The Issue Should Petitioner impose discipline on Respondent's Florida Educator's Certificate No. 635967, based upon the allegations in the Administrative Complaint, Case No. 012-1824-V, before the State of Florida, Education Practices Commission?
Findings Of Fact Stipulated Facts Respondent holds Florida Educator's Certificate No. 635967, covering the areas of Educational Leadership and Elementary Education, which is valid through June 30, 2005. At all times pertinent hereto, Respondent was employed as an administrator at Crestview Senior High School in the Okaloosa County School District. On or about February 1, 2000, the principal and the school administrators met to discuss heightened security for the Crestview Senior High School and Pace High School basketball game. At the meeting, all administrators were asked to attend the game. At the game on the night of or about February 1, 2000, extra law enforcement was present. Roberto Rosado, Jr., was a student on February 1, 2000, and his date of birth is October 10, 1981. Respondent approached Robert Rosado, Jr., after observing Mr. Rosado make obscene gestures at the opposing team or fans of the opposing team. gym. Law enforcement officers escorted Mr. Rosado from the Mr. Rosado was taken to the hallway by the boys' locker room. Mr. Rosado was handcuffed by the police; Respondent was not present when that occurred. Respondent wrote a sworn statement stating that Mr. Rosado had "pushed [him] away" during the altercation. Law enforcement officers arrested Mr. Rosado for battery on a school official and took him to jail. On or about February 2, 2000, the school administrators and the school principal met to discuss the appropriate discipline for Mr. Rosado. On or about February 2, 2000, the school principal suspended Mr. Rosado for ten days based on the incident at the basketball game and recommended to the Superintendent that Mr. Rosado be expelled; Mr. Rosado remained on suspension until the expulsion proceedings were completed. On or about February 7, 2000, the Superintendent wrote a letter to Mr. Rosado's mother informing her that after reviewing the principal's recommendation and pertinent documents, he would be recommending to the Okaloosa County School Board that Mr. Rosado be expelled for assaulting a school administrator. At a later date, the Okaloosa County School Board did charge Mr. Rosado with assaulting a school district administrator as well as willful disobedience of a school district administrator and open defiance of the authority of a school district administrator. On or about March 9, 2000, an attorney representing Mr. Rosado in his civil suit against the Okaloosa County School Board took Respondent's deposition. In his deposition, Respondent stated that "R.R., pushed him [Hayes] away with his arm." On or about March 22, 2000, the Okaloosa County School Board held Mr. Rosado's expulsion in abeyance stating that Mr. Rosado could graduate, but had to earn one remaining credit hour needed to graduate at another school. Mr. Rosado, a high school senior, was not allowed to participate in senior class activities, attend the prom, or attend graduation with his class. During the week prior to Mr. Rosado's criminal trial, a videotape of the altercation was provided to Mr. Rosado's attorney. The criminal charges against Mr. Rosado were dismissed. Respondent continues to be employed by Crestview Senior High School. Additional Facts Crestview High School (Crestview) and Pace High School (Pace) played a basketball game at Pace on a date before February 1, 2000. It was reported that there was an altercation between a Pace player and Crestview player near the end of that game that was closely contested. As a result, fans came out of the stands and resource officers had to be involved together with Pace administrators to restore order. This led to the meeting between the principal at Crestview and other school administrators to discuss the need for extra security for the return game between Crestview and Pace to be held at Crestview. The return game took place on February 1, 2000. In addition to Okaloosa County Deputy Sheriff Dean Sullivan, the school resource officer for Crestview, Deputy Dustin Adams from that office, and Officer Frank Bergeron from the Crestview Police Department attended the game to provide security. Respondent was among several administrators who attended the basketball game on February 1, 2000, to maintain surveillance and order. Other administrators from Crestview who came to the game were Booker Matthews, Robert Jones and Robert Parish. On February 1, 2000, the student Robert Rosado, Jr., was seated about mid-court, down front on the home side of the gymnasium. He was seated among other students. As with their earlier game, the teams were very evenly matched. Pace had its fans in attendance across the court from where Mr. Rosado was seated. Among the fans in attendance supporting Pace were its junior varsity basketball team members. There was a lively exchange between the fans cheering for their respective teams. This included yelling back and forth across the court. Some comments made by the fans were not flattering to the opponents supporters. Among the comments from the Pace side were remarks such as, "just kiss my ass." The Crestview students responded in kind. One person participating in the cheering and insults was Mr. Rosado. He and other Crestview fans had been provided what are referred to as "Spirit Sticks." These are inflated plastic implements several feet long that are banged together to make noise. During the course of the event Mr. Rosado had another use in mind for his "Spirit Sticks." He took those sticks and pointed them at his crotch in a manner that could be seen by the fans from Pace. While pointing at his crotch, Mr. Rosado used words to the effect, "suck it" or "suck this." He yelled these words. This performance was both seen and heard by Respondent from his vantage point in the gym. Respondent proceeded to move from his location to Mr. Rosado's location to address what he properly considered as being misconduct by Mr. Rosado. When Respondent arrived in front of Mr. Rosado at mid- court, he told