The Issue The issue in this cause is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 418505 in the area of Music. The certificate was valid through June 30, 2002. There was no evidence that Respondent had renewed his certificate. During the 1997-1998 school year, Respondent was employed with the Sumter County School District as the band director at Central High School. Elizabeth Pooley was born on August 9, 1983. She attended West Hernando Middle School in the 1996-1997 school year. She attended Central High School as a ninth-grade student in the 1997-1998 school year. She was a member of the Central High School band directed by Respondent. Respondent met Ms. Pooley during her eighth-grade year at West Hernando Middle School. During her ninth-grade year (1997-1998) at Central High School, Respondent became aware that Ms. Pooley had a crush on him. Ms. Pooley was 14 years old. At the time he met Ms. Pooley in the 1996-1997 school year Respondent was 45 years old, married and had two minor children, one girl and one boy. Both children were around Ms. Pooley's age. In April 1998, at Central High School, Respondent wrote a note containing inappropriate sexual innuendo about Respondent having a sexual encounter with Ms. Pooley on a boating excursion with her family. The note, while somewhat hard to follow, described Ms. Pooley as a virgin, acts of masturbation by Ms. Pooley, and referenced something about a burp. Respondent gave the note to a minor female student, H.P., and told her to give the note to her sister, C.P., another minor female student in the band at Respondent's school. When the girls' mother overheard her daughters talking about the note, she took it from them and read it. Realizing how inappropriate the content of the note was for a male teacher to be writing about a minor female student, she kept the note. The next day, she turned the note over to the principal of Central High School. When the principal, Dennis McGeehan, questioned Respondent about the note, Respondent admitted writing it. However, he did not remember writing the note and could not fathom why he had written the note. At hearing Respondent claimed that he believed he had been slipped a drug in a cupcake by some students. However, he offered no credible evidence of such. Based upon this admitted misconduct, Mr. McGeehan recommended that Respondent be suspended with pay. On April 23, 1998, Respondent was advised that he would not be recommended for renewal of his employment contract with the district. Respondent resigned his position of employment on April 25, 1998, after he received the notice of his non-renewal. A copy of the note written by Respondent and an article about it were published in the St. Petersburg Times newspaper on April 30, 1998. Other news articles about the matter were also published. Ms. Pooley and her father were both interviewed about the incident and quoted in one of the newspaper articles. Both denied the incident described in the note ever occurred. After this incident, Ms. Pooley was teased at school. She was unhappy because of the teasing. Respondent continued to meet with Ms. Pooley and talk with her. At some point, the relationship evolved from mentoring to one of romance. However, other than kissing and caressing, no sexual intercourse occurred. Ms. Pooley's parents were very concerned about Respondent's involvement with their daughter. They requested he have no further contact with her. Their request was not honored by Respondent or Ms. Pooley. Eventually they moved with her approximately 2 1/2 to 3 hours away to New Port Richey, Pasco County, in order to avoid further contact between their child and Respondent and to remove her from teasing at school about the incident. Respondent, however, did not leave Ms. Pooley alone. Respondent made numerous trips from his residence in Cross City, Florida, to New Port Richey, Florida, to see her during the summer of 1998. Again her parents requested that Respondent not see their daughter. Respondent again did not comply. As a result of Respondent's contacts with Ms. Pooley in June and July 1998, her parents filed a criminal complaint with the Pasco County Sheriff's Office against Respondent. Respondent's involvement with Ms. Pooley in New Port Richey involved love notes and letters to Ms. Pooley, furtively meeting with Ms. Pooley on a number of occasions without her parents' knowledge or consent, and engaging in kissing, hand- holding, hugging, and fondling of Ms. Pooley's breasts. No sexual intercourse occurred. Several of their secret meetings took place in the parking lot of a bar called the Pasco Pussycat. In February 1999, at age 15, Ms. Pooley's parents placed her in a short-term residential run-away crisis center called the RAP House in New Port Richey. They did so because their relationship with Ms. Pooley had deteriorated due to her ongoing relationship with Respondent. While enrolled there, staff of the RAP House initiated a lewd and lascivious report to the Pasco County Sheriff's Office concerning Respondent's involvement with Ms. Pooley. In her statement to the Pasco County Sheriff's investigators, Ms. Pooley told them that beginning in June 1998, Respondent picked her up in his truck on several occasions and drove her into some woods where they kissed and held hands. After Ms. Pooley moved to Pasco County, Respondent stayed in touch with her by telephone and letters. Respondent would meet her at convenience stores and a mall. They would park and engage in kissing and petting. On one occasion, Respondent rubbed her breasts and inner thighs. Respondent