The Issue The issues are whether Respondent is guilty of inappropriate sexual conduct with a female student, so as to constitute gross immorality, in violation of Section 231.2615(1)(c), Florida Statutes; personal conduct that seriously reduces Respondent's effectiveness as an employee of the School Board, in violation of Section 231.2615(1)(f), Florida Statutes; failure to make a reasonable effort to protect a student from conditions harmful to learning or her mental health or physical safety, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code; intentional exposure of a student to unnecessary embarrassment or disparagement, in violation of Rule 6B-1.006(3)(e), Florida Administrative Code; or exploitation of a relationship with a student for personal gain or advantage, in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. If guilty of any of these violations, an additional issue is what penalty that Petitioner should impose.
Findings Of Fact Respondent is a certified teacher, holding certificate number 649196. He was first employed by the Miami-Dade School District in January 1989. After working as a substitute teacher, Respondent was hired in a permanent capacity in 1990 or 1991. At the time of the alleged incidents, Respondent was a teacher at Coral Reef Senior High School, where he was the head basketball coach and assigned to teach English classes in the Center for Student Instruction. In the summers of 1998 and 1999, Respondent taught in the Summer Youth Employment Program that took place at Coral Reef. In this program, high-school students from Coral Reef and elsewhere attended classes to develop job skills and received monetary compensation while so enrolled. B. L. was born on November 3, 1982. She graduated from Coral Reef in 2000. During the summers of 1998 and 1999, B. L. took classes at Coral Reef that were sponsored by the Summer Youth Employment Program. The first summer she took a class in business and finance, and the second summer she took a class in legal and public affairs. Respondent was a coinstructor for both classes. During the summer of 1998, B. L., who was not a discipline problem, engaged in an argument with two other classmates, who were sisters. Respondent and his coinstructor intervened before any blows were exchanged. The coinstructor took the sisters and counseled them, and Respondent took B. L. and counseled her. Respondent removed B. L. from the classroom momentarily to talk to her outside of the hearing of her classmates and advise her that he was disappointed in her because she was one of the top-performing students and she should not "lower her standards" to the level of the sisters with whom she had been arguing. Respondent told B. L. that she was a "bright student, . . . articulate," that she was a "beautiful young lady [with] a lot going for her," that she seemed to have come from a "good family" and "had good standards," and that Respondent did not think that she should conduct herself like that in class. In the context in which it was said, "beautiful" refers to the totality of a person, including intelligence, attitude, and personality," and is not an inappropriate focus upon a person's physical appearance. After a couple of minutes of talking to B. L. outside the classroom, Respondent returned her to the classroom. He then spoke to the coinstructor and reported the incident to the counselor who dealt with classroom discipline. Respondent was unaware of what, if any, further action the counselor took against B. L. or the sisters. Respondent's other contact with B. L. was unremarkable that summer. A couple of times, he and the coinstructor cited B. L. for violations of the dress code. Generally, though, he taught her and treated her as he did the other students in his class. The following summer, B. L. signed up for Respondent's legal and public affairs class. Concerned that B. L. would be duplicating some of the material that they had covered the previous summer, Respondent spoke with the job counselor, who worked in his classroom. She and Respondent then advised B. L. to transfer to another class, but B. L. refused to do so. During this summer, B. L. confided in a classmate that she had a crush on Respondent and that her relationship with her current boyfriend was unsatisfactory. Nothing significant occurred during that summer between B. L. and Respondent, who again treated her as he did his other students. Obviously, B. L. has testified differently. She testified that, during the first summer, when Respondent had her out in the hall, he told her that a blue dress that she had worn the prior day had been driving him "crazy." She testified that Respondent asked her if she felt attracted toward him, and she said that she did not. B. L. testified that Respondent concluded the conversation by saying words to the effect, "if you're 'bout it 'bout it, you know where I am." B. L. testified that this meant that if she was serious about getting intimate with Respondent, such as kissing him, he would be available. B. L. testified that this was the only inappropriate conduct the first summer. B. L. testified that the following summer, she and Respondent happened to see each other outside of school at a shopping mall while B. L. was with her boyfriend. She testified that they exchanged brief greetings. B. L. testified that the following week at school Respondent brought up their chance encounter and asked if she recalled their conversation last year. She testified that she answered that she did, and he added, "if you want to talk about it, we can talk about it in a private conversation." B. L. testified that this was the only inappropriate conduct the second summer. B. L. testified that Respondent's conduct made her feel "weird," but she was not scared. She testified that her boyfriend was jealous of Respondent; she testified that he probably thought that she was tempted to engage in an inappropriate relationship with Respondent. She testified that she told her boyfriend of Respondent's advances, and he threatened to tell B. L.'s parents and a school counselor if she did not complain about Respondent. One time, while talking to her boyfriend about this matter on the phone, B. L. began to cry and her parents overheard enough of the conversation to learn of B. L.'s claims against Respondent. Several problems preclude crediting B. L.'s testimony. First, she acknowledged that Respondent and the job counselor advised her to change classes the second summer, but she declined to do so because it was too much trouble. Second, she denied having a crush on Respondent, but she described any attention from him as though it came from a "movie star." There is no doubt that she had a crush on Respondent based on her description of Respondent at the hearing, the testimony of the friend in whom she confided, and the testimony of the job counselor, who added that B. L. was breathless and "lovesick" and that she told B. L. that Respondent was happily married and to "get over it." It is likely that B. L.'s obvious infatuation with Respondent bothered her boyfriend. It is plausible that stories of resisted advances would gain B. L. credibility with her boyfriend, although B. L.'s motivation in fabricating these claims against Respondent necessarily remains unknown. Additionally, B. L.'s demeanor while testifying did not add to her credibility. Frequently, her tone and expression suggested that she felt uncomfortable testifying, but her discomfort was not due to victimization by Respondent. Unable to describe her emotions at the time of these claimed advances, B. L.'s discomfort was more likely attributable, at best, to a feeling that Respondent's inappropriate behavior was too trivial for this much attention or, at worst, to an admission of guilt over fabricating these stories and causing Respondent so much trouble. After considering the above-discussed factors, the latter explanation of B. L.'s tone and demeanor is more likely than the former. In any event, Petitioner has failed to prove that Respondent behaved inappropriately toward B. L. at any time.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 20th day of December, 2002. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Florida Education Center 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 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316-1924 Leslie A. Meek United Teachers of Dade Law Department 2200 Biscayne Boulevard, Fifth Floor Miami, Florida 33137
The Issue The issue is whether Petitioner has good cause to suspend Respondent, an assistant principal, for ten days, without pay, for misconduct and unprofessional conduct in reporting student enrollments at her school.
