The Issue Respondent is charged in a five-count Administrative Complaint with violations of Subsection 231.2615(1)(c), Florida Statutes (gross immorality or an act involving moral turpitude); Subsection 231.2615(1)(f), Florida Statutes (personal conduct which seriously reduces her effectiveness as an employee of the school board); Subsection 231.2615(1)(i), Florida Statutes (violation of the Principles of Professional Conduct for the Education Profession in Florida as prescribed by the State Board of Education); Rule 6B-1.006(3)(a), Florida Administrative Code (failure to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical safety), and Rule 6B-1.006(3)(e), Florida Administrative Code (intentionally exposing a student to unnecessary embarrassment or disparagement).
Findings Of Fact Respondent has continuously held Florida Educator's Certificate 734274, covering the area of English, since 1996. It is valid through June 30, 2006. Respondent was first employed by the Holmes County School District in November 2000 and served as a language arts teacher for seventh and eighth grades at Poplar Springs School for the remainder of the 2000-2001 School Year. During the 2000-2001 School Year, Respondent disciplined students in her seventh and eighth grade language arts (English) classes as more specifically described below. All instances of Respondent's discipline were employed in response to male students talking inappropriately or "cutting up" in her classroom so as to detract from the educational process. On one occasion, Respondent placed two pieces of masking tape over the mouth of student C.R. because he was talking in class. C.R. had the tape over his mouth for the remainder of the class period (approximately fifteen to twenty minutes). A science teacher saw C.R. in the hall, en route to his next class, and told him to take the tape off his mouth. Respondent placed masking tape over the mouth of student J.F. when he laughed out loud after being warned not to continue talking in class. J.F. had the tape over his mouth for approximately twenty minutes, until the bell rang to go to his next class. Respondent directed student T.J. to place tape on his own mouth after he had talked in class. The tape remained on his mouth until the end of the class period, or for approximately fifteen minutes. Respondent placed tape over the mouth of student W.W. because he was talking in class. W.W. had the tape over his mouth for the remainder of the class period, which ended approximately thirty minutes later. W.W. experienced difficulty breathing with the tape over his mouth, because he had a cold at the time and was having trouble breathing through his nose. Respondent placed masking tape over the mouth of student C.B. for talking in class. The tape remained on his mouth until the end of the class period, or approximately thirty minutes. All of the foregoing five students admitted that Respondent had warned them at least once not to continue talking, before she resorted to taping their mouths, but each of these students also was embarrassed as a result of sitting through the remainder of the class, surrounded by other students, while their mouths were taped. Also during the 2000-2001 School Year, Respondent required student C.R. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of three or four heavy dictionaries for approximately fifteen minutes. This method of punishment caused C.R. to experience physical distress in his back. Respondent also required student J.C. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of seven or eight heavy dictionaries, stacked to his chin, for approximately twenty minutes. This method of punishment caused J.C. to experience physical distress. His knees were buckling, and he was slumping against the wall. Respondent initially required student L.C. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of twelve dictionaries. However, because the books were stacked almost two feet higher than L.C.'s head, Respondent removed four of them from his arms. L.C. was then required to hold the remaining eight dictionaries for approximately fifteen to twenty minutes. Respondent also required student J.H. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of six or seven heavy dictionaries stacked up to his eyes, for approximately twenty minutes. Respondent required student E.M., who had talked out of turn early in the class period, to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of six or seven heavy dictionaries for approximately ten to fifteen minutes. At one point during this ordeal, Respondent came out of the classroom and felt E.M.'s forehead to see if he were sweating. When she found that he was not sweating, she returned to her classroom, leaving E.M. outside, still holding the dictionaries. Most students who testified indicated they were disciplined toward the end of a class period, and accordingly, their discipline was automatically ended by the change of classes' bell. However, the foregoing incident, when E.M. was disciplined with books, suggests that Respondent's theory concerning that type of discipline was that once a misbehaving student began to sweat, he had experienced enough punishment. A teacher saw E.M. in the hallway and went to fetch the Principal, Jerry Dixon. Mr. Dixon observed E.M. to be "in a strain," tired, and drooping. When Mr. Dixon discovered what was going on, he told E.M. to go back into Respondent's classroom and take the books with him. Each of the five students disciplined with books was embarrassed by the process, and the posture of holding the dictionaries caused most of them discomfort. After the incident with E.M., Mr. Dixon counseled with Respondent. He advised her that disciplining students as E.M. had been disciplined with the dictionaries was unacceptable and that if she felt future situations were bad enough to warrant punishment, she should send the misbehaving child to his office for him to administer appropriate discipline. In early April 2001, Respondent approached student T.W. at his desk, got down "in his face," and told him that if he did not behave, she would paddle him as hard as she had paddled student C.R., and that was "pretty damn hard." C.R. testified that Respondent had, in fact, actually paddled him, but apparently he was not intimidated or concerned over the paddling. Also, T.W. was not intimidated by Respondent's threat, because he smiled and laughed. However, T.W. was so concerned about Respondent's use of profanity that he approached Principal Dixon in the cafeteria that day and asked the principal if it were "right" for a teacher to curse at a student. Subsequently, in the principal's office, T.W. explained to Mr. Dixon the situation concerning Respondent's use of profanity. Principal Dixon also then learned for the first time that Respondent had been taping her students' mouths as a form of discipline. Mr. Dixon investigated further by talking with other students who verified all or some of T.W.'s account. Mr. Dixon testified that he also believed the incident of Respondent disciplining J.C. with dictionaries in the hallway (see Finding of Fact 11) had occurred after he had told Respondent not to use that procedure. On April 5, 2001, Mr. Dixon met with Respondent to discuss the allegations. In their meeting, Respondent admitted placing tape over students' mouths. She also admitted cursing at T.W. She told Mr. Dixon she had been mad and upset at the time. On April 10, 2001, Mr. Dixon issued Respondent a letter of reprimand for her conduct. In this letter he reminded her that he had, at the time of E.M.'s discipline, told her she was supposed to send students to the office for discipline, not undertake it herself. On June 6, 2001, Mr. Dixon notified Respondent that he would not recommend her reappointment for the 2001-2002 School Year. His decision to not recommend Respondent's appointment was based, at least in part, upon Respondent's admitted inappropriate discipline and use of profanity. There is no evidence Respondent's disciplinary method of causing students to hold heavy books while excluded from the classroom learning environment was effective in improving their behavior in the classroom. There is no evidence this disciplinary methodology was sanctioned by the School District, Principal Dixon, or any recognized educational text. Indeed, it was not sanctioned, and it is certain that the boys being disciplined were not being taught any curriculum while they were in the hallway. There is no evidence Respondent's method of taping her students' mouths shut and deliberately embarrassing them in the classroom before their peers was effective in teaching them to be quiet in class. There also is no evidence that this disciplinary methodology was sanctioned by the School District, the principal, or any recognized educational text. Indeed, the evidence is contrary. The disciplinary methods employed by Respondent were not approved or condoned by the Holmes County School Board or by the Poplar Springs School Administration. Her methods were inappropriate. Her inappropriate discipline and use of profanity with her Middle School students exposed them to unnecessary embarrassment and disparagement at a time in their development when they were particularly emotionally vulnerable. Her methods of discipline and use of profanity with her Middle School students seriously reduced her effectiveness as an employee of the Holmes County School Board. Respondent failed to take reasonable efforts to protect her students from conditions harmful to learning and/or to their mental health and/or physical safety by employing these inappropriate methods of discipline.