The Issue The issue in this case is whether just cause exists to impose sanctions against Respondent, Winston Northern (“Northern” or the “Teacher”), up to and including revocation of his Educator’s Certificate.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to Florida Educator Certificates, as provided in sections 1012.795 and 1012.796(6), Florida Statutes (2016). The Commissioner of Education is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida Educator Certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016) At all times relevant hereto, Northern held a Florida Educator Certificate and was employed as a teacher in the Duval County School System, teaching at A. Philip Randolph Academy of Technology, a charter school within the Duval County school system (and referred to herein as the “School”). On October 30, 2013, L.E. was a ninth-grade male student in the Teacher’s fourth period class, Introduction to Information Technology. L.E., who had a history of misbehaving in class, was one of 25 students in class on that day. The facts of this case read like A Tale of Two Cities; “It was the best of times, it was the worst of times.” Although the duration of the incident in question was very short, and the location where it occurred was limited in size, the disparity in the testimony of eye witnesses could not be greater. For some, there was clearly an egregious event precipitated by the Teacher’s actions. For others, there was only a minor disruption of class with little significance. Few of the witnesses seemed to have a clear memory of the events that transpired that day, as evidenced by the contradictory and imprecise testimony evoked at final hearing. The Commissioner’s View Mrs. Byrd (formerly Ms. King) was the School’s “computer technology coordinator.” She would often come into Mr. Northern’s classroom because most of the School’s computer- related supplies were kept in a closet in that classroom. Mrs. Byrd came into Mr. Northern’s room on October 30, 2013, to get some IT supplies out of the closet. As she exited the classroom, Mrs. Byrd saw a woman walking quickly towards the classroom door; the woman appeared to be very agitated. Mrs. Byrd asked the woman (later identified as T.E., L.E.’s mother, and also referred to herein as the “Mom”) if she needed assistance. Mrs. Byrd noticed that the woman was not wearing a Visitor’s badge, as required by school rules. The woman said she did not need any help and that Mr. Northern had called her to come and deal with her son’s behavior issues. At that point, Mr. Northern opened the door and ushered T.E. into the classroom, indicating to Mrs. Byrd that it was “okay.” Mrs. Byrd followed them back into the classroom. T.E. immediately made a beeline to where her son, L.E., was sitting. Mrs. Byrd remembered T.E. physically attacking her son as she yelled profanities at him. The beating, with fists and open hands to L.E.’s face, lasted “a long time.” Mrs. Byrd initially estimated it to be about a minute and a half in length, but later agreed that it was probably about 15 seconds in duration. During the time that L.E. was being physically attacked by his mother, Mr. Northern did not intervene. Mrs. Byrd was in shock at what she was witnessing. At some point, Mrs. Byrd recovered from her shock and began to shout Mr. Northern’s name over and over to get his attention. Mr. Northern then directed the Mom and L.E. out into the open area outside the classroom. A student told Mrs. Byrd she “needed to do something” after L.E., his mom and Mr. Northern left the room. She obtained L.E.’s name from a student so that she could report the incident. Once outside the classroom, T.E. continued to berate both L.E. and Mr. Northern. At that point, Mrs. Byrd (who had walked out of the classroom sometime after the others) walked towards the elevator which was located just across from the classroom. As she neared the elevator, she met Mr. Lewis, the principal at the school. She indicated to Principal Lewis that she needed to talk to him about something important, i.e., the incident she witnessed in Mr. Northern’s classroom. However, Principal Lewis heard the Mom cursing loudly at T.E. and instead of talking to Mrs. Byrd, he went to speak to the Mom. Mrs. Byrd entered the stairwell next to the elevator and went downstairs. Principal Lewis explained to the Mom that the language she was using was not allowed on campus and that she needed to calm down. She did so. T.E. then took her son downstairs and presumably signed him out of school for the remainder of the day. Mr. Northern did not indicate to Principal Lewis that there had been a problem of any kind in the classroom. Principal Lewis’ testimony overall was not persuasive. He seemed very unclear as to how the events unfolded and seemed to contradict other, more believable witness testimony. Mrs. Byrd was upset by the incident and immediately called the abuse hotline at the Department of Children and Families (“DCF”) to report the incident. DCF advised Mrs. Byrd to notify administration at the School about the incident. Mrs. Byrd contacted the assistant principal, Mrs. Peeples, but not until the next day. Mrs. Peeples asked Mrs. Byrd to provide a written statement about the incident and Mrs. Byrd prepared the statement. At about 4:15 p.m. on the day of the incident, Mrs. Peeples allegedly received a telephone call from the parent of one of the other students in Mr. Northern’s class. The student had purportedly told his/her parent a fellow student, L.E., had been severely beaten by his mother in the presence of the entire classroom. Based on that call, Mrs. Peeples contacted Principal Lewis to tell him what she had heard from the parent. Principal Lewis remembered that he, not Mrs. Peeples, received the parent’s phone call on that day. He also remembered talking with Mrs. Peeples about the incident and that she recounted her conversation with Mrs. Byrd. Mrs. Byrd, however, said she did not talk to Mrs. Peeples about the incident until the following day. Therefore, who talked to whom and when the conversations occurred are not completely clear from the testimony provided. Principal Lewis contacted Mr. Northern and told him they needed to talk, so Mr. Northern later stopped by Mr. Lewis’ office. A short conversation was held, but Mr. Northern did not say that the Mom had physically attacked her son in the classroom. Mr. Northern did not remember being summoned to Principal Lewis’ office, but remembered talking briefly to him in the breezeway on the first floor of the School. The School gathered statements from six of the 25 children in Mr. Northern’s classroom that day. Three of the statements were not signed and did not clearly indicate who had written them. Mrs. Peeples, who decided which students to ask for statements and was present as each child wrote his or her statement, could not--on the day of final hearing--identify the authors of the unsigned statements. Mrs. Peeples’s testimony was credible, but not substantively helpful. Some of the students’ hearsay statements seem to confirm what Mrs. Byrd reported; some do not. From the affirming statements came these remarks: “His mom came up there and kept punching [L.E.] in the face.” (K.B.) “His mom had just started beating on him.” (W.W.) “[His] mother just started hitting him in the face.” (J.W.) “A mom . . . came in and was very angry, very verbal about her anger and started hitting her son and yelling.” (Unsigned) “[L.E.’s] mom started hitting him.” (Unsigned) None of the hearsay statements were particularly credible as they are all unverified and without information as to the author. The Teacher’s View On October 30, 2016, L.E. was engaged in playing a very violent video game on a classroom computer in Mr. Northern’s classroom. L.E. had accessed the game by way of a “modified” thumb drive which made his actions undetectable by school administration, which may have been monitoring the computer. Mr. Northern told L.E. to put the game away, because it was prohibited by school policy. Further, a school assembly had been held recently wherein the consequences for playing such video games were