Findings Of Fact At the time in question, Respondent was an assistant principal at Independence Middle School (IMS). She has been an assistant principal in Petitioner's school district for ten years and has been the assistant principal at IMS since 2003. Toward the end of each school year, Petitioner plans for the assignment of its approximately 170,000 students to schools for the following school year. Assuming that each student will be promoted and, where necessary, transferred to the appropriate middle- or high-school, the planning exercise initiates the process that culminates, during the summer, in the creation of a school-specific class schedule for each student. Based on these class schedules, each school circulates among the teacher, during the ensuing school year, a biweekly attendance sheet, so that each teacher may take attendance by class. The biweekly attendance sheet contains bubbles to be filled in by the teacher, so an automated scanner can transfer the information from the sheet to a computer file. In accordance with the practices of Petitioner, a classroom teacher is not to mark a student as "absent" until he first attends the class and then misses the class. A student who has not yet attended a class is classified as a "no-show." However, the biweekly attendance sheet lacks a bubble to indicate "no show," so classroom teachers typically handwrite the information on the sheet after the first two weeks of school. At the time in question, a student assistant collected the biweekly attendance sheets and fed them into the scanner, and the handwritten information contained on the sheet could easily be lost. Enrollment data are kept on Petitioner's TERMS program, which contains a wide range of information relevant to Petitioner's operations. In the main office of each school, a staffperson enters and updates enrollment data in TERMS. The staffperson removes a student from a school's enrollment by entering into TERMS the name of the new school that the student is attending or by entering "DNE," meaning "did not enter," if the student is a no-show, but the staffperson does not know what school the student is attending. Until the staffperson enters DNE, though, a no-show student--meaning a student who has never appeared in his assigned classroom--would continue to be shown as enrolled at the school to which he has been assigned the previous summer. During the fall of the 2007-08 school year, each school in the Palm Beach County School District performed two student counts. Mandated by Petitioner, the 11-day count, which took place on September 7, 2007, allowed Petitioner, early in the school year, to reallocate teachers and administers, among individual schools within the district, based on enrollments. Mandated by state law, the fall FTE count, which took place in October 2007, allowed the Florida Department of Education (DOE) to allocate funds, for the first half of the school year, among the various school districts within the state. By bulletin dated August 23, 2007, to all principals and approved by the Superintendent, Petitioner's Chief Academic Officer and Chief Operating Officer stated that DOE was conducting a survey count on August 31 for enrollment. The bulletin states: "Therefore, on Monday, August 27, 2007, any student not in attendance from the first day of school, at least one period, must be withdrawn. It is imperative that all schools adhere to this directive. An accurate assessment of student enrollment across the state may help mitigate budget reductions." The bulletin reminds the principals: "a DNE should be entered into [TERMS] for students whose current school location is unknown. For students transferring out of state, to another Florida school district, or private school, please enter the appropriate withdrawn (WD) code." By bulletin dated August 31, 2007, to all principals and approved by the Superintendent, the Chief Academic Officer and Chief Operating Officer stated that "Count Day" was September 7, 2007, and the data was to have been taken "directly from . . . TERMS" without any "self-reporting by schools." The bulletin advises that personnel assignments within the district would be made based on this information obtained from the September 7 count. The bulletin notes that all student enrollments and class schedules "must be accurately reported in . . . TERMS." The bulletin discloses that, on September 14, area superintendents would notify individual schools of personnel adjustments based on the information obtained from the September 7 count. At IMS, for the 2007-08 school year, the principal was Dr. Gwendolyn Johnson and the staffperson assigned the job of entering enrollment data in TERMS was Angela Jones. Respondent was one of three assistant principals at IMS. Among her other duties, Respondent was responsible for creating student class schedules during the preceding summer, ensuring that all class conflicts were resolved at least one week prior to the start of the school year, and distributing the schedules on the day prior to the start of school. At the start of the 2007-08 school year, Dr. Johnson assigned to Respondent the responsibility for the 11-day count. Due to the challenges of the task, eventually, Dr. Johnson and two other assistant principals helped Respondent collect the relevant data from different teachers. These four administrators brought all of the data to Respondent's office where they compiled the data. The enrollment data from the 11-day count revealed 26 fewer students at IMS than were shown in TERMS. After the fall FTE count noted below, an audit revealed that the actual discrepancy was 24 students: 23 no-shows and one who had withdrawn prior to the eleventh day of the school year. Respondent reported this discrepancy to Dr. Johnson and stated that it needed to be rectified. At this point, Respondent fully discharged the responsibilities that Dr. Johnson had placed on her, and this was the last involvement of Respondent in the reporting of enrollment information to the district office or DOE. The 11-day count was correct, at least after the minor correction required after the audit, and the TERMS data were inflated. After learning of the discrepancy and despite the August 23 and 31 bulletins that had been sent to her, Dr. Johnson failed to take any action to correct the over- enrollment contained in TERMS. Exacerbating the situation, the subsequent audit revealed that someone at IMS "updated" TERMS for 17 of the students shown in the computer as enrolled, but never attending IMS, with inaccurate withdrawal dates after the 11-day count, implying, incorrectly, that the students actually had been in attendance on the date of the 11-day count. In the presence of Respondent, after the 11-day count, Dr. Johnson directed Ms. Jones not to enter DNEs for no-show students until Ms. Jones learned where the students were attending school during the 2007-08 school year. The effect of this directive from Dr. Johnson, which ignored the instructions that she had received from the district office, was to maintain inflated enrollment figures for IMS for an extended period of time after the 11-day count. The practical effect of Dr. Johnson's directive was to preserve an assistant principal position that had been provisionally assigned to IMS and to obtain an additional teaching position for IMS. After Dr. Johnson instructed Ms. Jones to delay updating TERMS, in the manner described in the preceding paragraph, Respondent later repeated this directive of Dr. Johnson to Ms. Jones. But no evidence suggests that Respondent played any role in the formation of this IMS policy. The fall FTE survey took place from October 8-12, 2007. The fall FTE survey numbers for Petitioner were drawn from the TERMS data, which were inflated for IMS. The subsequent audit revealed that, due to Dr. Johnson's directive to delay updating TERMS, the student count at IMS was inflated by 23 students: 21 no-shows and two who had withdrawn prior to the FTE survey week. As the first grading period approached, toward the end of October, IMS teachers began to question what they were to do about the 24 no-shows who were still shown as enrolled on TERMS, but had never attended one day of school. Some of the teachers settled on assigning Fs to the no-show students. This raised a problem with the IMS policy to send a letter home to every student who received an F in any course. When the guidance counselor approached Respondent and asked whether the teachers should send letters to the homes of the no-show students receiving Fs, Respondent told her not to, but to talk to the data-processing staffperson to see how this issue could be resolved. The guidance counselor, who was not alleged to have been involved with the scheme to inflate enrollments at IMS, believed that Respondent's advice not to mail the letters was proper to avoid "looking stupid." On October 26, 2007, the data processing staffperson sent an email to the teachers and administrators acknowledging that TERMS would not accept an input to show an incomplete or missing grade. In another email on the same date, the data processor advised the teachers to give the no-show students a C and to assign them a conduct score as well, although an F was also "acceptable." Fortunately, Petitioner learned that the TERMS enrollment numbers were inflated in time to correct the FTE data without incurring a financial penalty from DOE. Charging misconduct in connection with the misrepresentations and fraudulent statements that maintained inflated enrollment numbers in TERMS for IMS, Petitioner proposed a 20-day suspension without pay for Dr. Johnson and a five-day suspension without pay for Ms. Jones. Petitioner later dropped the charges against Ms. Jones, but the charges against Dr. Johnson resulted in a formal administrative hearing in DOAH Case No. 08-3986, after which Petitioner issued a final order on June 3, 2009, finding her guilty and sustaining the penalty, although this case is now on appeal. Based on similar charges in this case, Petitioner has proposed a 10-day suspension without pay for Respondent. In contrast to the case against Dr. Johnson, this case does not involve the person responsible for implementing district policy, as set forth in the two bulletins, or the person who decided to ignore this district policy. As IMS principal, Dr. Johnson ordered her subordinates, including Ms. Jones and Respondent, to implement her policy, which was to ignore district policy to maintain an inflated enrollment at IMS. Repeating the policy, as Respondent did to Ms. Jones, and helping to solve one of the problems that this unsustainable policy presented, as Respondent did when she told the guidance counselor not to send letters home to the no-show students who received Fs, do not so much represent marked departures from the honesty demanded of educational professionals, as they represent the behavior expected of subordinates to the principal. The administration of a middle school requires strong leadership, which is vested in the principal. Insubordinate staff undermine this leadership and risk adverse job action for their dissent. The facts of this case do not approach the point at which the demands of professional honesty imposed on Respondent override her obligation to conform to the directives of her principal, who was placed in this position of authority by Petitioner or the Superintendent. Respondent honestly discharged her duties in connection with the 11-day count and mentioned the enrollment discrepancies to Dr. Johnson, who misled Petitioner and DOE by maintaining the inflated enrollment numbers, even though she did not personally enter the data in TERMS or solve every problem, such as letters to the homes of phantom students, that her wrongful policy created.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the charges against Respondent. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 14th day of January, 2010. COPIES FURNISHED: Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3310 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Stuart Kaplan, Esquire Kramer, Ali, Fleck, Hughes, Gelb Kaplan & Bornstein 6650 West Indiantown Road, Suite 200 Jupiter, Florida 33458
