt Regency throughout the group's stay in Tampa. She jestingly told Rose Smith to say she was Respondent. On Sunday evening, after all educational activities ceased, Rose Smith also drove several of the students to the Confetti Lounge where they consumed alcoholic beverages. Rose Smith and some other students consumed alcoholic beverages in the van on this occasion. Respondent did not accompany the group to the Confetti Lounge. The Florida Sunshine Trade Show ended at 4:00 p.m., Monday, February 13, 1984. Respondent drove the van back to Starke that evening. During the return trip, some students complained of what they considered excessive speed. Respondent's reply to Paula Tanner's complaint was that if she did not like the ride she could get out and walk. The group arrived at the Vo-Tech campus at approximately 10:30 p.m. People were present on the grounds, in the classrooms, and in the administration offices when the cosmetology students arrived and for some time thereafter Respondent waited at the Vo-Tech Center for most of the students to be picked up. At student Lisa Morgan's request, she eventually took the remaining students home, but Ms. Morgan refused Respondent's offer to wait with her and insisted on waiting for her own ride which did not arrive until after 1:30 a.m. Tuesday morning, February 14, 1984. Respondent retained the Vo-Tech van at her home on Tuesday, February 14, 1984. On February 15, 1984, she reported for work. This is the day the van was repaired. In separate conversations with Barbara Casey, secretary to Director Smith, and with Martha Smith, (Mrs. David Smith) media specialist, Respondent gave the impression she had returned to Starke late Tuesday night. Respondent also submitted a newspaper release to that effect. On or about Friday, February 17, 1984, Respondent submitted to Director Smith a per-diem voucher requesting compensation from 9:30 a.m., February 11, 1984 to 11:00 p.m., February 14, 1984 when she had in fact returned at 10:30 p.m., February 13, 1984. At Mr. Smith's request for a supporting agenda she submitted a typed agenda for the trade show indicating activities through part of Tuesday, February 14, 1984. Four other per diem requests submitted by Respondent during the previous four years for field trips had exceeded the time periods established in their respectively attached agendas. In each instance, Mr. Michael Reddish, finance officer, reduced the time requested and made a reduced per diem reimbursement payment to coincide with the agenda submitted. Each time he did this he informed Director Smith of these actions; neither Smith nor Reddish informed Respondent of these actions, but it may be inferred that she was aware her per diem reimbursement payments were being reduced from the hours she had requested so as to coincide with the agendas she had submitted simultaneously with her per diem reimbursement requests. The per diem reimbursement request submitted on February 17, 1984 with supporting agenda amounted to a request for fifty dollars ($50.00) more than the actual time spent by Respondent on the trade show trip. Respondent's class procedures involved several sources of funds: individual student contributions to a profanity jar, proceeds of a class hot dog sale, fees charged to patrons for student beauty services, charges to students for supplies used by them in class, charges to students for sale of materials such as shampoos and permanents which they took home, and charges to students for special purchase items such as mannequins. Mannequins are false "heads" with rooted hair for hair services' practice. The profanity jar was apparently Respondent's idea to teach decorous language for purposes of future employment. Students who "cussed" were required to deposit various amounts of small change into the jar for each infraction. The amount in this jar at any point in time was never established by any credible evidence, nor has it been established what became of it or that Respondent emptied it. Proceeds from the class hot dog sale were originally intended to be used for groceries for use only for those students attending the trade show field trip. Instead, Respondent responded to non-attenders' complaints and purchased hairspray for the whole class. Although the highest "guesstimate" for hot dog monies was $25, the exact amount of proceeds from the hot dog sale has never been established by any direct credible testimony. At the beginning of the 1983-1984 school year, Director Smith and Respondent agreed that because Vo-Tech and the students each derived some benefit from student use of supplies, the school would charge students half price for supplies they wished to use at home. These types of supplies were initially purchased by the school from internal student money generated from student work on patrons and from sale of the supplies to students. They were internal funds and not county monies in Director Smith's eyes. Director Smith required that funds received from students and patrons be accounted for daily but no one in his office checked up on this. It was left to a teacher or a student to report these amounts on "Report of Monies" logs from each class daily. There is confusion in the testimony of Director Smith, Ms. Edwards, secretary-bookkeeper, and Ms. Norman, school clerk, as to what constituted retail sales and what constituted internal funds, and as to whether wigs and mannequins on hand constitute "supplies" (always retail sales) or are always classified in the category of special pre-paid purchase items. Students could purchase mannequins through the school office but mannequins were normally purchased by the school with county money and Mr. Smith's understanding was that in the 1983-1984 school year there had been only one purchase of mannequins made with county monies and therefore they were not for resale. Ms. Edwards and Ms. Norman thought sale of supplies to students could not generate internal funds and was not permitted, contrary to Mr. Smith's understanding, and both ladies were vague as to whether there had been another set of mannequins for students to purchase. All three administrators agreed resale of items purchased with county funds was improper. Ms. Edwards and Ms. Norman are the persons who determined no amounts of monies in any category had been turned in from Respondent's class in the 1983-1984 school year. On one occasion, student Elizabeth Kelly paid for a mannequin in advance with a check from her grandfather to her, which she endorsed over to Helen Van Wart. She eventually received the mannequin from Helen Van Wart. On another occasion, Bonnie Banks delivered a blank check for $24.00 to Respondent. It was cashed with the name "Betty J. Hutson" filled in and also endorsed on the back. That name is Respondent's name and Bonnie Banks thought that was Respondent's signature but no predicate/foundation/reason exists in the record for that assumption. Bonnie Banks also received her mannequin. In