The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since January 19, 1999. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, and is covered by the collective bargaining agreement between the School Board and TALC. Respondent is certified in the area of Physical Education, Grades K through 12. From the time of his hiring until the fall of 2004, Respondent was a physical education ("PE") teacher at the elementary and high school levels. In the fall of 2003, Respondent applied and was hired for a position as an adaptive PE teacher. An adaptive PE teacher works exclusively with Exceptional Student Education ("ESE") students, generally those who have physical disabilities or are developmentally delayed. This adaptive PE teacher position was itinerant. Respondent drove a circuit of several schools, teaching one or two classes at each, including Mirror Lakes. Prior to the 2003-2004 school year, Respondent had never taught at Mirror Lakes. During the 2003-2004 school year, Respondent drove to the various schools in his personal car, a blue Nissan Altima. Respondent commenced his duties as an adaptive PE teacher during the second quarter of the 2003-2004 school year, either in October or November 2003. He came to Mirror Lakes an average of once a week1 for two consecutive class periods. Respondent would arrive at the school between 8:30 a.m. and 9:00 a.m. He would park his car in the visitor's parking lot at the front of the school. Respondent would enter the school office just inside the main entrance, sign in, and walk to the classroom to meet his first class of students. With the classroom teacher and the teacher's aides,2 Respondent would accompany the class outside to the PE field, where he would provide instruction to the ESE students. Following completion of the first period, Respondent would accompany the students back to their classroom, in the company of their classroom teacher and the teacher's aides. Respondent would then go to the adjacent classroom, taught by ESE teacher Gail Joyal. Ms. Joyal, her two aides, and Respondent would walk the class of 14-to-16 ESE students through the hallway to the art and music rooms. Half of the class would stay for art or music, and the other half would walk outside to the PE field under the supervision of Ms. Joyal, her aides, and Respondent. At the PE field, Ms. Joyal's class joined approximately 50 students from other classes for instruction by PE teacher Robert Bates and his two aides. Ms. Joyal would return to her classroom, but her two aides would remain on the PE field to supervise the class. Thus, there would be at least six adults on the PE field with the students: Mr. Bates and his two aides, Ms. Joyal's two aides, and Respondent. The PE field was about the size of a football field and was surrounded by a chain link fence. The field could be accessed through the school, as was done by the children going in and out for PE class, or via an outside gate. The outside gate was plainly visible from Mr. Bates' office and from the PE pavilion where the students gathered at the beginning and end of PE class. At the beginning of PE class, the students would take their assigned spaces in the covered PE pavilion. Mr. Bates would lead the entire class in ten to 15 minutes of calisthenics. He would then explain the day's planned activity to the class. Once the activity began, Respondent would work with the ESE students from Ms. Joyal's class. Among these students was J.P., a seven-year-old boy classified as educable mentally handicapped, with speech and language impairments. J.P. functions at the approximate level of a three-year-old. Respondent taught J.P. and the other ambulatory students as a group. The only student with whom Respondent worked one-on-one was wheelchair-bound. The PE class lasted 45 minutes. Near the end of class, Mr. Bates would reassemble the students in their assigned spaces under the PE pavilion. Ms. Joyal's aides would take a head count of their students. Ms. Joyal would rejoin the class. Once Mr. Bates dismissed the class, Ms. Joyal and her aides would accompany the children back to their classroom. Respondent would walk with the class as far as the entrance to the school hallway, then would walk to the front office to sign out and move on to his next assigned school. Kelly Bach, J.P.'s mother, testified that during the middle of the 2003-2004 school year, J.P. began telling her about someone at school named "Mr. Bob." J.P. told Ms. Bach that he had kissed Mr. Bob, which caused Ms. Bach no alarm because J.P. "kisses everybody." J.P. also mentioned something about "marrying Mr. Bob." Ms. Bach thought Mr. Bob might be another student at Mirror Lakes. Out of curiosity, she asked J.P.'s teacher, Ms. Joyal, if there was someone at the school called Mr. Bob. Ms. Joyal told Ms. Bach that "Mr. Bob" was the students' name for Respondent. This fact was confirmed at the hearing by Respondent. Ms. Bach testified that two or three months passed with J.P. making no mention of Mr. Bob. Then, one evening in late May 2004, J.P. told her that he had ridden in Mr. Bob's car.3 Ms. Bach questioned J.P. further, but he was reluctant to say more. J.P. told Ms. Bach that "Mr. Bob is going to be mad at me, and Daddy is going to be mad at me, and Daddy is going to give me a spanking."4 After Ms. Bach assured J.P. that no one was going to hurt him, J.P. told her a disjointed story about being taken away from school, having his pants removed, being handcuffed, and having his "butt" touched by a person variously identified as "Mr. Bob," "Big Bird," and "Christmas tree." J.P. told his mother that "Brian" was supposed to save him but didn't. "Brian" is the lead character in the film "The Fast and The Furious," which J.P. watched repeatedly at home. Ms. Bach held J.P. out of school on May 27, 2004, and took him to the emergency room of Lehigh Regional Medical Center to be examined for a suspected sexual battery. The hospital referred her to the Children's Advocacy Center of Southwest Florida. The Lee County Sheriff's Office was also contacted because of the nature of the allegations, and the Lee County CPT became involved. Lee County Sheriff's Office Deputy Kim Swanson responded to the hospital and interviewed Ms. Bach. Deputy Swanson filed an incident report recounting the interview with Ms. Bach. Deputy Swanson did not interview J.P. The relevant portions of Deputy Swanson's report stated: Ms. Bach advised that the victim described being brought by Mr. Bob during his physical therapy session on 5/26/04[5] to a white car parked at the school. The victim stated to his mother that the car was dark inside and he couldn't see outside. Victim stated there was country music playing in the car. The victim told his mother that Mr. Bob took off his clothes and was naked and that Mr. Bob took off the victim's pants so the victim was naked from the waist down. Then the victim told his mother that Mr. Bob hurt him in the butt, bit his butt, put something in his butt and touched the victim on different parts of his butt. The victim advised his mother that Mr. Bob slapped his face with an open hand when he started to cry. The victim also told his mother that Mr. Bob put "handcuffs" on his hands and then cut them off. Ms. Bach advised the victim stated he was "scared of his arms getting cut." Ms. Bach stated she asked the victim what he used to cut the handcuffs and the victim said a "knife." Ms. Bach advised that the victim was scared of Mr. Bob finding out that he told. Ms. Bach advised that off and on while making his statements about the events, the victim would say that the events happened to the Spider Man doll he was holding during the conversation. Ms. Bach advised that the victim has not seen any movies or TV that would demonstrate such events as the victim was describing and Ms. Bach believes that the event(s) may have been ongoing during the school year from 8/03 to 5/27/04 but does not know how many times. Ms. Bach stated that Mr. Bob provides physical therapy to other of the students as well. Ms. Bach advised after this conversation she recalled previous incidences during the past months when the victim had occasional episodes of blood on the toilet paper when she wiped him after going to the bathroom and stated "it hurts" when she wiped him. On other occasions the victim would come home from school mad and state he was sad because someone hurt him but the victim would not say who it was. Ms. Bach advised that the victim stated he wanted his friend to go to school and beat up Mr. Bob. Ms. Bach advised that the victim used to love school and now does not want to go and is scared to go. Ms. Bach also advised he takes a bath with his younger brother and that the victim has been touching his younger brother's private areas while bathing but she thought it was normal behavior for his age. Also on May 27, 2004, at the request of the Lee County CPT, J.P. was examined by Kathleen Mahan, an ARNP with the Children's Advocacy Center. Before the exam, Ms. Bach told Ms. Mahan that J.P. had complained of pain in his buttocks and said someone had abused him. Also prior to the exam, Ms. Bach told Ms. Mahan that the hospital examination had revealed blood in J.P.'s rectum. However, Ms. Mahan never received confirmation of this statement from the hospital. No such confirmation was offered in evidence at the hearing. Ms. Mahan's examination revealed no conclusive evidence that J.P. had been sexually assaulted. She found no marks on J.P.'s body consistent with the allegations that he had been bitten, hit, or cut with a knife. She found a minor fissure in J.P.'s rectum, but testified that such fissures are a "nonspecific finding" that could result from penetration, but could also be caused by a bowel movement. Ms. Mahan testified that she spoke to J.P. during the examination. She stated that J.P. was unable to state a timeframe for the abuse, which was consistent with Ms. Bach's testimony that J.P. had no concept of time and would state that any past event had occurred "yesterday." Ms. Mahan asked J.P. if anyone had hurt him. J.P. said that Mr. Bob had hurt him. J.P. also told Ms. Mahan that his wrists hurt because Mr. Bob had handcuffed him, that Mr. Bob "touched my penis with his penis," and that Mr. Bob "touched my butt, and he was naked." Also on May 27, 2004, Shaston Boyd, a therapist at the Children's Advocacy Center, conducted a videotaped interview with J.P.6 At the outset, Ms. Boyd established that J.P. could recite the alphabet and count to ten. She used crayons to establish that J.P. knew his colors. Ms. Boyd next attempted to establish that J.P. could distinguish "things that are real" or that "really happened" from "things that are fake." J.P. understood that a Mickey Mouse doll was a "fake" mouse, not a real one. He also assented to the proposition that Brian from "The Fast and The Furious" was not real. Nonetheless, J.P. persistently volunteered that he had raced cars with Brian and that he sees Brian at school. Throughout the interview, J.P. would return to the topic of Brian and race cars at every opportunity. J.P. was also preoccupied with his shoes and socks, because of some sand in his shoes. Ms. Boyd had great difficulty keeping J.P. focused. His responses were often simply free associational statements having nothing to do with Ms. Boyd's questions. When Ms. Boyd first asked about Mr. Bob, J.P. volunteered that he had watched fire safety movies with Mr. Bob and that he would go to lunch in the cafeteria with Mr. Bob. In fact, Respondent's only contacts with J.P. occurred on the PE field. Unable to get J.P. to volunteer sexual allegations about Mr. Bob, Ms. Boyd began to lead the child toward the topic. She asked J.P. about Mr. Bob's car. J.P. told her that he listened to country music in the white car with Mr. Bob. J.P. later specified that Mr. Bob drove a white Toyota.7 He played with Mr. Bob, ate a sandwich, and got a Dr. Pepper. J.P. said that they raced in Mr. Bob's car. J.P. also mentioned Spider-Man and his Aunt Tracy in connection with riding in Mr. Bob's car. After several minutes of questions focused on Mr. Bob, with still no mention of sexual allegations, Ms. Boyd directly asked J.P. whether anyone had ever touched him on his butt. J.P. said that Mr. Bob had touched him on his butt, and it "felt brown."8 Mr. Bob's clothes were on. Mr. Bob called J.P. "stupid" and told him to "shut up." Ms. Boyd asked what Mr. Bob did to his butt. J.P. answered, "Clock," because he had noticed the clock on the wall. J.P. then told Ms. Boyd that he had a new car, but that it didn't work because it needed "big, big batteries." Ms. Boyd again asked J.P. what Mr. Bob had done to his butt. J.P. answered, "Couch," then talked about "black speakers" that he had seen in a dream, and said that the smoke detector at his old house scared him. He said that "fire safety" had been in the car with Mr. Bob and him. In response to Ms. Boyd's gentle but persistent questioning, J.P. said that Mr. Bob had cut him with a "white knife" and that Mr. Bob had called him a "butthead." Contradicting his earlier statement, J.P. said that Mr. Bob's clothes were off when he touched J.P.'s butt. Ms. Boyd asked where else Mr. Bob touched him. J.P. answered, "My race car." A little later, Ms. Boyd repeated the question, and J.P. answered, "My shoe." J.P. told Ms. Boyd that Mr. Bob had a tattoo on his belly. Respondent does not have a tattoo on his stomach. J.P. also stated that