The Issue Whether the Respondents committed the acts complained of in the Notices of Specific Charges filed by the Petitioner on June 30, 2005; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of these cases, the Petitioner was a duly constituted School Board charged with the responsibility to operate, control and to supervise the public schools within the Miami-Dade County, Florida public school district. Such authority includes the personnel decisions for non-instructional persons employed by the School Board. At all times material to the allegations of these cases, the Respondents were employed by the School Board as electricians assigned to work from the Coral Reef Satellite Maintenance Operations Department (Coral Reef). The Respondents received their daily assignment at the Coral Reef site and then went to the assigned job location to perform their assigned work. As part of their duties, the Respondents were required to clock in and out at the Coral Reef site. There are two time machines at the Coral Reef site and each employee is responsible for personally swiping his identification badge through the clock. The machine generates a computer record for the time of arrival and departure for each employee. Thus the daily time record can be produced for payroll purposes. Each time clock is under surveillance by a video camera system that records all activity at the time clocks. The video records each employee as he or she clocks in or out. At all times material to the allegations of these cases, the School Board’s policy required that each Coral Reef employee personally swipe his identification badge when clocking in or out. In 1982, the Respondents were arrested for vehicular theft and possession of burglary tools. The Respondents were placed on probation for one year and six months for larceny, burglary and having burglary tools in their possession. Adjudication was withheld. In 1987, the Respondents completed applications for employment with the School Board. Such applications were falsified in that they failed to disclose the arrest and criminal disposition described above. The Petitioner did not discover the falsified applications until 1997, when the fingerprinting of school personnel was required by law. Once discovered, both of the Respondents were issued a letter that directed them to “refrain from any further falsification regarding information requested of you by this employer. Failure to comply with this directive will lead to disciplinary action.” The Respondents did not dispute the prior criminal history, do not dispute that they were warned to refrain from further behavior regarding the falsification of information, and do not dispute that they are subject to the School Board rules regarding non-instructional personnel. On March 5, 2004, Frank Semberger clocked out for himself and the Respondents at 3:30 p.m. Since Mr. Semberger possessed the Respondents’ badges in order to swipe them through the time machine, it is reasonable to find that the Respondents provided the badges to Mr. Semberger. The Respondents have not suggested that their badges were either stolen or missing at the relevant time. By allowing Mr. Semberger to clock out for them, the Respondents violated the Petitioner’s time clock policy. On March 19, 2004, Ismael Perez clocked out for himself on one time clock then proceeded to the second time clock and was video recorded swiping a second time there. The time records established that Juan Perez’ badge was swiped at or near the time Ismael Perez was video-taped swiping a time clock. Moreover, the time records did not disclose a second swiping of Ismael Perez’ badge. That is to say there is no record that Ismael Perez “double swiped” his own badge. It is reasonable to find that Juan Perez provided his badge to Ismael Perez so that it could be swiped at the pertinent time. By allowing Ismael Perez to swipe his badge for him, the Respondent, Juan Perez, violated the time clock policy. By swiping his brother’s badge, Ismael Perez violated the time clock policy. The Coral Reef center uses a form described as a daily status form (DSF) to track the assignments for all tradespersons who are sent from Coral Reef to a job site. The form documents the travel time to and from the job site, the hours at the site performing the work, and the status of the work. All tradespersons are to present the DSF at the job site and have the principal or the principal’s designee sign the form. The DSF is dated (including the time of day) and signed both on arrival and at departure from the job site. Although it is difficult to locate a principal or the principal’s designee on busy days or during early morning hours (when many workers arrive at the job), the School Board’s maintenance employee handbook (which is provided to or is available and known to all trades people employed by the Petitioner) specifically requires that all daily status forms be dated and then signed by all tradespersons reporting time on the DSF. Ismael Perez knew the policy required the signature of the principal or the principal’s designee. In practice, many tradespersons do not take time to locate an appropriate signatory. Such behavior is in conflict with the policy. On March 19, 2004, the Respondents submitted a DSF that indicated they had each worked eight hours at Coral Reef Senior High School installing a new outlet to eliminate an extension cord being used to operate a fish tank. The DSF was purportedly signed by Arthur James, a zone mechanic at the school. Mr. James did not sign the DCF. Someone forged Mr. James’ signature on the form. On March 19, 2004, the Respondents did not spend eight hours at Coral Reef Senior High School installing a new outlet for the fish tank. On March 19, 2004, Julio Horstman and Martin Mikulas went to the Coral Reef Senior High School site several times attempting to locate the Respondents. No one at the site verified that the Respondents had been there on that date. Mr. James who had purportedly signed their DSF could not verify the Respondents were on the job on the date in question. On March 5, 9, 10, 11, and 29, 2004, the Respondents turned in DSFs that were not signed by authorized personnel at Coral Reef Senior High School. The name purportedly signed on the forms was a person not employed at the school. These DSFs were not completed correctly and cannot support the hours represented by them. The DSFs claimed the Respondents had spent 78 hours working on the Coral Reef Senior High School marquee. No one at the school can verify the Respondents were there for that time on the dates in question. Had the Respondents complied with the policy, gotten appropriate signatures on the DSF, the uncertainty would not exist. The time spent at the site would be easily verifiable. As it is, persons who went to the job site looking for the Respondents on the pertinent dates could not find them. The Respondents were assigned a large project at the dance studio for the Southwood Middle School (Southwood). They never completed the job. According to the DSFs submitted by the Respondents they worked 120 hours at the site over the following dates: January 26, 27, 28, and 29; March 15, 17, and 28; and April 29 and 30, 2004. Despite the number of days and the number of hours allegedly expended at the site by the Respondents, the dance instructor at the site saw them for only “a couple of hours.” Given the description of her duties and her constant presence in and near the studio during the pertinent time, it would have been reasonable for the instructor to observe the Respondents more than “a couple of hours” for a 120-hour job. Additionally, the Respondents submitted DSFs that were not signed by the Southwood principal or the principal’s designee. In fact, the DSFs submitted for the Southwood job contained the names of persons not employed at Southwood. As the names cannot be verified, the times of arrival and departure from the Southwood site cannot be verified. It is reasonable to find the Respondents again violated the DSF policy. Similar incidents occurred on March 22, 24, 25, and 28, 2004. On each of these dates the Respondents submitted DSFs that cannot be verified. In each instance the person whose name is on the form is not an employee at the school site to which the Respondents were to work. Mr. Horstmann, who went to the job sites looking for the Respondents, could not locate them. The inclusion of a false name or the forgery of a name on a DSF is contrary to School Board policy. The Respondents knew or should have known that the submission of the DSFs without proper signatories was against policy. Article IV of the DCSMEC contract requires that employees such as the Respondents be disciplined for “just and good cause.” The DCSMEC contract does not require “progressive discipline.” At all times material to the allegations of these cases the Respondents were advised of their rights to have a Union representative present during any conference for the record (CFR) regarding the issues of these cases. Additionally, the Respondents were advised that the School Police were conducting an investigation of the matter and waived their right to representation (legal or Union) during the course of an interview with Detective Hodges. The Petitioner conducted a CFR on November 8, 2004. At that time the Respondents appeared with a Union representative. After receiving information regarding the improper time clock and DSFs, the Respondents were afforded an opportunity to explain or provide additional information that would respond to the allegations. Martin Mikulas recommended to the School Superintendent that the Respondents be terminated from their employment with the school district. That recommendation went to the School Board on May 18, 2005, and the action to suspend and initiate dismissal proceedings against the Respondents for non-performance, deficient performance, and misconduct was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a Final Order approving the suspensions and dismissals of the Respondents. S DONE AND ENTERED this 1st day of February, 2006, 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 1st day of February, 2006. COPIES FURNISHED: Dr. Randolph F.Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue No. 912 Miami, Florida 33132-1394 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert A. Sugarman, Esquire Sugarman & Susskind, P.A. 2801 Ponce de Leon Boulevard Suite 750 Coral Gables, Florida 33134 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132
