The Issue The issues are whether Petitioner has just cause to dismiss Respondent for failing to attend work during duty hours and leaving his class unsupervised so as to constitute misconduct in office, in violation of Florida Administrative Code Rules 6A-6.056(2) and 6A-6.056(4).
Findings Of Fact Petitioner initially employed Respondent as a substitute teacher on February 26, 1990. From January 1991 through June 1991, Respondent was employed as a teacher at Petitioner's Braddock High School. From August 1991 through May 1993, Respondent was employed as a teacher at Petitioner's Coral Park Senior High School. From January 1994 through May 1994, Respondent worked as a substitute teacher at various of Petitioner's schools. From March 1994 through June 1994, Respondent was employed as a teacher at Petitioner's Miami Central Senior High School. Starting in August 1994, Petitioner employed Respondent as a teacher at Miami Coral Park Senior High School. He was continuously employed at this school, except for a suspension from March 13 through April 24, 2014, until Petitioner suspended him on April 13, 2016, for the acts and omissions that are the subject of this proceeding. Spring 2006 marked the first recorded instances of Respondent's attendance problems. On April 5, 2006, Petitioner issued warning memoranda due to Respondent's tardiness. On April 28, 2006, Petitioner summarized a Conference-for-the- Record (CFR) for Respondent's repeated tardiness in reporting for work. A few years later, attendance problems emerged again, evidently at a much greater volume. On March 6, 2013, Respondent failed to report to work at the required time and never called to advise the administration that he would be late. He had also been tardy and failed to call on the two preceding days, as well as on 13 other days during the 2012-13 school year. On March 6, 2013, Petitioner issued a Memorandum of Concern. Respondent was tardy three more days after receiving the memorandum, so, on May 22, 2013, Petitioner issued a CFR summary directing Respondent to report to work on time. On October 15, 2013, Petitioner issued a memorandum determining that Respondent had been selling candy to students without authorization. On November 6, 2013, Petitioner issued a CFR summary containing directives about attendance and selling candy to students. On January 13, 2014, Petitioner issued a CFR summary determining that Respondent had used vulgar language at students, thrown a toilet-paper roll at one student, and commanded the student to get the "fuck" out of his classroom. Petitioner's representatives asked for Respondent's resignation, but he declined to resign. Respondent countered that he was having a difficult year because the administration had "changed drastically" his schedule, and the science department chair had "bullied" him. Before Petitioner had determined the discipline for this offense, on January 28, 2014, Petitioner issued a CFR summary determining that Respondent had taken students off campus in his vehicle, often leaving students unsupervised to pick flowers from a garden for a lab experiment. In response to this charge, Respondent declared that "things have changed and [he] realize[d] that it is a new day." The CFR summary noted that Respondent also had often left his students in the classroom unsupervised; used disparaging language toward students, including calling one student, "retarded"; and kissed the top of the head of a female student. Petitioner's representative offered Respondent the option of resignation, which he again declined. On March 7, 2014, Respondent accepted an offer of a 30-day suspension, evidently for the offenses noted in the preceding paragraph, and he served this suspension from March 12 through April 23, 2014. After the calamitous 2013-14 school year, during which he was disciplined on four occasions, Respondent's offenses focused exclusively on attendance. On February 2, 2015, Petitioner issued an Absence and Tardiness from Worksite Directives Memorandum. This noted absences and tardies on 22 days of the still-ongoing 2014-15 school year. On February 11, 2015, Petitioner issued a CFR summary detailing Respondent's history of nonattendance, noting, in particular, that on January 9, 2015, at about 9:50 a.m., Respondent left his classroom unattended, and several students accessed his computer and changed their grades. Petitioner's representatives advised Respondent that his repeated failure to adhere to directives demanding that he adhere to basic attendance policies would result in gross insubordination upon recurrence. At the start of the 2015-16 school year, Petitioner issued a Absence/Tardiness Directives Reminder memorandum, advising Respondent that the February 11 CFR summary continued to apply. On September 22, 2015, Petitioner issued a Reminder of Absence from the Worksite Directives and a reminder of sign- in procedures. However, between September 22 and October 27, 2015, Respondent failed to sign in on 21 occasions. On October 27, 2015, Petitioner issued a Professional Responsibilities Memorandum covering these 21 violations of Petitioner's attendance policy, and, on November 4, 2015, Petitioner issued a CFR summary reprimanding Respondent for his failure to adhere to attendance policies following a meeting to which Respondent was 20 minutes late. For the preceding 19 months, Respondent had displayed repeated disregard for his basic professional responsibilities, including even attendance. Given the number of violations in a relative brief span, Respondent's compliance with policies would need to improve to rise to the point that it could be described as checkered. While facing discipline for the absences and tardies documented in the October 27 memorandum, two days later, Respondent left the school campus at about 10:00 a.m. to go home and sleep, not informing anyone that he was leaving the campus and not returning to teach his sixth-period class, which, unsupervised, was found milling around a hallway after Respondent had chosen to transform himself from a professional employee to a "no call/no show." The applicable collective bargaining agreement between Petitioner and the union of its instructional employees (CBA) "recognize[s] the principle of progressive discipline," but also requires that the "degree of discipline shall be reasonably related to the seriousness of the offense." CBA, Article XXI, Section 1.A.1. The CBA provides for the suspension or dismissal of instructional employees, as provided by Florida Statutes. Id. at Section 1.B.1.a.