would tell Ms. Pooley that he could not wait to put a ring on her finger and that they could make love. Ms. Pooley testified that she told the police officer this story because the officer had told her Respondent had been romantically involved with other students and the thought angered her. Ms. Pooley's recanting of her earlier statements is not credible. In a further effort to keep Respondent away from their daughter, Ms. Pooley's parents decided to send her to live with relatives in Kentucky. Respondent found out where she was and visited her there. Ms. Pooley eventually returned to Florida in March 2000. The day after her return to Florida she and Respondent were married. The marriage took place on March 17, 2000. Ms. Pooley was 16 years old and Respondent was 47 years old at the time of their marriage. Ms. Pooley's parents gave their legal consent to the marriage because they had finally given up on keeping Respondent away from their daughter. They did not want to lose her forever over the relationship between Respondent and her. Ms. Pooley, who could easily have graduated from high school, did not finish high school. She has since obtained her GED. To date, Ms. Pooley and Respondent remain married. She is employed at the post office. Other than her failure to graduate from high school, her poor relationship with her parents, and inability to develop free of a romantic involvement with an adult, the evidence did not demonstrate any physical or mental harm to Ms. Pooley by Respondent's actions since most of the harm, if any, is of the type that will only manifest itself in the future. The evidence was clear and convincing that by his involvement with Ms. Pooley, Respondent inappropriately gained from his status as a teacher in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. The evidence also demonstrated that Ms. Pooley was unnecessarily exposed to embarrassment and disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. Indeed, her parents moved to remove her from such embarrassment. Finally and most seriously, through his actions Respondent harmed Ms. Pooley in violation of Rule 6B-1.006(3)(a), Florida Administrative Code. Ms. Pooley did not finish high school and did not enjoy a normal or harmonious family relationship due to Respondent's actions. She was deprived of a normal high school experience and subjected to advances from a 45-year-old man who was infatuated with her. Such behavior is anathema to the professional requirements and primary duty of a teacher. After his resignation from Central High School, Respondent was employed as a band director at Dixie County High School in 1999-2000 school year. After marrying Ms. Pooley, he began bringing her to school with him to assure her and demonstrate that he was not romantically involved with other students. At times, Respondent allowed Ms. Pooley, who was a talented music and band student and who had helped choreograph the band's routine, to supervise and discipline his band students. Some of these students were the same age or older than Ms. Pooley. Ms. Pooley's participation in the class caused resentment in some of the students. The school's principal received complaints from both parents and students about Respondent permitting his 16-year-old wife to assume teaching responsibilities and discipline of his band students. Some students quit the band. The evidence did not show that the students who quit did so because of Respondent's actions. The principal instructed Respondent not to allow his wife to participate in his class and that his wife should not be present at the school. He received a reprimand for permitting his wife to help with his class. Respondent complied with these instructions. The evidence was not clear that Respondent lost effectiveness by permitting his wife to help with his class. However, it was incredibly poor professional judgment on Respondent's part. Respondent also allowed Ms. Pooley to use the school computer located in his office at Dixie County High School. Ms. Pooley used Respondent's school computer on May 9, 2000, to send an inappropriate email to Respondent's ex-wife at the school where she was employed. However, the evidence was unclear whether Respondent knew that his wife had used the school's computer to send his ex-wife an email. Nor was it clear that such use was against school policy, since occasional personal use was permitted by the school. Respondent again complied with the principal's instructions not to permit his wife to use the school computer. Therefore, no violation has been established with regard to the use of the school's computer, if such activity can ever amount to a violation of the licensure statutes and rules which would subject a licensee to discipline. Respondent was not recommended for renewal of his employment in Dixie County for the 2001-2002 school year. Respondent takes the position that he has not done anything wrong regarding his romance with Ms. Pooley. It does not appear that Respondent will engage in similar conduct in the future.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Florida Educator's Certificate No. 418505 be revoked for a minimum of three years. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Richard Averill 420 Northwest 257th Street Newberry, Florida 32669 J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E 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 Respondent's teaching certificate should be suspended or revoked, or whether other appropriate action should be taken for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code.