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order which: Finds Respondent guilty of violating Subsections 231.2615(1)(f)and (i) and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code; Suspends Respondent's Educator's Certificate for a period of one year; Requires that, as a condition precedent to Respondent's re-employment as an educator in Florida following the suspension, Respondent submit to a psychological evaluation by a qualified provider as required by the Recovery Network Program; Requires that Respondent follow the recommended course of treatment, if any, resulting from her evaluation and that she provide written verification to the Department of her successful completion of the evaluation and/or treatment; and Provides that if Respondent is reemployed as an educator in Florida, she be placed on three years' probation, upon such terms as the Education Practices Commission deems appropriate, including but not limited to successful completion of a college level course in the area of classroom management. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 12th day of November, 2002. COPIES FURNISHED: Linda Crawford Post Office Box 573 Ashford, Alabama 36312-0573 J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent, a teacher, for ten days without pay for failing to supervise a third-grade student who left campus alone and walked home during the school day.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a third-grade teacher at NAGE, a public school in Broward County, Florida. Respondent has taught for the School Board for 15 years without receipt of any prior discipline. The proposed discipline is based upon conduct occurring on Thursday, March 4, 2014. During the 2013-2014 school year, Respondent co-taught a third-grade class with Pelletier. Respondent and Pelletier had adjoining classrooms. Each was assigned approximately 18 students. Respondent taught English and social studies, and Pelletier taught math and science. Their classes switched in the afternoon. At approximately 11:45 a.m. on March 4, 2014, Respondent told her students to clean their desks and line-up for lunch. The students lined up and Respondent opened and stood at the door. The students moved into the hallway in a line where they were instructed to stop. Respondent checked the classroom to see if any students were left behind and saw three students (two girls and a boy, C.S.) completing a social studies test. Respondent instructed the students to finish up and join their classmates in line. A student who was holding the door with Respondent asked to go back in the classroom to get a tissue. While Respondent waited for the remaining students to exit the classroom, the line began to move down the hall toward the stairs to the right of the classroom door. Respondent told the students in line to wait. When she looked back into the classroom, Respondent saw one female student remaining. When that student exited the room, Respondent assumed that all students had gotten in line. Respondent walked her class down the hall on the second floor, down the stairs, and waited at the stairs to watch her students enter the cafeteria for lunch. Unbeknownst to Respondent, C.S. remained in the classroom bathroom and did not exit the classroom with his classmates to go to lunch. Respondent's usual habit was to walk her students all the way to the cafeteria doors; however, on this day, she only walked them to the bottom of the stairs where she had an unobstructed view as she watched them enter the cafeteria. Respondent then went to the main office to pick up some printouts from the office printer. Respondent then returned to the cafeteria to pick up a few of her students who were coming back with her to the classroom to enjoy “lunch bunch” as a reward for good behavior. After lunch, Respondent and/or Pelletier returned to the cafeteria to pick up the students and take them to their designated “specials” classes. Respondent was unaware that C.S. was missing. After Respondent initially left the classroom, but before she returned with the “lunch bunch,” C.S. left the classroom, surreptitiously went down the stairs, ducked under the cameras near the front office, and exited the school property through the car circle. C.S. proceeded to walk 14 blocks home, past a construction site, and near an extremely busy road, and entered the house where he was discovered by his grandmother at approximately 12:20 p.m. C.S. was unharmed on his walk home. C.S.'s grandmother contacted C.S.'s mom, C.C., at work and told her that her son was at the house instead of at school. After going home and checking on C.S.'s safety, C.C. immediately drove to NAGE and asked Shacter if she knew where her son was located. C.C. also checked the sign-out log to see if anyone signed her son out. C.C. informed Shacter that C.S. was at home, had climbed through a window to get inside, and had his backpack with him. C.C. was understandably angry and upset. Shacter called Respondent's classroom but no one was there. Next, she called Guidance Counselor Lamar to stay with C.C. while she went to find Respondent. When Shacter went to Respondent's classroom, she found Respondent, Pelletier, and Pelletier's intern. Shacter asked about C.S., and Respondent said that she took him to the cafeteria for lunch. Shacter directed Respondent to look for the backpack. Respondent went to C.S.'s desk and was surprised that his backpack was gone. Shacter took Respondent to meet with C.C. Respondent also told C.C. that she had taken C.S. to the cafeteria. Because C.C. was so upset, Shacter separated Respondent from C.C. Shacter requested to interview C.S. at home or at school, but C.C. refused. Shacter asked that Lamar go to the house, which would be less threatening for the child, and C.C. allowed Lamar to go to her home and speak with C.S. C.S. reported that he was in the class bathroom just prior to lunch. When he came out of the bathroom, his class was gone. He had a stomach ache so he decided to go home. Video from the school's security camera system shows C.S. leaving the classroom after his class departed for lunch. The video also shows C.S. took several evasive actions to avoid detection, including ducking behind a trashcan and hugging the walls and ducking below the windows to exit without being caught. The classroom teacher is primarily responsible to account for, and supervise, her assigned students while they are at school. At the time of the incident, the School Board and NAGE had no policy, procedure, or protocol for assuring that all students remained within the supervision of their teachers at all times. Prior to this incident, the method of accounting for students throughout the day, particularly when moving from one part of the campus to another, was left to the discretion of each individual teacher by NAGE. As a result of the investigation that followed this incident, the School Board voted to suspend Respondent with pay for ten days. Findings of Ultimate Fact As discussed in greater detail below, the School Board failed to demonstrate by a preponderance of the evidence that the Respondent engaged in misconduct in office or willful neglect of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding that no “just cause” exists to discipline Respondent. DONE AND ENTERED this 10th day of December, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 10th day of December, 2015.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact From 1985 until his suspension on April 22, 1992, Respondent was employed by the School Board as a school monitor and was assigned to Kelsey L. Pharr Elementary School. Respondent attended mandatory training sessions for school monitors on March 24, 1989; February 2, 1990; September 20, 1990; February 1, 1991; April 1, 1991; and January 31, 1992. During those training sessions, the job description of a school monitor was reviewed. The school monitors were given suggested guidelines on how to handle situations with students and were provided with scenarios that they might encounter on a daily basis. They were specifically instructed to use the least force necessary to bring a situation under control and to always contact a school administrator for assistance using their hand- held radios before putting their hands on a student. School monitors have never been given the authority to administer corporal punishment. At the end of the school day on February 4, 1992, Respondent observed a male student, Thomas Rolle, attempting to kiss a female student. A few days earlier, Respondent had observed him engaging in that same conduct. Respondent approached Rolle and told him that he could not kiss his girlfriend on school premises. Rolle responded by cursing at Respondent, using profanity and a racially derogatory remark. Rolle then turned and began running away from Respondent. Respondent threw his hand-held radio, striking Rolle behind his ear, causing a laceration which began to bleed. Not knowing that Rolle had been injured, Respondent did nothing to assist him. Further, Respondent did not report the incident to a school administrator, as he had not reported the problem with Rolle a few days earlier. One of Rolle's friends told Rolle that his ear was bleeding, and Rolle became quite agitated. He and his friends proceeded to the school building were they encountered the assistant principal at one of the exit doors