The Issue The central issue in this case is whether Respondent is guilty of the conduct alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner is authorized to operate, control and supervise all public schools within the School District of Dade County, Florida. At all times material to the specific charges in this case, Respondent, Norris L. Barker, was employed by Petitioner as a teacher with the Dade County school system. Pursuant to a one-year contract, the terms of which are not in evidence, Respondent was employed in September, 1987, as a math teacher at Miami Southridge Senior High School (Southridge). During the spring of 1987, prior to his employment with Petitioner, Respondent wrote to several school systems offering to donate Xerox memorywriters to the respective schools through a fund raising project which the various school systems were requested to endorse or promote. It was Respondent's goal to raise $8 million to be used to purchase the equipment. The Dade County Public Schools, through the then Superintendent, declined to endorse the fund raising project. After Respondent became employed with the Petitioner, he continued with his plan to raise money for education. Eventually, the project became known to Mr. Rodgers, the principal at Southridge, who advised Respondent that the school could not sanction the fund raising activities and that Respondent would have to obtain permission from a higher administrative source. Respondent did not receive permission to utilize the school name or the endorsement of the school district. As principal, Mr. Rodgers routinely makes informal observation visits to classrooms. These visits are intended as an informal review of the particular class or teacher. The duration of such visits is generally brief, lasting only a few minutes, and no written report or evaluation is made as a result of such visits. During Respondent's time at Southridge, Mr. Rodgers made several such informal visits to Respondent's class. Mr. Rodgers determined, as a result of the informal visits, that Respondent needed assistance with classroom management. This was indicated due to the number of students who were "off task" in Respondent's class. Mr. Rodgers felt that Respondent needed help in finding ways to keep the students working, not talking. On November 23, 1987, Respondent wrote a letter to Mr. Rodgers which expressed Respondent's concern that discipline problems among the ninth graders would adversely affect their performance on the SSAT. Apparently, Respondent believed the disruptive behavior of a few students was adversely influencing the learning conditions for the rest of the class. On November 24, 1987, William Machado, assistant principal in charge of the math department, performed a formal observation of Respondent. This observation was in accordance with the teacher assessment and development system and recorded Respondent's deficiencies in several specific areas of performance. It also provided a prescription plan for performance improvement which offered constructive comments to assist Respondent in deficient areas. Of the six areas evaluated, Mr. Machado found Respondent had problems and was deficient in four: knowledge of the subject, preparation and planning, classroom management, and techniques of instruction. Respondent was required to complete the prescription plan activities before January 11, 1988. All four of the prescription plan activities required Respondent to refer to the Prescription Manual which was available to Respondent. Further, with regard to Respondent's lesson plans, he was to seek the assistance of Jean Freedman, the math department head. Respondent talked briefly with Ms. Freedman and she offered him the benefit of her lesson book as an example of the type of plan Mr. Machado wanted Respondent to provide. As a means of further assistance, Respondent was to visit peer teachers' rooms to observe how the suggested activities might be incorporated into the teaching setting. Respondent did not submit the lesson plans in accordance with the prescription for performance improvement. There is no evidence as to whether or not he visited peer teachers' rooms. He did not observe Ms. Freedman's class as recommended. In the period immediately following Respondent's formal evaluation, he was absent from school a number of days the total of which exceeded his authorized sick leave. On December 19, 1987, Respondent climbed a 150 foot Southern Bell relay tower located on private property. It was Respondent's stated intention to remain atop the structure to raise $8 million for education. Respondent left a note stating that if the money were not raised by January 4, he would "meet God." Respondent did not have provisions for an extended stay. He was dressed in short pants, tennis shoes and a short-sleeved shirt. The weather conditions that evening were quite cool. Officer Collins responded to a call regarding Respondent's presence atop the tower. He unsuccessfully attempted to talk Respondent into coming down. When his efforts failed, Officer Collins requested negotiators who then talked with Respondent for several hours in further effort to have him voluntarily come down. These efforts also failed. After some four hours, the SWAT team came in to remove Respondent from the tower. Members of this team scaled the tower from Respondent's blind side and forced Respondent into the bucket of a fire truck extension ladder. Afterwards, Officer Collins took Respondent to the crisis intervention center where he was involuntarily committed for observation. He was released following a two day period of observation. The incident of Respondent's tower climbing was widely published in Miami newspapers and received coverage on local radio and television stations. These accounts of the incident identified Respondent as a Dade County high school teacher and, in some instances, identified Southridge. As a result of the media coverage, Mr. Rodgers received telephone calls from concerned parents and teachers regarding Respondent's conduct. On January 7, 1988, Mr. Rodgers recommended that Respondent be dismissed from employment at Southridge. The recommendation was based upon Respondent's performance in the classroom (TADS observation 11/24), Respondent's lack of professional judgment as shown by his conduct on December 19, 1987, the concerns expressed by parents and students regarding Respondent's emotional and mental fitness to regain control of students assigned to his classes, and the degree of public notoriety given to the incident of December 19. When Respondent attempted to return to Southridge on January 6, 1988, he was referred to the Office of Professional Standards and has not returned to the classroom.