Mr. Bob had a "green ball" on his belly. J.P. told Ms. Boyd that Mr. Bob "hit me on my face." J.P. said that a policeman saw Mr. Bob hit him and that J.P. told a fireman that Mr. Bob had hit him. At no point during the interview did J.P. appear upset. He raised his voice at one point late in the interview, saying, "I am telling the truth." In the context of J.P.'s conversation and demeanor throughout the 45-minute interview, this statement was extraordinary. It was the first time J.P. indicated any concern with Ms. Boyd's response to anything he was saying or doing. It also did not impress the undersigned as a statement this child would have spontaneously conceived on his own, without adult coaching. Toward the end of the interview, J.P. remarked that someone named "Mikey" had also touched his butt. Ms. Boyd did not follow up on this statement to ascertain the identity of "Mikey."9 For reasons explained in the Conclusions of Law below, the videotaped interview of J.P. is admissible only as hearsay pursuant to Subsection 120.57(1)(c), Florida Statutes (2004). Even if the tape were admissible over objection pursuant to the hearsay exception in Subsection 90.803(23), Florida Statutes, no findings of fact could be derived from this interview, aside from the recitation of J.P.'s statements. The child's imaginary statements were so commingled with his "real" statements about Mr. Bob that it is impossible to separate them with any degree of confidence. "Brian" seemed as real to J.P. as "Mr. Bob." J.P. related the story of Mr. Bob with the same level of emotion he evinced when speaking of the sand in his shoes. Verifiable portions of J.P.'s stories about Mr. Bob were not true, if Respondent was indeed "Mr. Bob": Respondent did not drive a white Toyota or any kind of white car, Respondent did not have a tattoo on his stomach, Respondent did not have lunch with J.P. in the school cafeteria, and Respondent did not watch fire safety movies with J.P. Detective Tim Fisher of the sex crimes division of the Lee County Sheriff's Office witnessed J.P.'s interview. Both he and his supervisor believed that the interview provided grounds for an investigation. Though he obtained approval from the state attorney's office to conduct his own interview of J.P., Detective Fisher did not conduct the interview because of J.P.'s difficulties in articulating. Detective Fisher hoped that counseling might help J.P. to "get it out," and he decided to wait until some future date to interview J.P.10 As of the date of the hearing in this matter, the interview had not occurred. Detective Fisher interviewed Ms. Bach on some date shortly after J.P.'s examination. By this time, Ms. Bach claimed that J.P. had given her more details about events with Mr. Bob. According to Ms. Bach, J.P. told her that, during the school day, Mr. Bob drove him to Mirror Lakes Golf Club and bought him a sandwich and a Dr. Pepper. Mr. Bob sexually abused him on this excursion. Because Mirror Lakes Golf Club is less than a half-mile from the school, this story seemed plausible to Detective Fisher. Even later, Ms. Bach came forward with additional allegations against Mr. Bob. J.P. told her that on a class bowling trip, Mr. Bob smacked him in the head and called him "stupid" and told him that "he needs to fix his brain." Ms. Bach also stated that J.P. told her that Mr. Bob bled on him, that it was "white blood," and that Mr. Bob put it on his back and stomach. Detective Fisher could not recall Ms. Bach telling him these details. On June 10, 2004, after the 2003-2004 school year had ended, Detective Fisher phoned Karen Holliday, the principal of Mirror Lakes. He told her that J.P. had been physically assaulted by a male teacher at the school and had been removed from campus by this teacher several times during the school year. He provided a general description of the assailant and asked Ms. Holliday for the names of male personnel who might have had contact with J.P. Detective Fisher requested that Ms. Holliday wait to notify the School Board, because he did not want a School Board inquiry to interfere with his own investigation. Ms. Holliday agreed. However, one week later, during a face-to-face meeting, Detective Fisher told Ms. Holliday that Respondent was the target of his investigation. At this point, she told Detective Fisher that she could not keep the matter from her superiors. Ms. Holliday contacted the School Board counsel's office and was referred to Becky Garlock, an investigator in the School Board's human resources department. Ms. Garlock opened her own investigative file. Ms. Holliday testified that she saw Ms. Bach with J.P. on the Mirror Lakes campus twice during the summer of 2004.11 On both occasions, Ms. Bach was walking J.P. up and down one hallway leading to and from the PE field. Ms. Holliday told both Detective Fisher and Ms. Garlock that she was concerned about these visits. Ms. Holliday stated that J.P. was "impressionable" and Ms. Bach could have been attempting to influence the investigation by planting ideas in J.P.'s mind. On this point, Ms. Bach testified that she was following Detective Fisher's instructions to have J.P. show her how Mr. Bob got him out of the school. Detective Fisher did not testify on this point, though his testimony generally indicated that he spent a lot of time dissuading Ms. Bach from being a "little detective" and obstructing his investigation. Ms. Garlock officially opened her investigation in June 2004. She was contacted by Detective Fisher, who requested that she delay her investigation until the criminal investigation was completed. Ms. Garlock notified her superior of the request, and the School Board agreed to hold its investigation in abeyance until Respondent returned to work after the summer break. In June 2004, Detective Fisher, acting on Ms. Bach's information, went to Mirror Lakes Golf Club.12 Detective Fisher interviewed Steve Knott, the golf pro at the club. Detective Fisher testified that he verbally described J.P., who is red- haired, somewhat overweight, and wears glasses. Mr. Knott recognized J.P. from the description, even without a photograph to confirm it. Detective Fisher testified that he then conducted a photo lineup that included Respondent's driver's license photograph. According to Detective Fisher, Mr. Knott went straight to the photo of Respondent and identified him as "the guy that brings" J.P. Mr. Knott stated that he had seen Respondent at the club "many times." Mr. Knott was an extremely reluctant witness. He did not appear at the hearing, though he was subpoenaed by Respondent. In lieu of live testimony, Mr. Knott's deposition was admitted into evidence. Mr. Knott's sworn version of the interview was very different from Detective Fisher's. Mr. Knott confirmed that Detective Fisher first asked about J.P. and that he did remember that J.P. had come to the golf club. Then, Detective Fisher showed Mr. Knott a photograph of Respondent, and asked if he looked familiar. Mr. Knott said that Respondent did look familiar, but that he sees hundreds of people every day and could not positively say whether he had seen Respondent. Then, Detective Fisher "showed me a lineup and the same picture [of Respondent] was in the lineup." Mr. Knott said, "Well, I'm not an idiot," and picked Respondent's photo out of the lineup. Mr. Knott testified that he recalled J.P. coming to the golf club twice, the second time with Ms. Bach. Mr. Knott could not recall who J.P. was with the first time, though he remembered J.P. pounding on the fish tank in the pro shop. However, Mr. Knott could not say that he had seen Respondent with J.P. In fact, Mr. Knott could not say definitely that he had ever seen Respondent, even after meeting him in person at the deposition. He could only say that Respondent looked "familiar," but that "a lot of guys look the same." At the hearing, Detective Fisher was questioned as to Mr. Knott's version of events. Detective Fisher stated that he did not recall showing Mr. Knott the picture of Respondent prior to showing him the lineup, but that he was willing to take Mr. Knott at his word. Detective Fisher candidly admitted that, if Mr. Knott's version of events was accurate, then "that would have made my lineup worthless." Detective Fisher elaborated: You're telling me that he is giving you a statement contrary to what he gave me. That is not the statement he gave me, sir. If he is saying that this is his sworn statement that you're looking at right now [i.e., Mr. Knott's deposition], then I can't say that Mr. Bob is Robert Vandeventer. [Emphasis added] Detective Fisher conceded that Mr. Knott was the only witness who could place Respondent and J.P. together away from the Mirror Lakes campus. Detective Fisher also conceded that he had been unable to establish probable cause sufficient to arrest Respondent. Though the criminal case had not been officially closed, Respondent had not been arrested or charged with any crime as of the date of the hearing. On August 6, 2004, Detective Fisher contacted Respondent at a school where Respondent was participating in a training session for the upcoming 2004-2005 school year. Respondent agreed to drive across town to the Sheriff's Office and submit to an interview with Detective Fisher. Respondent testified that, as he drove to the Lee County Sheriff's Office, he telephoned a friend who works in the criminal justice system. This friend advised Respondent to cooperate with Detective Fisher, but to stop the interview and ask for a lawyer if any of the questions made him uncomfortable. During the interview, Detective Fisher attempted to elicit a confession from Respondent by falsely suggesting that a witness had seen Respondent removing J.P. from the Mirror Lakes campus. Respondent immediately declined to answer any more questions without a lawyer. Detective Fisher told Respondent that his refusal to continue the interview just made him look guilty, but did not pursue the interview any further. After hiring a criminal defense lawyer, Respondent contacted Detective Fisher to reschedule their interview. Respondent answered all of Detective Fisher's questions and submitted to a voice stress analysis test conducted by another Lee County Sheriff's Office employee. The test indicated that Respondent's denial of having committed abuse on J.P. was truthful. The test was inconclusive as to Respondent's denial of ever having been to Mirror Lakes Golf Club.13 After the initial interview on August 6, 2004, Detective Fisher notified Ms. Garlock that he had interviewed Respondent and that Respondent had refused to answer his questions. The School Board immediately suspended Respondent with pay, pending the outcome of its own investigation, which was activated at that time. Ms. Garlock phoned Ms. Bach to arrange an interview, which was scheduled to take place at Ms. Bach's home. When Ms. Garlock arrived at the appointed time, Ms. Bach was not home and had left no explanatory message for Ms. Garlock. After Ms. Garlock made several attempts to reschedule the interview, Ms. Bach agreed to meet with her at the School Board's office on September 2, 2004. During this interview, Ms. Bach told Ms. Garlock that J.P. had identified Mr. Bob's car as a white Toyota SUV. Mr. Bob had a camera in the car with a green light just like a camera owned by J.P.'s uncle. Ms. Bach stated that J.P. told her that he hated it when Mr. Bob would fold down the seats and place the camera on a speaker in the back, because that is when J.P. would get hurt. J.P. accompanied Ms. Bach to the interview, but Ms. Bach would not allow Ms. Garlock to speak with J.P. During the interview, Ms. Bach told Ms. Garlock about the CPT interview and reports and offered to provide them to Ms. Garlock.14 Ms. Bach never provided those materials to the School Board. Ms. Bach also agreed to prepare a written statement for Ms. Garlock. She never provided a written statement, claiming that Detective Fisher had told her that doing so would impede his criminal investigation. At the hearing, Detective Fisher could not recall telling Ms. Bach that she should decline to cooperate with the School Board's investigator. On September 10, 2004, Ms. Garlock interviewed Respondent. In the interest of speeding up the interview, Respondent declined Ms. Garlock's offer to have his attorney present. Ms. Garlock described Respondent as cooperative and to all appearances open and honest during the interview. Respondent told Ms. Garlock that he always signs in and out of the offices of the schools on his schedule and that he is never alone with students, including J.P. Respondent explained to Ms. Garlock the procedure for taking the children as a group to and from PE class, and recounted that there were always four or five other adults on the Mirror Lakes PE field during the period in which he taught J.P.'s class. Respondent told Ms. Garlock that he had been driving a blue Nissan Altima for more than a year, had previously driven a blue Ford Escort, and had never driven someone else's car to work. In other words, during the relevant period, Respondent had never driven a white car, a white SUV or a white vehicle of any kind. Respondent told Ms. Garlock, as he had Detective Fisher, that he had no tattoos on his stomach. After interviewing Respondent, Ms. Garlock contacted the principals of all eight schools at which Respondent provided adaptive PE services. Each principal reported that no complaints of any kind had been