to the building. The assistant principal, Gigi Gilbert, saw that Rolle was crying and bleeding. Rolle and his friends told her that Rolle had been "doing something" to a girl, that Respondent had told him to stop, that Rolle then began using profane language, that he started running with Respondent running after him, and that Respondent hit Rolle with the radio which Respondent had thrown. Gilbert sent Rolle to the office to receive first aid. Gilbert signaled to the school principal, June Day, to come to where Gilbert was standing with the group of students. Gilbert advised Day as to what the students were telling her and as to Rolle's injury. Day sent a student to get Respondent, and within moments Respondent came to where Day and Gilbert were standing. The principal told Respondent what the students had reported, and Respondent denied that the incident had occurred. Respondent then asked if he could speak with the principal privately, and Gilbert left them alone. Respondent then admitted to the principal that he threw the "walkie-talkie" at Rolle. Day went to the office and attempted to speak to Rolle about the incident. She was unable to because he was too upset and would only say that he was going to "get him," referring to Respondent. She contacted the School Board's Special Investigative Unit, and an investigator was sent to the school. Respondent admitted to that investigator that he had struck Rolle with the radio. Respondent was arrested and charged with aggravated battery. He subsequently plead guilty to that charge, was placed on probation for a period of eighteen months, and was ordered to pay court costs in the amount of $225. Adjudication of guilt was withheld.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's suspension and dismissing him from his employment with the School Board of Dade County. DONE and ENTERED this 26th day of April, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 26th day of April, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-5695 Petitioner's proposed findings of fact numbered 3-11, 13-17, and 19-23 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 1, 2, and 18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed finding of fact numbered 12 has been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Gerald A. Williams, Labor Attorney Mack & Bernstein The School Board of Dade County, Florida 1450 N.E. Second Avenue-Suite 562 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne & Bradley 2929 S.W. Third Avenue Miami, Florida 33129 Octavio J. Visiedo Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue, Suite 562 Miami, Florida 33132
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as observation of the demeanor of the witnesses, the following facts are found: Respondent Kenneth Neil Watts has been employed by the Levy County School Board for ten years. He has continuously been assigned to Yankeetown School where he has taught seventh and eighth grade math, science and physical education. He has been on continuing contract status since 1975. Prior to coming to Yankeetown, he had an additional three years of teaching experience. On August 20, 1981, the first day of school for students, respondent came to school a little late. Harvey Markham, the Principal of Yankeetown School, believed that he smelled alcohol on respondent's breath. He had a conference with respondent and the building representative for the Levy County Educational Association, Barbara Delores Gaitanis, was present at this conference. Mr. Markham accused respondent of being inebriated and respondent denied that he had been drinking any alcoholic beverage: Respondent became very upset from his conversation with Mr. Markham, did not feel that he could go into his classroom in that upset condition and asked if he could be relieved from his duties on that day. Respondent then drove himself home. Nothing was placed in respondent's personnel file concerning this incident. Ms. Gaitanis did not notice any smell of alcohol from the respondent, and did not notice anything unusual about respondent's physical appearance. Mr. Markham believed he smelled alcohol and noted that respondent's face was flushed and his eyes were bloodshot. Respondent was not slurring his speech or staggering. On December 9, 1981, respondent did not report for work. This was the first occasion when respondent had not given prior adequate notice of his absence. The school called respondent's residence, respondent answered the phone and said that he had overslept and would be in later. Respondent's words during that conversation were somewhat slurred. Respondent's wife later called in and reported that respondent would not be in that day. Mr. Markham asked respondent to go to a doctor that day and to bring him a note from the doctor. Respondent did go to a doctor and brought Mr. Markham a paid receipt for the visit. Two students believed they smelled alcohol on respondent's breath on or about December 18, 1981, the last day of school before the Christmas holidays. These students did not notice any change in respondent's physical appearance or behavior on that occasion. Three other students believed they smelled alcohol on respondent's breath on several occasions. They could not recall the dates. On such occasions, respondent showed no difference in behavior or physical appearance. Two teachers who had worked with respondent for ten years and saw him on a daily basis, sometimes in the morning, at lunchtime and again at the end of the school day, never smelled alcohol on respondent's breath. One of these teachers specifically remembered seeing respondent on the last day before the Christmas holidays. Three teachers' aides employed at Yankeetown School for 6, 4 and 2 1/2 years respectively, observed respondent on a daily basis--sometimes three times a day--and never smelled alcohol on respondent's breath. Twelve students who had respondent as a teacher for two or three periods a day on a daily basis during the 1981-82 school year never noticed the odor of alcohol from the respondent. Many of these students had respondent as a teacher during the first and second periods of the day and would have been present both on the day preceding the Christmas holidays and on April 19th, the day of his suspension. On April 19, 1982, Principal Markham's secretary noticed the smell of alcohol on respondent's breath as he was taking roll in his classroom. Mr. Markham called respondent to his office and building representative Gaitanis was again present. Markham accused respondent of being intoxicated, respondent denied that he had been drinking, and Markham then gave respondent the option to take a breathalizer examination. Respondent replied that he would do so if he could do it locally and did not have to travel to Bronson. Bronson is some thirty-five miles from Yankeetown and respondent did not have a car on April 19th. Mr. Markham did not order respondent to take the breathalizer exam. Mr. Markham sent respondent to the teachers' lounge and then asked his secretary to drive respondent home. Ms. Gaitanis noticed no odor of alcohol during the conference between respondent and Mr. Markham. A teacher's aide who saw respondent in the teachers' lounge at about 10:00 a.m. on April 19th and sat three to four feet away from him noticed no odor of alcohol. Mr. Markham admitted that respondent did not slur his speech, stagger or otherwise appear intoxicated in his behavior. He did observe that respondent's eyes were bloodshot and his face was flushed. Mr. Markham's secretary smelled the odor of alcohol while driving respondent home, but did not notice anything peculiar in respondent's behavior or appearance. Respondent does not like and does not drink hard liquor. He sometimes drinks a beer or two on the weekends or in the afternoon or evening after school. Respondent does not drink beer or alcohol at school or in the mornings before school. His eyes are often bloodshot and he occasionally has trouble sleeping at night. On Sunday, April 18th, respondent had been at the beach in the sun all day. Yankeetown is a small town with a population of approximately 500. If a resident had a drinking problem, it is probable that it would be common knowledge throughout the community. There was no testimony from parents, teachers or other community members that they had heard that respondent came to school intoxicated or with alcohol on his breath, or otherwise had a drinking problem. Principal Markham's "Instructional Evaluation" of respondent for the 1981-82 school year was prepared on March 18, 1982. As was true for the previous years' evaluations, respondent received a "Currently Satisfactory," the highest rating available, in all areas under the headings of "Teaching Competencies" and "Personnel and Professional Qualities." The subareas in which respondent was rated included "planning," "teaching techniques," "classroom management," "accurate and punctual in routine duties, records and reports" and "complies with school, county and state policies." Respondent took eleven full days and five half days of sick and personal leave during the 1981-82 school year. Other than the one December 9th occasion, respondent gave adequate notice of his absences. His leave days were always approved and he was paid for each of them. Mr. Markham felt that respondent's absences were a "minor" problem and he would not have recommended termination on this basis alone. He discussed respondent's absences with him on one occasion, but did not place anything in writing in respondent's personnel file. Respondent prepared lesson plans for substitutes to use during his absences and these plans were submitted to Principal Markham. Markham recalled discussing inadequate lesson plans with respondent on one or two occasions, but admitted that he had not previously placed much emphasis on lesson plans. No memoranda were placed in respondent's personnel file concerning lesson plans, and respondent could not recall any discussion with Mr. Markham regarding the adequacy of his lesson plans.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the charges contained in the April 30, 1982, "Recommendation of Dismissal" be DISMISSED, and that respondent be immediately reinstated with back pay from May 7, 1982, the date of his suspension without pay. Respectfully submitted and entered this 30th day of August, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1982. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 C. Anthony Cleveland General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Francis E. Rowell Superintendent School Board of Levy County, Florida Post Office Box 128 Bronson, Florida 32621-0128