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order confirming the administrative decision to terminate the employment of Respondent for just cause stemming from his misconduct in office. DONE and RECOMMENDED this 21st day of November, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0599 Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted to the extent that it provides Respondent was employed by a one year contract and assigned to Southridge. It is presumed the year intended was the entire 1987-88 school year. Paragraphs 2-6 are accepted. Paragraph 3 is rejected to the extent that it concludes Respondent did not try to improve. While the evidence established Respondent did not complete lesson plans as requested, there is no evidence that he did not try to do so. Also, while he did not visit Mrs. Freedman's class, he may have visited other master teachers for assistance. The record does not establish whether or not he could have met the prescriptions had he not been absent or had he been able to return after the holidays. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraphs 10, 11, 12, 13 and 14 are accepted. Rulings on Respondent's proposed findings of fact: Respondent's paragraphs while not identified as findings of fact will be treated as such and considered in order as presented. The first paragraph is rejected as argument, or conclusions unsupported by the record. The first two sentences of the second paragraph are accepted. The remainder of that paragraph is rejected as speculation, unsupported by the record in this cause. With regard to the numbered paragraphs the following rulings are made: Paragraph 1 is rejected. While it is clear that the evaluation cannot be considered proof of Respondent's inadequate knowledge of the subject matter, there is no evidence as to how the computation was made to reach that conclusion (the TADS criteria) nor is there evidence that Mr. Machado was "over zealous." The deficient area was one of four which Respondent would have had to work on had he chosen to refrain from other conduct which further eroded his effectiveness as a teacher. Paragraph 2 is rejected as unsupported by the record. Paragraph 3 is rejected as argument, unsupported by the record. Paragraph 4 is accepted. Paragraph 5 is rejected as, contrary to the weight of the evidence. Paragraph 6 is accepted only to the extent that it suggests the fund raiser was not done in the name of the school or the board. When a private interest is pursued, the teacher must take reasonable steps to assure that the activity is not associated with the employer. To the extent that failing to take reasonable precaution would lead to public notoriety and adverse publicity, Respondent is accountable. Paragraph 7 is rejected as comment, argument or contrary to the evidence admitted in this cause. There is, however, no finding that Respondent wrongfully utilized the school name or misrepresented the board's interest in his project. Paragraph 8 is rejected as contrary to the weight of the evidence. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is rejected as conclusion or argument. No finding has been made to suggest Respondent suffers from a mental illness. Paragraph 11 is rejected as conclusion or argument. Paragraphs 12-17 are rejected as conclusions or argument in some instances unsupported by the record or contrary to the weight of the evidence presented. COPIES FURNISHED: Norris L. Barker 420 Northeast 18th Avenue, Unit #9 Homestead Florida 33030 Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building Annex 1550 North Miami Avenue Miami, Florida 33136
Findings Of Fact Michael J. Craven holds a Florida teaching certificate #244046, Post Graduate, Rank II, for elementary education, junior college and supervision. During the school year 1978-1979, he was employed as a foreign language teacher and curriculum assistant at Terry Parker Senior High School in Duval County. He was on an annual contract. At the conclusion of the school year he was not rehired because of a police report received by the personnel office of the Duval County school system. The report alleged that Mr. Craven had committed a sexual offense. Michael Legan is a detective with the Duval County Sheriff's Office. He is attached to the vice squad and was so employed on February 15, 1979. On that date he was on duty at an establishment called Daytona International where pornographic movies were shown in numerous small booths. Mr. Craven approached detective Legan who was wearing plain clothes and asked him if he wanted to watch a movie with Mr. Craven. Detective Legan agreed and went into a booth. Upon their entry Mr. Craven put one hand on Detective Legan's buttocks and grabbed his crotch with the other one, while attempting to fondle him. At that point Mr. Craven was arrested. On February 22. 1979, an information was filed by the State Attorney against Mr. Craven. It alleged that on February l5, 1979, he violated Section 800.02, Florida Statutes by fondling and rubbing Detective Legan's buttock and penis. Mr. Craven pled guilty as charged on March 19, 1979. He received a fine of $50.00 by the Duval County Court. Immediately after his arrest, Mr. Craven notified his school principal of his arrest. Other than to rehire him for another year of teaching, no discipline concerning Mr. Craven's arrest or conviction was ever taken against him by the Superintendent or School Board of Duval County. Since the school year of 1968-1969, Craven has received excellent evaluations of his performance as a school teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered by the Education Practices Commission, pursuant to Section 2, Chapter 80-190 Laws of Florida (1980) suspending Mr. Craven's certificate to teach for a period of three (3) years commencing with the date of the final order. DONE and RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980. COPIES FURNISHED: L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202 Michael J. Craven 3460 Red Oak Circle East Orange Park, Florida 32073