lodged against Respondent by any parent, student, teacher, or administrator. On September 15, 2004, Ms. Garlock interviewed Mr. Knott at the Mirror Lakes Golf Club. Mr. Knott identified a Mirror Lakes yearbook photo of J.P. as a boy who had been to the golf course "a few times." Mr. Knott also identified a driver's license photo of Respondent as someone he had seen at the golf course. Mr. Knott could not say "for sure" whether Respondent and J.P. had been at the course together. Ms. Garlock interviewed and obtained written statements from Mr. Bates, the Mirror Lakes PE teacher, and from Ms. Joyal's two teacher's aides, Nancy Busack and Teresa Rosales. Each of these three interviewees told Ms. Garlock that he or she never saw Respondent alone with J.P. Both Mr. Bates and Ms. Busack stated that they did not see how Respondent could arrange to be alone with a student, given the logistics of the PE class. Mr. Bates also stated that he did not see how Respondent could take J.P. off the campus in his car, drive to the golf course, and return during the PE class because of the time involved and because at least one of Ms. Joyal's aides was always with him. Ms. Garlock did not seek to obtain the results of the voice stress analysis test taken by Respondent or of the medical exam performed on J.P. by Ms. Mahan, though Ms. Garlock was aware of them. Ms. Garlock made no further efforts to obtain the CPT records after Ms. Bach failed to provide them as promised during her interview. Though every piece of adverse information about the alleged abuse available to Ms. Garlock had been filtered through Ms. Bach,15 Ms. Garlock conducted no inquiry regarding Ms. Bach's background or credibility. At the hearing, Ms. Garlock conceded that ascertaining the credibility of the sole witness against Respondent would probably be important. At the hearing, Ms. Bach admitted that she had pled no contest to a child abuse charge for allowing J.P. to be bitten on the head by a snake at a friend's residence when he was an infant, an incident that possibly caused his mental disability. Ms. Bach also admitted to having been convicted of petit theft, admitted to having been a victim of repeated domestic violence that J.P. had witnessed, admitted to having multiple live-in boyfriends, and admitted to having had three children by three different fathers. Though Ms. Bach claimed to have exposed J.P. to nothing that could have caused him to invent the allegations he made against Mr. Bob, her background at least suggests otherwise. Ms. Bach's stated intention to sue the School Board if she could prove the allegations against Respondent,16 coupled with her criminal history and her refusal to allow J.P. to testify in any way (including her defiance of this tribunal's subpoena),17 gives rise to an adverse inference regarding Ms. Bach's motive to fabricate the details of J.P.'s story. J.P. never testified in this proceeding. Over the strenuous objection of Respondent, the undersigned has considered the videotaped interview conducted by Ms. Boyd at the Children's Advocacy Center, pursuant to the hearsay provision of Subsection 120.57(1)(c), Florida Statutes (2004). As noted above, even if it met the standard for a hearsay exception, the statement would be wholly unreliable as the basis for findings of fact due to J.P.'s constant commingling of apparent reality and obvious fantasy. At no time prior to the hearing in this case did the School Board have access to this videotaped statement or to any other direct evidence that Respondent committed sexual battery on J.P.18 The medical examination was inconclusive, and the alleged eyewitness, Mr. Knott, refused to give the School Board a written statement or to confirm in any way that he saw Respondent and J.P. together at Mirror Lakes Golf Club. The School Board's own employees, including Ms. Holliday, Mr. Bates, and Ms. Busack, were skeptical that these allegations could be true,19 both because of Respondent's observed behavior on the PE field and because of the logistics of the situation. In the space of approximately 45 minutes, Respondent supposedly managed to take J.P. off the PE field, walk him across campus to the visitors' parking lot, put him into his car, drive off campus to the golf course, strip naked and sodomize J.P., re-dress himself and J.P., then drive back to campus and return J.P. to the PE field in time to line up with his class. In at least one instance, Respondent allegedly also bought J.P. a sandwich and Dr. Pepper at the golf club. Further, Respondent supposedly managed to do all this, on several occasions, without ever being noticed by anyone at the school. On August 6, 2004, Respondent received notice that the School Board was suspending his employment with pay and benefits pending the outcome of the School Board's investigation. A pre- determination conference was scheduled for and held on October 1, 2004. Respondent appeared at the conference with his criminal defense attorney, Joseph A. Simpson. Also at the conference were Georgianna McDaniel, the School Board's director of personnel services; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment; and J. Paul Carland, II, the School Board's staff attorney. At the outset, Mr. Carland stated that Respondent had the Fifth Amendment right not to speak at the conference and to communicate through his counsel. Mr. Simpson answered that Respondent was there to disclose all he knew. Respondent answered all questions put to him at the conference, and Mr. Simpson made a detailed presentation refuting the factual allegations as they were then understood.20 Among the telling points made by Mr. Simpson: Respondent did not drive a white car, every School Board employee actually on the PE field stated that Respondent was always in plain sight and never alone with J.P., Ms. Holliday was concerned that Ms. Bach had led J.P. through the school to coach him in making a statement, Mr. Knott refused to give the School Board a written statement, and Detective Fisher had told Ms. Garlock that his case against Respondent was going nowhere. Nonetheless, by letter dated October 7, 2004, the School Board informed Respondent that it had found probable cause for disciplinary action and was recommending to the Superintendent of Schools that Respondent be terminated from his position. On October 13, 2004, the School Board filed the Petition, alleging that Respondent "committed a sexual battery on a student during the 2003-2004 school year." In a letter dated October 29, 2004, counsel for Respondent notified the School Board of Respondent's intention to seek an award of attorney's fees should the School Board elect to proceed with its intended action. The Petition was heard by the School Board on November 4, 2004. The School Board voted to suspend Respondent without pay and to forward the Petition to DOAH for a formal hearing. The case was forwarded to DOAH on November 12, 2004. Respondent filed a motion for attorney's fees on January 3, 2005, and filed an amended motion on March 7, 2005, seeking an award of attorney's fees pursuant to Subsections 120.569(2)(e) and 57.105(1) and (3) and Sections 120.595 and 1012.26, Florida Statutes (2004). On January 20, 2005, the School Board filed a motion for protective order seeking to prevent counsel for Respondent from taking J.P.'s deposition "now or in the future," because his therapist at the Child Advocacy Center believed that the deposition would be "detrimental to his emotional stability." The motion also disclosed that the School Board had become aware of the existence of the videotaped interview and offered that tape to Respondent in lieu of taking J.P.'s discovery deposition. After a telephonic hearing, an order was entered denying the motion on January 21, 2005. On January 25, 2005, the parties filed an agreed motion for an order directing the Lee County CPT to release the confidential videotaped statement to both the School Board and Respondent, pursuant to Subsection 39.202(6), Florida Statutes (2004). By Order dated February 9, 2005, the undersigned denied the motion because the cited statute provides for release of these confidential CPT materials pursuant to "order of the court." Because DOAH is an executive branch tribunal, not a "court," the undersigned concluded that he was without authority to enter the requested order. On February 9, 2005, Ms. Bach and J.P. were subpoenaed to testify at the final hearing on March 15, 2005. On March 8, 2005, counsel for Ms. Bach entered an appearance and filed a motion for protective order on behalf of J.P., pursuant to Section 92.55, Florida Statutes (2004). On March 11, 2005, counsel for the School Board filed an emergency motion for continuance, which related the following: "Counsel [for Ms. Bach] also advised the undersigned today that should the motion [for protective order] be denied, the mother has stated that she will not make the student/victim available to testify despite having been subpoenaed to do so." Ms. Bach never retreated from this position. As noted above, Ms. Bach reiterated at the final hearing that she would not permit J.P. to testify, at least not under circumstances that would allow counsel for Respondent to cross-examine the child. Respondent testified without contradiction that he had received a supplemental coaching contract worth approximately $1,600.00 annually every year he was employed by the School Board. Respondent's undisputed testimony was that he had been offered the supplemental coaching contract for the 2004-2005 school year and that he would have signed the contract had he not been suspended. In summary, it is found that the School Board failed to prove by a preponderance of the evidence that Respondent committed a sexual battery on J.P. during the 2003-2004 school year. In fact, the School Board produced no evidence that would cause a reasonable person to suspect that Respondent did or even could have done the acts attributed to him. J.P. did not testify, and his videotaped interview was unreliable. The sole alleged eyewitness, Mr. Knott, denied having seen Respondent with J.P. At the hearing, the School Board was reduced to asking its own employees whether it was "possible" that Respondent could have taken J.P. off the campus and back, unseen, during the 45-minute PE period, after those employees testified as to the extreme unlikelihood of that scenario. The undersigned cannot find that Ms. Bach formed her allegations from whole cloth, despite her stated intent to sue the School Board. She took the fragmentary elements of J.P.'s May 26 conversation and constructed a narrative that implicated Respondent. She later came forward with details that became increasingly less likely to have originated with J.P. It cannot be stated with any degree of certainty whether J.P. was initially relating something that actually happened to him or was telling a story based on something he had witnessed, either in a movie or at home. The hearsay statement of Ms. Joyal rings true in this regard: "[J.P.] is simply innocent and not socially aware enough to make up such a horror story. It would not be in his realm of awareness to imagine such a thing." Whatever embellishments his mother added to his story,21 J.P. may well have been the victim of sexual abuse. It certainly made sense that the police and the School Board investigated the matter. It also made sense that Respondent would be the initial focus of the investigation, given that he was apparently the only "Mr. Bob" known to J.P. However, at some point well before the filing of the Petition, it should have been obvious to any objective observer that it was a virtual certainty Respondent was not and could not have been the perpetrator. The School Board conceded that Respondent's only point of contact with J.P. was during the 45-minute PE class, obviously not time enough for Respondent to accomplish without notice the acts of which he stands accused. The School Board's own investigator believed that the factual scenario offered by the School Board was "implausible." Nothing in the record of this proceeding gives reason to dispute Ms. Garlock's conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing the Petition and reinstating Respondent as an assistive physical education teacher with the Lee County School Board, with an award of back pay and benefits to include his supplemental coaching contract for the period in question. Jurisdiction is reserved to enter a final order, pursuant to Subsections 57.105(1) and (5) and 120.569(2)(e), Florida Statutes (2004), that the School Board shall pay Respondent his reasonable attorney's fees and costs in connection with the defense of this case. If the parties are unable to agree upon the amount of fees and costs to be awarded pursuant to this paragraph, and document this agreement, within 60 days from the date of the School Board's final order, Respondent shall file a motion seeking a hearing on, and determination of, the amount of such fees and costs. If Respondent fails to do so within 180 days from the date of the School Board's final order, Respondent shall have waived his right to obtain such an award. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of October, 2005.
The Issue The issue in this case is whether Respondent had good cause to reject the then Lake County Schools’ Superintendent’s nomination of Petitioner, Dennis Teasley, to be Assistant Principal I of Eustis High School for the 2008-2009 School year.