The Issue The issue presented is whether Respondent is guilty of the allegations in the Complaint and Notice of Hearing filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent began his employment with Petitioner on October 25, 1977. For the last 13-14 years, he has been employed as a head custodian. On August 24, 1994, he was demoted from his position as the head custodian at Fulford Elementary School to the rank of custodian. Several days later, he was assigned to a high school where he has been employed as the acting lead custodian, a rank between custodian and head custodian. During the 1993-94 school year while Respondent was employed as the head custodian at Fulford Elementary School, a conference for the record was held on November 30, 1993, to discuss Respondent's work performance, his alleged gross insubordination, and his future employment with Petitioner. At that conference, Principal Pope and Assistant Principal Galgano discussed specific instances of their dissatisfaction with the manner in which Respondent maintained the yard at Fulford Elementary. Respondent was specifically advised that further deficiencies in his performance and further acts of gross insubordination would not be tolerated and could lead to further disciplinary action, including non-reappointment. On December 15, 1993, Respondent was issued a written reprimand for the reasons discussed during the November 30 conference for the record. That document entitled "Reprimand for the Record" states, in part, as follows: You are hereby officially recommended [sic] for gross insubordination and your inadequate work performance as a head custodian that refuses to perform his job description and job assignment. On that same date Principal Pope gave Respondent eleven written directives regarding his job duties in maintaining the yard, attending training, and using his walkie-talkie. On February 23, 1994, Principal Pope issued a memorandum to Respondent complaining that Respondent had arrived at work late on January 31 without giving her an explanation. On March 2, 1994, Principal Pope issued a memorandum to Respondent noting that on Saturday February 26, when the teachers and staff and their families worked in the school yard weeding and planting, the "yard had not been picked up nor had the lawn been mowed". That memorandum contained 9 directives. On March 24, 1994, the Director of Petitioner's Department of Plant Operations issued a memorandum to Principal Pope questioning the leadership of Respondent as head custodian and noting that Fulford Elementary School could be kept cleaner. On April 15 Assistant Principal Galgano and Respondent performed a quality assurance audit at Fulford, noting that some of the classrooms, corridors, and grounds were not maintained properly. By memorandum dated April 18 Respondent was directed to better supervise the other custodians and improve the appearance of the courtyard. By memorandum dated May 13, 1994, Assistant Principal Galgano directed Respondent to perform specific tasks in the school yard. By memorandum dated June 7, 1994, Assistant Principal Galgano wrote to Principal Pope, noting her May 13 memo to Respondent, noting that Respondent had to work overtime to prepare the grounds for visitors on May 25, and noting that Respondent had "shedded [sic] paper" while mowing the lawn in preparation for visitors to the school on June 3. On June 29, 1994, a conference for the record was conducted to address Principal Pope's recommendation that Respondent be demoted from head custodian to custodian. During the 1993-94 school year Fulford Elementary School was allocated 4.5 custodians according to Petitioner's formula. Yet, Fulford Elementary only employed 3 full-time custodians, including Respondent. A part-time person helped in the cafeteria for some undisclosed portion of that school year. Principal Pope determined which custodians worked which shift and the specific duties assigned to each. During the 1993- 94 school year Respondent was the only custodian at Fulford assigned to the 7:00 a.m. shift which ended at 3:30 p.m. The other 2 custodians, whom Respondent was responsible for supervising, worked the night shift which began at 3:00 p.m. They were responsible for cleaning the classrooms, offices, bathrooms, corridors, and the remainder of the school facility. As the only custodian on the day shift at Fulford, Respondent was responsible for disarming the alarm, unlocking the building in the morning, and "policing" the grounds. He also unlocked specific classrooms for substitute teachers. He also set up the cafeteria and worked in the cafeteria during breakfast removing trash, wiping tables, and washing the floor. After the cafeteria was clean, he was free to do his yard work until lunch time when he returned to the cafeteria to work there, removing trash and washing the floor and tables. In addition to his cafeteria and yard duties, however, Respondent was responsible for emergency clean-ups whenever a child became sick or was incontinent. He helped unload delivery trucks. He moved furniture and cabinets for teachers and office staff. He performed any other tasks requested by the principal. Respondent carried a walkie-talkie in order that the principal and assistant principal could reach him whenever they wished. The principal paged him to perform special assignments once or twice a day as did the assistant principal. The assistant principal had no problem reaching Respondent on his walkie-talkie. The principal complained that Respondent ignored her when she summoned him on the walkie- talkie. On one such occasion, one of Petitioner's master custodians who was on site looked for Respondent and discovered that Respondent was riding a tractor at the other end of the school site and simply could not hear the principal paging him. Principal Pope asked Assistant Principal Galgano to assist her in supervising the custodians. Galgano discussed with Respondent his work performance on different occasions during the 1993-94 school year. Respondent maintained that he was doing the best he could in view of the fact that he had no one to help him. During the previous school year Respondent had also requested that someone else work with him during the day. Having only one custodian during the day shift is a deviation from the standard recommended by Petitioner's Department of Plant Operations. An employee of that Department specifically advised Principal Pope that Respondent needed help since he was the only custodial worker on the day shift. A principal can request that one of Petitioner's master custodians be sent to the school site to train that school's custodial staff. During the 1993-94 school year a master custodian was sent to Fulford on one occasion at Principal Pope's request to provide additional training for one of the custodians who worked on the night shift. On that occasion and the other time that master custodian was at Fulford he observed the yard and determined that it was "not bad." Principal Pope never requested a master custodian to assist Respondent with additional training. A different master custodian employed by Petitioner's Department of Plant Operations was present at Fulford Elementary on two occasions during the 1993-94 school year and observed the yard. On both of those days the maintenance of the yard met Petitioner's standards. Similarly, the other custodians who worked at Fulford that year observed the yard when they came to work and rated its maintenance as an "8" or a "9" on a scale with "10" being the highest score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint filed against Respondent in this cause and reinstating Respondent to the position of head custodian with full back pay and benefits. DONE AND ENTERED this 31st day of December, 1996, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: J. Michael Haygood, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite No. 562 Miami, Florida 33132-1308 Ben R. Patterson, Esquire Patterson and Traynham Post Office Box 4289 Tallahassee, Florida 32315-4289 Mr. Octavio J. Visiedo Superintendent of Dade County Schools 1450 Northeast Second Avenue, Suite No. 403 Miami, Florida 33132-1308
The Issue Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons specified in the Notice of Termination of Employment Contract and Immediate Suspension without Pay dated March 27, 2013.