the 1983-1984 school year, money for all supplies regardless of how categorized were collected by Respondent's teacher's aide, Mrs. Van Wart, but the keys to the supply cabinet were freely given out to students. Permanents were left sitting on an open shelf. Mrs. Van Wart did not routinely give out receipts and none of the money students recall paying for supplies was turned in to the Director's office. In the previous years, student monies and retail sales for patrons services and sales to students had been turned in to the office from Respondent's class. In 1983-1984, no theft of monies or supplies was reported to the Director by anyone. Only one student, Elizabeth Kelly, recalls Respondent mentioning some money was stolen but how much or from what source this money was derived was never established by any direct credible testimony. No credible testimony established any supplies were actually missing from the supply cabinet and an outside year end audit revealed no problems in Respondent's class. Petitioner established that over a period of approximately three years, Respondent fell asleep several times while under the hairdryer during class while her students practiced on her. On one other occasion, she was absent from the classroom for a short period of time on a personal errand off- campus. The maximum period of time she was gone was less than an hour and a half and during this period she was entitled to take her lunch. During this absence, a patron was permanented by a student and injured. It is contrary to Vo-Tech policy for students to use chemicals without on-site instructor supervision and Respondent did not advise Director Smith of the patron's injury. She further requested her students to say she was in the school cafeteria when it happened. Cosmetology students attending a normal day of classes on campus would be legitimately credited with seven (7) hours toward their state board requirement. Feeling trade shows were worthwhile learning experiences, Mr. Smith authorized granting students eight (8) hours for the planned activities of a field trip day. At the beginning of the 1983-1984 school year, Respondent told her entire class that no-one-would be required to attend class the day following any multi-day trade show or seminar. On Friday, February 10, 1984, Respondent told her class that they would be returning from the trade show on Monday evening, February 13; that there would be no class on Tuesday, February 14; and that everyone would still get credit for class on Tuesday. Respondent advised her class that students not attending the trade show would receive attendance credit whether or not they attended school on Monday or Tuesday. Seven students were not in school or any school approved instructional program on Monday, February These were the students not attending the trade show that day. Eighteen students were not in school or any school approved instructional program on Tuesday, February 14, 1984. This included the eleven students who had returned from the Tampa trade show with Respondent the night before. Respondent gave all the students credit for seven (7) hours on Monday and seven (7) hours on Tuesday instead of eight (8) hours for Sunday and eight (8) hours on Monday for the students attending the trade show and zero (0) hours credit for the "stay at homes" on Monday and zero (o) hours credit for all students for Tuesday. Director Smith testified he would have no problem if she had given eight (8) hours per day for the trade show activities but the attendance records did not reflect that specifically. Interestingly, after Respondent was suspended, Mr. Smith confirmed Respondent's practice by crediting all students just as Respondent had. Before and during the trade show trip, and at various times thereafter Respondent instructed the students who had been on the field trip, that if asked, they were to say they returned to the Vo-Tech Center grounds on February 14, 1984, instead of a day earlier. Respondent's immediate supervisor, David Smith, instituted an investigation of Respondent' a activities approximately February 17, 1984. Be did not immediately advise her of the serious allegations concerning allegedly missing supplies and leave requests/per diem claims. Respondent was not aided by him in correcting the latter concern. Particularly, she was prevented from correcting the leave requests/per diem claims. On March 17, 1984, Respondent submitted a letter stating she was at home on February 14, suffering from exhaustion and wished to amend her leave and per diem requests. On March 19, 1984, Respondent submitted an amended sick leave request. Director Smith refused to approve these as over thirty days from date of the sick leave and because he considered the initial requests to be fraudulent.
Recommendation Upon assessment of the facts found, and in the conclusions of law reached and in consideration of the argument of counsel, it is recommended 1. That the Bradford County School Board enter a Final Order ratifying Respondent's suspension of employment with the Bradford County School Board without pay and continuing that suspension without pay to and including the end of the 1984-1985 school year, a total of 2 school years. DONE and ORDERED this 1st day of February, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 1st day of February, 1985.
The Issue The issue posed for decision herein is whether or not the Respondent's teaching certificate should be revoked based upon conduct which will be set forth hereinafter in detail, as contained in the Petition for Revocation filed by Petitioner on or about May 11, 1979. During the course of the hearing, Petitioner withdrew allegations B, E and J, which are set forth in the Petition. Pursuant to the Stipulation, the parties waived the thirty-day period prescribed in Subsection 120.56(3), Florida Statutes, requiring the undersigned to file a Recommended Order within the prescribed thirty-day period.