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding just cause for dismissing Respondent for gross insubordination in repeatedly refusing Petitioner's directives that he attend school and supervise his students. DONE AND ENTERED this 27th day of September, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 27th day of September, 2016. COPIES FURNISHED: Kim M. Lucas, Esquire Miami Dade County Public Schools School Board Attorney's Office 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Christopher J. La Piano Miami Dade County Public Schools School Board Attorney's Office 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Leonel Marrero 1621 Southwest 93rd Court Miami, Florida 33165 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the testimony adduced at the hearing, the following relevant facts are found: Respondent Randolph Rice has been employed by the petitioner Dade County School Board for seven years. At all times relevant to the charges involved in this proceeding, he was employed as a physical education teacher at Miami South Ridge Senior High School. In the school years 1977-78 and 1978-79, Randy Turner regularly appeared on the campus of South Ridge. Mr. Turner was never enrolled as a student at said high school. Believing that Mr. Turner was a student at South Ridge, respondent Rice allowed him to participate in Rice's physical education classes. Respondent Rice knew that Turner was not enrolled in his class, but he believed that Turner was enrolled at South Ridge to complete two credits he needed for graduation. When Mr. Turner participated in class, he wore the school's regular physical education uniform. At least six students attending and enrolled at South Ridge observed Mr. Turner on campus almost daily for the school years 1977-78 and 1978-79. They saw him in the hallways carrying books, around the physical education area, participating in physical education classes and in the locker room. Turner shared a locker with an enrolled student. He was also observed in a class in plastics. Mr. Turner's photograph appeared in the school's yearbook along with the pictures of enrolled students. Four employees at South Ridge -- a physical education teacher and three persons who work in security -- observed Mr. Turner in the hallways of South Ridge carrying books and around the physical education area. Three of these employees assumed Mr. Turner was an enrolled student at South Ridge. Another, who knew Turner from another high school, had the impression that Mr. Turner had probably finished school. The basketball coach at South Ridge, Everett Moncur, allowed Mr. Turner to help out and keep the statistics in the basketball games end courses. Mr. Moncur assumed Mr. Turner was not enrolled as a student as he had known Turner from another high school. Moncur worked closely with respondent Rice and did not discuss with Rice Mr. Turner's status as a student or non-student. On or about February 9, 1979, respondent Rice's physical education class was having a special challenge with the other physical education classes, and several games were occurring simultaneously. During this period, Mr. Turner became involved in a fight with an enrolled student and the other student was injured. Respondent Rice did not witness this event. The parties have stipulated that there is no legal causal connection between Turner's participation in class and the injury that was received by the other student. Excerpts from the minutes of a March 21, 1979, Dade County School Board meeting indicate that the Board approved the suspension without pay of respondent Rice. By letter dated March 26, 1979, Mr. Rice was notified that the Board bad suspended him without pay for a period of thirty days for willful neglect of duty in allowing a nonschool youth to participate in his class. He was further advised that prior to the expiration of his suspension, he would be advised of his reassignment to another work location to be effective May 3, 1979. The respondent requested a hearing on the suspension, and, on April 9, 1979, the School Board filed "Notice of Charges" charging respondent with willful neglect of duty by allowing a nonschool youth to participate in his physical education class. The Board asked for a thirty-day suspension and reassignment to another school in Dade County. Respondent has served his period of suspension without pay and has been assigned to another school. Respondent seeks to be reinstated at South Ridge High School and further seeks back pay for the period of suspension.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that a final order be entered by petitioner rescinding respondent's suspension and transfer to another school, and that respondent be reimbursed for the salary lost during his suspension and be reinstated to his former position at South Ridge High School. Done and entered this 2nd day of July, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jesse J. McCrary, Jr. Assistant Board Attorney 3050 Biscayne Boulevard Suite 300-E Miami, Florida 33137 William du Fresne Suite 1782 One Biscayne Tower Miami, Florida 33131 Phillis Douglas Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, CASE NO. 79-768 RANDOLPH RICE, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting of September 5, 1979, upon the Hearing Officer's findings of fact, conclusions of law and recommended order, and upon the exceptions filed by counsel for the School Board. The Board having considered the same and having heard argument of counsel, IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that: The Hearing Officer's findings of fact, conclusions of law and recommended order attached hereto be and the same hereby is adopted as the final order of the School Board, with the exception of the recommendation that the respondent be reinstated to his former position at Miami Southridge Senior High School, which is rejected by the School Board; and The suspension of Randolph Rice for the period March 22, 1979 through May 2, 1979 be and the same is hereby rescinded, and the respondent, Randolph Rice, shall be reimbursed for all salary lost during the period of that suspension. DONE AND ORDERED this 5th day of September 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By Phyllis Miller, Chairman
Findings Of Fact Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/ Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.
Recommendation Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years. ENTERED this 20th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner has just cause to suspend Respondent’s employment for thirty days without pay based on the allegations in the Notice of Specific Charges.