announced, i.e., five days suspension from school and 45 days restriction from use of school computers--at least that was Mr. Northern’s description of the events at final hearing. In his deposition (taken on July 18, 2016), Mr. Northern said the issue with L.E. was that L.E. was “playing video games” instead of logging on to the appropriate website. He made no mention of the nature of the video games or that they were violent or prohibited by school policy, only that L.E. was told three times to stop playing videos and log on to the website as directed. After the third warning, Mr. Northern decided to call in reinforcements, to wit: L.E.’s mom. It was customary for Mr. Northern to call L.E.’s mom or Dean Lapkin, a school administrator, when L.E. would act out in class or fail to stay focused on his work. Mr. Northern said L.E. was a bright student, very versed in computer skills. He had a lot of potential, but was very often off-track and off-task. When L.E. refused to comply with instructions, Mr. Northern would call T.E. and have her talk with her son. That was usually enough to get L.E. back on track. Principal Lewis confirmed that calling a student’s parent was an acceptable method for dealing with recalcitrant students. On the day in question, Mr. Northern finally pulled L.E. off the computer (whether for playing video games despite being warned three times or for playing forbidden violent video games) and telephoned L.E.’s mother. Mr. Northern said at final hearing that he had first contacted Dean Lapkin to see if L.E. might be released from the prescribed discipline for watching violent video games on campus. Dean Lapkin said the discipline was to be imposed, that Mr. Northern should write a referral and he, Lapkin, would make the call to L.E.’s mom. But somehow Mr. Northern determined that the dean was too busy to call T.E., so Mr. Northern called the Mom himself. Mr. Northern said he received the Mom’s telephone number from Dean Lapkin that very day, but that statement flies in the face of his prior testimony that he had called the Mom several times in the past about L.E.’s behavior. (This sort of discrepant testimony severely clouds the facts in this case.) As Mr. Northern was talking to the Mom, she put him on hold to take another call, reputedly from Dean Lapkin. When she returned to the phone call with Mr. Northern, the Mom said she was already at the School. In his deposition, Mr. Northern said that he called T.E. immediately, i.e., there was no mention of calling the dean first, and that she arrived at the School as they talked. Mr. Northern anticipated receiving a call from downstairs for him to send L.E. down to the Guidance Office to check out, or, possibly, that the Mom would be escorted to his classroom to get L.E. Instead, a few minutes after Mr. Northern completed his call to T.E., she appeared in his classroom. Mrs. Byrd had just left the room, so Mr. Northern assumed she had let T.E. into the room (as the door is generally locked). However she gained entrance, Mr. Northern heard L.E. say to someone, “Bitch, what you gonna do now?” and turned around to see T.E. racing toward L.E., cursing loudly. Mr. Northern testified that he “tried to rush over” to intercept the Mom before she got to L.E. He stated that he was able to get between the two and fend off the Mom’s attempts to hit her son. As far as he knew, the Mom never landed any blows on L.E. Mr. Northern did not remember anyone in the classroom saying anything to him during the confrontation. After some unspecified amount of time, Mr. Northern escorted T.E. and L.E. outside the classroom into the hallway area. The Mom continued haranguing her son in that area until Principal Lewis intervened. One student’s statement seems to confirm Mr. Northern’s comments: The student wrote, “Mr. Northern call [L.E.] to his desk then his mom came and took him out of the classroom.” At final hearing, Ms. Williams, a former student who was present on the day in question, remembered the Mom slapping at L.E. but could not remember if the Mom ever made contact. Hearsay evidence at final hearing presented by Mrs. Byrd, uncorroborated but not objected to, indicates that during the DCF investigation L.E. had reported that his mom never hit him, but neither L.E. nor T.E. testified at final hearing to verify what actually happened. According to Mr. Northern and at least two of the students, Mrs. Byrd was not in the classroom during the confrontation between L.E. and his Mom. Mr. Northern did speak to Principal Lewis at some point after the incident. According to Mr. Northern, they met in the breezeway on the first floor for a few moments. Principal Lewis maintained that he called Mr. Northern to his office to talk about the incident later on the day it happened. Mr. Northern’s testimony was not persuasive as to the specifics of his meeting with Principal Lewis. Other Factors in the Dispute The Mom’s physical size was discussed by three witnesses. Mrs. Byrd described her as being “bigger than me.” (Mrs. Byrd is approximately five feet, two inches tall and stout in stature.) Ms. Williams said the Mom was about five feet, four inches tall and “not that big.” Mr. Northern said she was about five feet, one inch tall and weighed about 102 pounds. L.E. was a ninth-grade student and was sort of slight in stature. Mrs. Byrd said the Mom did not have a Visitor’s badge on her person. She could not remember what the Mom was wearing on that day, but did not see a badge. Mr. Northern said the Mom was wearing a halter top and tight jeans that day, totally inappropriate clothing under the student dress code (as he initially thought T.E. was a student). She did have a Visitor’s badge but, with no place to put it on her clothes, she had it in her purse. Neither party presented the Visitor’s log for that day to substantiate whether T.E. had registered or not, so we shall never know. It is interesting that Principal Lewis never asked T.E. about a Visitor’s badge. There were allegedly three investigations done concerning the alleged incident: One by the school; one by DCF; and one by law enforcement. None of the investigative reports (or their ultimate findings) was introduced into evidence in order to substantiate either party’s position. It was not mentioned whether photographs were taken of L.E. to ascertain bruising or other injuries from the alleged beating. So, again, we shall never know. After the investigations were concluded, Principal Lewis did not “trespass” the Mom from coming on campus in the future, even though he had authority to do so if warranted.1/ Neither the Mom nor L.E. was called to testify or bring some clarity to the matter at hand. Presumably they would have confirmed the position of one side or another in this matter, but again we shall never know. Nor was Dean Lapkin called to verify his involvement in the situation. Mr. Northern served as a teachers’ union representative at the School. He has brought complaints to Principal Lewis on numerous occasions as part of his duties in that role. Mr. Northern has also brought direct complaints to Principal Lewis regarding computer equipment issues in his own classroom. The two men have a “history” outside the present dispute. In fact, just about two weeks prior to the alleged incident, Mrs. Byrd wrongfully removed ten computers from Mr. Northern’s classroom, forcing him to have Principal Lewis intervene to have the equipment returned. The Amended Administrative Complaint in this matter contains four counts: Count I is a general count alleging that Mr. Northern violated the Principles of Professional Conduct for the Education Profession; Count II alleges Mr. Northern’s failure to protect a student from conditions harmful to learning or to the student’s mental health and/or physical health and safety; Count III alleges intentional distortion of facts concerning an event; and Count IV alleges failure to maintain honesty. What the unrefuted evidence at final hearing proved is this: Mr. Northern was teaching his class on October 30, 2013. L.E. was a student in that class. L.E.’s mother came to the classroom cursing loudly and took L.E. away. Mrs. Byrd had been in the classroom in close proximity to L.E. as he was being removed from the classroom by his mom and/or Mr. Northern. Mrs. Byrd reported an incident to DCF and to the School administration. Mr. Northern discussed the matter with Principal Lewis. “Tis a far harder decision I make in this case than I have ever made . . .,” at least as to what actually transpired that fateful day in Mr. Northern’s classroom. The conflicting and unclear stories delivered by the key players in this incident (minus the two primary protagonists), does little to explain what actually happened on that day. Based on the totality of the conflicting testimony, it is likely that T.E. came into the classroom and accosted her son. The finer details of what she did, however, seem to be forever lost.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint against Respondent, Winston Northern. DONE AND ENTERED this 15th day of November, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2016.