Findings Of Fact Respondent Eloisa Sacerio has been employed by Petitioner as a classroom teacher for approximately 20 years pursuant to a continuing contract. Respondent is certified to teach Spanish in kindergarten through 12th grade, elementary education, English for Speakers of Other Languages, English, and middle school. Respondent has primarily taught Spanish. During that 20 years of service, she has been assigned to approximately 11 different work sites due to Respondent being "surplused" from site to site. Surplusing is a contractual procedure that arises when there are not enough students to fill a class for an elective subject. Spanish is an elective subject. Respondent's first five years of service were at the elementary school level. During these first five years, her performance was satisfactory. During the following 13 years, Respondent taught at three different middle schools. Her performance at the middle school level was "mixed" in that she had some performance problems at two of those schools. Respondent experienced some difficulties in her teaching performance during the 1987-88 school year and a portion of the 1988-89 school year when she was teaching at McMillan Middle School. Although she brought her teaching skills up to an acceptable level thereafter, she was surplused from McMillan at the end of the 1991-92 school year because not enough students signed up for her classes. She was assigned to the elementary school level for the 1992-93 school year since she was trained and certified to teach at the elementary school level and had taught at that level without difficulty. For the next two years, Respondent was assigned to Coral Reef Elementary School and Howard Drive Elementary School as a teacher of Spanish as a Second Language (Spanish SL) and Spanish for Spanish Speakers (Spanish S). A teacher assigned to two schools is an itinerant teacher. One of those schools is designated as the teacher's home school, the one primarily responsible for evaluating the teaching performance of an itinerant teacher such as Respondent. Coral Reef was the home school for Respondent. It is not unusual for a Spanish teacher to be an itinerant teacher. At the beginning of the 1992-93 school year, Respondent attended a faculty meeting at Coral Reef. At that meeting, she received a faculty handbook which contained School Board rules, policies, procedures and labor contract provisions. Howard Drive also gave Respondent its faculty handbook at the beginning of the school year. Just prior to the 1992-93 school year, Hurricane Andrew struck Dade County. Its aftermath impacted both Coral Reef and Howard Drive, affecting scheduling for the schools and the teachers. Coral Reef started the school year operating on double shifts paired with Perrine Elementary School. Many schedule adjustments were made until well into the school year. Respondent was given half as much planning time as the other Spanish teachers at Coral Reef since she taught there only half of the school day. Respondent filed a grievance alleging insufficient planning time. The grievance was resolved during a meeting between the administration of Coral Reef and members of the teacher's union to which Respondent belongs. The schedule Respondent had grieved was no longer in place and had been revised prior to that meeting. Respondent's performance in the classroom during the 1992-93 and 1993- 94 school years was evaluated utilizing the Teacher Assessment and Development System (TADS). TADS is an objective instrument used to observe minimal teaching behaviors. The categories of teaching behaviors evaluated by TADS are preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relations, and assessment techniques. These six categories are evaluated during a formal class observation of the classroom teacher. A seventh category, professional responsibility, reflects the duties and responsibilities of a teacher in complying with School Board rules, contractual provisions, statutes and regulations, site directives and the policies and procedures that deal with record keeping and attendance. The union filed grievances on behalf of Respondent with the TADS Monitoring Committee (TMC) for ten or eleven formal observations of Respondent's teaching during the 1992-93 and 1993-94 school years. The TMC was established by contractual stipulation between the union and the School Board. The committee was set up to monitor the TADS process for procedural irregularities, by reviewing only the records and the paper process resulting from a formal observation. It does not review the judgment of the observers who conducted the formal observation. Even after Respondent utilized the TMC process to scrutinize the formal observations of her, she was still found to be unacceptable in classroom management and techniques of instruction for both the 1992-93 and 1993-94 school years. On October 27, 1992, Respondent was formally observed in the classroom and rated unsatisfactory in techniques of instruction by Joe Carbia, principal of Coral Reef. The students in the class did not appear to possess the preliminary skills or background to be successful in the lesson being taught and did not understand the material. The lesson observed had no beginning and no closure. It ended simply by Respondent telling the students to do their homework. The entire class period was spent trying to elicit answers to questions taken from the workbook although none of the students were able to answer the questions presented by Respondent. Respondent was prescribed activities to help her overcome her deficiencies in her techniques of instruction. She was to observe two other Spanish SL teachers as scheduled by the assistant principal Valerie Swanson in order to give Respondent an opportunity to observe good instructional techniques. She was to read, discuss and implement guidelines from the TADS Prescription Manual. She was to meet with Swanson to receive assistance on the materials that dealt with teaching techniques. Carbia held a post-observation conference with Respondent and discussed the deficiencies observed and the prescribed activities. Prescriptive activities are directives. Swanson met with Respondent to offer support and to discuss the various prescriptive activities assigned to Respondent as a result of the October 27, 1992, observation. Specifically, Swanson met with Respondent on November 1, 10, 16, 18 and 25, 1992. Swanson answered any questions posed by Respondent. On November 14, 1992, Respondent was present at Coral Reef but failed to appear to teach one of her regularly-scheduled classes. Principal Carbia taught the class in Respondent's place. Elective teachers are required to check in with the classroom teacher at the beginning of the class period. Respondent did not check in as she was required to do. Respondent's explanation was that when she went to her prior class, she was told by that classroom teacher that the students were watching a closed circuit television program so Respondent did not have to teach that class that day. Respondent concluded that her next class would also be watching the program. Respondent never asked anyone if that were the case. Respondent's assumption was incorrect. Carbia informed Respondent that the class rules she sent home to students' parents were inappropriate for elementary school students. These rules were the same class rules Respondent used when she taught middle school. Respondent was directed not to send the parents any communication without prior administrative approval. Respondent sent subsequent communications to parents without prior approval. Parents complained to the administrators at Coral Reef about Respondent's teaching, both orally and in writing. Some children did not like Respondent's Spanish class and did not want to go to school because they were in Respondent's class. Those children were crying, getting stomachaches and going home upset. When advised by administrators of these complaints, Respondent replied that the students were spoiled and not used to studying. She accepted no responsibility for the problems the children experienced. Conferences were held with complaining parents, Respondent, and the administration at Coral Reef concerning Respondent's grading policy. In these conferences, Respondent was unable to explain the grades she had given students. Carbia changed some students' grades because Respondent's gradebook did not justify the grades she had given the students. On November 12, 1992, Carbia held a conference-for-the-record with Respondent to address the parental complaints received by the Coral Reef administration regarding Respondent. Carbia gave Respondent copies of several written complaints he had received. The parents complained about Respondent's instruction, inappropriate grade level homework, and the manner in which Respondent dealt with the children. Respondent admitted that she screamed at the children. On November 25, 1992, Swanson held an informal conference with Respondent. She gave Respondent suggestions on how to organize her gradebook in a manner that would substantiate the grades Respondent gave her students. Conduct, class work, homework, and tests were to be specifically and clearly labeled in the gradebook for each student. On December 4, 1992, Respondent was absent. Respondent failed to comply with the directive contained in the Coral Reef Faculty Handbook to have emergency lesson plans on file in the main office at Coral Reef. Respondent is required by Petitioner and state law to have emergency lesson plans on hand. On December 10, 1992, Respondent was again formally observed in the classroom by Carbia and was rated unacceptable in knowledge of subject matter and techniques of instruction. Respondent was rated unacceptable in knowledge of subject matter because the lesson was taught at one cognitive level, i.e., the students were merely involved in recall activities. Respondent was rated unacceptable in techniques of instruction because twenty-five minutes of the thirty-minute class time was devoted to Respondent attempting to elicit responses from the students. The students could not give Respondent the correct answers, and she made no attempt to give feedback to the students. Respondent made no provision for closure to the lesson. The students exhibited a great deal of confusion regarding the activity and repeatedly requested clarification. Respondent offered no clarification. She only gave reprimands. Respondent was prescribed activities to help her in overcoming her deficiencies in knowledge of subject matter and techniques of instruction. She was directed to read, discuss and implement guidelines for improvement found in the TADS Prescription Manual. She was directed to observe two other classroom teachers' techniques of instruction. She was to meet with Swanson to receive assistance in understanding the reading materials and to discuss any questions she had regarding her observations of the other teachers. On or about December 17, 1992, a conference-for-the-record was held. Respondent was placed on prescription for Category VII of TADS, professional responsibilities. There was also a review of her performance on the formal observations of October 27 and December 10, 1992. Respondent was rated unacceptable in Category VII, because she failed to obey the directive to observe Ms. Navarro's Spanish SL class (she observed only part of the class), failed to attend her regularly-scheduled Spanish S class, sent home communications without prior administrative approval, did not maintain gradebooks which could be used to substantiate the grades she gave students, and did not have emergency lesson plans available in the office. Respondent was prescribed activities to help her overcome these professional responsibility deficiencies. Respondent was to read and review the Code of Ethics of the Educational Profession in