Findings Of Fact The Respondent, Jimmy L. Parker, holds Florida Teaching Certificate #165142, Graduate, Rank 3, valid through June 30, 1901, covering the area of music education. Respondent has been employed in the public schools of Polk County at Winter Haven High School as the band director. A petition for the revocation of teaching certificate was filed by the Chairman of the Petitioner Council on April 6, 1979. Homer K. Addair, the Superintendent of Schools, by letter dated May 21, 1979, advised Respondent Parker that he was "charged with falsifying an accident report and subsequently wrongfully collecting workmen's compensation funds, i.e. immorality," and that he was suspended from his employment effective May 23, 1979. Respondent has not been employed since that date by the School Board of Polk County, Florida. Respondent Parker filed a response through his attorney on May 1, 1979, and the pleadings were filed with the Division of Administrative Hearings with a request that a hearing officer be assigned. After the hearing was called to order, a stipulation as to some facts was filed by the parties: On or about May 8, 1975, while returning home during the evening hours from a band meeting at the school and driving a 1975 Ford van leased to the Board of Public Instruction of Polk County, Florida, Respondent Parker pulled to the side of the road at a location approximately one house from his home at the signal of James A. Partain, an employee of the Board of Public Instruction of Polk County, Florida as a coach of Winter Haven High School. Partain got into the van with Respondent, wherein a discussion ensued concerning an illicit relationship occurring between Respondent and Partain's wife, also an employee of the Board of Public Instruction of Polk County. A fight ensued in the van wherein Respondent suffered physical injuries. Respondent Parker drove himself home and told his sick wife that two black people had beaten him at the school. Respondent's wife called a neighbor, who came to Respondent's home and called the police. Respondent told the police that two black boys had beaten him. On the morning of May 9, 1975, Respondent Parker reported to his supervisor, Principal Herman Lofton, that be was attacked by two youths while on the school grounds on official school business and beaten badly. The beating incident was investigated by the local police and later by William J. Duncan, Deputy Superintendent of Schools. On June 3, 1975, Respondent Parker submitted a "claim of instructional personnel for illness in line of duty compensation" form to the principal, Herman Lofton. This claim stated that Respondent was beaten while on official school business with the band on the school grounds by two youths. Ultimately, the claim was approved, and Respondent received workmen's compensation payments of approximately $3,400.00 as a result of said claim. The morning after the incident of the beating and the call to the police station, the headlines of an article in the Winter Haven newspaper noted that two black youths had beaten the band director, the Respondent, the night before. From that time to date of hearing there have been news items about the episode in the paper and on the radio. William J. Duncan, Deputy Superintendent of Schools, talked to the police chief about the fighting incident. He received telephone calls from the black community informing him that some black people did not believe black youths were involved and wanted the investigation to continue. There was controversy within the black group, some believing Respondent Parker had not told the truth and some believing he had. Later, a dispute arose between two school employees as a result of the incident which created a disturbance in the lunchroom. The incident was reported to Duncan. Subsequently, the investigation was dropped by the police and the school authorities for the good of the school and the community. Sometime later, however, Homer Addair, Superintendent of Schools, requested Duncan to make an investigation to determine whether students had been involved in the incident, whether the altercation had actually taken place on the school grounds, and whether records had been falsified. Duncan said that the investigation had been dropped to keep the peace between the black and the white communities and to further the interests of the school band. He had heard the incident mentioned occasionally from the time it occurred by people in the community, band members and Band Boosters, and read short reports about it in the newspapers. Herman Lofton, Principal of Winter Haven High School, had been called by the police and questioned about the incident. Shortly thereafter, he received a written report from Respondent. He signed a county form for instructional personnel for illness and received an employee's accident and report claim. Lofton processed the claim in due course by sending the form to the county office. Subsequently, Lofton talked to the two employees, one black and one white, who had been creating a disturbance in the lunchroom, about the incident. Lofton has heard others mention the incident from time to time and occasionally read a short account regarding it in the newspaper. Homer Addair, Superintendent of Schools, learned of the incident from the news media, from members of his staff, and from the community. He instructed Duncan, his deputy superintendent, to investigate. It was Addair's opinion that the Respondent is a good band director and is supported by the band students and Band Boosters, but that because of the altercation and falsification of records his effectiveness as a teacher in the school system as a whole has diminished. It is Addair's opinion that the conduct of Respondent Parker sets a bad example for the students. His opinion is based upon the conduct that led to the altercation and to Respondent's falsification of the workmen's compensation claim. James R. Partain, Coach at Winter Haven High School, substantiated the facts relating to the fighting incident but stated he did not want Respondent Parker to lose his job and was sorry for his involvement in the fight. He said the fight began after he threatened to tell Respondent's wife about the affair, and that