Findings Of Fact From 1987 until 2006, Dennis Teasley was employed by the Broward County School System. During those years, he served the school system in a number of capacities, including: dropout prevention teacher from 1987-1988; middle school science teacher from 1988-1999; Assistant Principal of Pines Lakes Elementary from 1999-2004; Intern Principal from 2002-2004; and Principal of Pines Lakes Elementary from 2004-2006. The Intern Principal title was used by Broward County School System to designate an assistant principal as a “principle-in-training.” The designation provided an assistant principal with additional opportunities to become involved on a larger scale with the administrative responsibilities of the school. Mr. Teasley’s performance appraisals from Broward County consistently rated him as “Effective” or “Highly Effective” in all the criteria assessed. Additionally, Mr. Teasley received or was nominated for numerous awards based on his performance or the performance of the schools under his charge. For the school year 2003-2004, when Mr. Teasley served as assistant and intern principal, Pines Lakes Elementary earned an “A” rating. For the school years 2004-2005 and 2005-2006, when Mr. Teasley was principal of Pines Lakes Elementary in Broward County, the school earned grades of “B” and “A,” respectively, and achieved AYP each year. “AYP” refers to Adequate Yearly Progress under the No Child Left Behind Act. To achieve AYP, a certain percentage of students from each population demographic represented at the school must achieve a Level 3 or higher in reading and mathematics, as measured by Florida’s “A-Plus” program. Sometime during the summer of 2006, Mr. Teasley either relocated or intended to relocate to the Lake County area. He applied for a position with the Lake County school system. Eventually, he was hired as a principal by Lake County Schools sometime in July, 2006, just prior to the beginning of the 2006- 2007 school year. Mr. Teasley was assigned to Beverly Shores Elementary School. Beverly Shores has a large population of students from lower socioeconomic backgrounds, as well as a large population of students requiring Exceptional Student Education (ESE). The ESE population includes students designated as Emotionally Handicapped (EH), and Educable Mentally Handicapped (EMH). Indeed, 68 percent of the students at Beverly Shores in 2006- 2007 came from economically disadvantaged homes and 11 percent of the students were classified as ESE. The environment of the school was described by most of the witnesses as being a tough environment with a variety of discipline problems. Prior to Mr. Teasley’s appointment as principal, 447 students were suspended from Beverly Shores during the 2005-2006 school year, with 422 students suspended out-of-school (OSS) and 25 students given in-school suspensions (ISS). Eighty of the students given OSS were kindergartners. The principal for that year was described by the Superintendent as being burned-out and needing a respite from such a tough environment. Mr. Teasley entered this environment with insufficient time to familiarize himself with staff and/or review procedures and policies that were in place. He had one Assistant Principal (AP) to support him. Mr. Teasley’s two goals for the 2006-2007 school year were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Mr. Teasley wanted to redraft the prior year’s disciplinary policy. There was some lack of communication on the status of the redrafted policy between teachers and Mr. Teasley and lack of activity by the committee responsible for the redraft. Eventually, some teachers felt that Mr. Teasley did not support them when it came to disciplinary matters and that Mr. Teasley allowed the students to get out of control. In September or October of 2006, a first-grade student brought a cellophane baggie containing a white powder to school. The police were called to confirm that the substance was cocaine. After confirmation, the child was removed from the custody of his mother, and immediately suspended from school. There was no evidence to suggest that the discipline imposed for this incident was inappropriate. In early September, Mr. Teasley placed an ESE/EH student in a non-ESE class. The student in question had been “retained” (or “held-back”) twice. As a consequence, the student was a seventh-grade-age student in a classroom of third- grade-age children. Mr. Teasley thought that the student’s development would be better met in middle school with similarly aged peers. He, therefore, hoped to have the student reassigned to middle school. While waiting to hear if the reassignment would happen, Mr. Teasley placed him/her in a non-ESE fifth- grade class under the supervision of a teacher with whom he had a good rapport. The decision to place the student in the non- ESE classroom was predicated on a number of factors, including Mr. Teasley’s desire to put the child in an environment where he/she could be successful, as well as, safety concerns regarding significantly younger ESE students being in the same class as the ESE student. Unfortunately, the student was not reassigned to the middle school and Mr. Teasley transferred him back to his original class. After the ESE/EH student was returned to his/her original class, the student “jumped” another student after school was dismissed, breaking the other student’s wrist. The ESE student was immediately given an out-of-school suspension (OSS). However, because the child was an EH student, he/she could only be suspended for a cumulative maximum of ten days, without convening a special ESE disciplinary staffing. Since the student had already been suspended for five days earlier in the year, his/her suspension was limited to five days. After this incident, the student’s parent consented to placement in an alternative school and the student was transferred to the Lifestream school. Again, there was no evidence that Mr. Teasley’s method of handling this student’s behavior problems was inappropriate given the fact that this student was a special education student and special disciplinary procedures applied to such students. Additionally, during the first semester, there was an on-going concern with a second-grade EH student who was “stalking” a female student. Mr. Teasley attempted to have the EH student assigned to the alternative school. However, the student’s mother was “dead-set” against the assignment and the student remained at Beverly Shores. At the same time, Mr. Teasley immediately informed the mother of the child being stalked of what was going on, as well as the steps that were being taken for the girl’s safety. Mr. Teasley assigned an adult to escort the EH student everywhere he/she went on campus. He also rearranged the lunch schedule for the student’s entire class to ensure that the student was not in the cafeteria at the same time as the girl. Again, there was no evidence that demonstrated the steps taken by Mr. Teasley in regard to this EH student were inappropriate given the fact that the student’s mother refused alternative placement and the student was an EH student. Ms. Jule Hand, a kindergarten teacher at Beverly Shores, provided the only direct testimony regarding Mr. Teasley’s perceived lack of support for the faculty. Specifically, she recounted incidents in which she personally sent referrals to the administration and was disappointed when a referral was not addressed on the same day it was written, or when the consequences were not, in her opinion, suitable for the incident. Ms. Hand testified regarding one incident where a student, with a history of significant disciplinary problems and multiple suspensions, pushed two students in her classroom and then threw down all the chairs around the classroom. In the process of throwing chairs, the child hit her and was physically and verbally abusive to her senior volunteer. Ms. Hand called the office for assistance in removing the child from the classroom. The child was removed and received a verbal reprimand with a warning to discontinue the behavior or harsher consequences would follow. To Ms. Hand’s dismay, the student was returned to the classroom. Ms. Hand went on to detail further incidents of misbehavior by this particular child, such as hitting the physical education teacher, spitting in another child’s face, throwing food, grabbing a child from behind, verbal defiance, swinging a metal pipe, and hitting another student with his/her shoulder hard enough to almost knock her over. During this time, the student’s parent was contacted on numerous occasions by both faculty and administrative personnel. Additionally, the student had been suspended twice during the course of these incidents. However, even with these suspensions, the student continued to have disciplinary problems. Mr. Teasley did not want to expel the student and recommended that Ms. Hand contact a social worker and counselor so that the student could be referred to ITOS, a behavioral- intervention study. Eventually, the student left Beverly Shores to attend the study. However, the year following Mr. Teasley’s term as principal, the student returned to Beverly Shores and continued to have behavioral problems. Again, the evidence did not demonstrate that Mr. Teasley’s handling of this matter was inappropriate, given Mr. Teasley’s desire not to expel the student. Ms. Karen Seltzer also testified at hearing about her impressions of the discipline problems at Beverly Shores under Mr. Teasley. Some of her testimony involved the EH student referenced above who again began stalking during the second half of the school year. Ms. Seltzer’s testimony was quite confusing and based on hearsay she had gathered from discussions with other teachers who did not testify at hearing. Furthermore, she also testified that she was unaware of the actions taken by Mr. Teasley in response to the incidents she related. The Assistant Superintendent, Mr. Cunningham, observed the students and environment of Beverly Shores during his visits in the first semester of the school year. The visits were prompted by complaints he or the Superintendent had received about the lack of discipline at Beverly Shores. During his visits to Beverly Shores, Mr. Cunningham observed behaviors that he reported to Mr. Teasley as situations that should be addressed from a discipline and control standpoint. He witnessed students traveling about the campus unsupervised by adults, as well as various unsafe behaviors such as running and jumping. There was some testimony from staff that indicated Mr. Cunningham’s observations regarding unsupervised students were not isolated incidents. Mr. Cunningham also saw classrooms that were cut-off from casual observation (e.g., the blinds were drawn). He also testified that at the beginning and the end of the day, when the entire student body was on the move, he observed that teachers were not “on duty” supervising the movement of students. He instructed Mr. Teasley that during those times it was especially important that teachers be in “supervisory mode.” Mr. Cunningham did not return to Beverly Shores until just before the end of the school year. At some point around March 2007, a parent named Ms. Burry contacted Mr. Teasley about obtaining a Sheriff’s Resource Officer (SRO) for Beverly Shores. Ms. Burry thought a uniformed officer on campus would help with student discipline. Even though a SRO is not involved with student discipline, Mr. Teasley felt that a uniformed officer on campus would serve as a positive role model at Beverly Shores. In support of Ms. Burry, Mr. Teasley attended a March 12, 2007, Leesburg City Commission meeting in which parents and teachers sought funding for an SRO at Beverly Shores. He spoke in favor of the idea. The City Commission referred the request back to the Board. At that point, Mr. Teasley felt that the SRO issue was “out of his hands.” Ms. Burry began to contact the Board and Superintendent about her desire for an SRO on campus and the need for greater discipline in the school. Around March or April 2007, Mr. Cunningham was again contacted by parents who were concerned about safety at Beverly Shores. At about the same time, a representative from the teacher’s union had come to him with concerns about the administration at Beverly Shores and “suggested pretty strongly that they might file a grievance” regarding Mr. Teasley’s performance. Mr. Cunningham did not identify which or how many parents voiced concerns to him. Likewise, he did not identify which or how many teacher complaints created the impetus for the union to consider filing a grievance. None of the parents testified at the hearing. On April 30, 2007, Mr. Teasley sent a letter to Assistant Superintendent Cunningham requesting that an additional assistant principal be assigned to Beverly Shores. As indicated earlier, Beverly Shores operated with one AP in 2006-2007. The letter, in part recognized there was a significant disciplinary problem at Beverly Shores and that the school did not have adequate administrative staff to handle the number of disciplinary referrals. Mr. Teasley made the request based on the approximately 1,200 disciplinary referrals the administration had processed through April 19th of the school year and the amount of time spent on processing those referrals. Mr. Teasley stated that the time spent processing those referrals reduced the time administrators were able to spend in classrooms or on campus. The number of disciplinary referrals was due, in part, to Mr. Teasley’s philosophy of using OSS as a disciplinary tool of last resort. In his view, a child cannot be educated if they are not in school. At some point, the Superintendent became aware of the complaints and problems at Beverly Shores and decided to meet with the staff and faculty to assess the situation at the school. In May of 2007, the Superintendent held two meetings with some teachers and staff of Beverly Shores. Ms. Rhonda Lynn attended those meetings. Her interpretation of the tone of the first meeting was that some members of the faculty and staff were frustrated and searching for leadership and that such leadership should have been provided by the principal and his administration. Some teachers and staff in attendance voiced complaints about Mr. Teasley’s lack of discipline and control of the student population. The Superintendent indicated such complaints would remain confidential. At the second meeting with the Superintendent, Mr. Teasley was present and either various complaints were mentioned by the Superintendent in Mr. Teasley’s presence or he was clearly aware of the complaints that had been made in the first meeting. Ms. Lynn’s interpretation of the tone of the second meeting was that the Superintendent had breached the confidentiality promised the staff in the first meeting regarding complaints about Mr. Teasley and that the staff was very upset over that breach. Ms. Lynn admitted that she could not speak for how every teacher at Beverly Shores felt about Mr. Teasley. Ms. Lynn stated that she never had any discussions with Mr. Teasley regarding an explicit philosophy for dealing with students who had received multiple referrals. She also testified that she had no responsibilities for the processing of disciplinary referrals. Throughout the time period outlined above, Mr. Teasley was formally evaluated by the School District. Originally, Mr. Cunningham would have been assigned to perform Mr. Teasley’s evaluation. However, at the time he would have performed the evaluation, Mr. Cunningham was assigned other duties within the District. Therefore, Ms. Pat Nave, Assistant Superintendent for Curriculum and Instruction, K-12, completed Mr. Teasley’s evaluation. In the course of performing her evaluation of Mr. Teasley, Ms. Nave made four separate visits to the Beverly Shores’ campus. During those visits, Ms. Nave and Mr. Teasley would discuss a number of different topics regarding the operation of the school. Specifically, Ms. Nave and Mr. Teasley discussed his policies for monitoring faculty and student conduct. One such tool for monitoring the campus was a structured system for scheduling the weekly classroom walk-through assignments by members of the school’s leadership team. Based on the reports Mr. Teasley would receive as a result of these walkthroughs, Mr. Teasley would follow up with individual teachers regarding their performance. Additionally, during the evaluation visits, Ms. Nave and Mr. Teasley would discuss the goals that Mr. Teasley had established at the beginning of the year to gauge the school’s progress in the areas he had identified as needing improvement. As noted earlier, those goals were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Ms. Nave concluded that all of the strategies that had been outlined for reaching those two goals had been, or were being, implemented. With regards to discipline, she specifically noted that referrals had decreased. Indeed, the evidence demonstrated that out-of-school suspensions decreased from 422 the previous year to 221 for the current year and that on-going concerns were being addressed through the safety and discipline committee Mr. Teasley had established, even though the evidence at the hearing showed that this committee was not very active. Additionally, there was some suggestion at the hearing that disciplinary referrals may have been down because Mr. Teasley was not processing such referrals. There was no competent evidence to support such a conclusion. Evidence