Findings Of Fact On or about September 13, 1976, Petitioner Alvin Leonard Pondexter, was convicted in Leon County, Florida, of attempted petty larceny, a misdemeanor, on the charges of attempting on May 26, 1976 to steal two bicycles from students on the campus of Florida State University. At the hearing in this cause, Petitioner maintained that he only admitted to, and was convicted of, attempting to steal one bicycle. On June 12, 1976, while the charges contained in the preceding paragraph were pending and Petitioner was awaiting sentencing, Petitioner was arrested in Leon County, Florida, as he attempted to steal a ham from a Tallahassee food market. In an effort to free himself from restraint by the store security guard, Petitioner bit the tip of one finger off the guard's hand and bit the guard on the inside of a thigh. On December 20, 1976, Petitioner was convicted of battery on the guard and shoplifting, both misdemeanors, and was sentenced to one year in the Leon County jail. On or about September 9, 1979, Petitioner was arrested in Dade County, Florida, for lewd and lascivious behavior after police officers observed him performing oral sex with a 15-year-old male while in a parked car which was located in a beach parking lot off Collins Avenue. Bruce Munster, one of the officers who observed the Petitioner's conduct at the time of his arrest, noticed that the Petitioner became irate and caused Munster to pull his gun to effect the arrest. Petitioner refused to discuss the case at the hearing because the criminal charges against him in connection with this matter were dropped. Petitioner did not offer any rebuttal evidence at the hearing on this charge and in his deposition, he admitted that at the time of the arrest that his companion in the car was sitting in the front seat with his pants down. In 1980, Petitioner applied for a teacher's certificate. On October 21, 1980, his application was denied for the same reasons set out in the foregoing paragraphs. Petitioner failed to appeal or in any way contest the denial of his application. Dr. Patrick Gray, Executive Director, Division of Personnel Control, Dade County, testified as an expert in the areas of education and personnel administration in Dade County and the State of Florida, and as an expert with respect to the Code of Ethics and the Principals of Professional Conduct regulating teachers. The Petitioner's conduct amounts to immorality and moral turpitude, and lessens Petitioner's effectiveness as a public educator in the public school system. In addition, as stated by Dr. Gray the Dade County School system would not hire the Petitioner even if he were granted a certificate.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a Florida Teacher's Certificate. DONE and ENTERED this 23rd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1984. COPIES FURNISHED: Alvin Leonard Pondexter 17120 Northwest 27th Street Miami, Florida 33056 Wilson Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Donald L. Griesheimer, Director Education Practices Commission Knott Building Tallahassee, Florida 32301
The Issue Respondent's alleged violation of Monroe County District School Board Policy Rule 2.5.1 on or about January 8, 1976, by possession of marijuana on school grounds.
Findings Of Fact Respondent is a 16 year old, 11th grade high school student attending Marathon High School, Marathon, Florida. On January 8, 1976, Respondent was found in possession of 32 grams of marijuana on the grounds of Marathon High School. (Stipulation of the Parties) On April 21, 1976, the Circuit Court of Monroe County, Florida, accepted Respondent's plea of guilty to a charge of possession of marijuana, withheld adjudication as a delinquent and placed him on probation for a period of six months under the supervision of a Youth Counselor, State of Florida Youth Services Division. Conditions of probation included a curfew, weekly meetings with the counselor and part-time employment while attending school. (Testimony of Seale) At the time of his apprehension, Respondent admitted possession of marijuana to authorities and cooperated with them by divulging its source. Respondent denies any prior arrests and, in the opinion of the Youth Counselor, he is not likely to commit an offense of this nature in the future. He has evidenced remorse and desires to continue attendance at the high school. The Youth Counselor feels that it would serve no useful purpose to prevent him from further attendance. (Testimony of Seale, Collins) Respondent is not a problem student nor is he considered to be incorrigible or a socially maladjusted child. An alternative to expulsion exists at Marathon High School in the form of a rehabilitative program for socially maladjusted children that is supervised by one instructor who exercises close supervision over the students in the program. A student who is expelled from high school may enter an evening adult education program whereby he can acquire necessary academic credits by attending evening classes. The principal of Marathon High School recommends that Respondent be expelled because of the seriousness of his offense as evidenced by the unusually large amount of marijuana. (Testimony of Gradick)
Recommendation That Respondent, Gordon Collins, be expelled from Marathon High School, Marathon, Florida, effective June 8, 1976, for violation of Monroe County District School Board Policy Rule 2.5.1, by possession of marijuana on the school grounds on or about January 8, 1976. DONE and ENTERED 14th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1976. COPIES FURNISHED: Glenn Archer, Jr. Assistant Superintendent Post Office Drawer 1430 Key West, Florida 33040 Peter Lenzi, Esquire Post Office Box 938 Marathon, Florida 33050