Findings Of Fact The Duval County School Board (School Board) is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida. Ms. Beverly L. Howard has been employed by the Duval County School Board as a classroom teacher for over 32 years. She went to Paxton Senior High School and then to Florida A & M University, graduating with a bachelor of science degree in elementary education. The School Board seeks to terminate Ms. Howard’s employment. Her substantial interests are affected by this intended action. Ms. Howard has a history of past misconduct and disciplinary action. While teaching at Hyde Grove Elementary School in 1992, Ms. Howard received three memoranda from Principal Theresa Stahlman concerning her interactions with parents and students and her teaching performance. Among other comments, Ms. Stahlman noted that Ms. Howard needed significant improvement to “show sensitivity to student needs by maintaining a positive school environment.” Ms. Stahlman testified that Ms. Howard exhibited a “very loud punitive behavior management style” and that she wanted to help Ms. Howard improve. A note at the end of one memorandum indicates that Ms. Howard had said that she did not need cadre assistance and that she would request assistance if she needed it. A note on another memorandum indicates that Ms. Howard refused to sign it. Ms. Howard testified at hearing that the things Ms. Stahlman wrote in the three memoranda were lies. Ms. Howard said that Ms. Stahlman was a racist and was prejudiced. Ms. Stahlman gave Ms. Howard an unsatisfactory evaluation. The next year, Ms. Howard got an option to go to another school. On March 8, 1995, a conference was held between Ms. Howard, a parent of one of her students, and Principal Debbie Sapp. The student had alleged that Ms. Howard had pushed her down. Principle Sapp noted in a memorandum that Ms. Howard “vehemently denied this, in an extremely rude and unprofessional manner” and said that she would never put her hands on a student. Principal Sapp advised Ms. Howard that being argumentative and defensive with parents was unacceptable and only made bad situations worse. On March 10, 1995, Principal Sapp was making morning classroom checks when she overheard Ms. Howard repeatedly yell at a student, “Get out of my classroom.” Ms. Howard’s final comment was “Get out before I throw you out.” Principal Sapp then entered the classroom and saw a student standing at her desk, about to leave. Ms. Howard said that the student had been misbehaving all morning. Principal Sapp told the students that she did not expect teachers to yell at them or threaten them and admonished them to behave. In a memorandum to Ms. Howard, Principal Sapp wrote that Ms. Howard needed to work on controlling her temper, noted that Ms. Howard’s classroom was frequently in disarray, and stated that yelling at students and threatening them was inappropriate behavior that only made things worse. Ms. Howard testified at hearing that when Ms. Sapp came down the hall and heard a teacher yelling, Ms. Sapp never came face-to-face with her, and that it could have been the voice of another teacher which Ms. Sapp heard. On May 27, 2003, the Office of Professional Standards investigated a complaint from a student’s parent that Ms. Howard had grabbed the student by the arm, choked him, and caused him to vomit. The student said that Ms. Howard dug her fingernails into his arm when he got up to retrieve a paper that another boy had taken from his desk. He said that her nails were hurting him, so he began hitting Ms. Howard. He then said that she put her hand around his throat and made him choke. He said he felt sick and threw up. Ms. Howard denied the accusation. She stated that the student was in a fight with a female student in her class and that she separated them. She said she asked the female student to sit down and attempted to gain control of the male student. Ms. Howard showed the investigator a scratch on her thumb that she said was made by the student. She stated that after she assisted the student to his desk he began gagging and attempting to vomit. She said that only saliva came up and she asked him to go to the bathroom to clean himself up. The investigation was closed as “unable to prove or disprove.” The Office of Professional Standards investigated allegations of unprofessional conduct against Ms. Howard on April 28, 2004. The mother of student T.J. had left a message with Ms. Howard to call her to talk about scratches on T.J.’s arm. Ms. Howard called the mother at her workplace, University of Florida Jacksonville Physicians. The mother asked Ms. Howard if she knew where the scratches came from, and Ms. Howard said they came from an incident in the library. The mother could then hear Ms. Howard asking T.J. and another girl in her class about what had happened. The other girl said that T.J. had done things to cause the incident. Ms. Howard immediately relayed to the mother that the incident had been T.J.’s fault. The mother became upset, realizing that Ms. Howard had not been present and yet was completely accepting the other girl’s version of what had happened. The mother then told Ms. Howard that this was not right and that she would go to see the principal. Ms. Howard told the mother that she could talk to whomever she wanted to, and then put the phone down as if intending to disconnect the call, but the mother could still hear what was going on in the classroom. Ms. Howard said, “Class, isn’t T.J. a nasty little girl?” The class responded, “Yes, ma’am.” The mother heard Ms. Howard say, “Class, don’t I send home paperwork?” The children responded, “Yes, ma’am.” The mother could hear T.J. trying to ask Ms. Howard a question, and Ms. Howard saying, “Go sit your behind down.” At this point the mother became angry that Ms. Howard was verbally abusing her child in front of the other children. She asked her “lead” at her workplace to continue to monitor the call. She immediately left, and drove directly to the school to talk to the principal, Ms. Blackshear. The investigator received statements from the mother’s lead and several co-workers which contained additional statements Ms. Howard made to the students. Ms. Howard said: [T.J.] get out of my face, you can go home and tell your mama all of those lies. Yeah, she is probably going to want to have a conference with Ms. Blackshear. Go ahead and get out of my face with your nasty disrespectful face. Ms. [T.J.] sit down, I have already told your mama that you will be retained in the second grade. You want to be all that, well I can be more. The investigator determined that the phone number shown on the workplace caller ID feature was the number of Ms. Howard’s cell phone. When interviewed by the Office of Professional Standards, Ms. Howard denied making the above comments regarding T.J. She stated that T.J. had been a problem all year and that the student’s mother “got an attitude” with her. Ms. Howard did admit she placed a “shelter kid,” who was a juvenile inmate, outside of her classroom without supervision “for a few minutes.” She stated that everyone in the school knew it was a bad class, but she was being blamed. Ms. Howard testified at hearing that the lead and co-workers of T.J.’s mother were lying when they made statements about her interactions with the students in her classroom. She said she put the phone in her purse, and the purse in her desk drawer, and that no one could have heard any conversations in the classroom. Student T.J. was then reassigned from Ms. Howard’s class. At hearing, T.J. testified that when she was in Ms. Howard’s third-grade class, she “got her card flipped to pink” on a daily basis (this color indicating the worst conduct). She admitted that she deserved this sometimes, but not all the time. She testified that she remembered that Ms. Howard used to pinch her arm when she was “in trouble.” T.J. remembered that Ms. Howard called her names, saying she was nasty, disrespectful, and in need of home training, in front of the other students. She testified that she had problems in Ms. Howard’s class because she needed to go to the bathroom frequently and Ms. Howard would only let her go once a day. She would sometimes wet her pants. She then would have to wait until she was allowed to go to the office to call her mother to get clean clothing. On May 17, 2004, the Duval County School Board administered discipline to Ms. Howard for her interactions with her class as reported by T.J.’s mother and her co-workers. She was issued a written reprimand, suspended for five days without pay, and required to attend an anger management session. Ms. Howard was informed that she had been given the opportunity of constructive discipline instead of a reduction of pay or dismissal to afford her progressive discipline, and that any further improper conduct on Ms. Howard’s part would subject her to more severe disciplinary action. The written reprimand set forth Florida Administrative Code Rule 6B-1.006(3)(a) in its entirety, with its requirement that she “make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” Ms. Howard signed a Receipt and Acknowledgement that she received a copy of the reprimand. On September 6, 2012, shortly after the start of the 2012-2013 school year, Louis Sheffield Elementary School held an open-house night. Ms. Lindsey Connor, assistant principle at the school, credibly testified to Ms. Howard’s response to a parent’s assertion that Ms. Howard had refused to allow her son, T.S., to go to the bathroom and that he had wet his pants in her class. Ms. Howard said to the mother of T.S., “What seems to be the problem?” in a harsh tone. After some discussion, Ms. Howard said something to the effect of: “Your son is a liar. He lies. He doesn’t need to be in my classroom anymore.” Ms. Howard denied that she ever told the mother of T.S. that her child was a liar. She stated that that would have been unprofessional. Ms. Howard testified that Ms. Connor’s statement that this had happened was a lie and that Ms. Connor was always taking the parents’ side. Ms. Howard testified that she never prevented a child from going to the bathroom and that T.S. just wet himself. Ms. Conner received numerous complaints about Ms. Howard from parents of Ms. Howard’s kindergarten students. Ms. Connor received six requests from parents to remove their children from Ms. Howard’s class. Ms. Connor testified that this was an unusually high number of requests and that she was concerned. J.F. was a student in Ms. Howard’s kindergarten class who exhibited behavioral problems. She would do acrobatic flips in the classroom and would tie her shoelaces to the chairs. She appeared to be hyper-active and would fall out of her chair when she was at her seat. J.F. would go all around Ms. Howard’s classroom and did not listen to Ms. Howard. She