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. Petitioner has continuously employed Respondent since 1984 as the band director at Nautilus. The band curriculum taught by Respondent consists of beginning band, concert band, jazz band, beginning guitar, guitar ensemble, and classical guitar ensemble. Respondent runs a very good band program at Nautilus. Ms. Bernstein, the current principal at Nautilus, opined that Respondent has done a remarkable job with his band students. Throughout his 24 years at Nautilus, Respondent has taken hundreds of field trips both in-state and out-of-state with band students. As a result of these trips, Respondent is fully aware of the paperwork required by the School Board to authorize band students to go on field trips. With the exceptions to be discussed below, Respondent has correctly filled out the required paperwork and has otherwise complied with School Board policies pertaining to field trips. The School Board has developed specific field trip procedures that have been adopted as School Board Rule 6Gx13-6A- 1.22 (Field Trips). The rule provides, in relevant part, as follows: Trips for students are permitted which have value in meeting educational objectives, are directly related to the curriculum . . . In the planning of field trips, absences from school should be restricted to the least number of school days possible. The educational purpose and length of the filed trip must be approved by the principal. Provisions for students to make up assignments for classes missed due to participation in field trips must be in accordance with procedures outlined in Board Rule 6Gx-5A-1.04 - - Student Attendance. A signed parental permission form must be on file at the school prior to student’s participation. . . . A roster is to be submitted along with the field trip application request that includes the names, addresses and telephone numbers of all students who are eligible to participate in the field trip regardless of the student’s decision to participate in said trip. . . . The School Board has also adopted a Field Trip Handbook, which sets forth the responsibilities of the field trip sponsor under the heading “Sponsor’s Responsibilities” (Petitioner’s Exhibit 25, at Bates stamp page 168). Among the delineated Sponsor’s Responsibilities, the sponsor is to secure completed and signed parent permission form from each student who will participate in the field. The sponsor is to place emphasis on complete medical information. The sponsor is to ensure that all chaperones have available and accessible to them during the trip a copy of all parental permission forms with emergency contact information. 2005 Field Trip Matthew Welker served as principal of Nautilus during the 2004-2005 school year. During the Spring term of the 2004- 2005 school year, Respondent sponsored a field trip for the Nautilus band to attend a music festival in Tennessee. Prior to the field trip, Mr. Welker was informed by parents of band students that Respondent intended to take one or more high school students on the field trip. Mr. Welker met with Respondent prior to the field trip to remind him of the field trip procedures and further advised him that he should arrange to ensure that only Nautilus students attend the festival. While the field trip was in progress, Mr. Welker learned that Respondent had permitted a former Nautilus band student to participate in the festival with the Nautilus band. The former Nautilus student was in high school when he was permitted to participate in the festival with the Nautilus band. Prior to seeing him at the festival, Respondent did not know that the former Nautilus student, who had traveled to the festival independently of the Nautilus band, would be at the festival. Respondent did not violate the festival rules by permitting the former student to participate in the festival. On or about May 31, 2005, following Respondent’s return to Nautilus, Mr. Welker conducted a “Conference for the Record” with Respondent, which was memorialized by a Memorandum (Petitioner’s exhibit 1).3 The Memorandum provides, in relevant part, as follows: . . . On Friday, August 13, 2004, you received documentation and in-service training regarding District and school site Field Trip procedures. On Friday, April 15, 2005, I conducted a personal conversation in my office with you regarding information that I received regarding the possibility that two former Nautilus Middle School students who are currently enrolled at Miami Beach High School would be participating with our students at the Smokey Mountain Music Festival in Tennessee. You indicated that you needed their presence to fill out the band. I stated to you that these students were not authorized to participate in the field trip nor were they eligible to participate in the festival as representatives of Nautilus Middle School. I further stated to you that no student or person who is not enrolled or directly affiliated with Nautilus Middle School may attend or participate in the festival. You stated that you understood. On April 29, 2005, I received information regarding the presence of a Miami Beach Senior High School student who was allowed by you to participate in the festival competition representing Nautilus Middle School. The student was also allowed to represent the school in both the ensemble and solo musical performances. On Wednesday, May 11, 2005, I questioned you regarding the participation of the students and you confirmed the fact the student was present at the festival and participated in performances representing Nautilus Middle School. I asked why you permitted the student to attend and perform after I gave you specific directions to the contrary. You responded that you needed the student to fill out the band. * * * Action Taken You were advised that this incident represents a violation of School Board Rule 6Gx-4A-1.21 Responsibilities and Duties. You were directed to follow all School Board and school-site rules and policies regarding field trips. You were directed that no student who is not enrolled as a seventh or eighth grade student at Nautilus Middle School may participate in any extra-curricular activity, co-curricular activity, performance, or field trip. These directives remain in effect as of the date of the conference and are restated to prevent adverse impact to the operation of the work unit and the services provided to students. Any non-compliance by you with respect to these directives will necessitate further review and the possible imposition of disciplinary measures. . . . Copies of the following documents were given to you and discussed at the conference: Miami-Dade County School Board Rule 6Gx- 4A-1.21 Responsibilities and Duties The Code of Ethics of the Education Profession in Florida Field Trip Procedures Common sense suggestion for instructional personnel . . . The Memorandum also contained the following statement: You were advised that the information presented in the conference is confidential and you were directed not to disclose or discuss the information presented with students and staff. The Memorandum contains no statement that the Respondent had been reprimanded or otherwise disciplined because of the 2005 field trip. 2008 Field Trip Respondent sponsored the subject Field Trip for certain members of the Nautilus band to the Fiesta Val National Festival in Gatlinburg, Tennessee, in April 2008. The subject Field Trip left on Wednesday, April 23, 2008, and returned on Sunday, April 27, 2008. The Nautilus band participants consisted of members of the following: the concert band, jazz band, guitar ensemble, and classical guitar ensemble. The participants included Respondent, the band students, and volunteer, adult chaperones. Respondent, his students, and parents of band members began planning for the trip in October 2007. Fund raisers were held to help defray the costs of the trip. Respondent and the band members worked hard to prepare for the trip. As the sponsor of the subject Field Trip, Respondent was required to complete several forms, including a Field Trip Request Form, a Field Trip Chaperone List, Field Trip Permission Request Form, Travel Expense Report, and a Field Trip Roster. The Field Trip Permission Request Form (School Board’s Exhibit 7) includes the following statement: PARENT PERMISSION SLIPS for participating students must be on file in the Office of the Principal prior to the field trip. [Emphasis is in the original.] Both the School Board Rule on field trips and the Field Trip Handbook clearly require a signed parental permission form for each participating student prior to the field trip. The parental permission forms for the subject Field Trip required the parent or guardian to give permission for the student to participate in the subject Field Trip, provide emergency contact information, and authorize medical treatment for the student in the event of accident or illness.4 The Field Trip Roster, which identifies all student participants, is