Florida. Swanson continued to assist Respondent with her gradebook and emergency substitute folder. Respondent was to observe a master Spanish teacher, Rebecca Sosa at Kendale Elementary School. On February 8, 1993, Respondent was again formally observed by Carbia and was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent was rated unacceptable in preparation and planning because the lesson plan objective was not an instructional objective for Spanish SL but was only a listing of activities. No attempt was made by the teacher to make the lesson meaningful to the students. The only involvement of the students in the activity was limited to filling in blank items on two xeroxed worksheets. Respondent was prescribed activities to help her overcome her deficiencies in preparation and planning. Under the direction of Swanson, Respondent was to read and discuss the preparation and planning unit in the TADS Prescription Manual. Respondent was to review samples of other teachers' lesson plans. Respondent was rated unacceptable in knowledge of subject matter because the entire instruction was at one cognitive level, i.e., recall and responses. Respondent was prescribed activities to help her overcome her deficiencies in knowledge of subject matter. She was to read, discuss and implement the guidelines for improvement found in the TADS Prescription Manual. Respondent was also to observe other Spanish SL teachers and regular classroom teachers, as scheduled by Swanson. Respondent was rated unacceptable in techniques of instruction because there was no variety in her instruction. The materials used in the lesson were merely two xeroxed sheets with fill-in-the-blank recall items. The activities were not related to the instructional objectives. Several students in the class were confused by Respondent's instructions, but Respondent made no attempt to clarify. Respondent was prescribed activities to help her overcome her deficiencies in techniques of instruction. Respondent was to read and discuss the guidelines for improvement found in the TADS Prescription Manual. Swanson assisted Respondent in those prescriptive activities and was available for conferences regarding those activities. Carbia held a post-observation conference with Respondent to go over the prescription. Respondent was still exhibiting the same deficiencies as before. At the conference, Respondent gave no explanation for her failure to improve her performance. Respondent was told that she had not incorporated in her teaching the prescriptions previously given to her. On March 15, 1993, a conference-for-the-record was held with Respondent. Although Respondent had been provided assistance to help her overcome the deficiencies in her gradebook, her gradebook remained unacceptable. Respondent was placed on prescription for Category VII and was prescribed activities to assist her. Respondent was to submit her gradebooks to Swanson on a weekly basis for review. She was also provided with samples of good gradebooks. On March 16, 1993, Respondent was formally observed by Swanson and Wally Lyshkov, a foreign language supervisor. That formal observation was an external review. In an external review, there are two certified observers: one from the school site and the other from outside the school site. The observers complete the TADS observation forms independently. Respondent was rated unacceptable in knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated unacceptable in knowledge of subject matter because there was no logical sequencing of the material presented in the observed lesson. The lesson was based on furniture vocabulary. There was no attempt made by Respondent to contextualize the vocabulary. The lesson was at one cognitive level, i.e., simple choral repetition. Respondent was rated unacceptable in techniques of instruction and assessment techniques because the lesson lacked sequence and was inappropriate for that grade level. Although the students were confused by Respondent's instruction, she provided no clarification to the confused students. Further, there was no evidence of formal assessment of the students in her gradebook or work folders. Respondent was prescribed activities. She was directed to read and discuss certain materials. A post-observation conference was held with Respondent to discuss the prescriptive activities. Thereafter, Swanson met with Respondent on numerous occasions to assist her with these prescriptive activities. On May 4, 1993, Respondent was formally observed by Florine Curtis, the principal of Howard Drive, and Diana Urbizu, an outside observer. Respondent was rated unacceptable in classroom management during that external review because the class was chaotic. Respondent appeared unaware that several students were off-task while she taught the lesson. The students were not properly instructed because of the lack of classroom management. After the observation, Urbizu and Curtis discussed the types of activities that would assist Respondent to improve her performance. Curtis wrote the prescription to help Respondent overcome her deficiencies. Respondent was directed to read certain materials, to complete a specified activity and submit the activity to Curtis, to observe the other Spanish teacher at Howard Drive conduct a Spanish SL class, to write a brief summary of her observation, and to develop a plan for effective classroom management with suitable consequences and submit the plan to Curtis for review. Curtis held a post-observation conference with Respondent and discussed with her all of the prescribed activities and areas of deficiency. Respondent was given the opportunity to explain her performance. Curtis submitted the rough draft of the TADS observation form to Dr. Joyce Annunziata to review. Annunziata reviewed the form to assure that all the deficiencies were procedurally correct and faxed it back to Curtis with her notations. Annunziata did not make any substantive changes to the evaluation. Curtis worked informally with Respondent at Howard Drive to help Respondent improve her performance. Respondent could not be placed on a second formal prescription at Howard Drive since she was on prescription at Coral Reef, Respondent's home school. Spanish teachers at both schools are not assigned a classroom. Since elementary school students remain in the same classroom, these teachers travel from classroom to classroom and conduct a thirty-minute lesson. Respondent wanted the classroom teachers to manage the classroom while she conducted the Spanish lesson. Classroom management is always the responsibility of the teacher conducting the lesson. It does not matter whether the teacher travels to the classroom to conduct the lesson or whether the students travel to the teacher. On May 28, 1993, a conference-for-the-record was held to notify Respondent of her unacceptable annual evaluation for the 1992-93 school year and to remind Respondent of the negative implications for her future employment with Petitioner if she failed to remediate her deficiencies. Respondent indicated in the conference that the prescriptions had been a waste of time. She indicated that her only motivation for getting off prescription was to transfer to another school since she never wanted to teach at Coral Reef. During the 1992-93 school year, Swanson, while performing her routine duties, informally observed Respondent in the classroom. During these occasions, Respondent was observed yelling at the students and using a negative approach to teaching. Respondent would demean children, make derogatory remarks, and call them stupid. Curtis informally observed Respondent in the classroom during the 1992-93 school year. During these occasions, Respondent was observed to lack classroom management skills and to use inappropriate methods of instruction. Respondent's classroom was always noisy. Her method of instruction was to "teach to a test" rather than to teach the objective of the lesson. Respondent spent the week going over material that would be on the Friday test. Curtis held numerous informal conferences with Respondent to help Respondent improve her performance. Curtis suggested specific classroom management skills and techniques of instruction. She also suggested that Respondent properly maintain her gradebook by labeling the entries. Aida Helbig, the Bilingual Supervisor for Foreign Language Skills, visited Respondent at Coral Reef and Howard Drive in order to help Respondent improve her performance. During the 1992-93 and 1993-94 school years she met with Respondent nine times. Helbig informally observed Respondent to be unsatisfactory in classroom management and techniques of instruction. Audrey Dillaman taught third grade at Coral Reef during the 1992-93 school year. Respondent taught Spanish SL to Dillaman's class. Respondent's instruction was composed of primarily worksheets and conjugating verbs which was inappropriate for the grade level. The students and parents became frustrated, and the parents withdrew their children from Respondent's class. Only seven of Dillaman's students remained in Respondent's class at the end of the second grading period although 18 had started out at the beginning of the year. Respondent wrote in cursive on the blackboard for third grade students who had not yet learned to read or write cursive. Respondent expected first grade students who had not learned to read English, to read Spanish words from the blackboard and charts. The goal of teaching Spanish to elementary school students is to expose them to a foreign language. The emphasis is on an oral program. The sequence of learning a language is oral, reading, and then writing. Respondent's emphasis was on a written program. Respondent required second- grade students to have a Spanish/English dictionary although the district curriculum does not. In September of 1993, Swanson had a discussion with Respondent concerning written communications sent home to parents. Swanson suggested methods Respondent could use to communicate with parents. Swanson even typed a sample letter for Respondent which explained Respondent's classwork to parents. On October 1, 1993, Respondent was formally observed in the classroom by Carbia and rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because more than fifty percent of the class period was spent passing out and collecting an assignment, with much confusion and disorder. Sixty to seventy percent of the students were off-task, and Respondent did not redirect those off-task students. Instead, Respondent used verbal threats to address inappropriate behavior. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet. The only instructional methodology used was a game of questions and answers among students. During the game, the students were not clear about what team they were on. There was a great deal of inattention, stumbling, and wrong answers during the game. Respondent did not attempt to clarify the students' confusion. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. Respondent was to visit other Spanish SL classes at Coral Reef and Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson. Coral Reef and Howard Drive continued to receive parental complaints about Respondent's performance. At Coral Reef students dropped Respondent's classes, and parents requested that their children be switched to another Spanish teacher. Respondent's gradebook continued to be a problem. These concerns were discussed at a November 1, 1993, conference-for-the-record. On November 2, 1993, Respondent was formally observed in the classroom by Swanson and rated unacceptable in classroom management and techniques of instruction. She failed to obey the directive to post her classroom behavior rules during the class time and failed to refer to her classroom rules until just prior to the end of the class time. Students were off-task and Respondent failed to redirect them. The students attended to Respondent only when individually asked a specific question. During the lesson Respondent did not mention the strengths and weaknesses of the students. The majority of the lesson was devoted to one-on-one teacher-to-student dialogue while the rest of the students were inattentive. There were no opportunities for the students to contribute ideas, make comments, or ask questions of the Respondent. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. She was to visit other Spanish SL classes at Coral Reef and at Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson. Swanson provided Respondent with the Competency Based Curriculum (CBC). During the 1993-94 school year, Petitioner began phasing in its CBC. The phasing in of this curriculum is not a factor that would effect the evaluation and assessment of teaching competency under TADS. In November 1993, Swanson discussed with her Respondent's gradebook. Swanson gave Respondent written instructions on how to set up her gradebook and class rules. However, Respondent's gradebook remained unacceptable throughout the 1993-94 school year. On December 2, 1993, Respondent was formally observed by Jean Moeller, assistant principal at Howard Drive, and was rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because she did not use non-verbal techniques to obtain the students' attention from the beginning of the lesson. During the first fifteen minutes of the lesson, i.e., half of the class period, students were off-task. Several of the students were involved in activities other than Spanish. There was no attempt by Respondent to redirect off-task behavior. Respondent was unacceptable in techniques of instruction because she used inappropriate teaching materials. Respondent had two xeroxed sheets in Spanish that were incorrectly utilized. She wrote English on the chalkboard and the students were required to copy English responses to some of the Spanish phrases on the xeroxed papers. The Spanish SL objectives avoid English translation activities. This is stated in the teacher's guide. At this level, children should be responding primarily in Spanish. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was required to read the TADS Prescription Manual on classroom management. She was to make a list of non-verbal techniques that could be implemented in her class to effectively increase on-task behavior and submit the list to Moeller. She was to discuss her reading with Moeller. Respondent was to turn in her daily lesson plans to Moeller a week in advance from December 8, 1993, to January 12, 1994, on Wednesdays. Moeller recommended both Spanish teacher Grijalva and Spanish SL specialist Helbig as resources to assist Respondent in overcoming her deficiencies. Respondent was to observe Grijalva in the classroom. Grijalva is an excellent Spanish teacher who has good classroom management skills and techniques of instruction. Grijalva also knows the curriculum and utilizes appropriate assessment techniques. Grijalva is a specialist in CBC and has trained teachers in CBC. Grijalva provided assistance to help Respondent improve her performance. Respondent observed Grijalva playing a tic-tac-toe game with her students. Respondent attempted to play the same game with her students. However, the game as Respondent structured it resulted in the brighter students repeatedly asking difficult questions of the same student that was least likely to know the answers to the questions. When that student did not know the answers, Respondent made demeaning comments to the student. The student put her head down and cried. On December 8, 1993, a conference-for-the-record was held with Respondent to address her performance, the continuing parental complaints about her performance, and her future employment with Petitioner. Respondent was reminded that she had been on prescription since October 1992 and continued to be unacceptable in classroom management and techniques of instruction. Respondent was given an opportunity to address all the concerns noted. Respondent's written explanation was not responsive to any of the concerns that came up at the conference. On January 27, 1994, Respondent was formally observed at Howard Drive by Principal Curtis and Mercedes Toural, an outside observer. Respondent was rated unacceptable in classroom management and techniques of instruction. Respondent did not have control of the classroom. The children appeared to be in control, and Respondent did not use strategies to prevent, identify, or redirect off-task behavior. Further, the lesson involved having an answer to a test item as opposed to being a lesson with an objective, an activity, and a means of assessment. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was to read the TADS manual, complete written activities, and observe Grijalva. That external review was the second formal observation by Curtis. It occurred almost a year after the first formal observation done by Curtis. Respondent's performance continued to be deficient despite the guidance and assistance provided during that time. At Howard Drive, Respondent used food to reward and punish students in her class. The use of food to reward good behavior and/or to punish inappropriate behavior is a poor teaching technique. After the observation of January 27, 1994, Curtis met with Respondent informally on numerous occasions. Respondent remained deficient in classroom management and techniques of instruction for the 1993-94 school year. There was no improvement in her performance at Howard Drive. On April 29, 1994, there was an external review observation done by Margarita Alemany and by Carbia at Coral Reef Elementary. Carbia rated Respondent unacceptable in classroom management and techniques of instruction. Alemany rated Respondent unacceptable in knowledge of subject matter, classroom management, and techniques of instruction. Respondent was unacceptable in classroom management because a substantial number of students were off-task at different times, and students were inattentive. Respondent used no verbal techniques to redirect the students who were off-task and no techniques to maintain the attention of the students. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet entitled "First Grade Vocabulary of April 25." None of the students were able to read the sheet and provide correct responses. Respondent was prescribed activities to assist her in overcoming her deficiencies. Respondent, under the direction of Swanson, was to read, discuss, and implement guidelines for improvement found in the TADS Prescription Manual. On June 6, 1994, a conference-for-the-record was held at Coral Reef to review the annual evaluation and its consequences. Respondent over the two school years, 1992-93 and 1993-94, had numerous classroom observations and four external reviews. Respondent had been provided assistance to improve her performance by both the administration of Howard Drive and that of Coral Reef. Yet, Respondent remained unacceptable in classroom management and techniques of instruction for the 1993-94 annual evaluation. Respondent failed to turn in her gradebooks for the 1992-93 and the 1993-94 school years. Respondent was required to turn in her gradebooks from both school locations to the individual school at the end of each school year. This is required by School Board policy and was addressed in the end-of-the-year directives. Respondent kept the gradebooks in her possession until they were given to Petitioner on February 16, 1995. By that date, the gradebooks had been altered to include labeling and more grades which were not in the gradebooks when they were formally evaluated. During the 1992-93 and 1993-94 school years, many students withdrew from the Respondent's Spanish classes. Classroom teachers complained to the administrators of Howard Drive and Coral Reef concerning Respondent's rapport with the students, her classroom management techniques, and her methods of instruction. Respondent exhibited a negative approach to teaching that did not change over the two-year period. Her approach negatively impacted the Spanish program at both schools because students chose not to take Spanish if Respondent was their teacher. Respondent did not accept responsibility for any problems and deficiencies she had in the classroom. She always blamed others. Although Respondent completed all the prescribed activities, she did not incorporate what she learned into her performance. Petitioner provided substantial assistance to Respondent to help her improve her performance. She received assistance from the administrators of two schools and from other teachers and district personnel. For 1993-94 Respondent was assigned to teach the same grade levels as the prior year to allow her to build on her experiences from 1992-93. All the Spanish teachers at Coral Reef had the same planning time during 1993-94 in order to make it convenient for Respondent to get assistance from them. Yet, Respondent failed to communicate with and relate to her students to such an extent that she deprived them of a minimum educational experience. She also taught inefficiently and ineffectively and failed to comply with Petitioner's prescribed course of study using appropriate materials and methods.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in Petitioner's Amended Notice of Specific Charges as Corrected, sustaining Respondent's suspension without pay, and dismissing her from her employment. DONE and ENTERED this 2nd day of October, 1995, 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 2nd day of October, 1995. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4316 Petitioner's proposed findings of fact numbered 2, 4-23, and 25-117 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 3 and 24 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 13 and 17 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 5, 8-12, 15, and 18 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 4, 6, 7, 14, and 19-22 have been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Twila Hargrove Payne, Esquire Patricia D. Bass, Esquire Madelyn P. Schere, Esquire 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 Ronald S. Lieberman, Esquire NationsBank Building, Penthouse 2 9350 South Dixie Highway Miami, Florida 33156 Mr. Octavio J. Visiedo Superintendent of Dade County School Board Suite 403 1450 Northeast Second Avenue Miami, Florida 33132-1308 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
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 respondent Elizabeth Gallon McGhee guilty of having violated Rule 65-1.06, Florida Administrative Code, and Section 231.28(1)(h), Florida Statutes (1983), and suspending her teacher certificate number 231757 for one year. RECOMMENDED this 7th day of January, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 7th day of January, 1985.
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
The Issue Whether Respondent's teaching certificate should be revoked or otherwise disciplined on grounds that he violated Section 231.28(1), Florida Statutes (1979), as alleged, by making sexual advances toward his female students on four separate occasions.