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the legal memoranda submitted by counsel for the parties and the entire record compiled herein, the following relevant facts are found. Respondent, Michael S. Park, has been employed by the Broward County School System as an instructor in art at Plantation High School since 1970. He was continuously employed until his suspension on April 19, 1979. Respondent holds Florida Teacher's Certificate No. 274996, Post Graduate, Rank III, valid through June 30, 1985, covering the areas of art and junior college. Respondent currently enjoys continuing contract status. While employed by the Broward County School System, Respondent taught several courses, including design, drawing, craft, sculpture and ceramics. Pursuant to a probable cause determination made by the Commissioner of Education on May 11, 1979, the Petitioner, pursuant to authority contained in Chapter 6A-4.37, Florida Administrative Code, filed a Petition seeking revocation of Respondent's teaching certificate based upon the following allegations: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom office, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. During the school year 1977-78, MICHAEL PARK asked a female student to go 'bumming' with him and to meet him at the night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from Plantation was calling. During the school year 1977-78, MICHAEL PARK stated to a female art student that he knew for a fact that the she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. During the month of February, 1979, MICHAEL S. PARK asked a female student who was not under his supervision as a teacher to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked this student whether or not she participated in or agreed with the practice of oral sex. During the spring of 1978, MICHAEL S. PARK hugged one or more female students, grabbed one female student from behind and pushed himself up against her buttocks. During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. Based thereon, it is alleged that the Respondent violated Sections 231.09 and 231.28, Florida Statutes, and rules 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code. As such, the Petition concludes that the Respondent's alleged conduct seriously reduced his effectiveness as a school board employee. It is alleged in paragraph 1, subparagraph A. of the Petition that: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. The Respondent denied the allegation. Darlene Wilcox is the female student referred to in the allegation (TR 96-98). The thrust of student Wilcox's testimony is that Respondent invited her to stay after class one day and when her classmates left, he handed her a psychology magazine opened to an article on sex and asked her if she had ever read a magazine like that before (TR 97). Student Wilcox, who was a ninth-grade student of Respondent, testified that Respondent sat down across from her in a chair and asked her questions about how she was that day. They were interrupted by another student, whereupon Respondent immediately got up, opened the door, and told her he would see her in class the following day (TR 98). Respecting this allegation, the evidence reveals that it was impossible for Respondent to secure the lock on his classroom door from the inside, as alleged (TR 243-244 and 359). The evidence reveals that student Wilcox could have left the room by turning the doorknob. Student Wilcox told her parents about her encounter with Respondent, whereupon her parents replied that she should keep clear of Respondent and not be over-friendly with him. Paragraph C of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK asked a female student to go 'bumming' with him and to meet him at a night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from the Plantation was calling. The female student referred to in the above-described allegation is Cathy Weber. The evidence respecting the above allegation reveals that during the fall of 1977, while a twelfth-grade student, Cathy Weber, was at a local establishment called the "Crown" bar with other students one evening. Student Weber was not a student of Respondent, although Respondent joined Weber and a group of her friends and started conversing with her at the "Crown" bar. During the conversation, Respondent took student Weber's wrists, stated that he could read her mind and proceeded to tell her birth date. On another occasion, Respondent telephoned student Weber at her home although she declined to talk to him. Additionally, during late November or early December, Respondent entered Linda Whealin's class and asked permission from instructor Whealin to excuse Cathy Weber when she finished her work in order that she could help in the office. Ms. Whealin agreed, but Cathy testified that she was afraid of Respondent and, therefore, took as much time as she could to complete her work because of the "too personal attitude" the Respondent evidenced toward her. The matter was brought to the attention of the Principal and Assistant Principal, which resulted in a counselling of Respondent by the Principal. During these counselling sessions, Respondent admitted that he told student Weber that he could read minds; that he called student Weber at her home because she wanted to talk to him and that he had asked for her to help him inventory an art order. Respondent was warned of his conduct by school officials and advised to restrict his student contact to classroom situations. A summary of the warning is embodied in a memorandum dated December 5, 1977, which Respondent signed acknowledging that he had read the warning contained therein. Respondent also submitted a rebuttal reciting his version of circumstances involving the student (Petitioner's Exhibit 3 and the testimony of Respondent and witnesses Lawton, Weber, Whealin and Hanes). The Respondent acknowledged talking to student Weber at the Crown bar; however, he testified that he was merely attempting to joke with the student, rather than, as contended by Petitioner, to advance a sexual topic to achieve a lustful objective. Paragraph D of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK stated to a female student that he knew for a fact that she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. The student referred to in the above paragraph is Susan Clement. During the 1977-78 school year, student Susan Clement was a student of Respondent. Student Clement testified that during the school year, she smoked marijuana approximately three times a week and was sometimes under the influence of marijuana while attending classes. However, she testified that her ability or memory was not impaired and that she was able to concentrate in her art classes. She testified that on several occasions, Respondent grabbed her neck with his hand, pinched her buttocks, and pushed up against her buttocks with his body from behind while she was washing her hands at a sink in the classroom. Student Clement testified that Respondent told her that there were rumors going around that she was going to bars and meeting male teachers there. Following one of these incidents, student Clement complained to the school's Principal about Respondent's conduct. The Respondent denied making such statements to student Clement and testified further that Clement confided in him without any prompting on his part with respect to her relationship with males. Additionally, the Respondent urges that student Clement generally spoke to others about her personal life in an unguarded manner (testimony of Dan Van Fleet)(TR 134 and 236). Paragraph F of the Petition alleges that: During the month of February, 1979, MICHAEL S. PARK asked a female student, who was not under his supervision as a teacher, to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked the student whether or not she participated in or agreed with the practice of oral sex. The student with whom the Respondent