used to excuse the days the students are absent from school because of the field trip. As of the afternoon of April 22, 2008, Respondent had completed or otherwise secured all appropriate paperwork. The subject Field Trip had been approved by Dr. Bernstein as the principal of Nautilus and by the appropriate Regional Director. At approximately 3:00 p.m. on April 22, 2008, Respondent heard that a drummer who had been scheduled to go on the subject Field Trip may have gotten into trouble. Because he was packing musical instruments and equipment for the trip, Respondent did not further investigate. Between 4:30 p.m. and 5:15 p.m. on April 22,5 Dr. Bernstein reached Respondent on his cell phone and informed him that a band member who played drum for the jazz band and the guitar ensemble had been suspended from school (the suspended drummer) and would not be permitted to go on the subject Field Trip, which was scheduled to leave early the next day. Dr. Bernstein stated that Respondent would have to find one of his other students to fill in. The jazz band and the guitar ensemble could not have performed without a replacement for the suspended drummer. The concert band and the classical guitar ensemble could have performed without the suspended drummer. Shortly after his conversation with Dr. Bernstein on the afternoon of April 22, 2008, Respondent began receiving calls from parents of band students who were worried that the subject Field Trip would be cancelled. Rueben Coto, a band parent and volunteer chaperon for the subject Field Trip, called Respondent between 5:30 and 6:00 p.m. on April 22. Respondent was uncertain as to what would happen and stated to Mr. Coto: “Look, I don’t think we’re going to be able to pull this off because we don’t have a drummer. We can’t perform without a drummer.” (Transcript, page 157, beginning at line 14). Mr. Coto located a replacement drummer for the suspended drummer. The replacement drummer (a male) was an ex- Nautilus band member who in April 2008 was a senior at Miami Beach Senior High School. Respondent told Mr. Coto to get something in writing from the replacement drummer’s parents giving permission for the replacement drummer to go on the subject Field Trip. The replacement drummer’s mother never gave written permission for her son to go on the subject Field Trip. Mr. Coto did not follow up on Respondent’s request to obtain written permission from the replacement drummer’s mother. On the morning of April 23, 2008, Respondent knew that the replacement drummer’s mother had not signed a written parental permission form.6 Respondent did not attempt to contact Dr. Bernstein or any other administrator after learning that the replacement drummer did not have written permission to participate in the subject Field Trip. Respondent permitted the replacement drummer to travel with the other students on the bus to and from Tennessee and to participate in certain of the activities of the Fiesta Val. While the subject Field Trip was in progress, Dr. Sidener, principal of Miami Beach Senior High, received a complaint from the band director at her school that the replacement drummer was absent from school and did not attend band rehearsal because he was on the subject Field Trip. Dr. Sidener immediately called Dr. Bernstein to determine whether she knew that the replacement drummer was participating in the subject Field Trip. Dr. Sidener did not excuse the replacement drummer’s absences from Miami Beach Senior High for the school days on which the replacement drummer participated in the subject Field Trip. The subject Field Trip was unrelated to the replacement drummer’s curriculum at Miami Beach Senior High. The subject Field Trip participants returned to Miami as scheduled on April 27, 2008. Prior to Dr. Sidener’s call, Dr. Bernstein was unaware that the replacement drummer was on the subject Field Trip. Respondent did not inform Dr. Bernstein before or during the subject Field Trip that the replacement drummer would be participating in the subject Field Trip. Immediately after Dr. Sidener’s call, Dr. Bernstein requested that the School Board’s Civilian Investigation Unit (CIU) conduct an investigation as to the replacement drummer’s participation in the subject Field Trip.7 The CIU investigation report was forwarded to the School Board’s Office of Professional Standards (OPS) for a CFR with Respondent. After the CFR, OPS sought input as to the appropriate discipline from Dr. Bernstein and Mr. Greenfield (the Administrative Director for the North Regional Center). OPS convened a disciplinary review team, which reviewed all available information. The disciplinary review team recommended to the Superintendent that Respondent’s employment by suspended without pay for 30 days. Following his review, the Superintendent adopted the recommendation from the disciplinary review team and forwarded the recommendation to the School Board. At its meeting of October 15, 2008, the School Board voted to suspend Respondent’s employment for a period of 30 days without pay. The School Board followed all relevant procedures leading up to its vote to discipline Respondent by suspending his employment for 30 days. Although Respondent has served his 30-day suspension without pay, Respondent timely requested a formal administrative hearing to challenge the suspension.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner 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 uphold the suspension of Respondent's employment without pay for 30 days. DONE AND ENTERED this 2nd day of June, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2009.
Findings Of Fact Charles Duhart resides at 956 Forest Ridge Court, Apartment 202, Lake Mary, Florida. His residence is a condominium, which he owns. He has resided there for 10 months. Mr. Duhart was married to Mary Duhart in April, 1974. The Final Judgment of Dissolution of Marriage entered October 25, 1988, which terminated their marriage, states: The parties shall have shared parental responsibility for the minor children of the marriage. The Wife is designated as the primary residential custodian of the minor children of the marriage. The non-custodian parent, the Husband, shall have liberal and reasonable contact and visitation with the children of the marriage, subject to reasonable notice by the Husband to the Wife. . . . Mary Duhart resides at 121 Wildwood Drive, Sanford, Florida. She and Mr. Duhart jointly bought the property in 1985, and she was awarded the property in the Final Judgment of Dissolution of Marriage. The two children in question are Katisha, who is 15 years old, and Serita, who is 14 years old. Both girls, together with a third child aged eight years, were born of the Duhart's marriage. During the 1988-89 school year, Katisha, who was in ninth grade, attended Lake Mary High School, and Serita, who was in eighth grade, attended Greenwood Lakes Middle School, as well as special programs at Lake Mary High School. Greenwood Lakes Middle School is in the Lake Mary High School attendance zone. Both girls enrolled in Lake Mary High School at the beginning of the 1989-90 school year. During the 1988-89 school year, the two children lived with their grandmother part of the time and their mother the remainder of the time. Their grandmother lived in the Lake Mary High School attendance zone. Mr. and Mrs. Duhart caused the grandmother to be appointed the legal guardian of the children, pursuant to Letters of Guardianship of the Person entered November 28, 1988. By so doing, under a procedure no longer available, the children could attend the schools whose attendance zone serves the grandmother's residence. This guardianship has never been dissolved or terminated. At the beginning of the 1989-90 school year, the two children went to live with their father, whose condominium is in the Lake Mary High School attendance zone. Although they spend the weekends with their mother and infrequent nights with their grandmother or at friends' homes, Katisha and Serita regularly reside with their father each weeknight from Sunday through Thursday nights, inclusive. Since the beginning of the 1989-90 school year began, the children primarily have lived with their father. Since the beginning of the 1989-90 school year, Mr. and Mrs. Duhart have reduced the child support payments required of Mr. Duhart by the Final Judgement of Dissolution of Marriage. Although Mr. Duhart continues to pay the usual amount through the clerk's office, Mrs. Duhart returns to him approximately one half of the support money in recognition of the fact that he now has two of the three children most of the time. By letter dated September 27, 1989, Respondent informed Petitioners that it had determined that Katisha and Serita were attending Lake Mary High School in violation of Policy 4.003. Consequently, the children had been administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School, which serves their correct attendance zone, according to the letter.