Findings Of Fact Until his suspension in August 1983, Respondent has been continuously employed by the School Board since August 1983, as a teacher, psychologist, and Assistant Principal. He holds Florida Teacher's Certificate Number 232311 and has been on continuing contract with the School Board. During Respondent's 15 years of employment with the School Board, he was evaluated as average and above average as a teacher, psychologist, and Assistant Principal. He was particularly effective as an assistant principal and in diagnosing learning and behavioral problems experienced by kindergarten and first-grade children. On August 9, 1983, Respondent entered a guilty plea and was therefore convicted in the United States District Court for the Southern District of Florida of one count of conspiracy to transfer firearms in violation of Title 18, United States Code Section 371 because the subject firearms were not registered with the Secretary of the Treasury as required by the applicable federal laws. Respondent was originally sentenced to be confined to a minimum security institution for a period of six months with a subsequent period of two years probation. This sentence was then modified to four months in a community treatment center (halfway house) with a subsequent period of three years probation. Respondent is presently serving his probation period. This conviction forms the sole factual basis for the charges herein by both the School Board and the Department. Because the Specific Notice of Charges and the Administrative Complaint are based upon allegations involving Respondent's immorality, moral turpitude and his effectiveness as a teacher, the circumstances surrounding Respondent's arrest, plea, and conviction are extremely pertinent. Respondent's first involvement with the circumstances leading to his conviction stems from conversations he had with his neighbor Jose Lopez regarding the sale of hand guns. At all times material hereto, Respondent was the holder of a Federal Firearms License. Although Lopez knew that Respondent was a licensed gun dealer, Respondent did not know that Lopez was a paid federal informant. Lopez asked Respondent if Respondent could put him in touch with anyone who would sell unregistered firearms. Respondent knew a gun dealer named Zarraga who had previously introduced Respondent to a man named Navarro who owned a gun shop. Respondent told Lopez about these men and introduced them to each other. Lopez contacted Donald R. Kimbler, a Special Agent for the Bureau of Alcohol Tobacco and Firearms of the United States Treasury Department. Lopez, acting with Kimbler's knowledge, then entered into a deal with Navarro and Zarraga wherein Lopez was to purchase seven Ingram submachine guns and eight silencers. Lopez, Navarro, and Zarraga arranged to deliver the guns and silencers to Respondent's home where they were to be picked up by Lopez. Respondent earned no money from the transaction. He was willing to help Lopez locate the guns because he was under the belief that they were to be sent to Nicaragua to aid in the fight against the Communists in that country. Respondent believed that to be a worthy cause based upon Respondent's personal flight as a young man with his family from Communist Cuba. Respondent believed that the persons offering the guns for sale (Navarro and Zarraga) were the ones who had the responsibility to register them with the federal government. The first time Respondent realized he was involved in a serious crime was when he was confronted by Agent Kimbler at Respondent's school. At that meeting, Respondent cooperated with Kimbler and gave a voluntary statement regarding the transaction under investigation. In a subsequent meeting with Kimbler, Respondent gave another statement which constituted a complete account of the events regarding the sale of guns by Navarro and Zarraga in which Respondent was involved. At the time Respondent gave his cooperation and first statement to Kimbler, he was not under arrest and no arrest of Respondent was contemplated by Kimbler. Respondent's attitude throughout the investigative proceedings was one of total and above excellent cooperation with the authorities. His cooperation was based upon his desire to be honest and do what was right rather than on a desire to "make a deal" with the government. Based upon Respondent's cooperation and subsequent testimony, the federal government was able to indict and convict Zarraga and Navarro. Contrary to Agent Kimbler's recommendation, Respondent was also indicted. Although it is common knowledge that machine guns are used to kill people and silencers are used to muffle the sounds of such a weapon, there was no direct evidence as to what use these guns and silencers were to be put. Petitioner's only witness to testify that Respondent's effectiveness as a teacher has been reduced was Patrick Gray, Jr., the Executive Director for the School Board's Division of Personnel Control. That witness further admitted that he did not recall ever having seen a newspaper article regarding Respondent's arrest or conviction. Two other employees of the School Board who are involved in the actual school setting did not believe Respondent has lost his effectiveless.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Final Orders be entered: In Case No. 83-3017 suspending Respondent from his employment by the School Hoard without pay for a period of three years from the effective date of his suspension, and In Case No. 83-3447 suspending Respondent's Florida Teacher's Certificate for a period of three years from the effective date of his suspension by the School Board. Done and Recommended this 30th day of November 1984, in Tallahassee, Florida. LINDA M. RIGOT 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 30th day of November 1984. COPIES FURNISHED: Thomas Robertson, Esquire 3050 Biscayne Boulevard Third Floor Miami, Florida 33137 Wilson Jerry Foster, Esquire Suite 616, Lewis State Bank Building Tallahassee, Florida 32302 Harold M. Braxton, Esquire 45 SW 36 Court Miami, Florida 33135 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner Department of Education The Capitol Tallahassee, Florid 32301 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner. CASE NO. 83-3017 IVAN DANGER, Respondent. /
The Issue The issue in the case is whether just cause exists for the termination of Respondent Dale W. Reichard's (Respondent) employment under a professional services contract with Petitioner Seminole County School Board (Petitioner).