did demonstrate that Mr. Teasley preferred ISS to OSS. Toward that end, the ISS procedure was altered from the way it had been operated in the years prior to his tenure at Beverly Shores. During the course of the 2006-2007 school year, Mr. Teasley hired a teacher to monitor the ISS room and provide instruction when necessary, eliminated the practice of sending children to the ISS room as a “time-out” by requiring administrator approval, and required teachers to supply the child’s lessons for the periods that the child was in ISS so that the student could keep up with his or her classes. Finally, Ms. Nave discussed the School Advisory Council’s (SAC) performance rating of Mr. Teasley. SAC had given Mr. Teasley a mixed satisfaction rating at one of its meetings. At that meeting, eight members of SAC were present. Four of those members voted that Mr. Teasley was doing a satisfactory job. Four voted that Mr. Teasley was doing an unsatisfactory job. Ms. Nave and Mr. Teasley, nonetheless, discussed the issue of the need to foster a productive working relationship with SAC. After the discussion, Ms. Nave was satisfied that Mr. Teasley was taking appropriate actions to continue working with SAC members to implement changes at Beverly Shores. As a result of this performance review, Mr. Teasley received the maximum amount of points on his evaluation and met the performance criteria of that evaluation. After the evaluation and three weeks before the end of the school year, a fifth-grade student at Beverly Shores wrapped the leather portion of his belt around his hand and began to swing the belt, striking students and adults with the metal buckle. Mr. Teasley and AP Jeff Williams were called to the classroom to assist with restraining and removing the student. Once they got the student to the office, Mr. Teasley immediately notified the police that a battery had occurred, suspended the student for the ten-day maximum suspension period, and began the expulsion process. The student did not return to school that year. No suggestion was made that Mr. Teasley’s response to this event was inappropriate. The belt incident garnered media attention. Shortly after the incident, the Superintendent went to the Beverly Shores campus, but could not locate Mr. Teasley in his office or on campus. She, therefore, sent Mr. Cunningham to the school. Eventually, she assigned Mr. Cunningham, along with Messrs. Mitchell and Habring, to Beverly Shores for the remainder of the school year. The Board also authorized the placement of an SRO at Beverly Shores. Mr. Cunningham testified that within a few days of the assignment of the extra personnel, the discipline situation began to improve and the school began to operate in an orderly way. Mr. Cunningham stated that he started to do the things that he had told Mr. Teasley needed to be done earlier in the year. The actions of Mr. Cunningham included administrative staff becoming more visible on campus while students were in transit from one place to another and dealing with each and every referral on the day in which it was written. Importantly, these actions were accomplished with a significant increase in administrative personnel. From an academic standpoint, there can be no question that Beverly Shores made significant improvements under Mr. Teasley’s direction. Evidence admitted at hearing showed that the school grades from the Department of Education (DOE) based on the students’ FCAT performance for Beverly Shores for the six school years prior to Mr. Teasley’s tenure (i.e., 2000- 2001 through 2005-2006) were “C”, “B”, “B”, “B”, “C” and “C”, respectively. During Mr. Teasley’s time as principal, Beverly Shores earned a grade of “A.” Beverly Shores also achieved AYP. Additionally, Beverly Shores had increases in the percentage of students meeting high standards in mathematics, as well as an increase in the percentage of students in the lower-quartile who made learning gains. The school’s grades did not decrease in the areas of reading and writing. These improvements show that the school was successful in achieving the academic goals that Mr. Teasley had identified at the beginning of the year. It should also be noted that such improvements were also due to the efforts of teachers and other staff at the school. Due to this achievement, Mr. Teasley was one of only 92 principals in the state to receive recognition as a “Turn- Around” Principal in 2006-2007. The “Turn-Around” award recognizes the principal of a school which improves by at least two letter-grades in one academic year. In 2007-2008, the year after Mr. Teasley’s tenure, Beverly Shores’ grade fell back to a “C” and the school failed to make AYP. The evidence did not demonstrate that Mr. Teasley had more discipline problems at his school than in prior years. There was some evidence to demonstrate that there may have been some student control problems related to monitoring the passageways of the school. Those problems were in part due to a lack of sufficient administrative staff to patrol the school. There was also some evidence to demonstrate that Mr. Teasley had lost the support of some of the faculty because he would return students to the teacher’s classroom or not assess a harsher penalty for misbehavior. However, there was only one teacher who testified to support that conclusion. Other staff testimony regarding lack of support and lack of discipline was based on hearsay. Just as Beverly Shore’s grade was not dependent on one person, Beverly Shores alleged discipline and student control problems cannot be attributed to one person. One teacher’s testimony coupled with hearsay and vague testimony is insufficient evidence to conclude that Mr. Teasley was no longer professionally qualified to perform in some capacity within the School District. At a May 21, 2007 Board meeting, Mr. Cunningham gave a report of the actions that had been taken at Beverly Shores to deal with discipline during the time he was assigned there. He also made suggestions for improving the discipline situation at the school going forward. Some of the suggestions involved actions previously sought by Mr. Teasley. At about the same time, the 2006-2007 school year came to a close. The Superintendent began to finalize the academic teams she would recommend to the Board for the 2007-2008 school year. In fact, for the next year, 2007-2008, the Superintendent and the Board recognized the need for additional supervisory staff at Beverly Shores and appointed two APs and a behavioral specialist to the school. The Superintendent was mindful of the events at Beverly Shores and the fact that some of the faculty and staff had lost confidence in Mr. Teasley’s ability to lead the school as principal. She decided not to recommend Mr. Teasley for principal at Beverly Shores. However, she did not want to lose Mr. Teasley’s skills as an administrator and recommended him for a district level administrative position for the 2007-2008 school year. The Superintendent’s recommendation was accepted by the Board and Mr. Teasley fulfilled the duties of that position during the 2007-2008 school year. At the close of the 2007-2008 school year, the Superintendent again created staffing recommendations for the 2008-2009 school year. Toward that end, the Superintendent created staffing recommendations to the Board that considered many factors. The most important factor was the creation of administrative teams for each school that would serve as that school’s “instructional leaders.” Similarly, it was very important that at least one member of an administrative team be well-versed in making learning-gains, raising student achievement and school grades. Mr. Teasley was clearly well- versed and well-qualified in such areas. The Superintendent recognized that since the 1998-1999 school year, Eustis High School had earned a grade of “C”, except for the year 2006-2007, when the school’s grade was “D.” Because of the high school’s performance, the Superintendent intended to make changes at Eustis High School to attempt to address the academic problems and raise the school’s academic performance. Additionally, the school was not known for having any extraordinary disciplinary issues. Mr. Larry was the principal of Eustis High School. He had been appointed the principal of the school because of his success in implementing advanced programs as a principal at the middle-school level. Mr. Larry was also very strong on discipline, had 4 other APs and did not require additional help in the area of discipline. Therefore, the Superintendent was not worried about discipline-related issues at Eustis High School. In putting together an educational team for the school, the Superintendent wanted to place a person who had demonstrated their ability to raise a school’s academic achievement and performance. As indicated, the Superintendent did not want to place Mr. Teasley back at Beverly Shores because that educational team had not been successful. However, Mr. Teasley had skills in school improvement that were very useful to the District. She recommended Mr. Teasley for appointment as one of Eustis High School’s five APs. Her recommendation was based on Mr. Teasley’s proven ability in achieving AYP, his ability to analyze the raw performance data for AYP and to work with teachers to raise the test scores which form the basis of a school’s grade. Indeed, the Superintendent felt that Mr. Teasley was one of the strongest individuals she could recommend to Eustis High School to work with the current administration and to help improve the school’s academic performance. Mr. Larry indicated to the Superintendent that he could work with Mr. Teasley. There was no direct testimony given at the hearing of how Mr. Larry wanted to use Mr. Teasley at Eustis High School, although there was some hearsay testimony that Mr. Teasley would be placed at the Curtright Center, a separate ninth grade center that is approximately 1.5 miles from the main high school campus. The Superintendent recommended Mr. Teasley for the position of AP-1 at Eustis High School. Ultimately, the Board rejected the Superintendent’s recommendation. The testimony at hearing and the evidence admitted shows that the primary reason that the Board rejected the Superintendent’s nomination was because of the Board’s lack of confidence in Mr. Teasley’s ability to maintain discipline and control at Eustis High School. Mr. Cunningham, Assistant Superintendent for Administration and Safety, testified that he did not believe that Mr. Teasley was qualified to serve as an AP-1 at Eustis High School. He based that opinion on his observations at Beverly Shores during the 2006-2007 school year and his opinion that if one loses his administrative authority at an elementary school, that person has “no business” as an administrator of a high school. Mr. Cunningham did not offer an opinion on the academic-improvement functions the Superintendent intended Mr. Teasley perform in the academic team to which she assigned him. In addition, the individual members of the Board testified regarding their reasons for rejecting the Superintendent’s recommendation. Mr. Strong testified that his basis for rejecting the Superintendent’s recommendation related to the situation at Beverly Shores during the 2006-2007 school year; particularly, the perceived lack of administrative discipline that created a disorderly educational environment, and the Board’s decision in May of 2007 to place an SRO at the school. He also stated that his vote was influenced by the public input of Ms. Pam Burtnett, president of the Lake County Education Association (“LCEA”), received by the Board at the June 23, 2008 meeting, and by his conversations in the spring of 2007 with one parent and one teacher from Beverly Shores, Ms. Denise Burry and Ms. Bordenkircher, respectively. Ms. Burtnett was not a teacher at Beverly Shores. Neither Ms. Burry nor Ms. Bordenkircher testified at hearing. However, Mr. Strong also testified that prior to the School Board meeting on May 7, 2007, no one had previously raised the issue of discipline at Beverly Shores at any previous Board meeting, and that he never personally witnessed any discipline problems at Beverly Shores. Ms. Kyleen Fischer testified that she had visited the Beverly Shores campus while it was under the direction of Mr. Teasley. Specifically, she testified that she observed that Beverly Shores’ students were not under control and that they were disrespectful. Based on her observations, she felt that the appointment of Mr. Teasley to Eustis High School would create a safety issue. Ms. Cindy Barrow testified that she did not believe Mr. Teasley possessed the necessary knowledge, skills and abilities to serve as a high school AP-1. She based her belief on information gathered from many different sources, including reports such as the 2006-2007 climate survey, conversations with Mr. Cunningham and Ms. Burry, reports given orally to the Board at the May 21, 2007 and June 23, 2008, Board meetings, and the fact that 22 teachers and one guidance counselor left the school during or after the 2006-2007 school year. However, she did not speak to any of the departing personnel regarding their reasons for leaving, nor did she testify as to any of the specifics regarding the above. Ms. Barrow’s belief was that Mr. Teasley had not been able to maintain order or deal with behavioral problems at Beverly Shores and, therefore, he would not be successful at dealing with behavioral problems at Eustis High School. However, Ms. Barrow admitted that she had never been to Beverly Shores. She believes that a primary duty of any high school AP-1 is to handle disciplinary issues. However, she also testified that she had no specific conversations with Mr. Larry or the Superintendent about how either planned to use Mr. Teasley as AP-1 at Eustis High School. Mr. Metz, who testified that he had never visited Beverly Shores during its hours of operation prior to May of 2007, stated that his decision to vote against the Superintendent’s recommendation was based on the situation at Beverly Shores in the Spring of 2007, his written and verbal communications with concerned parties, and Ms. Burtnett’s presentation to the Board in June of 2008. The Board re-reviewed the issues the Superintendent had already considered in creating her educational teams at the various schools and in making her recommendations to the Board. The Board concluded that Mr. Teasley was not qualified to serve as an AP-1 at Eustis High School based on very broad generalizations about appropriate discipline. The Board’s action was not based on any knowledge regarding the role Mr. Teasley would play in the Eustis administration. As indicated, the Superintendent, as is her authority, considered all of the issues surrounding Mr. Teasley’s tenure at Beverly Shores. She also recognized the successes in academic improvement achieved during Mr. Teasley’s tenure and that those skills were needed at Eustis High School. The Superintendent assembled an administrative team after discussing the team members with the principal of the High School and assuring as much as possible that Mr. Teasley could function within that team. The evidence did not demonstrate that the Board’s assessment should trump the Superintendent’s recommendation regarding Mr. Teasley, especially given the fact that Mr. Teasley had many years of good performance evaluations as an AP in Broward County and a good performance evaluation in Lake County. As a consequence, the Board has failed to carry its burden of showing “good cause” to reject the Superintendent’s recommendation and the Superintendent’s recommendation should be accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Board enter a Final Order reversing its earlier decision and accepting the nomination of the Superintendent. DONE AND ENTERED this 6th day of March, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2009. COPIES FURNISHED: Susan E. Moxley, Ed.D. Superintendent School District of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 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
The Issue Whether the School Board's decision of March 26, 1998, to designate attendance zone for a new elementary school in Orange County was a "Rule," as defined in Section 120.52(15), Florida Statutes. Whether Petitioner has standing to bring a rule challenge in this tribunal. Whether the School Board's adoption of a new attendance zone is invalid because: It only received an affirmative vote of four of the Board's seven members on March 26, 1998; changes to Shenandoah's attendance zones were not considered in any planning or workshop prior to the March 26 meeting; and/or the failure of the School Board to publish notice of adoption of a rule 28 days in advance of its March 26 meeting makes the decision invalid. Whether the School Board was required to provide notice of development of a rule prior to its decision to include the area in question (the two neighborhoods which had been in the Shenandoah attendance zone) in the Lake George attendance zone and, if so, whether that renders the School Board's March 26 action invalid, pursuant to Sections 120.54(2)(a) and (c), Florida Statutes. Whether DOAH has the authority to grant freedom of choice for the residents of the two neighborhoods to pick which of the two schools (Shenandoah or Lake George) to attend. Whether the School Board's unanimous approval of the minutes of its March 26 meeting cures any defects in the process.