Recommendation Based on the foregoing, it is hereby recommended that the School Board of Seminole County, Florida enter a Final Order enrolling Katisha and Serita Duhart in Lake Mary High School. RECOMMENDED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5898 Treatment Accorded Proposed Findings of Respondent 1-4: adopted. 5: rejected as subordinate. 6-10: adopted. 11: first sentence adopted as to children spending weekends with Mrs. Duhart and rejected as unsupported by the greater weight of the evidence as to the suggestion that they do not spend the remainder of the time with their father, with the possible exception of isolated overnight visits with friends or their grandmother. Remainder rejected as subordinate. 12: adopted. 13: rejected as irrelevant. 14: rejected as irrelevant and subordinate. 15: rejected as subordinate. 16: rejected as irrelevant. COPIES FURNISHED: Harry L. Lamb, Jr. Perry & Lamb, P.A. 135 Wall St., Ste. 200 Orlando, FL 32801 Ned N. Julian, Jr. Stenstrom, McIntosh, Julian, et al. P.O. Box 1330 Sanford, FL 32772-1330 Robert W. Hughes, Superintendent The School Board of Seminole County, Florida 1211 Mellonville Avenue Sanford, FL 32772 Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
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 early 1981 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; maintaining 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 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 District 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 maintain a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, 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 a "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. As a result of overcrowding at Coral Springs High School, the School Board determined to build a new facility, 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 will actually rise 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 underenrollment at Ely High School and Pompano Beach High School. 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 Barton, Mascolo and Tripodi are each residents of the Sunflower-Heathgate section of the City of Tamarac, with children who, under the rule here in dispute, are assigned to Ely High School. Ely High School is located approximately 10-12 miles from the City of Tamarac, while the recently opened J. P. Taravella High School is approximately one and one-half to two miles away. Petitioners object to their children being assigned to Ely High School when they could more conveniently attend the newly opened J. P. Taravella High School, which is located much closer to their residences. Petitioners object to their children being subjected to a lengthy bus ride twice daily to and from Ely High School, 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 Tamarac area in which all Petitioners' residences are located has been zoned to attend Ely 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. In the process of adopting the rule challenged in this proceeding the Board conducted a series of public meetings which were well publicized and, as far as can be determined from the record, properly advertised in accordance with Chapter 120, Florida Statutes. Petitioners submitted no evidence to indicate either any serious insufficiency in the notice procedures utilized by the Board, or any prejudice suffered by Petitioners in this regard. Finally, prior to adopting the challenged rule, the Board prepared an economic impact statement that, on its face, addressed all the requirements of Section 120.54, Florida Statutes. Although Petitioners disagree with the conclusions contained in the statute, there is no evidence in this record to ever suggest that the methodology used or the conclusions reached in the statement are in any way inaccurate.
Findings Of Fact At the administrative hearing which was scheduled for the time and place shown above, Mr. Carlos Viciedo, Sr., father of the minor student named as Respondent herein, announced that his son, Carlos Viciedo, Jr., had been moved to Los Angeles, California, by his Mother. The student, Carlos Viciedo, Jr., has been enrolled in the school system of Los Angeles, and removed from the Dade County School system. The principal at South Miami Junior High School where Carlos Viciedo, Jr., was enrolled prior to the transfer to Douglas MacArthur Senior High School -- South, verified that papers have been received from the Los Angeles, California, school system to demonstrate that the student has requested a transfer from the schools in Dade County to the schools in Los Angeles. Mr. Carlos Viciedo, Sr., plans to join his family in Los Angeles, and the enrollment of his son in the school system there is permanent.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County dismiss the proceeding it initiated to effect a transfer of the Respondent, Carlos Viciedo, Jr., from South Miami Junior High School to the Alternative Education Program at Douglas MacArthur Senior High School -- South. THIS RECOMMENDED ORDER entered on this 17th day of February, 1983. WILLIAM B. THOMAS, 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 17th day of February, 1983. COPIES FURNISHED: Michael J. Neimand, Esquire Suite 300 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Carlos Viciedo, Sr. 1122 Southwest 134th Place Miami, Florida 33183 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public School 1410 Northeast 2nd Avenue Miami, Florida 33132 Dade County School Board 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated January 16, 2003, and in the Notice of Specific Charges filed February 27, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002).3 At the times material to this proceeding, Mr. Lefkowitz taught emotionally handicapped and seriously emotionally disturbed students in North Miami Beach High's Bertha Abbess exceptional student education program. He has been employed by the School Board since 1993, and is currently employed under a professional services contract. At the times material to this proceeding, Mr. Lefkowitz and at least one other person were making a music video for a course they were taking at Florida International University. Alvarro Gutierrez was working with Mr. Lefkowitz on the video, and Mr. Gutierrez had chosen the girl who would sing and would choreograph the dances for the video. Mr. Gutierrez did not, however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez that he knew some girls "from school" who were dancers and that he would ask them if they wanted to dance in the video. J.D. was, at the times material to his proceeding, an 11th-grade student at North Miami Beach High, although she was not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz in a school hallway, while she was selling candy for her French class, and they apparently had several conversations during school hours. In one of these conversations, Mr. Lefkowitz mentioned that he was filming a music video for a college class. J.D. asked if she could be in the video, and Mr. Lefkowitz agreed and asked J.D. if she had any friends who could also dance in the video. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F. was, at the time, an 11th-grade student at North Miami Beach High, but she did not know Mr. Lefkowitz until J.D. introduced them. Mr. Lefkowitz did not know at the time he met her that N.F. was a student at North Miami Beach High. J.D. also introduced Mr. Lefkowitz to Glamour Legros, whom she knew because she and Ms. Legros attended the same church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D. had told him on a number of occasions how much Ms. Legros wanted to meet him.4 Ms. Legros and N.F. shared an apartment. Ms. Legros was not a student at the times material to this proceeding, and she was older than N.F. and J.D. J.D., N.F., and Ms. Legros agreed to dance in the music video and went to Mr. Lefkowitz's apartment several times to discuss, rehearse, and shoot the video. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and drove them to his apartment on the occasions when they were working on the video. Mr. Lefkowitz also took J.D. and her friends home on these occasions. M.D., J.D.'s brother and a student at North Miami Beach High at the time, went to Mr. Lefkowitz's apartment once, and H.D., another student at North Miami Beach High, was at Mr. Lefkowitz's apartment on at least one occasion, when she danced for the music video. These two students also rode with Mr. Lefkowitz in his car on at least one occasion. In addition to her visits to Mr. Lefkowitz's apartment and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous times on the telephone. When working on the video, J.D. went to Mr. Lefkowitz's apartment with her friends. She was alone with Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's apartment; Mr. Lefkowitz took her home after about an hour. Mr. Gutierrez did not observe Mr. Lefkowitz engage in any improper behavior with J.D. or her friends at Mr. Lefkowitz's apartment during the time they were discussing, rehearsing, and shooting the music video. On April 21, 2003, Ms. Legros called the police and she and N.F. reported that Mr. Lefkowitz had come to their apartment, beat on the door, and threatened them verbally. According to the police incident report, the police were dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s apartment at 10:12 p.m. Mr. Lefkowitz had outpatient surgery on April 18, 2002. Mr. Lefkowitz's mother was with him at his apartment from April 18 through the morning of April 22, 2002, the day he returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was in bed, asleep, on the night of April 21, 2002. On April 22, 2002, Raymond Fontana, the principal of North Miami Beach High, received a telephone call from a woman who identified herself to Mr. Fontana's secretary as J.D.'s aunt and who told Mr. Fontana that an exceptional student education teacher named "Neil" was having a relationship with J.D., a student at North Miami Beach High; the caller also reported that the teacher had been involved in an "incident" that had been reported to the police. Ms. Legros was the person who called Mr. Fontana.5 Mr. Fontana called Allyn Bernstein, an assistant principal at North Miami Beach High, into his office and asked her to look into the allegations made by the caller. Dr. Bernstein called Mr. Lefkowitz into her office and, before she could say anything, Mr. Lefkowitz told her that he knew why she had summoned him, that an ex-girlfriend had threatened to make trouble for him because he wouldn't give her money. When Dr. Bernstein questioned Mr. Lefkowitz about his relationship with the student J.D., Mr. Lefkowitz denied knowing her. Dr. Bernstein also called J.D. into her office. In response to Dr. Bernstein's questions, J.D. denied knowing Mr. Lefkowitz. She stated that she did not have a social relationship with any teacher outside of school and that she had never met any staff member outside school. After Dr. Bernstein reported to Mr. Fontana that she believed that there might be "something there,"6 Mr. Fontana reported the matter to the school district personnel, who referred the matter to the Miami-Dade School Police Department, and an investigation was initiated. Once the investigation was initiated, Mr. Lefkowitz was placed on alternate assignment at his home effective May 3, 2002. The investigator, Detective Victor Hernandez, interviewed N.F., Ms. Legros, J.D., H.D., M.D., and Mr. Lefkowitz. During the course of his investigation, Detective Hernandez was told that Mr. Lefkowitz and N.F. had dated and that they had had sexual intercourse. When Detective Hernandez interviewed Mr. Lefkowitz, Mr. Lefkowitz denied that he knew either J.D. or N.F. In a report dated September 2, 2002, Detective Hernandez described his investigation and set forth the substance of the statements given by the witnesses. Detective Hernandez concluded that the charges that Mr. Lefkowitz had violated Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, and School Board Rules 6Gx13-4.109 and 6Gx13-4A-1.21 were substantiated. A Conference-for-the-Record was held on October 2, 2002, with Paul Greenfield, District Director, presiding. Mr. Lefkowitz attended the Conference-for-the-Record, together with the School Board's Director of Region II and Mr. Fontana. Mr. Lefkowitz requested that his attorney be allowed to attend, but this request was denied.7 Mr. Greenfield reviewed Mr. Lefkowitz's history with the Miami-Dade County public school system and presented the results of the investigation. Mr. Lefkowitz denied having met J.D. and N.F. and denied that they were ever in his apartment. After the Conference-for-the-Record, Mr. Fontana recommended to the Superintendent of Region II that Mr. Lefkowitz's employment be terminated. Mr. Lefkowitz lied to Dr. Bernstein, to Detective Hernandez, and to the participants in the Conference-for-the- Record about his relationships with J.D. and N.F. because he knew it was improper for the students to be in his apartment and for him to associate with students outside of school. Mr. Lefkowitz expressed remorse at his behavior and acknowledged that his conduct was not appropriate. J.D. testified that she and Mr. Lefkowitz never dated or had sexual intercourse. Ms. Legros testified that she did not know whether Mr. Lefkowitz and J.D. had had sexual intercourse. She claimed, however, to have observed Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and kissing and acting like "boyfriend and girlfriend to me."8 Ms. Legros has no personal knowledge that Mr. Lefkowitz had sexual relations with N.F., but testified that N.F. told Ms. Legros that she had had a relationship with Mr. Lefkowitz. An 11th-grade student testified at the hearing that he considered Mr. Lefkowitz to be a good teacher, a role model, and a teacher that he would remember after high school. Mr. Fontana testified that he thought Mr. Lefkowitz's effectiveness as a teacher had been impaired because of the "manner in which he dealt with students, having students come to his apartment, dealing with students that are out of the realm of his teaching responsibilities." Mr. Fontana observed that "once you breach that student/teacher relationship and you lose that professionalism I don't think you can ever go back and have the same degree of effectiveness as a teacher."9 In making his decision to recommend that Mr. Lefkowitz be terminated from his employment as a teacher, Mr. Fontana considered Mr. Lefkowitz's employment history with the Miami- Dade County public school system. Mr. Lefkowitz was twice referred for evaluation as to his medical fitness to perform his duties as a teacher and was twice found fit to perform