allegedly addressed the above remarks is Tammy DeCarlo. In this regard, the evidence reveals that the Respondent had four conversations with student DeCarlo. Respondent acknowledged that he initiated the first conversation with DeCarlo. Evidence reveals that the above-referenced conversations occurred during February of 1979 while student DeCarlo was a senior at Plantation High School. DeCarlo was not a student of Respondent. While DeCarlo was conversing loudly with another student in a school corridor, Respondent joined the conversation based on DeCarlo's "frantic behavior" and the fact that she was shouting that "I'm going to kill him", referring to Mr. Kinder, the yearbook advisor, in a tone which was loud enough for Respondent and others to overhear the conversation (TR 76, 77 and 376). DeCarlo was the school yearbook editor and had been having problems with its publication. The thrust of the problem appeared to be that DeCarlo was of the opinion that although she was exerting all the effort towards the publication of the yearbook, advisor Kinder was receiving or attempting to receive all credit for her work. While the Respondent initially injected himself into the conversation with DeCarlo and another student concerning differences that DeCarlo was having with the yearbook advisor, Kinder, she later conversed with Respondent about various problems that she was having with the yearbook in the following weeks. During the third of approximately four conversations with Respondent, the evidence reveals that the Respondent told another student (Chris Sarko) that he wanted to speak with DeCarlo, whereupon Sarko summoned student DeCarlo to go to his office where he later joined her, bringing a paper flower with him to give her. In Respondent's office, they discussed the yearbook deadline and Respondent mentioned that he had "ESP". Respondent gave student DeCarlo several examples in that regard. Respondent requested DeCarlo to keep their conversations between the two of them, although DeCarlo later mentioned the conversations to her parents. DeCarlo's parents later spoke with the Assistant Principal about Respondent. Within a few days, DeCarlo received a note telling her that Respondent wanted to see her and again Respondent took her into his office. During this conversation, Respondent told DeCarlo that she did not trust him because she had been hurt by her boyfriend. Respondent later told her to close her eyes and concentrate and told her that the boy just took her out so that she could make love with him and that he had tried to make her do something she did not want to. DeCarlo replied that she did not know what he was talking about, and Respondent inquired "What is it, oral sex?". According to DeCarlo, Respondent asked her to give him something personal, whereupon she took her necklace off and gave it to him. Respondent also inquired of her the type birth control pill she used and DeCarlo told him. Approximately one week later, student DeCarlo saw Respondent again. He asked her to come to see him during her lunch hour, but she declined. DeCarlo later asked a friend (Sarko) to get her necklace from Respondent, which was returned by the student, together with Respondent's picture. DeCarlo's parents made a written complaint to school authorities concerning Respondent's conduct. Respondent testified that he was regarded as a confidant among the students and that they frequently conversed with him about personal matters. He testified that the DeCarlo relationship, which was initiated by him, was motivated by a normal concern for a student who was visibly upset, and he felt that he could offer some assistance to student DeCarlo in resolving a crisis. Paragraph G of the Petition alleges that: During the spring of 1978, MICHAEL S. PARK hugged one or more female students from behind and pushed himself up against their buttocks. The primary incident in which Respondent is alleged to have gone beyond a mere touching of the shoulder is when he grabbed student Clement from behind and touched his lower torso against his buttocks. As stated earlier, Respondent denied this allegation. In this regard, several of Respondent's former students testified that they had never seen him act improperly in class or inquire into the personal lives of students. These students considered Respondent to be a warm, friendly teacher who occasionally would pat a student on the back or put his arm around a student's shoulders. In this regard, Van Fleet testified that the Respondent was a "touching, feeling type of friendly" person (TR 254). Other students testified that the Respondent often placed his arms around the shoulders of various students. During the period 1971 through 1979, Respondent's Principal warned him approximately four or five times concerning his involvement with female students (testimony of witnesses Graff, Wilcox, Landers, Cirillo, Larkin, DeCarlo, Evans, Jackson, Hanes and Van Fleet). Paragraph H of the Petition alleges that: During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. The two students involved in this allegation are Susan Clement and Lori Evans. The Respondent testified and denied that he pinched students Evans and Clement on the buttocks; however, he conceded that he might have grabbed Clement's neck when she did not "clean up her mess" in the classroom. Student Clement was not sure of the time when the Respondent allegedly pinched her or of the number of times when such acts were allegedly committed by Respondent. Instructors Dan Van Fleet and Gail Altman testified that students Clement and Evans both complained and were upset that the Respondent gave them failing grades. Noteworthy, also, was the fact that student Evans testified that there were students present at the time that the Respondent pinched her, although no corroborating student witnesses were called upon to verify said acts. Paragraph I of the Petition alleges that: During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. During the hearing, the only student who claimed to have been pinched by Respondent was Lori Evans. Again, the Respondent denied that any such conduct occurred on his part. Although Evans testified that there were student witnesses to the incident, no witnesses were called upon to testify during the hearing. RESPONDENT'S DEFENSE Respondent, for the most part, denied that he engaged in any conduct which could be considered grossly immoral or inconsistent with good morals and the public conscience or conduct which would not be a proper example for students. He further denied that such conduct was sufficiently notorious to bring him and the educational profession into public disgrace and respect, or that it otherwise reduced his effectiveness as a School Board employee. He testified that students confided in him and that he was an instructor who was overly concerned about the plight and well-being of students. In that regard, he testified that he interjected himself into conversations