would back-talk Ms. Howard and showed her no respect. J.F. was frightened of Ms. Howard and often cried. Ms. Howard testified that she wanted to get specialized treatment or placement for J.F. but that the parents would not agree. In response to a complaint from the parents of J.F., Ms. Connor asked Ms. Howard to prepare a chart on which stickers could be placed to document J.F.’s progress in school. Ms. Connor asked Ms. Howard to bring the chart to a meeting to discuss how to help J.F. advance. Ms. Howard did not bring anything to the meeting and said nothing about how she might be able to help J.F. The mother of W.B. testified that her son was in Ms. Howard’s kindergarten class and that he loved Ms. Howard as a teacher. On one occasion in Ms. Howard’s classroom, W.B.’s mother observed Ms. Howard pull J.F. by the arm over to her when J.F. had gotten into trouble. The mother stated that J.F. appeared scared and she would not have liked Ms. Howard to do that to her child. In response to a call from the parent of C.B., a student in Ms. Howard’s class, Ms. Connor suspected that Ms. Howard may have hit one or more of her kindergarten students with a book. In a discussion with the Professional Standards office, Ms. Connor was told that she should investigate, advise the teacher, and contact the Department of Children and Families. Ms. Conner conducted interviews with students assigned to Ms. Howard’s class in the presence of a witness and took notes as to what the students told her. She testified that she brought the students into her office individually, that they didn’t know beforehand what she was going to talk to them about, and that they had no opportunity to collaborate or coordinate their statements. After conducting interviews with the children, Ms. Connor advised Ms. Howard of an allegation that Ms. Howard struck J.F. on multiple occasions with a book. Ms. Howard responded that she would not provide a written statement because she had never hit a student. Ms. Connor notified the Department of Children and Families. The report and testimony of the child protective investigator indicated that J.F was open, happy, and smiling during the “non-threatening” portions of the interview, but the investigator testified that when asked about Ms. Howard’s class, J.F. became nervous, chewed on the ends of her clothes, began to fidget, and asked if Ms. Howard was going to know what J.F. was saying. The investigator interviewed several students in the class. The report indicated that J.F. was free of suspicious marks or bruises. When the investigator interviewed Ms. Howard, she denied ever hitting J.F. with a book or slamming her down in her seat when J.F. was misbehaving. Ms. Howard indicated that she was close to retirement and would not hit a child. Student J.F. testified at hearing that she did not like Ms. Howard as her kindergarten teacher because Ms. Howard “did not want to be nice to me.” She testified that Ms. Howard “hurt me.” She testified that Ms. Howard “hit me on the leg with a book.” She testified that Ms. Howard hit her with the book because Ms. Howard had told her to get down on the carpet. She held up five fingers when asked how many times Ms. Howard had hit her. During cross-examination, she testified that she had been hit five times in succession on a single occasion. On redirect, she testified that she had been hit on five separate days. Student K.D., aged six, testified that J.F. did bad things in Ms. Howard’s class. He testified that J.F. put her head in her shirt. He testified that the class would sit on the carpet every day for a little while. He testified that sometimes J.F. would stay on the carpet when she was supposed to go to her seat. He said that J.F. got spanked on her back by Ms. Howard with a book. He testified that Ms. Howard hit her on more than one day, and when asked how many days, said “sixteen.” He did not know how he knew it was 16 days. He later testified that Ms. Howard hit her “sixteen times every day.” The father of student J.C.M. testified that he transferred J.C.M. from a Montessori school to Louis Sheffield Elementary because his wife was going to have another baby and that school was closer to their home, which would mean a shorter drive for her. The first day that J.C.M. went to Ms. Howard’s class was February 11, 2013. The parents immediately began receiving “agenda notes” from Ms. Howard saying that J.C.M. was not behaving well. The father testified that J.C.M. did not want to go back to Ms. Howard’s class the next few days and would cry when they dropped him off. The father testified that since J.C.M. had never been a discipline problem and had done well at his prior school, he sent a note in after the second day to schedule a conference with Ms. Howard. The father testified that on the second or third day, J.C.M. came home complaining that his arm hurt, but when questioned as to what had happened, J.C.M. gave different stories. First he said a lady had grabbed his arm in the classroom. When asked “What lady?” J.C.M. said that it was a friend, another student. Later, he said that the injury had happened on the playground. Still later, he said that the injury was caused by his grandfather. The father was confused by these different answers. When the parents received no response to the request to meet with Ms. Howard, the parents went to the school and met with Ms. Connor, who advised them that Ms. Howard was no longer in the classroom, but she did not tell them why. Since J.C.M. now had a new teacher, his parents did not ask that he be moved to another class. Student J.C.M., aged six, testified that he had been moved into Louis Sheffield Elementary in the middle of the school year and only had Ms. Howard as his teacher for a few days. J.C.M. testified that on one of those days, “I was in the door and then I -- I didn’t kicked it. I didn’t kicked it, I touched it with my feet.” He testified that Ms. Howard grabbed him and put him by her desk or table and that his “arm hurted for a little bit –- a little bit long.” He testified that he saw Ms. Howard hit J.F. on the head with a book because she was not writing when she was supposed to be writing. He testified that on a later day Ms. Howard also hit him on the head with a book when he was on the rug, but he forgot if he was supposed to be on the rug or not. Ms. Howard testified at hearing that she never put her hands on any of the students. She did not know why the children would say that she had, except that they had been coerced to say it. She testified that she had been under a doctor’s care and that she had had back surgery and that her medical condition affected her ability to lift or throw items. She testified she could not bend over or lift heavy objects because it probably would have torn her sutures. She testified that she had been under a doctor’s care since January 30 and that it took her until February 14, the day she was reassigned, to recover. She testified that not only was it not in her character to hit a child, she was physically incapable of doing so at the time. The testimony of Ms. Connor that the kindergarten children had no opportunity to coordinate their statements and that they did not even know in advance why she wanted to talk to them is credited. Ms. Connor’s notes as to what each child told her supplement and corroborate the testimony of the children later at hearing. Although the direct testimony as to Ms. Howard’s actions all came from these young children, they were capable of observing and recollecting what happened in their kindergarten class and capable of relating those facts at hearing. Their responses to questions at hearing showed that the children had a moral sense of the obligation to tell the truth. There was no objection from Respondent as to the children’s competency, and they were competent to testify. These young children’s accounts of events were sufficiently credible and corroborative to prove that Respondent struck J.F. with a book on multiple occasions. There was credible testimony that J.F. was struck on her legs with a book when she would not get down on the carpet as she was supposed to, was struck on her back with a book when she would not get up off of the carpet as she was supposed to, and was struck on the head with a book when she would not write as she was supposed to. These physical contacts took place in front of other students. While the exact number of times she was struck was not clear, the testimony that it was deliberately done and was constantly repeated is credited. Ms. Sonita Young is the chief human resource officer of Duval County Schools. She reviewed Ms. Howard’s personnel file in making her recommendation to the Superintendent that Ms. Howard be suspended without pay pending termination. Ms. Howard’s employment record, including both performance issues and disciplinary issues, was considered in determining the appropriate recommendation to be made to the Superintendent and ultimately to the Board. A Notice of Termination of Employment Contract and Immediate Suspension without Pay from her position as a kindergarten teacher at Louis Sheffield Elementary was presented to Ms. Howard on March 27, 2013. The Notice alleged that Respondent had violated certain provisions of the Code of Ethics, contained in Florida Administrative Code Rule 6A-10.080, and a Principle of Professional Conduct for the Education Profession in Florida, contained in rule 6A-10.081. Ms. Howard challenged the grounds for her termination and sought a hearing before an administrative law judge with the Division of Administrative Hearings. The rules cited above were adopted by the State Board of Education and relate to the public schools or the public school system. Rule 6A-10.081 was renumbered, but is substantively identical to the rule cited to Ms. Howard earlier in her May 17, 2004, Written Reprimand. Ms. Howard was well aware of her responsibility to protect students from conditions harmful to learning or to students’ mental or physical health or safety, because she had previously been disciplined for failing to do so. Ms. Howard’s actions in striking J.F. with a book failed to protect her students from conditions harmful to their mental and physical health and safety in violation of rule 6A- 10.081. Ms. Howard’s constantly repeated actions in striking J.F. constitute persistent violation of the rule and are cause to terminate her employment as a teacher. Ms. Howard’s deliberate actions in striking J.F. constitute willful refusal to obey the rule and are cause to terminate her employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Duval County School Board enter a final order terminating the employment of Beverly L. Howard. DONE AND ENTERED this 15th day of October, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of October, 2013.