Findings Of Fact This dispute involves the establishment of an attendance zone for a new elementary school in Orange County: Lake George Elementary School. Lake George Elementary School is a new elementary school established and to be operated by the School Board of Orange County, Florida. Construction of the school began in the fall of 1997 and the school is scheduled to open shortly, at the beginning of the 1998-99 school year. The site for the school was selected in 1995. It was originally intended to relieve two overcrowded elementary schools: Conway and Dover Shores. Staff will report to Lake George for pre-planning on August 4, 1998, and the first day of classes for students will be August 10, 1998. Orange County's other elementary schools follow the same schedule. The Orange County School District covers the entire county, approximately 1,003 square miles. The population of Orange County, according to The Florida County Atlas, was 727,760 in 1993. During the 1997-98 school year, the District enrollment was 134,292, an increase of nearly 6,000 students over the previous year. Sixty-four thousand two hundred and eight students were enrolled in the District's elementary schools for the 1997-98 school year. As of January 1, 1998, the District operated 91 elementary schools. In March 1997, Orange County School Board staff met with parents of students attending Ventura, McCoy, Conway and Dover Shores Elementary Schools in a public planning session for the development of the new elementary school's attendance zone. (This is the school that would become Lake George Elementary School.) Parents of students attending Shenandoah Elementary School were not invited to attend because Shenandoah students were not involved in staff's plans for the new elementary school zone at that time. On January 18, 1998, the School Board published in The Orlando Sentinel (a newspaper of general circulation throughout all of Orange County) a notice of a public workshop to discuss the establishment of the Lake George Elementary School attendance zone. The workshop was scheduled for January 27, 1998. The notice was published on page K-13 of the "Orange Extra," a Sunday supplement in The Orlando Sentinel and was also posted in appropriate locations. On January 27, 1998, the School Board convened in open, public session to hear staff and public input regarding an attendance zone for Lake George Elementary School and discuss options. Three different options for a Lake George Elementary School attendance zone were explained by staff to the School Board. None of those options involved transferring students from the Shenandoah Elementary School attendance zone. On February 4, 1998, the School Board published in The Orlando Sentinel a Notice of Proposed Action regarding the establishment of the Lake George Elementary School attendance zone. The proposed attendance zone for Lake George Elementary School described in this notice did not involve transferring any part of the Shenandoah Elementary School attendance zone to the Lake George Elementary School attendance zone. The notice called for a public hearing to be held on February 24, 1998. On February 24, 1998, the School Board held a public hearing regarding the proposed attendance zone for Lake George Elementary School. Staff explained its recommended proposal to the School Board and additional input was given by members of the public. At the conclusion of the February 24 public hearing, the School Board discussed the staff proposal and, based on input from the public hearing, voted 6-1 to establish the following attendance zone for Lake George Elementary School: Area transferred from Ventura Elementary School to Lake George Elementary School: The area west of Semoran Boulevard, north of Lake Margaret Drive, east of Dixie Belle Drive, and south of the Orange Orlando Apartments. Area transferred from McCoy Elementary School to Lake George Elementary School: The area west of Semoran Boulevard, north of Abercom Road, and east of Kennedy Road. Area transferred from Conway Elementary School to Lake George Elementary School: The area south of Michigan Avenue and east of Conway Road, including the east side of Conway Road. Area transferred from Dover Shores Elementary School to Lake George Elementary School: The area west of Dixie Belle Drive containing the seven most southern buildings of the Belle Crest Apartment complex. The zone described in Paragraphs A-D, above, was consistent with what had been advertised. However, staff had also recommended that the School Board transfer the seven most northern buildings of the Belle Crest Apartment complex, containing a projected 114 students, from Dover Shores Elementary School to Lake George. After hearing public comment, the School Board decided not to transfer that area. At the conclusion of the February 24 public hearing, based on input from the hearing, the School Board also arrived at a consensus that the following portion of the Shenandoah Elementary School attendance zone be added to the Lake George Elementary School attendance zone: The area north of Gatlin Avenue and east of Conway Road. That area includes the subdivisions cited in the Petition (Gatlin Place and Windward Place.) At the conclusion of the February 24 public hearing, the School Board directed staff to advertise another public hearing so the School Board could hear community input regarding inclusion of the area described in paragraph 12 in the Lake George attendance zone involving Shenandoah Elementary School which includes 104 students. On March 2, the School Board's staff invited the parents of students living in the affected area (i.e., the area described in paragraph 12) to discuss the proposed zone change at a public meeting to be held at Shenandoah Elementary School on March 9. The School Board's Office of Pupil Assignment mailed letters to the homes of each elementary school student who had been enrolled at Shenandoah and would be assigned to Lake George if the proposal (described in paragraph 12) were approved. On March 4, 1998, the School Board published in The Orlando Sentinel a second Notice of Proposed Action regarding the establishment of the Lake George Elementary School attendance zone. The proposed action specified in this published notice called for an attendance zone for Lake George Elementary School that was identical to the one formally adopted (by a 6-1 vote) at the School Board's February 24 meeting, but added to the Lake George Elementary Zone that portion of the Shenandoah Elementary School attendance zone described in paragraph 12, above. This notice was also posted in appropriate locations. The grade structure, program offerings, and educational opportunities to be offered at Lake George Elementary School are comparable to those offered at Shenandoah Elementary School. On March 9, a representative of the School Board's Office of Pupil Assignment who had assisted in preparing the proposal for the Lake George attendance zone met at Shenandoah Elementary School to explain the proposal, solicit public input, and respond to questions and comments about the proposal. At its March 10, 1998, meeting, the School Board unanimously approved its minutes for the February 24 meeting. On March 26, 1998, the School Board held its second public hearing on the Lake George Elementary School attendance zone. Twenty-two individuals addressed the School Board, many of whom resided in the portion of the Shenandoah attendance zone that was to be transferred to the Lake George attendance zone. Other options suggested by members of the public and discussed by members of the School Board included leaving the Gatlin Place and Windward Place subdivisions at Shenandoah and/or transferring a portion of the Dover Shores zone into Lake George. At the conclusion of the second public hearing on March 26, 1998, after public discussion by members of the School Board, a roll-call vote was conducted and the members voted, 4-3, in favor of the advertised proposal. The chairman declared that the motion was approved. Subsequently, the meting adjourned. At its April 14, 1998, meeting the School Board unanimously approved its meetings for the March 26 meeting. In relevant part, the minutes state: The motion passed with a majority vote of 4-3. Prior to October 25, 1993, the School Board had adopted Policy BG stating: The School Board shall determine and adopt such rules as are deemed necessary for efficient operation and general improvement of the school system. These rules may be amended, repealed or a new rule adopted as hereinafter prescribed. The term "rule" is defined in Section 120.52(16), Florida Statutes. * * * Unless an emergency exists any proposal relating to a rule amendment, the repeal of any rule or the adoption of a new rule shall be presented in writing to the School Board including a written explanation of the proposal. * * * Any person who is substantially affected by a proposed rule, rule amendment or the repeal of a rule may within 21 days following notice of intent to adopt, amend or repeal such rule, file a written request with the School Board seeking an administrative determination as to the validity of the proposed rule action. A vote for adoption shall require a two- thirds affirmative vote (five of the total membership of the School Board.) The formal adoption of policies shall be recorded in the minutes of the School Board. Only those written statements so adopted and recorded shall be regarded as official School Board policy. This School Board rule was in effect at all times material to this proceeding, as were the following policies: BBA, BEDH, BGC and CB. Each member of the School Board took an oath of office to "Perform the duties of Member, School Board of Orange County." On May 12, 1998, Petitioner addressed the School Board, He said that the Board had failed to follow Policy BG (requiring a two-thirds affirmative vote to adopt the modifications to the Lake George Elementary School attendance zone made at the Board's March 26 meeting) and had failed to give proper notice of its adoption of that proposal in that Shenandoah's attendance zone was never considered in the planning/workshop meetings and the advertisement was published only 22 days before the vote. He requested that the Board take action to correct those deficiencies. Petitioner filed his Petition for Formal Administrative Hearing with the School Board on May 29, 1998. At Petitioner's request, the School Board forwarded the Petition to the Division of Administrative Hearings on June 18, 1998. On July 1, 1998, the School Board published in The Orlando Sentinel a Notice of Proposed Action regarding the establishment of the Lake George attendance zone which would affect Lake George, Dover Shores, Senandoah, Ventura, McCoy and Conway Elementary Schools. This proposal is the same as was approved by a 4-3 vote on March 26, 1998.
The Issue Whether just cause exists for Petitioner, the Polk County School Board, to terminate Respondent, Helena Mays, from her employment as a classroom teacher.
Findings Of Fact It is well established under Florida law that determining whether alleged misconduct violates a statute or rule is a question of ultimate fact to be decided by the trier- of-fact based on the weight of the evidence. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Thus, determining whether the alleged misconduct violates the law is a factual, not legal, inquiry. “The School Board bears the burden of proving by a preponderance of the evidence each element of the charged offense which may warrant dismissal.” Cropsey v. Sch. Bd., 19 So. 3d 351, 355 (Fla. 2d DCA 2009) (citing Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883 (Fla. 3d DCA 1990)). Preponderance of the evidence is defined as “the greater weight of the evidence,” or evidence that “more likely than not” tends to prove a certain proposition. S. Fla. Water Mgmt. v. RLI Live Oak, LLC, 139 So. 3d 869, 872 (Fla. 2014). The School Board contends that “just cause” exists to terminate Ms. Mays because she improperly required K.G., D.G., and C.C. to clean the floor with a toothbrush on one occasion each, which constituted “misconduct in office.” § 1012.33(1)(a); Fla. Admin. Code R. 6A-5.056(2)(b), (c). The School Board alleges two violations of “the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.,” and two identical violations of “adopted school board rules.” First, the School Board alleges that Ms. Mays breached her obligations to K.G., D.G., and C.C. by “intentionally expos[ing] [them] to unnecessary embarrassment or disparagement.” Fla. Admin. Code R. 6A-10.081(2)(a)5.; Polk Cty. Sch. Bd. R. 3210A.5. Second, the School Board alleges that Ms. Mays breached her obligations to K.G., D.G., and C.C. by failing to “make reasonable effort to protect [them] from conditions harmful to learning and/or to [their] mental and/or physical health and/or safety.” Fla. Admin. Code R. 6A-10.081(2)(a)1.; Polk Cty. Sch. Bd. R. 3210A.1. There is no dispute that Ms. Mays required K.G. and D.G. to each clean the floor with a toothbrush. Thus, the relevant issue as to these students is whether the School Board proved by a preponderance of the evidence that this disciplinary tactic constituted “misconduct in office.” However, as to C.C., the evidence did not establish that Ms. Mays required him to clean the floor with a toothbrush. C.C. testified that he cleaned the floor with a washcloth and had no recollection of ever using a toothbrush. Because the School Board’s termination notice focused solely on the use of a toothbrush as an improper disciplinary tactic, it cannot belatedly allege now that requiring C.C. to clean the floor with a washcloth constituted misconduct in office. In fact, a washcloth is more akin to a sponge, which the School Board does not contend was misconduct given its decision to proceed only on the instances involving a toothbrush. Nevertheless, the undersigned will evaluate the evidence as it relates to C.C. in the same manner as the other two students. Based on the weight of the evidence detailed above, the School Board failed to establish by a preponderance of the evidence that Ms. Mays exposed the students to unnecessary embarrassment or disparagement, much less that she did so intentionally. None of the three students testified that they felt embarrassed or disparaged, and Investigator Marbutt did not believe that Ms. Mays intentionally tried to embarrass or harm them. At most, Investigator Marbutt agreed that there were “potential violations for creating physical or emotional harm and potentially humiliating the students,” but he never explained how the evidence substantiated that “potential” belief. Principal Burkett also confirmed that Ms. Mays never said she intended to humiliate or inflict pain on the students. In sum, the credible weight of the evidence does not establish that Ms. Mays violated rule 6A-10.081(2)(a)5. or School Board rule 3210A.5. Likewise, based on the weight of the evidence discussed above, the School Board did not establish by a preponderance of the evidence that Ms. Mays unreasonably failed to protect the students from conditions harmful to learning, their mental and/or physical health, or their safety. No credible, competent evidence was presented that this disciplinary tactic unreasonably exposed the students to any such harmful conditions, much less a safety hazard. K.G. and D.G. offered no testimony that they suffered pain while being disciplined in this manner and, though C.C. indicated that his hands were sore, it was the same pain he experienced when he wrote too much. Principal Burkett testified that the School preferred a more positive method of discipline, but neither he nor any other witness explained how these three isolated events that were not shown to last more than 15 minutes unreasonably harmed the students. In short, the credible weight of the evidence does not support the allegation that Ms. Mays violated Rule 6A-10.081(2)(a)1. or School Board Rule 3210A.1. Accordingly, the undersigned finds as a matter of ultimate fact that the School Board did not show by a preponderance of the evidence that it had “just cause” to terminate Ms. Mays. § 1012.33(1)(a), Fla. Stat.