Findings Of Fact Prior to May 18, 1977, the Respondent was employed by the School Board as a driver education teacher and head football coach at Miami South Ridge High School. At approximately 3:00 A.M. on May 15, 1977, the Respondent left his home in Miami, Florida, and drove to the back of a business located at 7211 S. W. 40th Street in Miami, Florida. John F. Allen operates a boat, motor, and trailer sales, service, and repair business at that location. In the back of the building there is a work area that is surrounded by a chain link fence. Customers' boats and motors are stored in this area while work is done on them in the shop. The Respondent walked down an alleyway along the fenced area, and climbed over the fence. He removed an outboard motor from a boat, and pulled it away from the boat toward the fence. The Respondent did not work in the boat yard, and he was not authorized to be there after regular business hours. There was no direct evidence as to the Respondent's intentions. The circumstance of his being in the fenced in portion of the boat yard at between 3:00 A.M. and 4:00 A.M. and the circumstance of his removing an outboard motor from a boat, and carrying it toward the fence, lead inescapably to the conclusion that the Respondent was seeking to steal the engine. The Respondent did not remove the engine from the boat yard. For unknown reasons, he abandoned his effort to steal the engine and left the boat yard. The Respondent was not armed with any weapon, and no other person was in the boat yard while he was there. The outboard engine which the Respondent was attempting to steal was a 40 horsepower Johnson outboard engine. The weight of the engine is approximately 140 pounds. The engine has a wholesale value of approximately $250. Even if the engine were in the worst possible operating condition, it would still be worth approximately $150. While the Respondent was in the boat yard, two police officers employed by the Dade County Public Safety Department were undertaking a routine patrol of the area in an unmarked car. They observed the Respondent's automobile parked adjacent to the boat yard. One of the officers walked along the chain link fence in back of the boat yard and observed the Respondent inside the yard holding an engine. There was heavy vegetation along the fence, but the police officer was able to see through it at one point. The officer went back to his car, and told his partner what he had witnessed. Shortly thereafter the Respondent came out of the alley, got into his car, and drove away. The police officers turned on a flashing light in their car, pulled up behind the Respondent's car, and stopped him. The Respondent was placed under arrest. The police officer read the Respondent his rights from a "Miranda card". During interrogation after the arrest the Respondent pointed out the motor that he had removed from the boat, and told the officers were he had gotten it. The Respondent was then taken to a police station where he was fingerprinted, and later released on bail. A criminal action is now pending against the Respondent in the courts in Dade County. Tools of a sort which could have been used in perpetration of a burglary were found in the Respondent's pockets and on the floor of the Respondent's automobile by the police after they stopped him. There was no evidence presented that these tools were used by the Respondent in breaking into the boat yard or in removing the outboard engine from the boat. There was no evidence that the Respondent intended to use the tools for these purposes. There was evidence presented that the tools were put in the automobile by a friend of the Respondent's wife. There is insufficient evidence from which it could be concluded that the Respondent intended to use the tools to commit any trespass or burglary. The School Board acted promptly to suspend the Respondent from his position at South Ridge High School. The instant proceeding ensued.
Findings Of Fact During the 1977-78 school year, the Respondent, Erma Frederick, was employed as a classroom teacher in the Dade County Public School System, assigned to Buena Vista Elementary School. On October 10, 1977, a conference was scheduled between the Respondent, United Teachers of Dade, Representative, Ms. Mattie Squire and Ms. Linda E. Stuart, Principal of Buena Vista Elementary School. During the conference, Respondent was advised that based on two years of unsatisfactory evaluations (1973-74 and 1974-75) deficiencies in her teaching performance existed which, if not corrected by December 1, 1977, would affect her status as an employee in the Dade County Public School System and which, if not corrected by December 1, a complaint of incompetency would be filed seeking Respondent's dismissal. The substance of this conference was reduced to writing by letter dated October 10, 1977, and cited the following deficiencies: Failure to maintain pupil control by establishing and maintaining discipline. Failure to file instructional plans. Failure to implement lesson plans and to present materials correctly. Failure to correctly grade student papers and maintain accurate grade books. Failure to properly maintain cumulative records and to maintain attendance and other data entries on report cards. Failure to accurately take attendance. Failure to follow class schedules. Failure to maintain supervision of pupils at all times. Based on the Respondent's failure to otherwise remedy the above cited deficiencies to Petitioner's satisfaction, Petitioner suspended Respondent from her position as an instructional teacher on March 9, 1978. Respondent, although properly noticed, failed to appear at the hearing to refute the cited deficiencies relied on by Petitioner in suspending her as an instructional employee at Buena Vista Elementary School. Based thereon, and in the absence of any evidence having been offered by Respondent to refute or otherwise negate the above-cited deficiencies, they must be, and are, considered meritorious.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Respondent's appeal of her suspension by Petitioner be DENIED. DONE and ENTERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board.