Respondent threatened him if he did tell her. Partain did not realize he had beaten Respondent to such an extent and later apologized to him. James Ernest Reese, Assistant Band Director, stated that Respondent Parker is a hard-working and effective band director, and that it is his opinion that the altercation between the Respondent and Partain did not cause Respondent to lose his effectiveness as a teacher. When asked the question whether he felt "the receipt of money from the false claim as an act of morality for an educator, is that act a moral act or an immoral act?", he reluctantly stated, "I suppose it could be classified as an immoral act." Roy V. Wood, a retired supervisor of music in Polk County schools and an investigator for the Petitioner Council, testified that the people of Polk County knew of the altercation and of the allegations of falsified reports, and that they still wanted Respondent as a band director. Reverend D. Dewey Wise, Pastor of the First Church of the Nazarene, knew of the altercation and testified he could see no difference in the effectiveness of the Respondent as a teacher now as compared to before the subject problems. He testified that the majority of the people in the community support the Respondent. He also stated that falsification is not a good example and "anytime we commit wrong, it would be an immoral act." Respondent Parker stated that he lied to his wife and to the police about the beating incident, stating that two black youths had beaten him, because he did not want his wife to know that he had had an illicit affair with the wife of another teacher in the school system. Respondent stated that he also did not want to embarrass the school, and that he was afraid of his paramour's husband, Partain. There was no explanation from Respondent as to why he falsely stated the incident took place on the school grounds while he was on official school business, whereas in fact the incident took place only a short distance from his home and inside the school van. Respondent Parker filled out several forms after the first form for the workmen's compensation claim, and each time he made false statements as to whom he had been beaten by and where the incident had taken place. Respondent Parker has the reputation of being an excellent band director and has brought honor to the school through his talent in directing the school band. His employment evaluations have been good. The band students and the parents and friends who comprise the Band Boosters admire his ability. The band students and many people in the community would not like to lose his services in the music department. Both parties submitted proposed findings of fact, memoranda of law, and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the teaching certificate of the Respondent, Jimmy L. Parker, be revoked for a period of three (3) years. DONE and ORDERED this 8th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301 Lee S. Damsker, Esquire 2919 First Florida Tower Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: JIMMY L. PARKER DOAH CASE NO. 79-1026 /
The Issue Whether Petitioner has just cause to terminate the Respondent's employment as an educational support employee.
Findings Of Fact Respondent was employed as a behavioral interventionist with the Palm Beach County School District during the 2000-2001 school year. A behavioral interventionist is a non- instructional employee who works primarily with students receiving services through Petitioner's Exceptional Student Education (ESE) Programs. In addition to monitoring performance and behavior of ESE students, Respondent supervised regular education students who were serving in-house suspensions, performed bus and cafeteria duty, and helped maintain discipline throughout the campus. Respondent also served as an assistant football coach. Respondent received specialized training in order to perform his duties as a behavioral interventionist. He received child development training and attended approximately 12-13 workshops dealing with physical restraint and conflict resolution issues. Respondent is not a member of a collective bargaining unit. At the times pertinent to this proceeding, Student 1, a male, was 17-years old and a junior at Forest Hill. Student 1 is 5'10" tall and weighs approximately 260 pounds. Respondent is 6'3" tall and weighs approximately 250 pounds. Respondent is a former professional football player who routinely lifts weights. On December 11, 2000, between 4:30 p.m. and 5:00 p.m., Student 1 was in the area of the outdoor basketball court watching a basketball game. Student 1 had permission to be on the campus of Forest Hill, but he should not have been in the area of the outdoor basketball court. Respondent was in the weight room at Forrest Hill that afternoon demonstrating weight lifting techniques to a group of his football players. After he completed his weight lifting workout, Respondent went to the outdoor basketball court to play basketball. Respondent began playing basketball with a group of students, including students who did not play football. Student 1 could have played if he had wanted to do so. Student 1 was not playing when the acts at issue in this proceeding occurred. Shortly after the game began, Student 1 was standing off the basketball court observing the game when the basketball ball was thrown out of bounds near him. Respondent walked up to Student 1 and said, "why don't you get the ball fat boy?" In response, Student 1 used profane language and was disrespectful towards Respondent. Respondent reacted by tapping Student 1 on the cheek with his open hand. Student 1 asked Respondent why he hit him, but received no response. As Student 1 attempted to walk away, Respondent tapped him again on the back of the head and the two exchanged words. Respondent was not justified in making physical contact with Student 1. Student 1 again addressed Respondent using profane language. Respondent reacted by taking Student 1 to the ground using a technique that he had been trained to use to restrain students. There was a conflict in the evidence as to whether Respondent placed Student 1 in a chokehold when he took him to the ground. The greater weight of the credible evidence established that