The Issue Whether the Respondent, an elementary school teacher, should be disciplined under sections 1012.795 and 1012.796, Florida Statutes (2016),1/ for inappropriately disciplining a student in violation of Florida Administrative Code Rules 6A-10.081(2)(a)1. and 5.2/; and, if so, the appropriate discipline.
Findings Of Fact The Respondent holds Florida Educator Certificate 1197418, covering Elementary Education, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. The certificate is valid through June 30, 2022. The Respondent began the 2016/2017 school year teaching second grade at Shingle Creek in Orlando, which is in the Orange County Public Schools (OCPS) school district. It was her fourth year of teaching there. Her teacher evaluations were satisfactory. She did not use corporal punishment, and did not yell or scream at her students. She had no disciplinary history. (She had one non-disciplinary directive for blurting out an expletive in pain when she fell in class and hurt her knee.) Shortly after the start of the 2016/2017 school year, the Respondent realized she had a student, B.K., who took things that did not belong to her. B.K. was bright and popular among the children in class, but she could not be relied on to tell the truth. From the beginning of the school year, the Respondent had to take steps to discipline B.K.’s misbehavior and try to correct it. Soon after the start of the school year, B.K. put a laptop computer in her back pack, instead of returning it to the charging cart in the classroom as all the other children did when they finished using it. At the end of the day, B.K. told the Respondent that another student put the laptop in her back pack. The other student denied it, and the Respondent was obliged to refer the matter to the school administration. An assistant principal investigated and interviewed B.K., who admitted to taking it. The Respondent also found her own personal books in B.K.’s back pack. B.K. falsely accused a classmate of putting them there. On another occasion, another teacher caught B.K. with the Respondent’s “Hello Kitty” flash drive. B.K. told the teacher that a friend had given it to her, which was false, and the teacher wrote a referral to administration. As a result of these incidents, the Respondent had a conference with B.K.’s parents. B.K.’s father reported that he had found books at home that did not belong to his daughter. B.K. admitted that she had taken them from the classroom. The Respondent was obliged to make a classroom referral. The Respondent continued to learn of other similar incidents. Once B.K. took two bags of candy the Respondent used to reward good behavior and achievement by her students. Another teacher saw B.K. distributing the candy to classroom friends outside the classroom and reported it to the Respondent, who realized it was her candy that had gone missing. After the candy incident, the Respondent again met with B.K.’s parents and decided to impose consequences in addition to the classroom referral to discipline B.K. for the theft of the candy—namely, she decided to withhold the prize she planned to give students on Thursday, October 13, for good behavior during the preceding month. (Friday, October 14, was a day off school.) She told B.K.’s parents about the consequences she planned to impose. As October 13 approached, B.K. continued to misbehave by taking things that did not belong to her, including a Post-It note dispenser and a bag of erasers. The Respondent reported to the school guidance counselor and assistant principal that B.K.’s misbehavior seemed to be escalating. During the last class period of the day on October 13, while the class was working on a science project, the Respondent called each student up to her desk individually to reward good behavior with points, prizes, candy, and to identify misbehavior to be corrected. Under the “class dojo” behavior system the Respondent was using, class participation was rewarded with points and corresponding “karate” belts. Good behavior was rewarded with candy. When it was B.K.’s turn, the Respondent explained that she was getting points and a belt for class participation but was not getting candy because of her taking things that did not belong to her, and not telling the truth. The Respondent told B.K. that she would have a “clean slate” going forward and would get points and both prizes and candy if she earned them with good behavior in the next month. Not long after the Respondent’s talk with B.K., another student said out loud that B.K. had candy that did not belong to her. The Respondent asked B.K. if she had candy, and B.K. denied it. The Respondent then asked her students to check to see if they had the candy they had just been given. One student, who sat next to B.K. and had put her candy in her desk, said hers was missing. The Respondent then asked B.K., who still denied taking the candy, to show her what was in her desk. B.K. just froze and did not comply. The Respondent repeated herself. B.K. again refused and began to get emotional. Because the desk was a “jumbled mess” of tissues, papers, food, a milk carton, pencils and other things, and because bending down low was difficult for the Respondent, the Respondent tipped the desk over enough for some of items in it to begin falling out on the floor. The missing candy was among the first several items that fell out on the floor. At this point, B.K. claimed that the student whose candy was missing had given it to her, which the other student denied. The Respondent then told B.K. that the Respondent was going to have to write B.K.’s parents a note about the incident. She also told B.K. to pick her things up off the floor and put them back in her desk. During these proceedings, B.K. became emotional and started crying. At one point, she kicked at her desk or chair. The Respondent had her sit up near the chalkboard until she calmed down. The Respondent sat down at her desk facing B.K. and told her she was very disappointed with her because of the talk they just had. Although most of the students had resumed working on their science projects, one child asked out loud if B.K. had stolen the candy. The Respondent did not directly answer the question. Instead, she said something like, “I’m not sure what you just saw and heard, but one thing we don’t do in this class is, we don’t steal, right? What don’t we do?” Some of the students who were listening repeated, “we don’t steal.” When things settled back down, the Respondent wrote a note to B.K.’s parents notifying them about the candy incident and telling them that B.K.’s behavior that day had been “in the red” (i.e., bad). B.K. went back to sitting at her desk, and the rest of the class period was uneventful. In fact, the school principal came to the Respondent’s classroom before the class period ended to deliver notices for the students to take home to their parents. Although she was not in the classroom long, she noticed nothing unusual. At home after school on October 13, B.K.’s mother asked her about the Respondent’s note. B.K. denied stealing candy. She told her parents that the Respondent gave all the other children in the class candy except her and accused her of taking a piece of candy, which she denied. B.K. then told them that the Respondent then kicked her chair, dumped her desk on the floor, made her clean it up and put her desk back in order, and made the other students line up and take turns hitting her hand hard in punishment. Her parents decided to talk to the Shingle Creek principal about it on the next school day, which was Monday. When B.K. and her parents arrived at school on Monday morning, they encountered and talked to several of B.K.’s classmates outside the school. At least two of the classmates were approached by B.K., who brought them to her parents. The evidence was unclear as to how many other classmates were involved, or how the conversations went. The language skills of the students in general were those of second-graders, and several of the children were speakers of English as a second language. B.K.’s parents speak English with a strong Haitian accent. For example, the words “hit” and “hate” sound very similar, and it is not easy to understand their spoken English. It is unclear exactly what was said, but B.K.’s parents came away from the conversations convinced that B.K. was telling the truth about what happened in class on October 13. It is also possible that the children’s memories and recollections were influenced by these conversations. B.K.’s parents then went to speak to the school’s principal. B.K. did not go to class but stayed with her parents in the principal’s office. After talking to the family, the principal telephoned OCPS’s senior manager of employee relations, who advised her to gather witness statements. The principal and several assistants began taking statements, starting with B.K. and her parents. After them, the Respondent was called to the principal’s office. Following the instructions given to all teachers by the teacher union, the Respondent declined to give a written statement without a lawyer or union representative present. She did have a conversation with her principal. The principal asked her to explain the situation with B.K. on Thursday. The Respondent told her about the candy incident, including tipping the desk to find the candy; about being very disappointed with B.K.; and about writing a note to B.K.’s parents. The Respondent recalls the principal asking if anything else happened, and she answered, no. The principal recalled the conversation a bit differently. She