in situations wherein students appeared to have needed his counsel and guidance. Respondent denied pinching Lori Evans above the breast or on the buttocks or slapping her on the buttocks with a ruler. He testified that Evans' motive for giving testimony supportive of the charges is that she was a problem student who was unreliable when assigned a task. Additionally, Respondent denied pushing against student Susan Clement at the classroom sink or pinching her buttocks; however, he conceded that he might have grabbed her neck inadvertently as stated earlier, when she failed to "clean up her mess". Respondent's stated reason for visiting the "Crown" bar to join students with whom he taught was merely an effort to socialize with students and that respecting the Cathy Weber allegation, he was merely trying to assist her to resolve the problem that she was having with her boyfriend. He testified that the fact that he asked her to go shopping in a public shopping center indicates that he had no ulterior motive in making such request. Respondent voiced his opinion that student Weber was probably drinking due to that problem and that he wanted to inspire confidence in her to prevent her from drinking to resolve problems. Respondent's version of the incident surrounding the Tammy DeCarlo incident is much the same as his involvement with student Weber. That is, that he was simply trying to console her, which was prompted, in part, by counselling from the Assistant Principal to the effect that students and parents complained that he was not consoling enough to students. However, Respondent's testimony and inquiries, admittedly, as they related to his giving of flowers to student DeCarlo and inquiring into her sexual activity, missed the mark of a proper teacher-student relationship. Respondent's denial of the incidents involving student Wilcox, Evans and Clement as they related to his alleged physical contact is denied based upon the entire record, including other admissions by Respondent, including his inquiries into students' personal/social lives. In this regard, Respondent's inquiries relative to students' birth control pills, talks about oral sex, the giving of paper flowers to students and the embracing of students are considered immoral in a student-teacher setting and certainly does not inspire or set a proper example for students, as required in Chapter 6B-1, Florida Administrative Code.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's teaching certificate, No. 274996, be suspended for a period of three (3) years. DONE and ENTERED this 18th day of January, 1980, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2017),1/ and Florida Administrative Code Rule 6A-10.081(2)(a)1. and 8., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Uncontested Facts by the Parties Respondent holds a valid Florida Educator’s Certificate No. 1046827, covering the area of Biology, which is valid through June 30, 2020. At all times pertinent to this matter, Respondent was employed as a Biology teacher at Miami Palmetto Senior High School (“MPHS”) in the Miami-Dade County School District. Respondent knew A.T. was a student at MPHS during the 2015-2016 school year and had tried out for the school’s lacrosse team in late January 2016. Respondent sent a text message to A.T. on December 19, 2016, stating, “How are you?” Respondent sent and exchanged text messages with A.T. in March 2017. Respondent met and engaged in sexual intercourse with A.T. in late March 2017. Respondent resigned from his employment with Miami-Dade County Schools on May 3, 2017, citing “personal reasons.” Additional Findings of Fact Petitioner, as Commissioner of Education, is responsible for investigating and prosecuting complaints against individuals who hold Florida educator certificates, and are alleged to have violated provisions of section 1012.795. Respondent is a highly effective educator who, over the course of his ten-year career, has earned the respect of his former principal and science department head, as well as parents and students with whom he has come in contact. The allegations of misconduct in this case have not altered the high professional regard in which Respondent is held by Principal Victoria Dobbs; Science Department Head Pamela Shlachtman; parent and lacrosse team booster club president Nicola Rousseau; and former student, lacrosse player, and the daughter of Nicola Rousseau, Samantha Rousseau. Each of these witnesses testified that their knowledge, observations, and experience working with Respondent led them to believe that he never would have had any type of relationship with a woman he believed to be a high school student. Each of these witnesses testified that, to the best of their knowledge, they had never seen or heard reports of any inappropriate conduct between Respondent and a student. Principal Dobbs bragged in a letter about Respondent and the support of his peers in voting him Science Teacher of the Year. She testified that in her 12 years of service at MPHS, the last three of which she was principal, she had no concerns with Respondent regarding inappropriate relationships with students. To the contrary, she recalled him as a very good teacher, who participated in many school activities and field trips. He also served as coach for the girls’ lacrosse team. Principal Dobbs further testified that she was never informed that Respondent had been accused of having an inappropriate relationship with a student at her school. She was only made aware of a request by the school district for Respondent’s computer. She testified that if she had believed Respondent had an intimate relationship with a high school student, she would not have employed him. Ms. Shlachtman has been employed at MPHS since 2001 and has been a teacher since 1984. She affirmed her previously written statement supporting Respondent, and testified she had participated in the hiring and selection of Respondent ten years previously as a marine biology teacher. She stated that he had “the soul of an educator.” As a member of Ms. Shlachtman’s staff, Respondent had chaperoned multiple field trips, including extended travel with students and staff for the Enviro Team, and to state and national competitions in Montana and Toronto, Canada. Having seen Respondent react with both male and female students on seven- and ten-day trips, she never had a concern or received a complaint. She also knew girls on the lacrosse team and had never heard a concern reported from there. She noted that Respondent had the opportunity to be alone with students on multiple occasions, and no concerns or inappropriate behavior was ever reported. She would rehire Respondent on her staff again, if given the opportunity. Ms. Rousseau, the mother of three daughters who trained with Respondent at his CrossFit gym, also served as president of the girls’ lacrosse team booster club. She affirmed her previous letter of support for Respondent and testified