Findings Of Fact Dr. Vogel is the district school superintendent of the School District of Seminole County, Florida. Prior to his current employment, he was employed as the district superintendent in St. Lucie County, Florida for six and one-half years. Prior to his employment by the School Board of St. Lucie County, Florida, he was employed as assistant superintendent for personnel and administrative services by the School Board of Osceola County, Florida, for 17 years. The Respondent is employed by the Petitioner at Oviedo High School on a professional service contract, pursuant to the provisions of Subsection 1012.33(3), Florida Statutes. The Respondent is employed as "instructional personnel," as defined by Subsection 1012.01(2)(a), Florida Statutes. The employment relationship between the Respondent and the Petitioner is established pursuant to the state law of Florida and the collective bargaining agreement between the Seminole Education Association, Inc., and the Petitioner. The Respondent's employment can be terminated for just cause only. The Respondent was arrested at Oviedo High School on May 9, 2007, on a felony warrant issued by the Circuit Court of Volusia County, Florida, for the offense of possession of cocaine. The Respondent's arrest resulted from a May 2, 2007, visit to the Respondent's residence by undercover investigators employed by the Volusia County Sheriff's Department. The Respondent was cooperative with the investigators and readily admitted that he was in possession of cocaine and gave the cocaine to them. An ensuing search of the Respondent's residence resulted in the investigators finding approximately 12 grams of material which field-tested presumptive positive for cannabis. The Respondent was charged in the Circuit Court of Volusia County, Florida, with possession of cocaine under information 2007-01526CFA WS. Subsequent to the Respondent's arrest at Oviedo High School on May 9, 2007, Dr. Vogel, as district school superintendent, placed the Respondent on suspension with pay and recommended to the Petitioner that the Respondent be suspended without pay pending termination. By letter of May 10, 2007, Dr. Vogel advised the Respondent that he would recommend to the Petitioner that the Respondent be terminated for misconduct in office. Dr. Vogel's recommendation for suspension without pay and termination was based on information provided to him by Robert Lundquist (Mr. Lundquist), the principal of Oviedo High School, and John Reichert, who is the executive director for Human Resources. By Petition for Termination, filed with the DOAH, the Respondent was further charged with conduct unbecoming an employee of the Petitioner by reason of his possession of cocaine and possession of marijuana. Proceedings for termination were abated pending resolution of the criminal charges then pending in the Circuit Court of Volusia County, Florida. The Respondent entered into a Substance Abuse Offender Referral Agreement with the Office of the State Attorney, Seventh Judicial Circuit, which provided that the criminal prosecution would be dismissed if the Respondent successfully complied with the terms and conditions therein prescribed. The Respondent successfully completed his obligations under the Substance Abuse Offender Referral Agreement, which included counseling and random drug testing. The criminal prosecution was dismissed via a nolle prosequi of the charge entered on August 3, 2007. Mr. Lundquist has been the principal of Oviedo High School commencing with the 1996-1997 school year. Mr. Lundquist is the administrative head of Oviedo High School. At the time of the incident herein described, the Respondent held the position of teacher of American Government and chairman of the Social Studies Department at Oviedo High School. In addition, the Respondent was the boys' volleyball coach. The Respondent was considered to be a good teacher by Mr. Lundquist. Three weeks prior to the Respondent's arrest, Mr. Lundquist had a conference with the Respondent in which Mr. Lundquist communicated that he had heard through the Seminole County Sheriff's Department that there was a possibility that the Respondent was involved in drug use. Mr. Lundquist advised the Respondent that, if the information Mr. Lundquist had received was correct, the Respondent should stop his drug use and get help. Later that same day, the Respondent contacted the Employee Assistance Program (EAP) to set up an appointment. The original appointment was for May 2, 2007. However, the Respondent was contacted by EAP and informed that the appointment had been changed to May 3, 2007.1 Mr. Lundquist has received no negative communications or comments from teachers regarding the Respondent. Several teachers who were members of the Respondent's department, and several teachers that observed the Respondent's arrest, asked Mr. Lundquist about the matter.2 Several students also had questions about the matter of the Respondent's arrest. Mr. Lundquist did not respond to the students. Mr. Lundquist has received no communications, either written or oral, from parents regarding the matter. To Mr. Lundquist's knowledge no information about the matter was published in local papers or broadcast by local radio or television stations. Mr. Lundquist confirms that the Respondent's performance as department chair, classroom teacher, and boys' volleyball coach during Mr. Lundquist's tenure as principal of Oviedo High School has met all performance expectations of the Petitioner and that the Respondent has continuously met the assessment criteria as specified in Section 1012.34, Florida Statutes, and as found in the official agreement between the Seminole Education Association, Inc., and the Petitioner. Mr. Lundquist believes that a teacher's role goes beyond what is taught in the classroom on a daily basis. Mr. Lundquist believes that a teacher has an obligation to his or her colleagues, students, students' parents, and the community to uphold moral standards. Mr. Lundquist believes that a teacher is expected by students and the community to be a person of integrity and to display good sound judgment and moral character, both in school and in their community. Mr. Lundquist's trust in the Respondent has been destroyed by the Respondent's use and possession of cocaine and marijuana. Mr. Lundquist believes that the Respondent's use and possession of controlled substances, cocaine and marijuana, constitutes a betrayal of the trust reposed in the Respondent by Mr. Lundquist regardless of the fact that the Respondent voluntarily admitted to law enforcement that he used and possessed cocaine and marijuana at the time of the consent search of his home. Mr. Lundquist believes that the Respondent's conduct would diminish his effectiveness in the classroom and that it would be an error in judgment to place him back in the classroom. Mr. Lundquist believes that he can no longer trust the Respondent to supervise students involved in an extracurricular activity, e.g., volleyball, especially in light of Mr. Lundquist's belief that the Respondent apparently ignored the "heads-up" that Mr. Lundquist gave him during their conversation about what Mr. Lundquist had heard from law enforcement about the Respondent's suspected drug use. Dr. Vogel is aware that the criminal charge against Respondent was dismissed upon the Respondent's completion of a pretrial diversion program. Dr. Vogel believes that the Respondent's effectiveness as a role model for students was destroyed by his admitted criminal conduct and that a teacher's behavior extends beyond the classroom and the teacher's school's campus. Dr. Vogel believes that he can no longer trust the Respondent to be in presence of students, either as a teacher or a coach, because he can no longer serve as an effective role model for students. Dr. Vogel's recommendation for suspension without pay and termination is solely based on the nature of the conduct, the Respondent's arrest for possession and use of cocaine. Dr. Vogel acknowledges that he has received no complaints regarding the Respondent from teachers, students, or parents; that he is aware of no publicity regarding the Respondent's arrest; and that he is aware that the Respondent's performance as a teacher and department chair was satisfactory. It is Dr. Vogel's professional belief that a teacher who possesses and uses cocaine can no longer serve as a positive role model for students and, thus, is no longer effective as a teacher. The Respondent was arrested along with a friend in 1981 for possession of marijuana. The Respondent participated in a pre-trial diversion type plan through the Orange County, Florida, court system, and the charge was ultimately dismissed upon his completion of the program. The Respondent did not