Respondent did not use a chokehold on Student 1. There was also a conflict in the evidence as to whether Student 1 had become aggressive and whether Respondent was merely trying to restrain Student 1. The evidence is clear that Respondent physically restrained Student 1 because Student 1 had been disrespectful towards him, not because Student 1 had become combative. Respondent was not justified in physically restraining Student 1. Student 1 was on the ground when Respondent released him from the restraining hold. As Student 1 was attempting to rise, Respondent hit him with his forearm, which forced Student 1 back to the ground. Witnesses at the basketball court told Student 1 to stay down, but he attempted to rise and saw Respondent in a three-point position typically assumed by football linemen. Almost immediately, Respondent came at Student 1 again and forearmed him back to the ground. Student 1 fell back to the ground, biting his tongue as he went down. He then got up and began cursing. After an interval of a few minutes, Student 1 asked Respondent why he had hit him and began to spit in the general direction of Respondent. Respondent, believing that Student 1 was spitting at him, grabbed him in the area of the neck and forced him against the fence surrounding the basketball court. Respondent told Student 1, "Don't play with me boy, I'm not a kid." Respondent was not justified in that use of force against Student 1. The incident lasted over a period of several minutes. Student 2 was present during the entire incident and Student 3 was present during the latter part of the incident (when Respondent grabbed Student 1 by the neck and forced him against the fence). Both witnesses corroborated Student 1's version of the events. No other student witnesses testified at the final hearing. Student 1 complained that afternoon to a coach named Coleman about what had occurred and he also told his mother later that evening when he got home. Student 1 complained to his mother that his neck hurt and she took him to a hospital, where he was diagnosed with a sprained neck. On December 12, 2000, Student 1 and his mother returned to the school and complained to Assistant Principal Mark Sagovac, about what happened the afternoon before. Mr. Sagovac thereafter spoke with Respondent, who did not deny the incident had occurred. Respondent admitted to Mr. Sagovac that he called Student 1 a "fat boy" and asked him to get the ball, which had rolled out of bounds. Respondent further told Mr. Sagovac that he pushed Student 1 to the ground with his forearm and forced Student 1 up against the fence because he felt Student 1 was threatening him. After speaking with Respondent, Mr. Sagovac interviewed Student 1 again and spoke to other witnesses. Some time thereafter a meeting was held between Student 1, his mother, Respondent, Mr. Sagovac, and Assistant Principal Green, who is also an assistant principal assigned to Forest Hill. The incident was discussed again and at one point, Respondent apologized to Student 1 and his mother. After the meeting concluded, Mr. Sagovac issued to Respondent a verbal reprimand with written notation for the actions he took on December 11, 2000. Prior to serving the Respondent with the verbal reprimand with written notation, Sagovac did not consult with his principal or anyone in the Petitioner 's Personnel Office or Office of Professional Standards to determine if he was complying with policy or if he was following accepted personnel practice concerning the contemplated discipline. Mr. Sagovac was not complying with school policy when he issued the verbal reprimand with written notation. Mr. Sagovac did not have the authority to discipline Respondent. Shortly after the conclusion of the meeting attended by Student 1, his mother, Respondent, and Mr. Sagovac, a complaint was made to the school district's police department concerning the December 11, 2000, incident. Based upon the complaint, a criminal investigation into Respondent's actions was initiated. There was no evidence as to the status of any criminal charges presented at the final hearing. Petitioner's Office of Professional Standards received information concerning the criminal investigation, which caused it to open its own administrative investigation. After the Office of Professional Standards received the police report and the attached documents, the case was assigned to an investigator. During the Petitioner's investigation, Respondent was placed on administrative leave with pay and assigned to duty at his home. This assignment became effective February 1, 2001. After Petitioner's Office of Professional Standards completed its investigation, it prepared a report of the incident and, consistent with its rules, submitted the case for review to a case management committee. Case management review is a process whereby approximately a dozen high level employees working for the district meet at the direction of the Superintendent to review pending personnel cases which may result in the suspension of employment without pay or the termination of employment. Respondent's case management committee determined that probable cause existed to sustain the allegation Respondent used inappropriate physical force on the student in question. Once probable cause was found, it further determined that the level of the force used warranted a recommendation that Respondent's employment be terminated. Based upon the case management committee's recommendation to terminate Respondent for having engaged in inappropriate physical force on a student, Superintendent of Schools Arthur C. Johnson notified Respondent by letter dated May 8, 2001, that he would recommend to the School Board at its meeting to be held May 16, 2001, that Respondent's employment be terminated and that he be suspended without pay pending the completion of the proceedings to terminate his employment. On May 16, 2001, the School Board voted to accept the Superintendent's recommendation. It is the policy of the Petitioner that no employee is to use physical force with a student unless the employee is breaking up a fight, acting in self-defense, or protecting the student from hurting him or herself.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002.