Findings Of Fact Petitioner is a duly-constituted district school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida. Article IX, § 4(b), Fla. Const. In 2010, Whitley started working for the School Board as a school security monitor. During the 2016-2017 school year, Whitley was assigned to Thomas Jefferson Middle School (“Thomas Jefferson”) as a security monitor. He remains employed in that role at Thomas Jefferson presently. Whitley’s job duties and responsibilities include, but are not limited to, maintaining the safety of the children, ensuring the children make it to class on time, assisting with any problems that may be going on in the school, and monitoring the security cameras. At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a continuing contract. The incident giving rise to this proceeding occurred on February 6, 2017. On February 6, 2017, Whitley was patrolling his assigned hall and noticed that M.G., a 13-year-old sixth grader, was out of class and sitting at Respondent’s desk in the hallway. Whitley requested that M.G. get out of the chair, and M.G. refused to get out of the desk. According to M.G., after M.G. refused, Whitley flipped the desk while he was seated, which caused M.G. to fall and hit his head on the floor. There is conflicting evidence as to what happened when Whitley approached the desk (“incident”). At hearing, M.G. credibly testified that he reported the incident to Principal Robin Atkins the same day and that he also got an ice pack for his head. Almost a month later, the Office of Professional Standards opened an investigation regarding the incident. Afterward, Respondent was notified that M.G. accused him of flipping the desk that he was sitting in and causing him to hit his head as a result. In 2017, law enforcement interviewed Respondent. The matter was ultimately turned over to the School Board's General Investigative Unit (“GIU”). The investigation took approximately two years to conclude. Even though Thomas Jefferson maintained security footage and recorded videos of the hallway where the incident occurred, no video footage existed for anyone to review regarding the incident. Based on its investigation, on or about May 30, 2019, GIU determined that there was probable cause to support the allegation that Respondent had violated School Board Policy 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare. Respondent learned about the determination soon thereafter. After summer break, when Respondent returned to work, on or about August 27, 2019, Carlos Diaz, the district director of the School Board's Office of Professional Standards conducted a conference-for-the-record (“CFR”) meeting to discuss the pending allegations from the GIU case. Respondent was present at the CFR with his union representative. Following the CFR, the Disciplinary Review Team (“DRT”) met. DRT considered Respondent’s repeated and similar conduct for inappropriate contact with students and Respondent’s prior directives in its decision to discipline Respondent. DRT recommended that Respondent be terminated. The recommendation was adopted by the School Board. Prior Disciplinary History During his employment with the School Board, Whitley has been disciplined twice regarding inappropriate touching of students prior to the incident. The School Board kept a record of Respondent’s discipline in Whitley’s personnel file. On or about April 16, 2013, Whitley received a written reprimand after an investigation concluded that he shoved and touched a student’s shoulder repeatedly. Whitley’s reprimand directed Respondent to “[r]efrain from any physical touching of students.” In November 2013, Whitley was suspended for 12 workdays without pay after an investigation concluded that Respondent inappropriately picked up and dropped a student to the ground. The CFR memorandum regarding Respondent’s November 2013 occurrence directed Whitley to: “adhere to School Board Policies 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare”; “refrain from inappropriate communications with students”; and “refrain from inappropriate physical contact with students.” Hearing At the final hearing, M.G. provided persuasive credible testimony regarding the incident. He testified that he was sitting in Whitley’s chair in the hall. M.G. also admitted that he refused to move and told Respondent “no” when told to move. Whitley testified that M.G. “jumped” out of the chair. The undersigned does not credit Whitley’s testimony based on his contradictory statements about the incident, which diminish the trustworthiness of his testimony.1 Findings of Ultimate Fact Accordingly, the undersigned finds that M.G.’s credible testimony established that Whitley initiated contact with M.G., grabbed the desk to lean in, and flipped M.G., who was seated, out of the desk. As a result of Whitley’s actions, M.G. landed in a manner where his “hand hit the ground,” head hit the concrete floor, and, by doing so, jeopardized M.G.’s health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: finding Respondent in violation of rules 6A-5.056(2) and (4), 6A-10.081, and School Board Policies 4210, 4210.01, and 4213 as charged; and upholding Respondent's termination from employment for just cause. DONE AND ENTERED this 29th day of October, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 29th day of October, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Henry Young, is employed as a teacher by the Dade County School Board at Nathan B. Young Elementary School in Miami, Florida. Respondent holds teaching certificate #177938 issued by the State of Florida, Department of Education, in Elementary Education, Guidance and Early Childhood Education. On January 19, 1984, Metro-Dade Police Officer Michael Amabile was on routine patrol in the Liberty City section of Miami when he received a call for assistance from another unit on an arrest for a weapons violation. When Officer Amabile arrived at the scene, he observed that Police Officer Strohs had detained a female who was seated in her automobile. While Officer Strohs ran a routine