about her commitment to Respondent as a trainer for her three daughters at his gym, which she said would continue. Additionally, Samantha Rousseau, Nicola’s daughter, and a full-time student at the University of Florida, confirmed her support for Respondent. While a student at MPHS, she had served as assistant captain of the girls’ lacrosse team during her senior year (2014), while Respondent was the team coach. She had known Respondent since she was a sophomore student in his Television Production class; she had traveled with Respondent to Los Angeles as part of his class; and had ridden numerous times on the team bus with Respondent. She testified that she believed Respondent would not have been involved with A.T. had he known she was a high school student. Respondent first encountered A.T. during MPHS lacrosse tryouts in late January 2016. A.T. was a junior at that time. Respondent had no further contact with A.T. until he sent her a December 12, 2016, text stating, “Hi! How was your weekend? You missed out on Saturday morning [referring to a workout designed for lacrosse players at CrossFit gym].” A.T., still a student at MPHS at the time of this text message, never replied to it. On March 15, 2017, Respondent sent another text message to A.T., stating, “Hey, what’s up? How have you been?” The remaining text messages sent by Respondent to A.T. were undated, but were sent between March 15 and their sexual encounter in late March. The text messages were sexually graphic. The messages sent by Respondent included explicit photographs, and while those sent by A.T. had explicit photographs, they were removed to protect her privacy. A.T. was a student at MPHS through December 2016. On January 12, 2017, the Miami-Dade School District conducted a conference to formulate an Individual Education Plan (IEP) for A.T. She was placed in a hospital/homebound program at that time and graduated from the virtual school in June 2017. She did not attend college during this time. Respondent never denied the one-time sexual encounter he had with A.T. On the day when the encounter took place, March 19, 2017, A.T. texted Respondent and asked if she could see him that night. A.T. was driven by a friend to Briar Bay Park where she met Respondent, who was already there and waiting for her in his car. She had sexual intercourse with him in his car. After their liaison, Respondent drove her home. A.T. and Respondent had no contact after that time. A great deal of testimony was elicited about whether Respondent texted or phoned A.T. and discussed her status as a student in March 2017. At different times during the investigation into the sexual encounter between A.T. and Respondent, he said he texted, instant messaged, or telephoned A.T. about her school. Respondent believed her to be taking courses at Miami Dade College (“MDC”) during the spring semester of 2017. In fact, she was a student at Brucie Ball Education Center (“Brucie Ball”), a virtual school where she took online courses to complete her high school education, graduating in June 2017. Respondent consistently believed, at the time of his interview by Detective Ochoa, during his deposition, and at hearing, that A.T. was in college and testified he was never told she was at Brucie Ball. A.T.’s memory is less clear. She testified she could not recall telling Respondent she was taking college courses, but there is no doubt she was enrolled at Brucie Ball during her final semester of high school and not at MDC. She remembers that she received a social media invite from Respondent to attend his CrossFit boot camp in December 2016. She recalls communicating back and forth via social media after that time, especially when Respondent texted her about missing her at boot camp. She and Respondent testified to multiple additional conversations via social media or texting, but many of those were not produced as evidence. When a three-month gap between their messaging occurred, Respondent testified that A.T. told him she had been backpacking in Africa with friends and, according to what he recalled she told him, she was taking courses at MDC. She did not recall having told him she was taking courses at MDC, but “guessed he knew” she was still a high school student because the previous year she had been a junior at MPHS. “It never came up,” she testified. While she could not recall having told Respondent she had been to Africa and was taking courses at MDC, A.T. testified she recalled many more text messages between Respondent and her that were not printed from her phone and introduced into evidence at hearing. According to A.T., she had not talked to Respondent about her upcoming 18th birthday on March 2, 2017. Yet, she invited him to the celebration at a club called “Do Not Sit on the Couch.” She also shared with him that she and her friends often visited another club called “Little Hoolies,” and invited Respondent to join them. Both of these clubs serve alcohol and are for adults over 21. Respondent did not join them at either club. A.T. did not recall any of these conversations at hearing. A.T. declined to be interviewed by Petitioner’s Professional Practices Services investigator. At hearing, she could not recall a request to be interviewed. Respondent assumed A.T. was older than 18 when they met at the park for sex, since he believed her to be taking classes at MDC; she hung out with her friends at two adult clubs; and she brought alcohol, a vapor pen, and THC oils with her when they met in the park. He did not believe this to be typical high school behavior. Respondent also believed A.T.’s absence from social media for three months before they had their encounter at the park was explained by her telling him she had been backpacking in Africa where he assumed she did not have readily available access to the Internet. He also believes this supported his understanding that A.T. was in college at that point, since three months of backpacking does not usually occur as part of a high school experience. Respondent consistently testified, from his statements to law enforcement to his appearance at hearing, that had he known A.T. was still a high school student, regardless of whether she was at the school where he taught, he would have never had an intimate relationship with her. Moreover, law enforcement never asked Respondent for his phone at the time of the investigation. After he learned A.T. had been a high school student in March 2017, when they had their one-time sexual relationship, on May 3 of that year he resigned his position as a teacher at MPHS for “personal reasons,” based upon advice he received from union representatives and an investigator, and to spare embarrassment to his school, colleagues, and family. At the time A.T. had entered into an IEP with Miami- Dade, her school was listed as South Miami Senior High School, not MPHS. This explains why Respondent never saw her again at MPHS in her final semester. There was no evidence presented that Respondent knew A.T. had not graduated from MPHS or that she had enrolled in either South Miami High School or Brucie Ball when she did not return to MPHS for the spring semester of 2017. Respondent’s assertion that he was unaware of A.T., an 18-year-old, still being in high school at the time of their March 2017 encounter, along with his cooperation with the investigation and admission at all times pertinent to it that he had a sexual relationship with A.T., renders his testimony more credible than A.T.’s concerning what Respondent knew about her status as a student. No evidence was produced that Respondent ever had an improper relationship with A.T. while she was under the age of 18. A.T.’s lack of candor and lack of cooperation with Detective Ochoa, the investigator on the case, as well as her incomplete memory of the various text messages with Respondent bring into question her truth and veracity when testifying against Respondent.