acknowledge the 1981 arrest for marijuana on his application for employment with the Petitioner because he believed that the charge had been expunged or sealed.3 The Stipulation of Facts included expressions of support for the Respondent by various colleagues which are set forth verbatim as follows: Diana N. Cabana has been a teacher for 10 years, during which Dale Reichard was the Department Chair for Social Studies, and is aware of the reasons for Mr. Reichard’s termination. Ms. Cabana describes Mr. Reichard as a colleague and friend, who has also been an excellent mentor. In addition to being a colleague of Mr. Reichard, Ms. Cabana is the parent of two students taught by Mr. Reichard, and believes that he was instrumental in their development both as students, and as citizens active in the community. Ms. Cabana further describes Mr. Reichard as an excellent teacher, and stated her sincere hope that he would be allowed to complete his teaching career. Jean Davis has been a colleague of Mr. Reichard for 15 years, during which time Mr. Reichard was also the volleyball coach of Ms. Davis' son. Ms. Davis is aware of the reasons for Mr. Reichard’s termination. Ms. Davis describes Mr. Reichard as an individual worthy of appreciation from both the school system and parents for his diligence and hard work. Ms. Davis states that Mr. Reichard is highly motivated and a self-starter who encourages students to get involved in their school activities, such as homecoming and powder puff football, as well as clubs and sports. According to Ms. Davis, Mr. Reichard has established a solid reputation as a highly regarded teacher and coach. Parents viewed Mr. Reichard as a role model, instilling sportsmanship, building confidence, and motivating students to congratulate the other team with a positive attitude – win or lose. In short, Ms. Davis believes that Mr. Reichard has clearly demonstrated through his job performance and dedication that he is an asset to the Seminole County School District. Joan Stone has been a colleague of Mr. Reichard for approximately 20 years, and she is aware of the reasons for his termination. Ms. Stone describes Mr. Reichard as very enthusiastic and states that his attitude made an impact on the social studies department at Oviedo High School. According to Ms. Stone, Mr. Reichard had a great way with the students, and many of his past students would be glad to tell you that he was and still is their all-time favorite teacher. Ms. Stone stated that Mr. Reichard’s keen interest in his subject-–American Government --influenced his students who developed their own interest in politics. Many of the students registered to vote as a result of his encouragement. Finally, Ms. Stone states that Mr. Reichard’s presence at Oviedo High School is definitely missed. Mary Ellen Woods first became acquainted with Mr. Reichard in 1985 when he was placed in her classroom as a senior intern from the University of Central Florida. According to Ms. Woods, it was quickly apparent that Mr. Reichard was no ordinary intern in that his depth of knowledge and enthusiasm for the subject he was teaching far surpassed any other intern she had in her classroom before or after that time. Ms. Woods took pride in Mr. Reichard’s development over the years, including when Mr. Reichard was awarded Teacher of the Year and was appointed Social Studies Department Chairman. Ms. Woods also states that Mr. Reichard was not only an outstanding classroom teacher but a dedicated coach as well. He mentored numerous young people on the volleyball court and soccer field. Ms. Woods worked with Mr. Reichard in coaching powder puff football for many years, and his rapport with students was superb both in the classroom and through athletics. According to Ms. Woods, Mr. Reichard has created countless active citizens by inspiring an interest in this country’s democratic process as a teacher of American Government. Mr. Reichard made sure the young people in his class had the opportunity to register to vote thus establishing a lifelong habit of active participation in the political process. Mr. Reichard also inspired young people to have confidence in themselves through his coaching. According to Ms. Woods, Mr. Reichard was an integral part of the Oviedo High School family. He always had a smile for everyone and was universally liked and respected by the entire faculty and staff-– and still is. Mr. Reichard was a teacher that everyone knows because his students spoke so highly of him people made a point to see who he was. He generously helped anyone who needed it, and assisted many new teachers in getting acclimated to the high school environment. He was a good friend to those who needed an ear. He has always been a good friend to me and many others. Finally, Ms. Woods states that Mr. Reichard is the most naturally gifted teacher she have ever known, and that she sincerely hopes he will be permitted to share that gift once more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order reinstating the employment of the Respondent, Dale W. Reichard. DONE AND ENTERED this 2nd day of June, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2008.
The Issue Whether the Respondent, Alan T. Polite (Respondent), committed the violations alleged and should be disciplined as set forth in the Notice of Specific Charges filed on December 21, 2004.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was the state entity charged with the responsibility of operating and supervising the public schools within the Miami-Dade County, Florida School District. Such responsibility includes the personnel matters such as the one at hand. At all times material to the allegations of this case, the Respondent was employed by the School District as a custodian assigned to work at Miami Park Elementary School. On or about December 11, 2003, the Respondent attended a staff meeting conducted at Miami Park Elementary School. At that time the Petitioner’s “Drug-Free Workplace Policy” was distributed and reviewed. The Respondent does not deny attending the meeting and does not dispute the existence of the Petitioner’s policy regarding drugs and alcohol in the workplace. On February 20, 2003, after the Respondent’s supervisor observed him behaving in an unusual manner, the Respondent was asked to submit to a drug and alcohol test. The Respondent was uncharacteristically disruptive, loud, and confrontational. When asked to take a drug/alcohol test, the Respondent refused unless the supervisor also agreed to submit himself for testing. The Respondent was called to the office and provided with the pertinent forms for drug/alcohol testing. The Respondent refused to acknowledge the forms, refused to sign the forms, and refused to submit himself to the testing. After the refusal was deemed a positive result, the Respondent was prohibited from returning to work until he complied with the return-to-duty requirements of the “Drug- Free Workplace Policy.” The procedures and directives followed the School District policy. On February 28, 2003, a conference-for-the-record (CFR) was conducted to address the refusal to take the drug/alcohol test. At that time the Respondent was given a referral to the Employee Assistance Program (EAP) and was informed that his progress and participation with the EAP would be monitored by the Petitioner’s Office of Professional Standards (OPS). The OPS is responsible for tracking employees so that the Petitioner can be assured that the “Drug-Free Workplace Policy” is being followed. On or about March 19, 2003, the Respondent entered the EAP. On April 10, 2003, the Respondent agreed to subject to unannounced testing for drug/alcohol use. For 60 months following his return to duty, the Respondent agreed to submit to testing on a random basis. It was anticipated that there would be no fewer than six screenings within the first 12 months. Based upon the foregoing, the Respondent was granted permission to return to work and did so on or about April 11, 2003. On June 8, 2004, the Respondent was selected for a random, unannounced follow-up test. The Respondent presented for testing at the prescribed location (an approved laboratory). The alcohol test administered to Respondent produced a positive result. The Respondent does not dispute the result of the test. The Respondent did not dispute that a consumption of alcohol caused the result. On June 22, 2004, another CFR was conducted in the OPS to review the test result with Respondent. At that time, based upon a complete review of the Respondent’s work record, the OPS recommended disciplinary action be taken against the Respondent for a second violation of the “Drug-Free Workplace Policy.” There is no allegation that the Respondent consumed alcohol while on the job at Miami Park Elementary School on June 8, 2004. There is no allegation that on June 8, 2004, the Respondent exhibited any outward sign that he was performing his duties under the influence of alcohol. The Respondent attends church at the Friendship Missionary Baptist Church. The Respondent makes meaningful contributions to the church and is perceived as a sober role model among the congregants. If the Respondent demonstrates he can remain sober for a period of five years, and show appropriate work history for that time frame, he may be eligible to be rehired by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be terminated from his employment with the School District. The suspension without pay must be sustained. S DONE AND ENTERED this 27th day of April, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2005. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Pamela Young-Chance, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Alan T. Polite 827 Northwest 118 Street Miami, Florida 33168
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue for determination is whether Respondent's employment as a teacher with Petitioner should be terminated for alleged willful neglect of duties and gross insubordination.
Findings Of Fact At all times material hereto, the Miami-Dade County School Board (Petitioner) was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the district of Miami-Dade County, Florida. Judith Zucker (Respondent) began her employment with Petitioner, as a teacher, in 1968 and continued her employment with Petitioner until 1972. She began her employment with Petitioner again in 1989. Respondent holds a teacher certification in elementary education. She is also certified to teach the learning disabled and mentally handicapped. At all times material hereto, Respondent was employed by Petitioner as a teacher, assigned to Little River Elementary School (Little River), Citrus Grove Elementary School (Citrus Grove), and Miami Jackson Senior High School (Miami Jackson). Little River Elementary School In August 1989, Respondent resumed teaching with Petitioner. She was employed at Little River pursuant to a continuing contract of employment. On January 8, 1991, Respondent suffered injuries to her neck and spine when she attempted to break-up a fight between two students. Despite her injury, she immediately returned to work, not losing any time from work. In November 1994, Respondent was injured again. While walking down the hall of the school, a student, for whom she was not responsible, was hanging on a door. The student pushed himself off the door and fell on top of Respondent onto a cement floor. As a result, Respondent's original injury was aggravated. During the 1994-95 and 1995-96 school years, Respondent was a Title I tutor. She tutored three to eight students at a time in reading. During the 1996-97 school year, the reading program changed. For this school year, Little River, along with some other schools, was placed on Florida's critically low school list. Petitioner initiated a program called Operation Safety Net in which schools on the critically low list began using the Successful for All/Roots and Wings program (Success for All Reading Program). The Success for All Reading Program was for students who were critically deficient in reading. Little River and Petitioner's other critically low schools began using the Success for All Reading Program for the 1996-97 school year. In the Success for All Reading Program a tutor had a group of 18 to 20 students for 90 minutes in the morning. For the rest of the day, the tutor worked one-on-one with first grade students. Respondent was not assigned to the Success for All Reading Program at the beginning of the 1996-97 school year. Respondent requested her principal to assign her to the Success for All Reading Program due to her medical condition resulting from the injuries to her neck and spine for which she was still undergoing physical therapy. The principal agreed to assign Respondent to the Success for All Reading Program because the principal wanted to make sure that Respondent was provided with the opportunity and the time to attend therapy. Respondent was assigned to the Success for All Reading Program with a modification. Respondent was allowed to assist other tutors with testing and was working in groups of two to four students, significantly smaller than the regular groups of 18 to 20 students. Using the smaller groups for Respondent caused the other morning groups to become even larger. At the time that the principal made the assignment with the modification, the principal expected the duration of the assignment to be short, but the assignment spanned the entire school year. Having groups expanding beyond the 18 to 20 students for the entire school year created a hardship in that it was counter-productive for the critically deficient readers. In the fall of 1996, Respondent was again injured. This time, Respondent was injured by a student to whom she was tutoring one-on-one. Respondent did not lose any work as a result of the injury she sustained. Respondent had now been injured by students at Little River on three separate occasions: January 8, 1991, November 1994, and the fall of 1996. Despite the injuries that she sustained, she immediately returned to work after each occurrence without any loss of time. At the end of a school year, teachers indicate what they would prefer to do during the following school year. In May or June 1997, the principal of Little River advised Respondent that she would be assigned to teach a regular class, a third grade class, for the 1997-98 school year. Respondent sought a transfer from Little River in August 1997. No transfer occurred. When Respondent returned to Little River in August 1997 for the 1997-98 school year, Respondent informed the principal that she was still in physical therapy; that she was unable to write on the chalkboard because to do so caused her to shake; and that she was, therefore, unable to return to a regular classroom. Respondent requested a return to tutoring. The principal informed Respondent that the tutors had already been assigned and that she (Respondent) was expected to return to a regular classroom. However, for the first two weeks of school, the principal allowed Respondent to tutor. The principal contacted Petitioner's Office of Risk Management1 to determine Respondent's status as to whether she was able to return to a regular classroom. Risk Management advised the principal that Respondent was cleared to return to her regular duties, to return to a regular classroom. On September 19, 1997, the principal explained to Respondent that, according to Risk Management, she was cleared to return to her regular duties and that she would be returning to a regular third grade classroom. The third grade classroom would contain no more than 29 to 33 students. Respondent informed the principal that she (Respondent) was not able to return to a regular classroom and that her doctor would have to contact Risk Management. On September 23, 1997, the principal again contacted Risk Management which again informed the principal that Respondent was cleared to return to her regular duties. The principal advised Respondent of the information that she had obtained from Risk Management. Respondent again informed the principal that she was unable to return to a regular classroom. Risk Management had also advised the principal that, if Respondent continued to insist that she was unable to return to a regular