thought the Respondent admitted to dumping B.K.’s desk over, raising her voice, and being angry with B.K. She also remembered asking the Respondent if any of the other students hit B.K. and the Respondent answering that she did not see anyone hit her. The principal then began interviewing the Respondent’s students one by one. The interviews continued the rest of the morning and into lunch recess. Some statements were taken the next day. It is unclear to what extent the student witnesses discussed their statements among themselves during the day. The interviews were not video or audio-recorded. The interviewers thought they were asking proper, open-ended questions that did not suggest answers, but studies have shown that interviews usually are not as proper or open-ended as interviewers think they are, especially when the interviewers do not have extensive training. The training of the principal and her assistants in interview techniques was limited. Proper interview techniques help ensure that witness memories and statements are authentic, accurate, and reliable. They are especially important for child witnesses. The statements were not verbatim, or close to verbatim. Two of the statements were written with difficulty by the second- graders themselves and were not very articulate. The rest were written by the adult interviewers and signed by the second- graders so the process would go faster. These statements were written in a summary or conclusory fashion, without much detail, and were similar to one another, suggesting that they were recording the answers to questions of particular interest to the adult interviewers. The statement forms themselves had spaces designated for the “Date of Infraction” and “Location of Infraction,” and had signature blocks that said: “I swear/affirm the above and/or attached statements are true and correct. I understand that providing false information is punishable under the Student Code of Conduct.” It is doubtful that the second- graders would have understood what that meant. Fourteen (all but one) of the statements said that the Respondent told the students to hit or slap B.K.’s hand or hands. Some added that B.K. was crying; some added that the Respondent told them to hit hard, or harder. One statement said they did it because B.K. took candy, one said it was because B.K. was a thief, and one said it was because B.K. steals too much. Some of the statements were surprising because of the capabilities of the child supposedly giving it: one of the students was non-verbal and would not have been comfortable speaking to a stranger; another was autistic and unable to sequence information such as the days of the week; and another had behavioral and emotional issues that made him incapable of giving a statement. Some of the second-graders added remarkable features in their statements that were not mentioned by anyone else, or by just a few: one said the Respondent threw B.K. down to the ground; three, including one attributed to the child with behavioral and emotional issues, said that the Respondent threatened to call the police; one said that the Respondent told B.K. to put her desk by the wall; and one said the Respondent told the class to avoid B.K. During the morning on October 17, several of the Respondent’s students told her that B.K.’s parents had talked to them before school about the Respondent making them hit or slap their child on the hand, and told her that B.K. no longer was in the Respondent’s class. After the second-graders’ statements were gathered, the school principal presented them to the OCPS senior manager of employee relations, who scheduled a pre-determination meeting on October 21. His investigative report stated: 16 student statements were obtained; 15 confirmed being directed by the teacher to hit B.K. on the hand; 3 confirmed the teacher telling the students to repeat “don’t steal”; 8 confirmed the teacher yelling; 5 confirmed the teacher telling them to hit B.K. hard; 3 confirmed the teacher calling B.K. a thief; and 3 confirmed the teacher saying she was going to call the police. The investigative report also stated that the Respondent: admitted getting angry and raising her voice; admitted pouring out the contents of the student’s desk; admitted saying and having the students repeat, “what is it we don’t do in class? We don’t steal”; stated she did not recall directing the students to hit B.K.; did not know if B.K. was hit “on October 17,” but did know that B.K. lies; and did not report the incident to the school administration on October 17. Based on the investigative report, OCPS terminated the Respondent’s employment. The Respondent filed a grievance which was arbitrated under the terms of the teacher union contract. When the matter was referred to the Petitioner, another investigation was conducted. On February 17, 2017, the second- graders were interviewed again by the Petitioner’s investigator. The investigator asked the questions and wrote the answers. The second-graders were asked to confirm that the answers were written down correctly and signed their statements. Like the principal and her assistants, the Petitioner’s investigator believed she asked non-suggestive, open-ended questions. Like the principal and her assistants, the Petitioner’s investigator did not have extensive training in the proper techniques for manner of interviewing children. Like the interviews conducted by the principal and her assistants, the Petitioner’s investigator did not video or audio-record her interviews. Each student interviewed by the Petitioner’s investigator stated that the Respondent told the students to “slap” B.K.’s on the hand as hard as they could and that slapping B.K. made the student feel “sad.” One said that B.K. cried. One said the Respondent made the class stand in a circle and take turns slapping B.K. on the hand. Unlike the school principal and her assistants, the Petitioner’s investigator had the students describe how hard they were supposed to hit B.K. on a scale of 1 to 5. This question elicited several responses that they were told to hit “hard,” one that they were told to hit “as hard as we could,” and one that gave a rating of 5. In the statements gathered by the Petitioner’s investigator, several of the students mentioned that the Respondent told them to pretend B.K. was a ghost, and several said the Respondent told them not to tell anyone about what happened. Oddly, neither of these remarkable details was mentioned in any of the statements taken by the principal and her assistants. The Respondent’s grievance was arbitrated in May 2017. After a three-day hearing, the termination was upheld, despite testimony from another teacher that she overheard B.K. admit to stealing candy and to lying to get the Respondent in trouble because she was tired of getting caught stealing by the Respondent. Several of the students who gave statements testified at both the arbitration hearing and the hearing in this case. Several were deposed before testifying. The Petitioner in her Proposed Recommended Order suggested that credibility issues arising from the prior events should be ignored because they were cured by the live testimony. That is not true. Issues remain as to whether the students’ live testimony was influenced by what preceded. In addition, their testimony at the hearing was confusing and inconsistent in many respects. Two of the students testified that the students formed a circle around B.K., while three said they formed a line. One said the line was in the shape of a C or J. One specified that they hit B.K.’s hand while she was either in a corner or by a desk where the sink was located. One said B.K. was standing in front of another student’s desk. Two said B.K. was standing in the middle of the classroom. One said B.K.’s hand was held out palm down. Another said it was palm up. One said the Respondent held B.K.’s hand out. The evidence, taken as a whole, is not clear and convincing that the Respondent had her students hit or slap B.K. as punishment for taking the candy. While several children made statements that included some version of this alleged incident, they all started with B.K., who was overheard saying she was lying, and the other children’s statements are fraught with questions that make them unreliable and insufficient to prove those facts clearly and convincingly. Meanwhile, the Respondent’s version of what happened, while self-serving, is more persuasive. Her refusal to give a written statement, and her manner of answering questions, may have raised suspicions on the part of the school principal, and may have contributed to a number of misunderstandings by the principal and B.K.’s parents, but they do not prove that the Respondent was lying. The Respondent’s conduct that was proven by the evidence did not rise to the level of a disciplinable failure to make reasonable effort to protect B.K. from conditions harmful to learning and/or to her mental and/or physical health and/or safety, and did not intentionally expose B.K. to unnecessary embarrassment or disparagement. What the Respondent actually did was within the realm of making reasonable efforts to correct B.K.’s problem behaviors and to teach her and her classmates how to behave properly and acceptably, while at the same time trying to keep order in the classroom and continue delivering academic instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent not guilty and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 1st day of May, 2018, 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 1st day of May, 2018.