check on the weapon, Officer Amabile observed the Respondent standing in the street near the female's automobile. After the check determined that the weapon was stolen, Officer Amabile asked Respondent to leave the immediate area. The Respondent refused to leave the area, began to talk with the female, and told Officer Amabile that he was a member of the City Crime Watch and that he did not have to leave. Officer Amabile and two other police officers at the scene repeatedly asked the Respondent to leave the area so that the female could be transferred from her vehicle into a police cruiser and the matter further investigated. The Respondent refused to leave the area and began arguing loudly back and forth with the police officers. A crowd began to gather and Respondent was informed that if he did not leave the area, he would be arrested. The Respondent moved slightly away from the area towards the middle of the street but continued arguing with the police officers. The Respondent was subsequently arrested and charged with resisting an officer without violence, On February 29, 1984, the charge was disposed of in the County Court of Dade County. The Respondent was given credit for two (2) days time served in jail (after his arrest) and the case was closed. The record did not indicate what plea was entered to the offense by Respondent and failed to show whether the Court adjudicated the Respondent guilty of the offense. On April 16, 1984, Officer Smith of the City of Opa-Locka Police Department received a call for back-up from Officer McQueen in reference to an altercation at a bar located on Ali-Baba Avenue in Opa-Locka, Florida. When Officer Smith arrived at the bar, the Respondent was "yelling and screaming" at a small crowd of people and the person in charge of the bar indicated that he wanted the Respondent to leave. When the officers approached Respondent to find out what the problem was, Respondent directed his loud and abusive language toward them. The Respondent refused to calm down and was arrested for disorderly conduct. A search incident to Respondent's arrest revealed a small amount of suspected cocaine concealed in his clothing. A subsequent laboratory analysis determined that the suspected substance was, in fact, cocaine. The Respondent was taken to the Opa-Locka Police Station for processing. While in custody at the police station, Respondent was removed from his jail cell for photographing. At that time, the Respondent became extremely violent and hostile toward the police personnel. The Respondent punched one officer in the head and spat on two officers. Based on the incident of April 16, 1984, the Respondent was charged with disorderly conduct, possession of cocaine, possession of drug paraphernalia, battery on a police officer, and resisting an officer without violence. On or about November 15, 1984, all of the charges were dismissed. There was no evidence as to why the charges were dismissed. On January 1, 1985, the Respondent was arrested outside of the Orange Bowl in Dade County, Florida, for the offense of scalping tickets to the Orange Bowl football game between the University of Oklahoma and the University of Washington. The Respondent attempted to sell four game tickets for $30.00 each. The face value of the individual tickets was $25.00. On September 24, 1985, Metro-Dade Police Officers Garvin and Jackson observed the Respondent enter a Mercedes Benz automobile carrying a machine gun- type weapon with a strap. The Respondent opened the right rear door of the vehicle and placed the weapon in the back seat. While approaching the automobile, the officers observed the Respondent turn and place something in the back seat. At this time, the officers converged on the automobile and ordered the Respondent and a female passenger to get out. During a search of the vehicle incident to arrest, the officers found a white paper bag in the back seat containing a small quantity of suspected marijuana and a glass pipe which contained suspected cocaine residue. The officers placed Respondent and the female under arrest. The weapon was later determined to be an Intratec 9MM Luger, Model TEC-9, a semi-automatic weapon which has the appearance of a machine gun. The weapon contained a clip with twenty-five (25) live rounds of ammunition. Possession of such a weapon is not illegal in Dade County, Florida, and the weapon in question was found to be registered. The Respondent was charged with the offense of carrying a concealed firearm and carrying a firearm without a license. There were no charges brought concerning the suspected illegal drugs. The case was subsequently nolle prossed by the State Attorney's Office. On March 4, 1986, John Riley, the then Mayor of the City of Opa-Locka, observed what he believed to be a drug buy by the Respondent in the "triangle" area of Opa-Locka. The triangle area has a reputation for heavy narcotics activity. Mayor Riley summoned Opa-Locka Police Chief Reeves and Officer Davis to the scene. As the officers and Mayor Riley approached the Respondent, he was observed standing outside a Mercedes Benz automobile talking to several young people on the street. When Respondent observed the police officers and Mayor Riley approaching, he acted in a "suspicious manner" and appeared to Chief Reeves to be attempting to conceal something. The Respondent entered the automobile and started the engine. Reeves identified himself as a police officer. Chief Reeves asked Respondent to turn off the engine and get out of the car. The Respondent refused to do either. Chief Reeves then reached inside the vehicle and attempted to switch off the ignition. The Respondent knocked Chief Reeves' hand loose and sped away. Chief Reeves' arm was brushed by the car but he was not injured. The Respondent was apprehended several days later. The Respondent was charged in Dade County Circuit Court with battery on a law enforcement officer and resisting an officer without violence. On January 7, 1987, Respondent entered a plea of no contest to a reduced charge of simple battery. The Court withheld