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
The Issue Whether the Respondent, Arthur Williams, committed the violations alleged in the Amended Notice of Specific Charges and, if so, whether such violations are just cause for his suspension without pay for thirty days.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Arthur Williams, was an employee of School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, the Respondent was employed pursuant to a professional service contract and was assigned to teach beginning band at Norland Middle School. The sole incident complained of in this case occurred on or about January 24, 2006, in the Respondent’s sixth period band class. The Respondent’s band class was located in a large classroom with three riser sections formed into a semi-circle. Students assigned seats in the higher section would step up the risers using the railed “hallways” leading to the upper sections. On or about January 24, 2006, C. M. was a student in the Respondent’s sixth period class. C. M. had an assigned seat in an upper riser section. For reasons known only to C. M., the student left his seat and walked down the riser hallway to pick up a piece of paper and throw it into a trash can located on or near the floor. Presumably, the trash can was at the lowest section (compared to the student’s seat). When the Respondent observed the student, C. M., out of his seat, he approached the student, put his hands on the student’s shoulders, turned him around (to then face his seat), and told him to return to his seat. In connection with the verbal direction to return to his seat, the Respondent gave the student a slight shove to direct him in the proper direction. The student, C. M., was out of his seat without permission, was unprepared for class, and was not responsible for throwing trash away (presumably an act he felt justified his behavior). The slight shove was so imperceptible that it did not offend any student who observed the action. C. M. did not show any sign of injury at the time of the incident described above. None of the students alleged that the Respondent had acted in anger in redirecting the student to his seat. None of the students perceived the act of redirecting the student as an act of corporal punishment or physical aggression against the student. Some six days after the incident complained of, the mother of the alleged victim took the student to the hospital. The mother claimed the student was diagnosed with a sprained ankle. There is no evidence to support a finding that the Respondent caused the alleged victim’s alleged sprained ankle. None of the other student witnesses verified that C. M. was injured or seen limping on or about the date of the incident. The Respondent continued teaching at the school through the conclusion of the 2005-2006 school year. The Respondent did not endanger the student, C. M., at any time. After the incident complained of herein, the student’s mother decided to move the student from the Respondent’s class. When the Respondent went to a conference with the office of professional standards there was no allegation that the Respondent had failed to comply with the corporal punishment guidelines. The act of redirecting the student to his seat was not an attempt at corporal punishment. The Respondent did not make physical contact with the student, C. M., to maintain discipline. It is undisputed that the Respondent was merely attempting to get the student to return to his seat. The Respondent’s conduct did not disparage the student. The Respondent’s conduct did not embarrass the student. The Respondent did not push C. M. down. On or near the date of the incident, the Respondent called C. M.’s parent to address the student’s poor class performance. The incident complained of herein was not addressed during the call. In fact, prior to the call, C. M. had not complained regarding the incident described above. When faced with an allegation of poor class performance, C. M. told his parent about the incident described above and claimed he had been injured in the process. The alleged injury prompted the removal of the student from the Respondent’s class. Thereafter, the parent contacted the Petitioner’s region office to file a complaint against the Respondent. That complaint resulted in the instant action. Ms. Pritchett maintained that the Respondent’s effectiveness as a teacher has been adversely impaired as a result of the parent’s complaint regarding the incident. The record lacks any information regarding the Respondent’s past school performance. No prior disciplinary issues or actions were noted.
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 concluding the Respondent’s behavior does not warrant a 30-day suspension. S DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ana I. Segura, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
The Issue The basic issue in this case is whether the Respondent should be dismissed from his employment as a teacher. The Petitioner seeks such dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) violation of the Principles of Professional Conduct, (b) immorality, (c) misconduct, (d) willful neglect of duties, and (e) moral turpitude. The Respondent denies any misconduct.
Findings Of Fact Based on the evidence received at the hearing and on the parties's stipulations, I make the following findings of fact: Facts stipulated to by the parties Virgil L. Morgan is the duly appointed Superintendent of Schools of Broward County, Florida, and is legally authorized to represent to the School Board of Broward County, Florida, pursuant to statute, that any member of the instructional and/or administrative staff be dismissed from or with the Broward County School System. The address of Virgil L. Morgan is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The address of the School Board of Broward County, Florida, is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The Respondent, Marion Wright, is an employee of the School Board of Broward County, Florida, holding a continuing contract of employment since December 5, 1968, and has currently been employed at Nova High School, 3600 College Avenue, Davie, Broward County, Florida, as an American History and Geography teacher. The last known address of the Respondent is 151 Northwest 33rd Terrace, Fort Lauderdale, Broward County, Florida. Other general facts While employed at Nova High School, the Respondent was also the coach of the girls junior varsity basketball team. Facts regarding motor vehicle operations The Respondent's ex-students and assistant coaches often moved his car from one place to another on the Nova campus during the school day. These ex- students and assistant coaches were licensed drivers. The Respondent sometimes