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 the charges against Respondent in their entirety. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2018.
Findings Of Fact Respondent, Jean-Baptiste Guerrier (Guerrier), holds Florida Teaching Certificate No. 59692 covering the area of English which is valid through June 30, 1995. Guerrier was employed as a teacher at Miami Edison Middle School during the 1992-93 school year. On September 20, 1993, the following disciplinary action was taken by the Dade County School System against Guerrier for conduct unbecoming a school employee: Directives were issued to Respondent to refrain from making inappropriate remarks. Respondent was issued a letter of reprimand. Respondent was placed on prescription. Respondent received an unacceptable rating for Category VII and an overall summary rating of unacceptable on his 1992-93 TADS Annual Evaluation. On November 29, 1994, the Commissioner of Education issued an Administrative Complaint against Guerrier alleging that he made inappropriate comments of a sexual nature to three eighth grade female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not make such comments. The Administrative Complaint alleged that Guerrier engaged in inappropriate behavior of a sexual nature with two eighth female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not engage in such behavior. A teacher at Miami Edison Middle School observed Guerrier putting his arm around female students during the changing of classes. He did not identify the students. During these occasions, Guerrier's back was turned towards the teacher. The teacher characterized Guerrier as a gregarious teacher. During the 1992-1993 school year, Guerrier had three female cousins who were attending Miami Edison Middle School. Guerrier would put his arm around his cousins' shoulders when he would see them at school. Guerrier did not put his arm around any other female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against Jean-Baptiste Guerrier be DISMISSED. DONE AND ENTERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-649 Neither Petitioner nor Respondent filed proposed findings of fact. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald G. Stowers, Esquire Department of Education Suite 1701, the Capitol Tallahassee, Florida 32399-0400 William Du Fresne, Esquire 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129 Kathleen M. Richards, Administrator Professional Practices Services 352 Fla. Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Albert Forrest Taylor holds Florida teacher's certificate number 356846, issued on December 16, 1983, covering the areas of drafting and administrative supervision, and the evidence so showed. Petitioner's Exhibit No. 1. As the parties also stipulated, respondent was at all times pertinent employed as a teacher of drafting and welding at Florida School for the Deaf and Blind in St. Augustine. He began in that job in the fall of 1979 and continued until his dismissal in January of 1985. Throughout the time Forrest Taylor taught at the Florida School for the Deaf and Blind, the school's administration, in particular Raymond Butler, then supervisor in the vocational education program for the deaf, received numerous complaints from numerous students, male and female, about Mr. Taylor's "physically touching and punching, and squeezing, and coming into physical contact with" (T.91) students. Two or three times a week female students complained "about Mr. Taylor's attitude towards them; how he looked at them." (T.62). His students usually complained "about his manhandling them, or pushing them, or twisting their arm, or things of that nature" (T.95), although they also complained about his sleeping in class and his "[t]alking to them all the time," (T.92) instead of communicating with them in sign language. In general, he had no "rapport with the students." (T.92) He ordinarily taught high school students, but he began the 1984-1985 school year also teaching drafting to younger students, including six or seven mainly eighth graders, during the period that began at one o'clock in the afternoon. Nubia Argenal, who testified she was in the seventh grade at the time, was in the class, as were Sandra, Michele and Scotty Alford. Together in another of Mr. Taylor's drafting classes that year were Kim Benefield, John Sharpton, Theresa Smith and perhaps eight more students. (T.47) ALFORD On January 18, 1985, Scott Alford finished his assignment, about halfway through respondent's one o'clock class. Respondent Taylor was at another student's desk at the time. With papers in one hand and a ruled T- square in the other, Scott left his seat and began hitting an air-conditioning vent with the T-square, which made a loud noise. He "was sort of bored, didn't have anything to do, so ... [he] was tapping the air- conditioning." Petitioner's Exhibit No. 2, pp. 21-22. He persisted even after Mr. Taylor told him to stop and came over to him. With playful intention, Scott hit his teacher with his fist, striking his arm just below the shoulder, "what we used to call a frog," petitioner's Exhibit No. 2, p. 32, although it was just [a] light punch." Id., p. 33. Unamused, Mr. Taylor grabbed Scott by the throat and pushed him backward against some shelves. When he got loose, Scott made for the classroom door, and Mr. Taylor sent him to Brad Thompson's office. Scott recounted events in Brad Thompson's office, where Mr. Thompson, the school's coordinator of vocational services, noticed red marks on both sides of Scott's neck. After he had spoken to Scott, Mr. Thompson left to speak to Mr. Taylor, who admitted "that he did grab Scott ... [but said] that he did it in self defense ... (T.60) In the course of this conversation, certain rules were mentioned, and Mr. Taylor replied "that the rules were full of shit." (T.60) Afterwards, Mr. Thompson went into Mr. Butler's office and brought Mr. Butler into his office where Scott had been waiting. According to