these duties. Mr. Lefkowitz was the subject of three allegations of battery on a student, one in February 1995, one in February 1999, and one in March 1999; the February 1995 charge was substantiated,10 and Mr. Lefkowitz was given a verbal warning; the remaining two charges were unsubstantiated. Finally, in August 1995, Mr. Lefkowitz had an unacceptable annual evaluation, was given a TADS Category VII prescription in the area of Professional Responsibility, and successfully completed the prescription within the specified time. Summary The greater weight of the credible evidence presented by the School Board is insufficient to establish that Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowitz had sexual intercourse with N.F. The School Board presented no direct evidence establishing that J.D. and Mr. Lefkowitz had a romantic relationship or that N.F. and Mr. Lefkowitz had a sexual relationship. The School Board relied exclusively on Ms. Legros's testimony to establish that these relationships existed,11 and most of her testimony was based on hearsay, not personal knowledge. Ms. Legros had no personal knowledge that N.F. had sexual relations with Mr. Lefkowitz, and the only behavior that Ms. Legros testified that she personally observed was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging and kissing and, in Ms. Legros's estimation, acting like boyfriend and girlfriend. Ms. Legros is found not to be a particularly credible witness, and her uncorroborated testimony is not sufficiently persuasive to establish that Mr. Lefkowitz and J.D. more likely than not were dating or that the hugging and kissing, if she indeed observed such behavior, was sexual in nature. Both J.D. and Mr. Lefkowitz denied having a romantic relationship, but it is difficult to credit fully their testimony, given that both J.D. and Mr. Lefkowitz lied to School Board personnel about knowing one another and that Mr. Lefkowitz lied to School Board personnel about being acquainted with N.F. However, on reflection and after a careful review of the evidence, the testimony of J.D. and Mr. Lefkowitz is credited over that of Ms. Legros. The greater weight of the credible evidence presented by the School Board is not sufficient to establish that Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened her or that he went to the apartment shared by Ms. Legros and N.F. on the night of April 21, 2002, and made threats to harm them. Mr. Lefkowitz's mother testified unequivocally that she was with Mr. Lefkowitz from April 19 through the morning of April 22, 2002, and that he was recovering from surgery and sleeping on the night of April 21, 2002. The School Board presented no evidence that Mr. Lefkowitz telephoned N.F. and threatened her, and Ms. Legros was the only witness to testify that Mr. Lefkowitz came to her apartment and made threats. The testimony of Mrs. Lefkowitz is credited over that of Ms. Legros.12 The evidence presented in this case is sufficient to establish that Mr. Lefkowitz failed to exercise the best professional judgment, failed to maintain the highest ethical standards, and used his position as a teacher to his personal advantage by recruiting young women students to perform as dancers in the music video he was filming as part of a college assignment. Mr. Lefkowitz admitted that he had engaged in inappropriate conduct: He had had a personal relationship outside of school with both J.D. and N.F.; J.D. and N.F. danced in a music video he made for a college project; J.D. and N.F. were in his apartment several times; and he drove J.D. and N.F. in his car to and from his apartment. The contents and tone of the written statement Mr. Lefkowitz adopted as his testimony supports an inference that he was on very familiar terms with both J.D. and N.F., and with Ms. Legros as well.13 Mr. Lefkowitz's poor judgment in developing significant social relationships outside of school with two female students at North Miami Beach High and his inappropriate behavior in having these students as guests in his car and in his apartment reflect poorly on him as a teacher employed by the School Board. Mr. Lefkowitz also failed to exercise the best professional judgment and to maintain the highest ethical standards with respect to his dealings with the School Board during the investigation of his conduct. Mr. Lefkowitz lied to Dr. Bernstein and Detective Hernandez and at the October 2, 2002, Conference-for-the-Record when he said he did not know J.D. or N.F., and he admitted at the final hearing that he lied because he knew that he should never have involved these students in making the music video, should never have given these students rides in his car, and should never have invited the students to his apartment. Mr. Lefkowitz's lack of truthfulness reflects poorly on him as a teacher employed by the School Board. The evidence presented by the School Board is also sufficient to establish that Mr. Lefkowitz engaged in one instance of inappropriate behavior involving students M.D. and H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up these two students in his car and drove them to his apartment, where H.D. danced in the music video and M.D. observed Mr. Lefkowitz and cohorts filming the music video. Mr. Lefkowitz did not have repeated out-of-school contacts with these two students, as he did with J.D. and N.F., but his behavior with M.D. and H.D. reflected poorly on him as a teacher employed by the School Board. The evidence presented by the School Board, which consisted only of Mr. Fontana's conclusory and general statements, is not sufficient to establish that Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami- Dade County public school system. The evidence presented by the School Board is, however, sufficient to permit an inference that Mr. Lefkowitz's effectiveness as a teacher was impaired. Mr. Lefkowitz encouraged students to develop personal relationships with him and to spend significant amounts of time with him in his apartment. Even though J.D., the young woman with whom he was primarily involved, was not a student in his class, his willingness to become involved with this student and her friends brings his personal and professional judgment into question and necessarily affects the school administration's assessment of his fitness for supervising high school students. It may also be inferred that Mr. Lefkowitz's effectiveness as an employee of the School Board was also impaired because he lied to the principal and assistant principal of his school and to the regional superintendent of the Miami-Dade County public school system about even knowing J.D. By not being truthful with the school system administrators, Mr. Lefkowitz diminished his credibility as a professional educator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order; Finding that Neil D. Lefkowitz is guilty of having committed misconduct in office and of violating School Board Rules 6Gx13-4-1.09 and 6Gx13-4A-1.21; Suspending Mr. Lefkowitz without pay for a period of 24 months, retroactive to the date on which the School Board suspended him from his employment without pay; and Imposing such conditions on Mr. Lefkowitz upon his return to employment as the School Board deems appropriate. DONE AND ENTERED this 31th day of July, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 31th day of July, 2003.