also permitted several students who were seniors and who were licensed drivers to move his car while it was on campus. It is not unusual for teachers at Nova High School to permit students to drive their cars. There is no credible competent substantial evidence in this case that the Respondent permitted unlicensed students to operate his motor vehicle. On January 22, 1988, Andrea Session and Kim Williams, both students at Nova High School who were also members of the girls basketball team, went to the Respondent's classroom shortly after first period began. Neither of the two girls had a driver license. Kim Williams asked the Respondent for the keys to his pickup truck in order to retrieve her school books which were locked in the truck. The Respondent gave the keys to the two girls and they left. It was not uncommon for the girls to leave their books in the Respondent's truck or car, because the Respondent would frequently drive these two girls (and others) from their home to early morning basketball practice before school. They would often leave their school books in the Respondent's vehicle during basketball practice and pick them up later. On January 22, 1988, while in possession of the keys to the Respondent's pickup, Kim Williams attempted to move the pickup and ran into a parked car in the school parking lot. The Respondent did not authorize Kim Williams to drive his pickup truck on January 22, 1988. Facts regarding taking students out of class The Respondent never requested that Kim Williams, Andrea Session, or any other student or member of his basketball team be excused from other classes, except as was consistent with being excused from class on game days. The Respondent did not write passes requesting that students be excused from other classes. Nor did he usually permit students without passes to remain in his classroom. When Kim or Andrea would come to the Respondent's class without a pass, the Respondent would usually ask them to return to their class. On occasion, Kim and Andrea would skip classes and not go to the Respondent's classroom. There is no credible competent substantial evidence in this case that the Respondent arranged for the unauthorized or illegal removal of any student from scheduled class periods. There is no credible competent substantial evidence in this case that the Respondent provided females students on his basketball team with passes to remove them from their regular scheduled classes on the days that basketball games were scheduled in order for them to rest or relax for the game. Facts regarding transportation of students off campus and to liquor stores The Respondent frequently transported students from their homes to early morning basketball practice. The Respondent has taken adult female assistant coaches to the Double Feature Liquor Store, and to other liquor stores, and has purchased beer for them on occasion. There is no credible competent substantial evidence in this case that the Respondent took students to a liquor store, bought alcoholic beverages, and consumed alcoholic beverages with students. There is no credible competent substantial evidence in this case that the Respondent took students off campus on personal errands during the students' scheduled class periods. Facts regarding soliciting false statements and submitting a false affidavit After the Respondent became aware that he was being accused of providing alcoholic beverages to two students, he went to see Ms. Bonnie Session, the mother of one of the students. The Respondent told Bonnie Session about the situation he was in and asked her to sign a statement on his behalf. Thereafter, Adrienne Session, an older daughter of Ms. Session, called the Respondent and told him she had something for him from her mother. Adrienne gave the Respondent a written statement that purported to be signed by Bonnie Session. The Respondent took the statement to a notary public and asked that it be notarized. The notary called on the telephone and spoke to someone she believed to be Bonnie Session. The person to whom the notary spoke acknowledged having signed the statement. The notary then notarized the document and gave it back to the Respondent. At a later date, under circumstances that are not at all clear, Bonnie Session and her two daughters went to the same notary, after having been guided there by the Respondent, and had some additional documents notarized. The Respondent made some efforts, directly and indirectly, to obtain exculpatory statements from several people, but the nature of those efforts cannot be discerned from the credible evidence in this case. There is no credible competent substantial evidence in this case that the Respondent encouraged any students to falsify their accounts of any matters related to the issues in this case. There is no credible competent substantial evidence in this case that the Respondent intentionally distorted, or caused to be misrepresented, any facts regarding an affidavit that was purportedly signed by Bonnie Session.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Broward County issue a final order in this case dismissing all administrative charges against the Respondent, Marion Wright, and reinstating him with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June 1989. MICHAEL M. PARRISH 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 30th day of June 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4734 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. To facilitate an understanding of the rulings which follow, attention is directed to the fact that, for the most part, the testimony of the two principal witnesses against the Respondent has been found to be unworthy of belief and to be an insufficient basis for findings of fact. The two principal accusers have both, while under oath, changed major portions of their stories on more than one occasion. The credibility of their stories is also impaired in large part by the fact that the stories told by the two principal witnesses are inconsistent in a number of telling details, and those stories also conflict with the testimony of other witnesses who are much more worthy of belief. It is also noted that the candor of Respondent's testimony was not without its own tarnish in places. While the Respondent's denial of the charges against him has been accepted in substance, this is largely because of the absence of believable evidence in support of the charges rather than because of any great reliance on the Respondent's candor. Findings proposed by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Paragraph 3: First sentence rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Second sentence accepted. Paragraph 4: For the most part, rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. It