adjudication of guilt and placed Respondent on probation for a period of two years with the special conditions that Respondent serve six months in the Alcohol and Drug Abuse Program (ADAP) at the Dade County Stockade, followed by six months in the Structured Treatment Program (STP). On September 26, 1986, Metro-Dade Police Detective Taylor was working in an undercover capacity. At approximately 9:20 p.m. on that date, Respondent approached Officer Taylor on the roadside at 17th Avenue and Northwest 83rd Street in Miami. Respondent asked: "What do you want," and Officer Taylor responded: "Two ten cent pieces," street language for two ten dollar portions of crack cocaine. The Respondent then produced two pieces of crack cocaine which he sold to Officer Taylor for $20.00. The Respondent was subsequently arrested and charged by information with the offense of possession of cocaine. On January 7, 1987, Respondent entered a plea of no contest to the charge. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of two years with the special conditions that he serve six months in the Alcohol and Drug Abuse Program in the Dade County Stockade, followed by six months in the Structured Treatment Program concurrent with the sentence imposed for the battery offense of March 4, 1986. Many of the activities of Respondent resulting in his arrests previously described herein received media attention and press coverage in the Miami Herald, a daily newspaper distributed throughout Dade County. On June 28, 1985, the Respondent submitted a sworn application for extension of teaching certificate to the Florida Department of Education. In Section V of the application, Respondent answered "no" to the question: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a miner traffic violation or are there any criminal charges now pending against you other than minor traffic violations." The Department of Education extended the Respondent's teaching certificate through June 30, 1990. Respondent is currently on authorized leave without pay for medical reasons from his duties as a teacher with the Dade County School Board. The Respondent is voluntarily enrolled in the Dade County School Board's Employee Assistance Program which is designed to provide treatment, care and follow-up to teachers with substance abuse problems. The Respondent, Henry Young, is 42 years old, married and has two sons. Respondent attended undergraduate school at Bethune Cookman College in Daytona Beach and received a graduate degree at Florida A&M University in Tallahassee. Respondent has taught in the Dade County school system continuously since 1966. Respondent started drinking heavily during his senior year in college and started using hard drugs when he became friends with several of the Miami Dolphin professional football players. Respondent developed an addiction to and dependence upon, both drugs and alcohol. Respondent first entered Dade County's Alcohol and Drug Abuse Program in May 1986. Respondent was assigned to the Structured Treatment Program (STP), a residential program where the participant is required to live in a structured, drug and alcohol-free environment from three months to one year. Respondent initially remained in the program from May to October of 1986. In October of 1986 the Respondent left the program, only to encounter additional problems with his drug and alcohol addiction. Respondent re-entered the program in January of 1987 where he remained up to the date of the final hearing. Respondent plans to remain in the STP residential setting until July or August of 1987. Drug and/or alcohol addiction is a physiological or psychological dependency upon a narcotic or other psychoactive or mood altering substance to the extent that such dependency impairs a person's health and substantially interferes with the person's social and/or occupational functioning. Respondent's addiction interfered with his social functioning, his decision making, and his judgment. During Respondent's total of ten (10) months in the STP program, he has received intensive individual and group counseling focusing primarily on his long history of alcohol and drug abuse. Since the Respondent's return to the program in January of 1987, he has exhibited a marked change in his behavior and his attitude towards both his treatment and himself. Respondent has accepted the fact that he has an addiction problem and that he will need to be involved in some type of treatment program for the rest of his life. Breaking through the participant's denial of addiction is one of the primary goals of the STP program and is considered to be a real and positive step toward recovery. Steven Fogelman, supervisor of Metro-Dade County's Alcohol and Drug Abuse Program believes that after the Respondent leaves the STP program, he will need to continue in STP's two-year aftercare program, receive additional outpatient counseling and continue to attend Narcotics Anonymous and Alcoholics Anonymous meetings. Fogelman feels that if Respondent stays in treatment that he will have a very good chance of leading a substance-free life.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's teaching certificate be suspended for a period of three years from the date of the Final Order. Respondent be placed on probation for a period of five years with the following conditions: Respondent shall be required to enroll in the Metro-Dade County's Drug and Alcohol Program's two-year aftercare program and submit to the Department of Education, Education Practices Commission, signed and notarized statements from appropriate managerial personnel of the ADAP establishing that he has, in fact, satisfactorily completed the two-year aftercare program. Respondent shall be required to continue his present participation in the Dade County School Board's Employee Assistance Program for substance abuse during the full five-year period of probation and cooperate fully with the terms of any treatment plan implemented in his behalf, including, but not limited to, enrollment in a private substance abuse counseling program at Respondent's own expense. Respondent be assessed an administrative fine of $2,000.00, specifically for the offense of providing false information on his application for teaching certificate. Said administrative fine shall be due no later than 45 days after the date of the Final Order. DONE AND ORDERED this 17th 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 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4148 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 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 5. 