classroom, the principal should direct Respondent to leave the school's campus. The principal did as Risk Management advised and directed Respondent to leave the school's campus. Respondent complied with the principal's directive and left the campus of Little River. The Executive Director of Risk Management (Executive Director) had advised the principal to direct Respondent to leave the school's campus if Respondent insisted that she could not return to a regular classroom. He advised the principal to direct Respondent to leave the school's campus because of Respondent's medical condition. The Executive Director had reviewed Respondent's file and had become aware of a letter dated September 3, 1997, from Dr. Raul Grosz, Respondent's authorized2 neurologist. The letter stated in pertinent part: She [Respondent] has at this time chronic persistent [sic] and discomfort. I am recommending that she be placed in a non- threatening environment in which she does not have to move furniture or lift furniture whatsoever. I also feel that she is unable to carry a full class-load at this time. As a result of the letter, the Executive Director authorized the payment of workers' compensation benefits from the date that Respondent was directed to leave Little River's campus by the principal. Even though Dr. Grosz opined that Respondent was "unable to carry a full class-load," he did not state the number of students as to what represented a full class-load. However, Dr. Grosz considered a full class-load to consist of a large group of students who were not well-behaved and who were potentially dangerous. Dr. Grosz did not inform Respondent as to what he considered to be a full class-load. There was no neurological basis for restricting Respondent to a non-threatening environment or a reduced class size. Respondent requested Dr. Grosz to add the restrictions. Respondent also expressed her desire to be in a non-threatening environment. Respondent's requests seemed reasonable to Dr. Grosz and he attempts to accommodate his patients' subjective feelings, so Dr. Grosz included the restrictions in his letter. It was Dr. Gorsz's intent that Respondent and Petitioner attempt to reach a mutually acceptable solution and that Petitioner would provide what it determined was appropriate. As of September 19, 1997, Respondent had exhausted all of her available sick and personal leave. Petitioner and the United Teachers of Dade (UTD) have entered into a collective bargaining agreement (UTD Contract). The UTD Contract provides generous, extensive leave provisions. Respondent never applied for any type of leave, including leave pursuant to the UTD Contract. The Executive Director was authorized to direct a teacher to a work assignment. In determining a work assignment for Respondent, the Executive Director sought assistance from and relied upon Petitioner's Instructional Staffing Department to locate a position for Respondent which would meet her medical restrictions. Citrus Grove Elementary School The Director of Instructional Staffing informed the Executive Director that a varying exceptionalities (VE) position in special education was available at Citrus Grove. A VE teacher teaches a group of students who have different exceptionalities. The VE teacher may simultaneously teach the students with different exceptionalities in the same class or the teacher may teach the students with one exceptionality during the school day at one time and may teach other students with a different exceptionality during the same school day at another time. VE teaching is used for mildly handicapped students. By letter dated October 7, 1997, the Executive Director informed Respondent that a VE position was available at Citrus Grove and that the VE position was within her certification and met her medical restrictions. He also indicated that the position was an appropriate accommodation for Respondent. Moreover, the Executive Director directed Respondent to report to Citrus Grove immediately and to call the principal at Citrus Grove for further reporting instructions. Respondent failed to call the principal. She also failed to report to Citrus Grove. Respondent decided, without making any personal investigation, that the VE position at Citrus Grove was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Citrus Grove. Respondent is in pain daily. She wears a Tens Unit to short-circuit some of the pain. Respondent expresses being afraid of being in groups wherein she may be bumped which would worsen her condition. However, Respondent's authorized neurologist, Dr. Grosz has no concern regarding physical contact by bumping causing further neurological damage or problems. He has more concern regarding further neurological damage or problems caused by Respondent being involved in a high-speed motor vehicle accident. Respondent did not observe the placement or inquire about the profiles of the students who she was going to teach. The composition of the VE class, as to students, at Citrus Grove was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with the students. The UTD Contract provides for the use of the Safe Physical Management (SPM) program, which is the use of physical restraints for severely disabled students. Teachers, who are in self-contained programs for severely emotionally disturbed students and autistic students, receive training in techniques to contain highly disruptive students under unusual circumstances. The techniques are used to prevent injuries to persons, including the student, and damage to property. Before SPM is used, Petitioner's Multi-Disciplinary Team must recommend its use and the use of SPM must be documented on the student's Individualized Education Program (IEP). One student in Respondent's assigned class had an IEP which approved SPM. However, based upon the student's progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Citrus Grove; mildly handicapped students, not volatile students, are placed in the VE classes. Dr. Grosz opined that Respondent could teach a class of 25 to 30 well-behaved students. The VE classes at Citrus Grove were not full-load classes. The VE classes consisted of 7 to 10 mildly disabled students at any one time; whereas, the regular classes consisted of between 28 and 39 students. Elementary VE classes contained no more than 12 to 15 students. The number of students in VE classes at Citrus Grove were smaller than VE classes throughout Petitioner's district. Respondent also erroneously relied upon Dr. Grosz's opinion that she was unable to teach a full class-load. What Respondent considered a full class-load and what Dr. Grosz considered a full class-load were not the same. Pursuant to what Dr. Grosz considered a full class-load, Respondent would have been able to accept the VE position at Citrus Grove. Respondent would have been the third VE teacher at Citrus Grove. The VE students were all in one room separated by a partition. Respondent's class would have been on one side of the partition and one VE teacher would have been in the class with Respondent. The other VE teacher and the other VE students would have been on the other side of he partition. Citrus Grove was a safe, non-threatening environment. The needs of the VE students at Citrus Grove were more an educational concern than emotional, and the VE students were well-behaved. As to Respondent being injured at Citrus Grove in the VE position, such an occurrence was unlikely. Respondent would not have been required to lift or move any furniture or any heavy items at Citrus Grove. Respondent was qualified to teach the VE class at Citrus Grove. The Citrus Grove assignment met Respondent's medical restrictions. The assignment of Respondent to Citrus Grove was reasonable. Respondent's refusal of the Citrus Grove assignment was unreasonable and unjustified. Approximately one week after Respondent was assigned to Citrus Grove, Respondent, on October 13, 1997, presented to Dr. Grosz for an examination. Respondent did not inform Dr. Grosz of the assignment at Citrus Grove. Informing Dr. Grosz of the assignment would have provided Dr. Gorsz with an opportunity to explain to Respondent