Recommendation Based on the foregoing Findings of Fact, Ultimate Findings of Fact, and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing the charges against Ms. Mays, reinstating her employment as a teacher, and awarding her back pay to the date on which she was first suspended without pay. DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 4th day of March, 2019.
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Respondent's letter of denial of registration to Petitioner be rescinded and that Petitioner's application for registration be GRANTED. DONE AND ENTERED this 13th day of July 1978 in Tallahassee, Florida. COPIES FURNISHED: Secretary William J. Page, Jr. Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jack T. Edmund Post Office Box 226 Bartow, Florida 33830 Anthony N. DeLuccia, Jr. District VIII Counsel Department of Health and Rehabilitative Services Post office Box 2258 Ft. Myers, Florida 33902 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact At all times material hereto, Respondent was a 14 year old, seventh grade student at Nautilus Junior High School in Dade County, Florida, and all events occurred during the 1986-1987 school year. Mrs. Rita Gold was Respondent's fifth period English teacher. On September 10, 1986, she initiated a student case management referral form as a result of a series of confrontations with Respondent. From the very beginning of the 1986-1987 school year, Mrs. Gold had experienced Respondent's behavior in her class as both disruptive and disinterested, although he had been in attendance up to September 10, 1987. Initially in each school year, each student is given, and is required to complete the Florida State assessment tests. These are essentially for diagnosis of skills and placement in classes. Because Respondent informed Mrs. Gold that he had taken these in a concurrent class, she did not administer the assessment tests to him in her class. Thereafter, she discovered that he had lied and she must administer the tests to him during her class period. This took additional time when he and other students could better have been doing something else. When she presented the tests to him, Mrs. Gold observed Respondent filling out the answer blanks without taking the time to read the question sheet. She is certain of his persistent defiant attitude and refusal to obey her instructions in this regard because he continued to fill out the answer sheet without turning the pages of the skills questionnaire. On other occasions, Respondent made loud rebel outbursts in either English or Spanish of the type that follows: "I have to go to the bathroom!" "I want water!" "I don't understand this!" These outbursts were annoying to Mrs. Gold and disrupted normal classroom decorum. They are inappropriate for one of Respondent's age and Presumed maturity. Further disruptive and disrespectful behavior of Respondent that was noted by Mrs. Gold in her class are that: Respondent often spoke loudly when Mrs. Gold herself attempted to instruct the class; and on one occasion Respondent refused to come to her desk to get a book and announced to the rest of the class that she must bring it to him at his seat (Mrs. Gold has tried Respondent in several assigned seats and he has found fault with all of them). Respondent was chronically tardy; he refused to take home a deficiency notice to let his parents know he could fail the first 9 weeks' grading period but had time to improve; he did not read or write anything in class for the first full 9 weeks unless Mrs. Gold worked on a one-to-one basis with him; sometimes Respondent sat in class with his jacket over his head. Mrs. Gold feels there is no language barrier to Respondent's understanding what she wants. The parents gave her no report of medical disability which would account for Respondent's need for frequent fountain and bathroom requests. Mr. George A. Nunez is a physical education teacher at Nautilus Junior High School. He prepared a case management referral form on Respondent on October 2, 1986. This referral was a culmination of a series of incidents involving Respondent's chronic tardiness, repeated refusals to "dress out" and failure or refusal to remain in his assigned area of the grounds or gymnasium. All of these "acting out" mechanisms of Respondent were described by Mr. Nunez as an "I don't care attitude" and as "intolerable." Mr. Nunez is bilingual in English and Spanish and reports he has no communication problem with Respondent on the basis of language. The communication problem is the result of Respondent's disinterested and disrespectful attitude. All of Respondent's behavior problems were at least minimally disruptive to normal physical education class procedure and all attempts at teaching, but his wandering from the assigned area particularly disrupted other students' ability to learn in Mr. Nunez's class and in other physical education classes held simultaneously. Respondent was belligerent when replying to Mr. Nunez' remonstrances for not standing in the correct place. In the first grading Period of the 1986-1987 school year, Respondent had 8 absences and 3 tardies in physical education, which can only be described as chronic and excessive. He also had no "dress outs." Failure to "dress out," in the absence of some excuse such as extreme poverty, must be presumed to be willfully disobedient and defiant. Respondent did not fulfill his detentions assigned by Mr. Nunez as a discipline measure and repeated his pattern of chronic tardiness and absences in the second grading period, which absences and tardies were recorded by Mr. Nunez on behalf of another teacher who had been assigned Respondent. Stanton Bronstein is a teacher and administrative assistant at Nautilus Junior High School. On September 17, 1986, Mr. Bronstein discovered Respondent in the hallway during second period without a valid reason. He concluded Respondent was "cutting" class when Respondent provided no valid reason for being out of class. On October 3, 1986, Bronstein observed Respondent enter the hallway at approximately 12:30 p.m. Respondent had no satisfactory explanation for why he was out of class or of what he had been doing, and Bronstein concluded Respondent had cut his first through third period classes. Each of these incidents resulted in student case management referrals. On October 6, 1986, Bronstein initiated another student case management referral upon reports of classroom disruption and cutting made by a teacher, Mrs. O'Dell, who did not testify. No admission was obtained by Bronstein from Respondent on this occasion. The underlying facts alleged in the report originating with Mrs. O'Dell are therefore Uncorroborated hearsay, however the case management report of that date is accepted to show that Bronstein contacted Respondent's parents on that occasion and ordered outdoor suspension for Respondent. As of October 21, 1986, Respondent bad been absent from school a total of 10 whole days without any written parental excuse. When he returned on October 21, 1986, he was tardy and was referred to Mr. Bronstein who counseled with Respondent, received no acceptable excuse from him, and initiated a case management referral resulting in indoor suspension with a letter informing Respondent's mother of the suspension. After referrals for incidents on October 23, 1986 and October 31, 1986, further disciplinary measures were taken against Respondent, including a conference with Bronstein, the parents, an interpreter, and the principal, Dr. Smith, present. A series of detentions thereafter were not fulfilled by Respondent in defiance of school authority, despite several rearrangements of the times for the detentions so as to accommodate Respondent's schedule and requests. This resulted in further conferences between the school administrators and the parents with a final outdoor suspension. Dr. Paul Smith, Assistant Principal at Nautilus Junior High School, recounted a lengthy litany of referrals of Respondent by various teachers, a history of counseling sessions, Parental contacts, detentions, and suspensions which had failed to modify Respondent's disruptive, unsuccessful, and disinterested behavior. Respondent's grades for the first grading period of the 1986-1987 school year were straight "Fs" (failures). Respondent was frequently seen by Dr. Smith leaving school after he had once arrived. No medical condition was made known to Dr. Smith which would account for Respondent's misbehavior. Respondent has been evaluated by the child study team and Dr. Smith concurs in their analysis that it is in Respondent's best interest that he be referred to Jan Mann Opportunity School-North, where a highly structured alternative education program with a low Student-to-teacher ratio can control him Sufficiently to educate him. Bronstein concurs in this assessment. Both feel all that can be done in the regular school setting has been done for Respondent. At hearing, the mother, Mrs. Gonzalez, asked a number of questions which assumed that notes had been set to school asking that Respondent be given extra opportunities to get water because of excessive thirst, but no school personnel bad ever received any such notes. Despite numerous parent-school conferences, no school Personnel could remember this issue being raised Previously. By her questions, Mrs. Gonzalez also Suggested that Respondent had no gym clothes. However, Mrs. Gonzalez offered no oral testimony and no documentary evidence to support either premise and the parents' Posthearing submittal does not raise these defenses. The undersigned ordered the Respondent's posthearing proposal which was submitted in Spanish to be translated into English and thereafter considered it. The proposal only complains about the alternative educational Placement upon grounds of excessive distance of Jan Mann Opportunity School-North from the Respondent's home and states the parents will place him in a private school. Since Respondent has not already been withdrawn from the Dade County Public School System, the latter statement cannot be accepted as dispositive of all disputed issues of material fact, as it might be under other circumstances. As a whole, the Respondent's Posthearing Proposal is rejected as irrelevant, not dispositive of the issues at bar.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Jan Mann Opportunity School-North until such time as an assessment shows that Respondent can be returned to the regular school system. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 12th day of June, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Norma Gonzalez 657 Lennox Avenue, Unit No. 1 Miami Beach, Florida 33139
The Issue Whether Petitioner, Duval County School Board, had just cause to suspend Respondent without pay for seven days for the reasons specified in the agency action letter.