Mr. Butler, Scott was very upset, although he was not crying. He "was flushed in the face and [his] hair was tousled ..." (T.83), and had "red welt-type finger marks on his neck ... at least two on one side and one on the other side." Id. He admitted hitting his teacher, but indicated that this type of horseplay was common, with Mr. Taylor frequently doing the hitting. Mr. Butler telephoned Danny Hutto, Assistant Principal, who asked that the matter be investigated further. By the time other students had been interviewed, the school day, a Friday, was over. After school on Monday, Messrs. Taylor, Thompson, Butler and Hutto gathered in Mr. Hutto's office to discuss the incident. Arrogant and profane, Mr. Taylor denied touching Scott Alford's neck, saying "he more or less grabbed him on the shoulder." (T.86) Whether the confrontation one of Scott's classmates, Nubia Argenal, adverted to when she testified that respondent "tried to strangle Scotty," Petitioner's Exhibit No. 4, p. 4, is the same as the imbroglio of January 18, 1985, is not clear from the evidence. SHARPTON John Sharpton, who was born December 11, 1969, (T.46) was in another of Mr. Taylor's drafting classes in 1984 and early 1985. On one occasion, Mr. Taylor grabbed John's throat, too, "or in there." (T.51) "It was a little bit red and then went away ... [with] some ice on it." (T.52) John would not voluntarily take another class from respondent for fear Mr. Taylor would hit him again. (T.52) BENEFIELD Kim Benefield erased something she had written on a piece of paper while in Mr. Taylor's drafting class one day in the fall of 1984 or January of 1985. Bits of the pink eraser (T.34) rubbed off by the erasure (T.23) fell into her lap. When she began brushing them off her dress, Mr. Taylor joined in. He touched her dress and she felt his touch "around the knee." (T.23) Kim said, "No, I will do it myself." (T.35) "Don't touch me, because it makes me feel weird." (T.22) "But he stayed just a little bit more. And he [his hand] went down ... [her] leg." (T. 35-36). On another occasion, a day after a night on which Kim had painted her fingernails, Mr. Taylor, whose son was visiting the class that day, summoned her to where he stood with his son, took her hand, and showed it to his son. (T. 23, 24) Kim found this embarrassing. On still another occasion, Mr. Taylor stood behind Kim and placed his hand on her shoulder, then in the general area of her armpit. She feared further forward movement of his hand, and, thinking "he tried to . . touch [her] breast, ... [she] put [her] arms down," (T.24) to prevent it. At the time, she was talking to a student who sat next to her, and Mr. Taylor "sort of got in between" (T.24) the two students. In a separate incident, after class one day, Kim started to leave even though Mr. Taylor was speaking to her, telling her he was going to give her detention hall. He grabbed her arm hard enough to leave three marks. (T.28-29) Kim, who was born on December 13, 1968 (T.21), would be afraid to return to a class respondent taught. SMITH One day in this same drafting class, Kim thought she saw Mr. Taylor look down the dress of another student, Theresa Smith. (T.26) John Sharpton recalled seven or eight times that respondent "flirted" with Theresa Smith, including one occasion on which he touched her just below her breast. MICHELLE Respondent once poked the end of a T-square "to Michelle's breast ... and said, `You have dirt inside your blouse ...'" Petitioner's Exhibit No. 4, p. 10. ARGENAL From time to time, respondent asked Nubia Argenal, "What is inside your blouse?" Petitioner's Exhibit No. 4, p. 29. He also asked this question of Nubia's classmate Sandra. He said to Nubia, "I like you. You're pretty. You have a pretty body. You're a pretty girl." Mr. Taylor once placed a T-square against Nubia so that it touched her breast, although his hand came in contact only with her chest at a point above her bosom. Petitioner's Exhibit No. 4, p. 66. At least once, Mr. Taylor stood behind Nubia, who was seated at a drafting table, and massaged her shoulders, until her protests dissuaded him. Petitioner's Exhibit No. 4, pp. 55- 56. On one occasion, when she was leaning on her table, he shook the table, with the result that her breasts moved. Petitioner's Exhibit No. 4, pp. 52-55. Other times he took her hands and shook her arms with the same result. Petitioner's Exhibit No. 4, pp. 48-51. On these occasions, respondent laughed. HUGHES Jill Hughes was a junior at the Florida School for the Deaf and Blind during the 1984-1985 school year. She took drafting from Mr. Taylor, but not in either of the classes made up of junior high students. Mr. Taylor rubbed her back on several occasions. Standing behind her in class, "he kind of did his hand, lightly, over the center of . . . [her] back. Petitioner's Exhibit No. 3, p. 23. Ms. Hughes explained: He was walking around the class, and he would walk over to me. Sometimes, when I asked him for help he would walk over to me and put his hand on my shoulder, and I thought at first, the first time that he touched me, I thought nothing was wrong, because I thought it was nice. And then after that, when he started moving his hand, I thought it was funny. So I didn't say anything. And then afterwards I asked for help [with schoolwork], when I was through with that, and then again I asked for help [with schoolwork], and the same thing, he moved his hand and my other friend, he did the same thing to her, touched her, the same way. And I began to notice, and I heard stories and so that was when I told him, "If you touch me again, if you touch me again, I'll tell my mother." Petitioner's Exhibit No. 3, p. 21. On cross-examination, in response to the question, "Isn't it possible that Mr. Taylor was just being fatherly, paternal?", Jill answered, "I don't know." (T.24) Further cross-examination elicited the following: Q. Wasn't it possible that he was merely trying to be supportive? A. It didn't seem that way to me, not the way he touched me. Petitioner's Exhibit No. 3, p. 31. Over a period of "[m]aybe two months," Petitioner's Exhibit No. 3, p. 9, Mr. Taylor complimented her on her legs (great, beautiful, nice), hair (pretty, beautiful blonde), eyes (beautiful), make-up (pretty) and muscles (good). Petitioner's Exhibit No. 3, pp. 7, 9, 17, 18. EFFECTIVENESS REDUCED Respondent's "actions were totally inappropriate. Because of his actions, ... he lost his effectiveness, as far as the students were concerned." (T.114) The students ... were fearful of him. And the students particularly did not want to be in his classroom. (T.114). The assistant principal at the Florida School for the Deaf "would not recommend that he teach anywhere in the State of Florida, or anywhere, period." (T.114) It is not a question of his technique in teaching deaf children (T.95-99). It is more a question of "inborn qualities, personal qualities that a person has, feeling[s] toward other people." (T.99)