Findings Of Fact Based upon the evidence presented at hearing, including consideration of the validity and demeanor of witnesses, the following facts are determined: Respondent, Lawrence Longenecker ("LONGENECKER"), at all times material hereto held a Florida teacher's certificate: Certificate No. 283801, Post Graduate, Rank II, valid through June 30, 1986, covering the areas of secondary biology, junior high science, guidance, and junior college. (Joint Exhibit 1.) LONGENECKER was employed as a science teacher at Madeira Beach Middle School, a public school in Pinellas County, Florida, during the 1976-1977 and 1977-1978 school years, until his resignation in January, 1978. (Joint Exhibit 1.) I. Longenecker's Sexual Advances Toward Three Female Students The COUNCIL alleged, and has established that LONGENECKER made sexual advances toward three (3) female students on four separate occasions. The first incident occurred during the early morning of January 1, 1977. Robin Hamilton, an eighth grade student of LONGENECKER's at Madeira Beach Middle School, had just finished babysitting for LONGENECKER on the evening of December 31, 1976. While driving her home, LONGENECKER stopped behind a Publix Supermarket across from Madeira Beach Middle School, and asked her if he could "take her up on her offer", referring to his missing a chance to kiss her during a friendly mistletoe Christmas celebration at school earlier in the day. Thinking little of it, she said "okay"; he then kissed her. Five minutes later, he said, "What about one for the good luck of next year--in ninth grade?", and kissed her again. She let him. He then continued driving her home, but took a longer route than required. She told him, "This isn't the right way" home, and he answered, "Don't worry about it, I'll take you home." He then kissed her on the lips, again, putting his arms around her and pulling her closer. She became scared, and insisted he take her home, which he then did. She reported the incident to her parents the next day, and they insisted she tell the school principal; she then reported the incident to John Larson, the assistant principal. LONGENECKER denies having made these advances toward Miss Hamilton. However, her demeanor was direct and detached; she evinced no bias, interest, or motive to falsify, and her testimony is accepted as persuasive. (Testimony of Hamilton.) The second incident involved LONGENECKER and Elizabeth Karen James, another eighth grade student at Madeira Beach Middle School. He taught science, and she was his student assistant who helped prepare the laboratory, grade papers, and take roll. During January or February, 1977, she was working alone in the back room of the science laboratory; she had her face toward the wall and was leaning against a table. LONGENECKER, while attempting to show her something, leaned heavily against her--the lower part of his body pressing against her lower back side--and placed his hands on her shoulders. The continued pressure of his body against hers--for 2 to 3 minutes--made her scared. While this was going on, he continued to instruct her on preparing the lab for the next day. She waited until he was through and then quickly left the room. Later, she reported the incident to her parents. Approximately 2 to 3 weeks later, the third incident occurred when she was, again, working in the laboratory, and standing two feet from the door. She was leaning against the counter; he came up behind her and leaned heavily against her, in the same manner as he had done previously. She became scared, turned around, and tried to leave. He took her hand, and asked her to remain because he wanted to show her something else. LONGENECKER denies having made sexual advances toward Miss James. However, her testimony was not tainted by bias, intent, or motive to falsify; she evidenced no ill-will or hostility toward LONGENECKER, and her testimony is accepted as persuasive. (Testimony of James.) In February or March, 1977, Miss Hamilton and Miss James separately reported the above incidents, involving LONGENECKER, to John Larson, the school's assistant principal. Larson spoke with Dr. Robert Moore, the principal, and they both met with LONGENECKER to discuss the complaints. Dr. Moore expressed his concern over the alleged behavior and explicitly warned LONGENECKER that such conduct was unethical and jeopardized his teaching position. LONGENECKER neither admitted or denied the accusations, but listened, quietly. (Testimony of Moore, Larson, Longenecker.) The fourth incident occurred approximately nine (9) months later, on or about December 3, 1977, and involved Sharon O'Connell, a ninth grade student at Madeira Beach Middle School. LONGENECKER was her science teacher; she was a good student and liked him as a teacher. On the evening of December 3, 1977, Miss O'Connell was babysitting for LONGENECKER. LONGENECKER and his wife returned home at approximately 12:30 a.m., and he drove her home. Instead of taking her directly home, he took her to Madeira Beach Middle School, ostensibly to "pick up something." (Tr. 87.) When they arrived, he took her on a tour of new buildings that were being constructed at the school. It was a cold evening, and he put his arm around her, as if to keep her warm. He moved closer to her, as she was leaning against a wall, and pressed his lower body against her buttocks area. At the same time, he put his hands underneath her arms and rubbed her breasts. She tried to tighten her arms, and became scared; he acted like nothing out of the ordinary was occurring, and continued to talk of the construction work. They then walked to another area of the school, where he leaned her against a door, and repeated his earlier conduct--pressing his lower front against her buttocks and fondling her breasts. He was breathing heavily, and Miss O'Connell was embarrassed and scared. She then pulled away, and asked him to take her home. After several requests, he complied. She reported this incident to her parents, who immediately contacted the Superintendent of Schools. LONGENECKER denies having engaged in this conduct toward Miss O'Connell. Her testimony is, however, accepted as persuasive; she was visibly embarrassed by having to describe this incident, but expressed no hostility toward LONGENECKER; indeed, she indicated sympathy for his plight. (Testimony of O'Connell.) II. Effect of Incidents Upon Longenecker's Effectiveness as a School Board Employee After the incident involving Miss O'Connell was reported, LONGENECKER was called to Dr. Moore's office and confronted with the accusation. LONGENECKER neither admitted, nor clearly denied, the accusation. He was asked to resign immediately, which he did. Since that time, he has held several jobs in commercial establishments, and his efforts to find work as a teacher have been unsuccessful. (Testimony of Moore, Larson, Longenecker.) LONGENECKER's complained-of actions toward the three female students seriously reduces his effectiveness as a teacher at Madeira Beach Middle School and the immediate area. His misconduct has become generally known to faculty members, students, and their families, and his reemployment as a teacher at Madeira Beach would be opposed by parents and students. (Testimony of Moore.)
Conclusions Respondent is guilty, as alleged, of violating Section 231.28(1), Florida Statutes (1979). Due to the repetitive nature of his misconduct and the prior practice of the Board of Education in cases such as this, Respondent's teaching certificate should be permanently revoked.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Lawrence LONGENECKER's teaching certificate No. 283801 be permanently revoked. DONE AND ENTERED this 25th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Broward County, Florida. As of September, 1980, there were approximately 130,000 students enrolled in the Broward County School System, which makes that system one of the largest in the country. Respondent is required by statute to promulgate rules and regulations that establish attendance zones for grades Kindergarten through 12. During late 1980 and early1981 the School Board engaged in its annual review of existing attendance boundaries to determine whether changes should be made for the 1981- 82 school year. In performing such reviews and in making necessary recommendations, it is the School Board's policy to consider the following factors: existing overcrowded schools; proper utilization of existing physical facilities; maintenance of a unitary school system; student safety; student feeder patterns; transportation costs; establishment of new schools; consolidation of small school attendance areas; and community involvement. The dispute in this proceeding arises from the School Board's rezoning decision as it relates to four north area high schools: Coral Springs; Ely; Pompano Beach; and J. P. Taravella. In reaching its rezoning decision for these four high schools, the School Board was concerned primarily with the existence of overcrowded schools, underutilized physical facilities and the problem of racial composition to the student bodies in the various schools. In order to fully understand the import of the School Board's ultimate decision, and the magnitude of the problem which the Board faced, some historical perspective is necessary. Prior to 1970, the school system in Broward County was operated on a dual, biracial basis, with separate school facilities for black and white students. In 1970, litigation was commenced in Federal Districts Court which resulted in the School Board being ordered to commence efforts to establish a "unitary" school system. The Board's proposal to close Dillard High School in Fort Lauderdale and Ely High School in Pompano Beach, both of which were predominantly black, was rejected by the Federal Court. Instead, the School Board was ordered to redraw attendance zones in such a fashion as to assure the operation of these schools as racially integrated facilities. Although Ely High School was closed for a time due to inadequate physical facilities, it was later reopened. The Federal District Court subsequently relinquished jurisdiction in the desegregation litigation on July 31, 1979. In an attempt to continue compliance with the Federal Court directive to establish a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, to attempt to maintain approximately the same percentage of minority enrollment in its high schools as existed at the time the Federal Court relinquished jurisdiction in 1979. The School Board's policy in this regard is based on the assumption that the "unitary" status of the school system as it existed in 1979 met with Federal Court approval, as evidenced by the order relinquishing jurisdiction. The dynamic growth of Broward County over the last several years has, however, to some extent complicated the Board's efforts to maintain the required "unitary" system. The primary problem in this regard has been a change in the demographic makeup of the school-age population in Broward County. Over the last several years the location of the high-school-age population in Broward County has shifted from the eastern portion of the county to the west. Because the bulk of the high-school-age population has historically resided in the eastern portion of the county, the majority of physical plant facilities had been constructed there. In recent years, however, the western portion of the county has developed rapidly to such an extent that those physical facilities located in that portion of the county are now seriously overcrowded, and the older facilities located in the eastern portion of the county have become "underenrolled," and, therefore, "underutilized." For example, Coral Springs