Findings Of Fact Jurisdiction Petitioner, Duval County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Duval County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Sawdy was employed as a teacher at Lake Shore in Duval County, Florida, from 2011 through June 2018. During the 2016-2017 school year, Mr. Sawdy taught civics to seventh grade students. During the time he was a teacher at Lake Shore, Mr. Sawdy received an effective or highly effective rating on his performance evaluations. Mr. Sawdy has never received discipline during his tenure as a teacher. Specifically, during the time that he had worked at Lake Shore, he was never disciplined for failure to adequately supervise students. After the 2017-2018 school year, Mr. Sawdy relocated to North Carolina and is serving as a teacher there. Background The incident that served as the basis for this proceeding occurred on May 2, 2017. Mr. Sawdy’s classroom was located in a portable unit with windows at Lake Shore. Generally, Mr. Sawdy would have a structured lesson for the class period. However, on this day the students in the class returned from a field trip in the middle of the third period at approximately 1:30 p.m. The students were instructed to go to their designated class and remain there until the fourth class period. The field trip was to the Diamond D Ranch, a farm in Jacksonville, Florida. There were approximately 20 students who went to Mr. Sawdy’s classroom after the field trip. As was the typical case when students returned from a field trip, the students were described as rowdy. As a result, Mr. Sawdy permitted the students to work on note cards and listen to music. The music was from Hamilton, the musical, which was used to teach the students about the historical figure, Alexander Hamilton. Although music was playing, the students could hear each other. The lights were off, but you could see in the room because the windows allowed sufficient ambient light. The School Board alleged that Mr. Sawdy allowed a group of students in his class to participate in an inappropriate game. One of the students from the group included R.G. The group was located at the back of the classroom. The testimony from various witnesses about what happened in the classroom on May 2, 2017, varied in several areas. Student Testimony Student C.A. C.A. testified that when the class returned to the classroom, Mr. Sawdy did not have a specific lesson. He played music and allowed students to move freely. According to the diagram of the room, C.A. was sitting near R.G., with one chair between them, in the group. C.A. testified that he witnessed R.G. lift her shirt, exposing her breasts. C.A. described the event as “flashing” that happened quickly. C.A. testified that Mr. Sawdy was sitting at his desk at the front of the room when R.G. lifted her shirt, which was farther away from R.G. than was C.A. C.A. credibly testified that Mr. Sawdy was strict regarding discipline for inappropriate behavior. If Mr. Sawdy had seen R.G.’s conduct, he would have called her parents or referred her to the principal. C.A. testified that he did not see anyone kissing or touching private parts. At some point during the class, C.A. slapped D.B. on the back of her thigh. C.A. testified that Mr. Sawdy took him outside the classroom to discipline him for hitting D.B., which redirected his behavior. Student D.B. D.B. testified that Mr. Sawdy’s class is usually laid back and there is even less structure after a field trip. After the field trip, Mr. Sawdy instructed students to work on note cards. While music was playing, they could hear each other. While the lights were off, they could see each other because of the lights from the windows. Turning off the lights was a common practice of other teachers at Lake Shore as well. D.B. was sitting at a desk on the opposite side of the group from R.G. D.B. recalled that Mr. Sawdy was at his desk working on his computer. There were students sitting between R.G. and Mr. Sawdy. D.B. testified that she saw K.2/ lick R.G.’s breast, which happened within two seconds. D.B. credibly testified that she did not see anyone else expose their breasts or kiss anyone. Student H.P. H.P. was sitting near the group. She testified that although music was playing, it was not so loud that she could not hear. She testified that she was aware that a game was taking place. However, she did not see anyone kiss anyone, or engage in any inappropriate activity. H.P. testified that Mr. Sawdy was doing paperwork, and she did not see him walk around during class. However, H.P. credibly testified that Respondent would discipline students if he aware that they misbehaved. Student K.M. K.M. was sitting at the same table as H.P., near the group. In fact, she was sitting closer to R.G. than H.P. K.M. testified that Mr. Sawdy was sitting at his desk working on his laptop. However, she saw him walk around the classroom “one or two times.” K.M. testified that Mr. Sawdy instructed students that it would be a free day because they had returned from the field trip. During the class, Mr. Sawdy turned on music from Hamilton. K.M. stated that she witnessed C.A. slap D.B.’s thigh and saw Mr. Sawdy remove C.A. from the classroom to discipline him for his actions. Despite her close proximity to the group, K.M. did not see anyone kiss anyone, lift their shirt, or lick anyone. K.M. traveled to Europe for a field trip chaperoned by Mr. Sawdy in June 2018. She testified that he did well as a chaperone. Student C.W. C.W. testified that Mr. Sawdy permitted students to listen to music and hang out after the field trip. C.W. was sitting near the windows, near the corner of the class, but closer to the group than Mr. Sawdy. She characterized the group as “troublemakers.” She stated that Mr. Sawdy warned the group to settle down several times. Despite her criticism of the group, C.W. did not see anyone kiss or lick anyone, or otherwise engage in inappropriate activity. Student J.B. J.B. testified that after the field trip, Mr. Sawdy turned on a video of Bill Nye, “the science guy,” on the television. Since students were not watching the video, Mr. Sawdy turned on music. At some point, Mr. Sawdy told the group of students to quiet down because they were being loud. J.B. testified that Mr. Sawdy would discipline students who misbehaved by talking to them or issuing a referral to the principal’s office. J.B. stated that he was not aware of a game of truth or dare being played at the time. He also credibly testified that he did not see anyone kiss anyone, lift up his or her shirt, or see anyone do anything inappropriate. Student F.G. When F.G. and the other students returned to class, Mr. Sawdy instructed them to watch the Bill Nye video and work on note cards. Music from the musical Hamilton was playing toward the end of class, but it was not too loud. F.G. testified that Mr. Sawdy was sitting at his desk during class, but he walked around a few times. Although F.G. was sitting close to the group, she did not know that any inappropriate activity occurred until a few weeks later. F.G. credibly testified that she did not see anyone dancing, kissing, or engaging in inappropriate touching. F.G. also confirmed the testimony of C.A. and D.B. that Mr. Sawdy would discipline students who misbehaved, beginning with a warning outside the classroom, followed by a phone call to their parents and then, a referral to the principal. None of the students who testified stated that they had concerns for their safety or the safety of other students in the class. Although subpoenaed, the complaining student, K.A.M. did not appear at the final hearing.3/ Mr. Sawdy’s Testimony Mr. Sawdy also testified at the final hearing. He stated that he chaperoned a group of students on a field trip to Diamond D Ranch. When the students returned from the trip, they were instructed to go to his classroom. No other teachers or teaching professionals were in the classroom at that time. Mr. Sawdy testified that students are usually more relaxed after field trips and would benefit from a less restrictive teaching class period. As a result, Mr. Sawdy played music from Hamilton and instructed the students to work on note cards. The lights were off, but you could see because of ambient light. Mr. Sawdy credibly testified that he had no knowledge of any inappropriate conduct in his classroom on May 2, 2017, until Mr. Gottberg told him about the complaint regarding inappropriate activity in his classroom. If he had seen anything inappropriate, he would have addressed the actors accordingly. He described the instance where he counseled C.A. Mr. Sawdy’s testimony was consistent with that of C.A. and D.B., when he testified that he heard a slap, turned in the direction that he heard it and saw C.A. looking strange. He took C.A. outside the classroom and counseled him for hitting D.B. Subsequent to May 2, 2017, Mr. Sawdy planned and chaperoned a field trip to Europe with 10 middle school students, which took place in June 2018. The principal of each student’s school approved the trip to Europe without objection. Furthermore, there were no parents that objected to Mr. Sawdy chaperoning the students on the trip. Specifically, students M.W. (who did not testify at hearing) and K.M. were in the class on the date in question and still attended the trip to Europe without objection from their parents. There is no reason to believe or evidence to support that Mr. Sawdy would not have disciplined the students engaging in the activity alleged if he had knowledge of their conduct. Moreover, based on his experience with the class, there was no indication to Mr. Sawdy that the students would have the propensity to engage in the alleged conduct. The evidence demonstrates that the incident was, at most, a matter of two students surreptitiously engaging in unexpected inappropriate activity. There was no evidence offered to demonstrate that the alleged student conduct harmed the health or safety of the students in the class. Even if it is determined that the allegations on their face would demonstrate actual harm, rule 6A-10.081(2)(a)1. requires a showing that Respondent failed to make reasonable efforts to protect students from such harm. Gerald Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2102; EPC Dec. 19, 2012). Investigation Mr. Gottberg was the principal at Lake Shore during the 2016-2017 school year. He testified that there was an expectation that teachers would maintain a safe environment for students through classroom management and disciplinary action when necessary. There was also an expectation, but not a requirement, that classroom instruction would take place from beginning of class until the end of class (bell-to-bell instruction). On May 3, 2017, Mr. Gottberg’s assistant informed him that there was a parent and student that had a complaint about inappropriate student activity in Mr. Sawdy’s classroom that had occurred on May 2, 2017. Mr. Gottberg briefly interviewed the student and ultimately, referred the complaint to the Office of Professional Standards. The student resource officer, Mary Alice Knouse, interviewed three of the 22 students who were in the class on May 2, 2017. Based on her interview of the students, she determined that other than K.A.M. and K.M., no students witnessed any inappropriate conduct. The investigator assigned to investigate the complaint, James Gregory, also interviewed students. He interviewed students involved in the alleged conduct events and randomly selected other students. He did not interview all the students in the classroom on May 2, 2017. Mr. Gottberg was instructed to prepare a report regarding the complaint, and he complied. At the direction of the Office or Professional Standards, but before the student interviews were completed, he recommended that Mr. Sawdy receive Step III or Step IV progressive disciplinary action. Mr. Gottberg described Mr. Sawdy as one of the best teachers at Lake Shore. While Mr. Gottberg was principal, he even approved the 10-day field trip to Europe, which was scheduled to take place after the incident on May 2, 2017. Allegations Not Pled in Notice The School Board made much of the lights being turned off in the room and the music playing. These allegations were not pled in the charges and, thus, may not be relied upon as a basis for the School Board’s action. Even if the School Board had pled allegations regarding the lights and music, the School Board failed to prove that these factors proved that Mr. Sawdy inadequately supervised the students in his classroom. At least five witnesses testified that although the lights were off, there was sufficient light from the windows to see in the classroom. Mr. Gottberg sent an email to the Lake Shore teachers the day following the incident directing them to keep the lights on in the classrooms. However, no witness testified that there was a rule or policy regarding keeping the lights on during classroom instruction prior to the incident. In addition, teachers and students testified that it was a common practice for the lights to be off in the classrooms because sufficient light was available by window. Several witnesses also testified that the music was not so loud that you could not hear. Mr. Sawdy’s Reputation Respondent has a good reputation with other educators and is known to be an effective teacher. Several of those teachers testified at hearing about their experience working with Mr. Sawdy. Zandra Bryant worked on the same team with Mr. Sawdy at Lake Shore for approximately four years. She testified that she had worked at Lake Shore for eight years. She described Mr. Sawdy as “wonderful teacher” who was very organized and attentive. She was also a chaperone for the field trip to Diamond D Ranch and characterized the students as being rowdy when they returned from the field trip. She confirmed Mr. Sawdy’s testimony that it would not be a good time to begin a structured lesson. Mallory Layton also worked with Mr. Sawdy. She described him as role model, attentive to students, including administering discipline when necessary. Similar to Ms. Bryant, she also testified that after a field trip, it is good practice to engage the students in a relaxed activity. Melissa Cash and Kasey Winter testified that Mr. Sawdy was a good teacher who had a respectful relationship with students. Ultimate Findings of Fact There is no question that the allegations were of a sensitive nature. The testimony varied in material aspects, and was not of such weight (preponderance of evidence) that it produced a firm belief that Mr. Sawdy failed to reasonably protect the safety of the students in his classroom. The allegations that students engaged in exposure and licking of private body parts was supported by a preponderance of evidence. However, even though the evidence supports a finding, by a slim margin, that students engaged in inappropriate conduct, it must also be determined whether Respondent failed to make reasonable efforts to protect students from harm. The testimony varied regarding where Mr. Sawdy was located when the student conduct occurred. The testimony was clear and consistent that Mr. Sawdy was in the classroom. D.B., J.B., and H.P. testified that Mr. Sawdy was sitting at his desk doing work. F.G. testified that Mr. Sawdy was at his desk during the class, but walked around a few times. K.M. testified that Mr. Sawdy walked around the room one to two times. The totality of the evidence supports a finding that Mr. Sawdy was at his desk at the front of the room during the class period, but he left his desk and walked around a few times. At the final hearing, six witnesses credibly testified that they never saw anyone kiss, lick, or otherwise engage in inappropriate conduct in Mr. Sawdy’s classroom on May 2, 2017. The evidence also supports that these students were sitting closer to the group and arguably, were in a better position to see the group’s activity. There is no dispute that Mr. Sawdy was not aware that a group of students had engaged in inappropriate conduct in his classroom on May 2, 2017. Based on the evidence presented at hearing, Petitioner did not prove by a preponderance of evidence that Mr. Sawdy inadequately supervised students in his classroom on May 2, 2017. Mr. Sawdy walked around the classroom and interacted with students. He had control of students to the extent that he even disciplined a student for playfully hitting another student. The evidence reflects that the alleged student conduct was an isolated event that happened, at most, within one to two seconds. The conduct was quite unusual and could not be reasonably anticipated. Petitioner failed to prove by a preponderance of evidence that Mr. Sawdy failed to make reasonable efforts to protect the students from harm. There was no evidence offered to support a finding by a preponderance of evidence that the student conduct was harmful to any student’s learning, or that the events adversely affected any student’s mental or physical health, or safety. Petitioner did not prove by a preponderance of evidence that there is just cause to suspend Mr. Sawdy without pay for seven days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board: dismiss the charges against Respondent; dismiss the notice of recommendation of issuing a reprimand and suspension without pay for seven days; and to the extent there is a statute, rule, employment contract, or the Collective Bargaining Agreement authorize back pay as a remedy for Respondent’s wrongful suspension without pay; Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 9th day of January, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 9th day of January, 2019.
The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