8. Adopted in Finding of Fact 6. 9. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 11, matters not contained therein are rejected as subordinate and/or not established by the weight of the evidence. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 13. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 9 and 15, matters not contained therein are rejected as contrary to the weight of the evidence. Partially adopted in Finding of Fact 18, matters not included therein are addressed in the Conclusions of Law section. Adopted in Finding of Fact 12. Adopted in Findings of Fact 13, 14 and 22. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1, 19 and 20. Adopted in substance in Finding of Fact 14. Partially adopted in Findings of Fact 2, 3 and 4, matters not contained therein are rejected as misleading and/or subordinate. Partially adopted in Findings of Fact 6, 7 and 8, matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 9. Adopted in substance in Findings of Fact 10, 11 and 12. Adopted in substance in Findings of Fact 13 and 14. Partially adopted in Findings of Fact 15 and 16, matters not contained therein are rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 17. Adopted in substance in Findings of Fact 22 and 23. Adopted in substance in Finding of Fact 24. Adopted in substance in Finding of Fact 24. Rejected as subordinate. 14. Rejected as subordinate and/or misleading. Although the Respondent is on the road to recovery, the evidence did not establish that Respondent has in fact made a complete recovery. 15. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 William DuFrense, Esquire 2950 Southwest 27th Avenue Suite 310 Miami, Florida 33132 Karen Barr Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street Room 3 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent held Florida Teaching Certificate No. 390436, Provisional Graduate, Rank III, valid through June 30, 1981, covering the areas of Sociology, English, History and Social Studies. On or about October 19, 1978, Respondent while acting within the scope of his employment as a teacher at Robert E. Lee Junior High School in Dade County, Florida, was observed to seize a student, Rodney Canull, by his hair and right arm, lift the student off the ground, and throw the student repeatedly onto a concrete ramp. As soon as the student was able to extricate himself from Respondent, he fled the scene of the altercation. However, later the same day, Respondent was again observed in a confrontation with this same student, in which Respondent had twisted the student's arm behind his back, and the student was doubled over in pain with his head below his knees. On or about April 24, 1978, Respondent was involved in a physical confrontation with another student, Carla Brinson, at Robert E. Lee Junior High School. The confrontation between Ms. Brinson and Respondent occurred in the course of Respondent's attempt to discipline the student. When Respondent requested that the student turn around so that he could administer corporal punishment, she refused. Upon the student's refusal, the Respondent threw her to the floor. The student got up from the floor, and struck Respondent with her fist, whereupon Respondent struck the student in the face with his fist. The student then ran out the front door of the classroom in which the confrontation had occurred, and was pursued by Respondent, who began to strike the student with his belt. Both Respondent and the student ended up on the ground in front of the portable classroom where Respondent again struck the student in the forehead with the heel of his open hand. When another teacher attempted to intervene in the confrontation, he was pushed aside and Respondent continued to strike the student with his belt. On or about May 11, 1977, Respondent was involved in a physical confrontation with a student at Madison Junior High School in Dade County, Florida, named Wesley G. Frater. In the course of Respondent inquiring as to whether the student belonged in a particular room, the student referred to Respondent as "man", whereupon Respondent began shoving the student into a row of standing metal lockers, approximately 25 in number, and then lifted the student upside down from the ground and dropped him onto a concrete floor. On or about May 20, 1977, Respondent was involved in a physical confrontation at Madison Junior High School with a student named Vincent Johnson. Some dispute of an undetermined nature occurred between the student and the Respondent, after which the student attempted to flee from Respondent. Respondent chased the student down in the school parking lot, and threw the student against a parked truck. Respondent then threw the student to the ground, picked him up and attempted to transport him to the principal's office. Once in the corridor of the school building, Respondent picked the student up and repeatedly threw him to the floor. Other teachers at the school, after hearing a disturbance in the hallway, intervened to separate Respondent and the student. As previously indicated in this Recommended Order, Respondent neither appeared in person nor offered any evidence for inclusion in the record in this proceeding through his counsel. As a result, the record in this proceeding contains no explanation or justification for Respondent's conduct. However, it is clear from the record that Respondent's conduct, as outlined above, worked to create an atmosphere of fear among his students, thereby seriously reducing his effectiveness as a teacher.