what he meant by his opinion. Respondent did not also inform Dr. Sanford Jacobson, her authorized psychiatrist, of the Citrus Grove assignment when she presented to him for a psychiatric evaluation on October 14, 1997. Dr. Jacobson prepared a report of the evaluation dated October 16, 1997.3 In the "Summary and Conclusions" section of his report, Dr. Jacobson states, among other things, the following: There have been three incidents which have resulted in injuries as described by Mrs. Zucker [Respondent]. While some of them may have been somewhat surprising, difficult to manage, and distressing, I would not think that they are the kind of injuries that one would see as causing a Post-Traumatic Stress Disorder. . . . The most prominent symptoms are depressive symptoms. Clinical diagnosis at present is that of: Axis I: Mood disorder associated with cervical disc disease and stenosis with depressive-like episode. * * * It would appear that her depression is related to the injuries. . . . At this time I do not believe she can resume full classroom duties. In essence, Dr. Jacobson's diagnosis was that Respondent was suffering from depression related to her pain and discomfort from her physical injury. Even though Dr. Jacobson opined that Respondent could not resume "full classroom duties," he did not state the number of students as to what he considered a full classroom. However, Dr. Jacobson considered a full classroom to consist of approximately 25 to 30 students or more. As a result of Respondent not reporting to Citrus Grove, day-to-day substitutes filled her position. The needs of the VE students were not met with such an arrangement. Miami Jackson Senior High School On or about October 15, 1997, one of Respondent's physicians had placed Respondent on a no-work status. Subsequently, on November 10, 1997, Dr. Grosz returned Respondent to work but with restrictions. Dr. Grosz states in his report dated November 10, 1997, among other things, the following: She [Respondent] remains able to perform at light duty status with no lifting of furniture allowed and I will defer to psychiatry in terms of her emotional complaints. The Executive Director consulted again with Petitioner's Instructional Staffing to locate a position for Respondent. Instructional Staffing informed him of a VE position at Miami Jackson. On December 3, 1997, the Executive Director informed Respondent that a VE position at Miami Jackson was within her certification and met her medical needs. He directed Respondent to report to Miami Jackson. The Executive Director also directed Respondent to call the principal at Miami Jackson for further reporting instructions. Respondent failed to report to Miami Jackson. She also failed to call the principal at Miami Jackson. Respondent decided, without making any personal investigation, that the VE position at Miami Jackson was not appropriate and was unreasonable. Respondent did not believe that she was physically capable of performing as a VE teacher at Miami Jackson. Respondent did not observe the placement or inquire about the profiles of the students whom she was going to teach. The composition of the VE class, as to students, at Miami Jackson was decided before Respondent was assigned the VE class, and, therefore, the composition was not decided with consideration given to Respondent's physical limitations. Respondent assumed that she would be required to use physical restraint techniques with students. The VE classes at Miami Jackson were not full-load classes. The regular classes at Miami Jackson averaged approximately 35 students; whereas, the VE classes consisted of 14 to 21 students per class period in Respondent's proposed classes. The students in the VE classes were mildly disabled, with the majority of the students being learning disabled and a few being emotionally handicapped and a few educationally mentally handicapped. Many of the students were being mainstreamed into the regular school setting. A majority of the students were on track for a standard diploma. Three students in Respondent's proposed class at Miami Jackson had IEPs which approved SPM. The students would have been in Respondent's proposed class in 1998. The students' prior IEPs had approved SPM and the SPM was carried over to Miami Jackson. However, based upon the students' progress, it was unlikely that SPM would have been needed. Moreover, SPM is not used in VE classes at Miami Jackson; SPM is only used in severly emotionally disabled classes at Miami Jackson. Miami Jackson was a safe, non-threatening environment. Respondent would not have been required to lift or move any furniture or any heavy items at Miami Jackson. Respondent was qualified to teach the VE class at Miami Jackson. However, the Miami Jackson assignment failed to meet Respondent's medical restrictions. The Miami Jackson assignment met Dr. Grosz's medical restrictions; but, it failed to meet Dr. Jacobson's medical restrictions. Dr. Jacobson did not state in his report the size of the class that he recommended that Respondent teach. Nor did he recommend to Respondent the size of class that she should teach. At hearing, Dr. Jacobson opined that he would recommend that Respondent teach a class with 7 to 10 students; however, he would not recommend that Respondent teach a class with 14 to 21 students. Respondent's proposed VE classes at Miami Jackson consisted of 14 to 21 students. The assignment of Respondent to Miami Jackson was unreasonable. Respondent's refusal of the assignment to Miami Jackson was reasonable and justified. It matters not that Respondent was unaware of the size of class recommended by Dr. Jacobson; it is sufficient that the assignment failed to meet his medical restrictions. Even though Respondent did not know the size of class to which Dr. Jacobson was referring, she relied upon his report, as well as Dr. Grosz's opinion, in refusing the assignment to Miami Jackson. As a result of Respondent not reporting to Miami Jackson, day-to-day substitutes filled her position until a permanent teacher could be assigned. Dr. Grosz examined Respondent again on December 12, 1997. Respondent did not advise him of her assignment to Miami Jackson. Because Respondent had failed to report to Citrus Grove and to Miami Jackson as directed, the Executive Director turned Respondent's case over to Petitioner's Office of Professional Standards (OPS). By letter dated January 26, 1998, OPS advised Respondent, among other things, that she had been absent without authorized leave and that such absence constituted willful neglect of duty and subjected her employment to termination. OPS also requested that Respondent provide a written request within 10 working days if she wanted a review of her situation. Respondent failed to reply to OPS' letter. However, Respondent's counsel for workers' compensation responded. The response from Respondent's counsel indicated that Petitioner was aware why Respondent was not working, but his response failed to specifically address the assignments to Citrus Grove and to Miami Jackson. Petitioner took action on March 18, 1998, to suspend Respondent and dismiss her from employment. According to Petitioner's computerized attendance records, at that time Respondent had been absent without authorized leave since September 19, 1997. From September 19, 1997, to October 7, 1997, Respondent was not absent without authorization. On September 19, 1997, Respondent informed the principal of Little River that she was unable to teach the regular third grade class. Subsequently, on September 23, 1997, the principal directed Respondent to leave Little River, upon the advice of the Executive Director, and the Executive Director authorized Respondent to receive workers' compensation benefits retroactive to the date that she was directed to leave. Moreover, Respondent was not directed to report to Citrus Grove until October 7, 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Judith Tucker without pay, but not dismissing her from employment, and reinstating Judith Tucker under the terms and conditions deemed appropriate. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1999.