High School, which is located in the western portion of the county, had a student enrollment of 2,168 for the 1976-77 school year; 2,994 students for the 1977-78 school year; 3,406 for the 1978-79 school year; 3,704 for the 1979-80 school year; and, 3,764 students for the 1980-81 school year. The physical plant at Coral Springs High School has a student capacity of 2,283, thereby requiring the School Board to operate Coral Springs High School on double sessions in order to accommodate the burgeoning enrollment. As a result of overcrowding at Coral Springs High School, the School Board determined to build a new facility, A J. P. Taravella High School, which opened in August, 1981. This new high school, with a student capacity of 1,829, opened in August, 1981, with a total enrollment of 1,228 students, all but seven of whom were reassigned from Coral Springs High School. Taravella High opened under its design capacity because the Board determined not to require students to change schools for their senior year so that Taravella presently serves only grades 9 through 11. As a result of the construction and opening of J. P. Taravella High School, Coral Springs High School is no longer on double session. In addition, the percentage of black students attending Coral Springs High School as the result of the reassignment of students to J. P. Taravella High School actually rose from six percent during the 1980-81 school year to nine percent during the 1981 82 school year. A complicating factor in the School Board's rezoning decision as it relates to these high schools was the problem of under-enrollment at Ely High School and Pompano Beach High School, both of which are located in the eastern portion of the county. Ely High School has a physical plant capacity of 1,857, and Pompano Beach High School has a physical plant capacity of 1,921. During the 1979-80 school year, there were 1,172 students enrolled at Ely High School, and 1,793 enrolled at Pompano Beach High School. For the 1980- 81 school year there were 1,430 students enrolled at Ely and 1,634 students enrolled at Pompano Beach High School. During the 1980-81 school year, the student population of Ely High School was 53 percent black, and, under the rule being challenged in this cause, that percentage remained the same for the 1981-82 school year. Blacks comprised 14 percent of the student population at Pompano Beach High School during the 1980-81 school year, and that percentage fell only one percent under the school attendance zones being challenged in this proceeding. As previously indicated the population of the western portion of Broward County has markedly increased over the last several years. Most of the increase in school age population in the western portion of the county is composed predominantly of white students. The black population in Broward County is concentrated in the eastern portion of Broward County. Consequently, in order to maintain the desired racial composition in the county schools, relieve overcrowded conditions in some of its schools, and, at the same time efficiently utilize the physical facilities of all its schools, it became necessary for the Board to make some extremely difficult policy choices. The choice ultimately made by the Board is reflected in the rule here being challenged. Petitioners Barbara Most, Lorraine Shifrel and Thomas Bell are each residents of North Lauderdale with children who, under the rule here in dispute, are assigned to and attend Ely High School. Ely High School is located approximately 10-1/2 miles from the Most home, while the recently opened J. P. Taravella High School is approximately two miles from their home. Taravella High School is also located two miles from the Shifrel home, while Ely High School is located some distance farther away. Finally, Ely High School is located approximately 15 miles from Petitioner Bell's home, whereas Taravella High School is only three and a half miles away, and Coral Springs High School is only four miles from his home. Petitioner Sylvia Liberto lives approximately two and one-half miles from Taravella High School. However, she has one child who is assigned to Coral Springs High School, which is located five miles from her home, and another child who is assigned to Pompano Beach High School, which is located approximately 17 miles from her home. Petitioners object to their children being assigned to Ely High School and Pompano Beach High School when they feel they could more conveniently attend the newly opened J. P. Taravella High School, which is located much closer to their residences. Petitioners also object to their children being subjected to a lengthy bus ride twice daily to and from either Ely or Pompano Beach High Schools, and further assert that the children are unable to participate in after-school extracurricular activities because of the distances from their homes to their assigned schools. Although the School Board furnishes transportation in the form of an "activity bus," Petitioners assert that this mode of transportation is at best unreliable, and is, therefore, an unacceptable substitute for what they consider a more appropriate school assignment. The record reflects that the North Lauderdale area in which all Petitioners' residences are located has been zoned to attend either Ely High School or Pompano Beach High School since approximately 1977. Consequently, the rule being challenged in this proceeding does not change the school assignments for these families from that which has been in existence for several years. However, J. P. Taravella High School has been in the planning stages for several years, and Petitioners' families had anticipated that upon completion of the new high school their children would no longer have to be bused to attend high school.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed September 28, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a professional service contract that is subject to a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." The School Board has adopted Rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-4A-1.213, Code of Ethics, requires employees of Petitioner to abide by state regulations. The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsections (3)(a) and (e) thereof provide as follows: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety. * * * (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner has employed Respondent as a full-time P.E. teacher at South Miami Heights since the 2006-07 school year. South Miami Heights is a public school located in Miami-Dade County, Florida. Respondent has not been the subject of any disciplinary actions by Petitioner other than the incident that is the subject of this matter. Respondent's practice throughout her tenure at South Miami Heights was to require students arriving at P.E. to line up, stop talking, and generally exhibit good behavior prior to starting class. On those occasions when students were not well- behaved, Respondent required the students to walk in an orderly fashion until they calmed down and showed they were ready for class. On hot days, she would required them to walk around the inside corridors of the school, while on cooler days the students would walk outside. In prior years, with a different principal, Respondent would have the students walk in front of the principal's office, who would then go out and call the students to attention to get them to calm down. During the 2009-10 school year Respondent taught P.E. at South Miami Heights to second, third, fourth, and fifth-grade students between the hours of 8:30 a.m. and 3:00 p.m. Her last P.E. class started at 2:00 p.m. and ended at 3:00 p.m. Students in her last class typically brought their book bags with them. On April 15, 2010, at approximately 2:00 p.m., third- grade students from Ms. Fuentes-Garcia's class walked from her class to Respondent's class. There were approximately 25 students in the class. Each student had a book bag. When Respondent took responsibility for the class, many students were talking or otherwise misbehaving. Respondent directed all students in the class to make laps around an outdoor basketball court by walking the white lines that define the outer boundaries of the basketball court. The temperature on April 15, 2010, was 81 degrees. The students were exposed to the sun while they were walking. Respondent required the students to carry or wear their backpacks while walking around the outdoor basketball court.1 According to Respondent, the students were required to walk around the basketball court until they calmed down. She had no idea how long the students would have to walk until they calmed down when she first directed them to start walking. All students in the class were required to walk without stopping for 32 minutes. A student who tried to put her book bag on the ground was told by Respondent to pick it up and keep walking. At the end of the 32-minute period, Respondent escorted the class back to the vicinity of Ms. Fuentes-Garcia's classroom and had the students walk in an orderly fashion to the playground, where they played games until approximately 2:54 p.m. There was a water fountain on playground, but it was not functioning on April 15, 2010. Water was available in a building adjacent to the playground. The students were not permitted to drink water between 2:00 p.m. and 2:54 p.m. At approximately 2:54 p.m. the students left the playground and entered the adjacent building to drink water. A video of the students walking the white lines of the basketball court was captured by the school's security cameras. In one portion of the video, a child can be seen dragging a backpack on the ground. It cannot be determined from the video whether the backpack had wheels. In another portion of the video, Respondent can be seen monitoring the students while standing in the shade of a tree. On April 16, 2010, Ms. Hernandez, the school principal, received complaints from four or five parents of students in the class. M.V., the mother of one of the students in the class, confronted Respondent about the incident on April 16, 2010. This parent testified, credibly, that Respondent told her that she had the class walk the white lines of the basketball court to calm them down and as punishment for being hyper. Following the complaints, the matter was referred to Petitioner's Civil Investigation Unit (CIU) where it was assigned to CIU investigator Terri Chester. Ms. Chester prepared a report after she concluded her investigation. Ms. Duboulay reviewed the report with Respondent in a Conference for the Record on June 8, 2010, and provided Respondent an opportunity to respond to Ms. Chester's report.2 Thereafter a Disciplinary Review Team convened and reviewed the case and concluded that probable cause existed that Respondent had committed the violations subsequently alleged in the Notice of Specific Charges dated September 23, 2010. The Disciplinary Review Team recommended that Respondent be suspended without pay for 30 days based on the totality of the circumstances of the case and the exposure of the students to harm. The manner in which Respondent disciplined her class on April 15, 2010, did not reflect credit on herself or on Petitioner. The manner in which Respondent disciplined her class on April 15, 2010, was inconsistent with her duty to "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety."3 There was insufficient evidence to establish that Respondent "intentionally expose[d] a student to unnecessary embarrassment or disparagement." Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay for a period of 30 workdays. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 14th day of March, 2011.