is accepted that there was an on-campus accident involving Respondent's vehicle. Paragraph 5: Rejected as irrelevant in light of other evidence in the record. Paragraph 6: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 7: Rejected as irrelevant. [The presentation of the testimony of the Assistant State Attorney appears to have been primarily for the purpose of vouching for the truthfulness of the other witnesses against Respondent. Such vouching is an inappropriate form of proof. See Fuller v. State, 450 So.2d 182, 184 (Fla. 5th DCA 1989).] Paragraph 8: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Findings proposed by Respondent: Paragraph 1: First sentence rejected as subordinate and unnecessary details. Remainder accepted in substance with a few unnecessary details omitted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance with some unnecessary details omitted. Paragraphs 5 and 6: Accepted in substance with some unnecessary details omitted. Paragraph 7: Accepted in substance. Paragraph 8: Rejected as a summary of testimony rather than proposed findings of fact. In any event, the subject matter of the summary consists of subordinate and unnecessary details. Paragraphs 9, 10, 11, and 12: Rejected as subordinate and unnecessary details. Paragraph 13: Accepted in substance. Paragraphs 14 and 15: Rejected as subordinate and unnecessary details. Paragraphs 16 through 30: Rejected as constituting, for the most part, a summary of the history of many of the reasons for not making findings of fact rather than actual proposed findings. (Many of the details in this summary form the basis for the conclusion that the testimony of the two principal witnesses against the Respondent is unreliable.). COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Thomas W. Young, III, Esquire General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida =================================================================
Findings Of Fact Respondent Robert L. Collins has been employed by the School Board of Dade County, Florida as a teacher for the last twenty-four years and is on continuing contract. For approximately the last seven of those years, Respondent has been teaching Industrial Arts at Miami Killian Senior High School. Between late September 1983, and November 23, 1983, Jonathan Wright was a student in Respondent's Plastics class. On November 23, 1983, Wright came into Respondent's Plastics class wearing a hat, which is against school rules. Respondent directed Wright to remove his hat which he did. Later in that same class Respondent saw Wright sitting by the engraver again wearing that hat. Respondent removed the hat from Wright's head and advised Wright that if he put the hat on another time Respondent would send him to the principal's office. At approximately 5 minutes before the end of the class period, Respondent instructed the students that it was time to clean up the shop area. Wright and some of the other students began gathering at the door. Respondent motioned to those students to come back into the classroom and away from the door, which some of them did. Wright, however, did not. Respondent then specifically directed Wright to get away from the door. Instead of obeying, Wright put up a hand and a foot in a karate type posture but clearly in a playful manner. As a normal reaction in the context of the situation, Respondent did likewise. Respondent then turned back toward the class at which time Wright grabbed him by the legs and pulled him down to the floor. Respondent and Wright were rolling around on the floor in a small alcove area, and Respondent was unable to get loose from Wright's grip. Respondent was afraid that he, Wright, or the other students might be severely injured in the small alcove by the door or on some of the machinery located in the Plastics shop classroom. Unable to free himself, Respondent bit Wright on the back. Wright released Respondent and got up off the floor. After the bell rang, Wright left the classroom. Wright was transferred to the Plastics class of teacher Gerald Krotenberg where he remained for the rest of the school year. On several occasions Krotenberg was required to admonish Wright because Wright often resorted to "horse play" with other students. On occasion Wright would come into the classroom and would "bear hug" the girls, "jostle" the boys, and be disruptive so that Krotenberg could not take attendance or conduct the class. Although Krotenberg followed his normal technique of chastising the student in public, and then chastising the student in private, those techniques did not work and Krotenberg was required to exclude Wright from class on probably two occasions, for two days each, due to Wright's inappropriate behavior with other students. During the two months that Wright was in Respondent's class, Wright had come up behind Respondent on one or two occasions and lightly put his arms around Respondent in the nature of a bear hug. Respondent counseled Wright that that was not appropriate behavior. The only touching of Wright that was initiated by Respondent himself occurred in the form of Respondent placing his hand on Wright's shoulder while discussing a project being worked on at the moment or perhaps a light slap on the back in the nature of encouragement or praise for a job well done. Not all teachers, however, agree that it is appropriate to occasionally give a student an encouraging pat on the back. Although Wright had on one or two occasions given Respondent a playful hug and although Respondent had on several occasions given Wright an encouraging pat on the back or touch on his shoulder, no physical combat ever occurred between them. Although Wright often engaged in "horse play" with other students, no "horse play" occurred between Wright and Respondent. None of Respondent's annual evaluations during the years he has been teaching in the Dade County public School, including the annual evaluation for the the 1983-1984 school year, indicates that Respondent has had any problems with either maintaining good discipline in his classes or that Respondent is anything other than acceptable in the area of classroom management.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reversing Respondent's suspension, reinstating him if necessary, and reimbursing him for back pay-if he was suspended without pay. DONE and RECOMMENDED this 3rd day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1985. COPIES FURNISHED: Thomas H. Robertson, Esquire 111 SW Third Street Third Floor Miami, Florida 33130 Michael D. Ray, Esquire 7630 Biscayne Boulevard Suite 202 Miami, Florida 33138 Phyllis 0. Douglas Assistant Board Attorney Dade County Public Schools 1410 N.E. Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132