The Issue Whether or not on or about January 26, 1976, the Respondent, Alberta Quarterman, did physically and verbally attack Mrs. Bettie Shelor, Dean of Girls at the Largo Middle School, Largo, Florida, and whether the Respondent, Alberta Quarterman, should be dismissed from the public schools of Pinellas County, Florida for those alleged acts, which are regulated under Chapter 230.33(8)(c), Florida Statutes.
Findings Of Fact On January 26, 1976, an eighth grade assembly was being held in the Largo Middle School, Largo, Florida. Alberta Quarterman was in the assembly area, which is the gymnasium of that school, and was seen by Mrs. Bettie Shelor, the Dean of Girls, to be without her shoes and blouse. In addition, the Respondent was not with her assigned class group and was jumping up and down on the bleachers in the gymnasium. Mrs. Shelor approached Alberta Quarterman and asked her to put on her blouse and shoes and told Miss Quarterman she would not be allowed to stay in the assembly if she did not comply. Alberta Quarterman did not adequately comply with the request, and was asked by Mrs. Shelor to return to the administration offices for the duration of the assembly period. It was the intention of Mrs. Shelor, to have the Respondent stay in the so called "time out room", for the duration of the assembly period. The "time out room" is a room in which students being disciplined are asked to stay for disciplinary purposes. Mrs. Shelor returned to her office after leaving Alberta Quarterman in the "time out room". Alberta Quarterman then came into Mrs. Shelor's office, unannounced, and sat down and attempted a confrontation about the matters that had transpired in the assembly room. At the time the Respondent was in Mrs. Shelor's office, she spoke in these terms, "I don't care about shit", "You're a bitch", "Damn", "Hell", etc. Mrs. Shelor attempted to escort Alberta Quarterman from her office by placing her hand on Miss Quarterman's arm to assist her from the chair. This movement was not with force. At that time Alberta Quarterman stood up and hit Mrs. Shelor with her fist on Mrs. Shelor's upper left arm. The Respondent then ran from the room and was gone for a period of about 10 minutes. The Respondent returned to the administration offices and went directly into Mrs. Shelor's office at the moment of the second encounter. After attempting to engage in conversation with Mrs. Shelor, Alberta Quarterman jumped out of the chair she was seated in and started knocking Mrs. Shelor about the room with her fists, in the area of Mrs. Shelor's arms and chest. Five or six blows of this nature were administered to Mrs. Shelor. While this action was taking place Mrs. Shelor called for assistance from a Mr. Jack Ellott, the campus security officer, who was in the outer office. At this point Alberta Quarterman picked up a chair and raised it over her head and attempted to strike Mrs. Shelor with the chair. Mrs. Shelor blocked the blow from the chair. At this moment, Martha Matthews, secretary for the Dean of Girls entered the room, and pushed a chair between Alberta Quarterman and Mrs. Shelor. Alberta Quarterman jumped over the barrier and tried to reach Mrs. Shelor again but was unsuccessful. The security officer, Jack Ellott, entered the room and stopped the Respondent from further action. There was no further encounter between Mrs. Shelor and the Respondent. The above findings of fact were testified about and agreed to by Mrs. Bettie Shelor, Mrs. Martha Matthews and the Respondent, with the exception that the Respondent denied raising the chair against Mrs. Shelor. Since September, 1974, when the Respondent became a student at Largo Middle School, she has been referred for discipline approximately 34 times while in the seventh grade; for physical violence, violation of school rules, defiance of teachers, and verbal abuse. This same course of conduct has occurred approximately 23 times while the Respondent has been in the eighth grade at Largo Middle School. Many of these circumstances have led to the student's suspension, both from the school grounds and on-campus suspensions. The testimony of these statistics was offered by Mrs. Bettie Shelor, the custodian of these records and the Dean of Girls, for the Largo Middle School. Eight suspensions, according to Mrs. Shelor, for a total of 29-1/2 days in the course of the two years were out-of-school suspensions. According to Mrs. Shelor, the student has problems following instructions and participating in a structured environment, to the extent that the student will not remain seated while class is in session and on many occasions has walked out of class. The school has tried to help the Respondent by providing individual attention and counseling, such as affording the Respondent individual responsibility for maintaining a garden located on the school grounds. The Respondent has been counseled by the school's social worker and school staff psychologist. Linda C. Rubin, of the Pinellas County School System, Pinellas County, Florida, took the stand. Ms. Rubin has a Masters Degree in school psychology and while she was working at the Largo Middle School was involved in counseling and testing the Respondent. She testified that the Respondent lacks academic achievement and evidences disruptive behavior. In addition, she has learning problems and an auditory memory problem, observations born out by certain tests. Moreover, the Respondent was involved in a number of instances which were attributable to a short attention span and a short temper. The Respondent had lost her parents several years ago and the witness felt that this contributed to the Respondent's adjustment problem. To the witness's knowledge, no psychologist is working with the Respondent at this time, in the form of an in- school staff psychologist.
Recommendation It is recommended: If a program is available to handle students with Alberta Quarterman's background, within the public school system of Pinellas County, Florida, then the Respondent should be tried in such a program. Should no such program be available within the Pinellas County School System, it is recommended that the Respondent, Albert Quarterman, be dismissed from the Pinellas County School System for the balance and duration of the 1975-76 school year. DONE and ENTERED this 23rd day of March, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1976. COPIES FURNISHED: George M. Osborne, Esquire 55 Fifth Street, South St. Petersburg, Florida 33701 Mrs. Nancy Roberts 2054 119th Street, North Largo, Florida 33540 B. Edwin Johnson, General Counsel School Board of Pinellas County Post Office Box 4688 Clearwater, Florida 33518 Linda C. Rubin 1895 Golf to Bay Boulevard Clearwater, Florida Alberta Quarterman 2054 119th Street, North Largo, Florida 33540