Mr. Rosado, that Mr. Rosado had to leave the game. Respondent also grabbed Mr. Rosado's left bicep with Respondent's right hand. His hold was hard enough to leave red marks. Mr. Rosado's reaction was to vigorously pull away from the grip in an upward motion. When that occurred Respondent released Mr. Rosado's arm. Mr. Rosado did not in this encounter, push, shove, hit, punch, or otherwise physically strike Respondent. Respondent was not injured in this encounter. During this brief incident, Respondent and Mr. Rosado argued back and forth. Among his remarks, Mr. Rosado yelled at Respondent, "Don't ever touch me again." This is taken to refer to Respondent grabbing Mr. Rosado by the arm. Respondent began to escort Mr. Rosado from the gym. He was joined in the act by Booker Matthews, another Crestview administrator, Deputy Adams, and Officer Bergeron. The choice to remove Mr. Rosado from the gym was appropriate. As Mr. Rosado exited the gym he was excited and agitated, speaking in a loud voice. On the way out Mr. Matthews told Mr. Rosado to "go," to "just leave." Mr. Rosado was led through the inner doors to the gym and from there to the outer doors and outside the gym where the officers placed him in handcuffs with his arms and hands behind his back. This was in public view. Again, to this point, Mr. Rosado's treatment, to the extent that Respondent was responsible, was acceptable. Mr. Rosado was brought by the officers back into the gym building in a hall area by the boys' locker room. Mr. Rosado had been brought into the area near the boys' locker room to get him away from public attention. The decision to put him in the area near the boys' locker room was made by Deputy Sullivan. When asked by Deputy Adams "What should be done?" with Mr. Rosado, Deputy Sullivan had in mind to locate Respondent and Robert Parish, to determine what those administrators wanted done with Mr. Rosado. When Deputy Sullivan first encountered Mr. Rosado outside the gym before he was brought back into the area near the boys' locker room, Mr. Rosado was being belligerent, cursing loudly. Deputy Sullivan accompanied Mr. Rosado into the hallway area near the boys' locker room. Subsequently, Deputy Sullivan found Respondent and Mr. Parish in the gym proper and brought them back to Mr. Rosado's location in the back hallway. This time Deputy Sullivan came into the back hallway immediately before Respondent and made remarks to Mr. Rosado that led Mr. Rosado to believe that Respondent had accused Mr. Rosado of physical contact instituted by Mr. Rosado directed to Respondent. Mr. Rosado denied that he had done anything untoward; instead he told Deputy Sullivan that Respondent had grabbed Mr. Rosado. At that moment Respondent entered the back hallway. In response to Deputy Sullivan's question about what was to be done with Mr. Rosado, Respondent replied, "We'll take care of him in the morning." Mr. Rosado accused Respondent of grabbing him, as was the case. Mr. Rosado was cursing Respondent calling him several profane names. Given these circumstances, Respondent told Deputy Sullivan that if Mr. Rosado wanted to act that way, "We'll just go ahead and file charges against him for battery." That being said, Deputy Adams escorted Mr. Rosado to a patrol car and transported him to the local jail. In turn, Deputy Sullivan filled out an offense report with supporting sworn affidavits of complaint executed by Respondent, Booker Matthews, and Robert Parish. Petitioner's Exhibit numbered 16 is constituted of the report and attached affidavits. This led to Mr. Rosado being charged in the Circuit Court of Okaloosa County, Florida, with a violation of Sections 784.03 and 784.081, Florida Statutes, related to a battery upon an employee of a school district, a third degree felony, in Case No. 00-0002168-CF-002. To support the charge, in his affidavit provided to Deputy Sullivan, Respondent said, in pertinent part about his encounter with Mr. Rosado in the gym." . . . I then touched him on the arm and again asked him to leave the game. Bobby pushed me away . . . ." Respondent did more than touch Mr. Rosado on the arm. Most importantly, Respondent was untruthful when he said that Mr. Rosado pushed him away. While the choice was made by Deputy Sullivan to formally write the report leading to Mr. Rosado's arrest for battery, Deputy Sullivan relied in part on Respondent's false affidavit to support that decision. Mr. Rosado did not push Respondent away as the affidavit states. On the morning of February 2, 2000, a meeting was held among administrators at Crestview to discuss the possible discipline to be imposed on Mr. Rosado. At that meeting Respondent made a comment that in essence left the impression that Mr. Rosado had pushed or shoved Respondent during their encounter the night before. The meeting resulted in a disciplinary referral for Mr. Rosado. A form to support that referral was completed by Respondent, Petitioner's Exhibit numbered 19. In describing the specific nature of the offense leading to the referral for discipline, Respondent said in describing the event ". . . he refused to leave. I asked him to leave again and touched him on the arm. Bobby pushed me away from him . . ." Again, Respondent attributes misconduct to Mr. Rosado in relation to pushing him, which is not true. In the February 2, 2000, letter from G. Wayne Ansley, principal at Crestview, directed to Walter Gordon, Superintendent of the Okaloosa County School District recommending Mr. Rosado's expulsion, it is premised to some extent upon the untruthful remarks by Respondent that Respondent had touched Mr. Rosado's arm and that, in turn, Mr. Rosado shoved Respondent. Petitioner's Exhibit Numbered 20. On March 9, 2000, Ms. Evangelina Rosado, Mr. Rosado's mother was informed that the school district of Okaloosa County had charged Mr. Rosado and through that charge called for his expulsion. Petitioner's Exhibit numbered 11. The specific charges were: assault on an administrator, willful disobedience, and open defiance of authority. The charge of assault on an administrator stems from the false claim by Respondent that he had been assaulted. At a disciplinary hearing convened by the Okaloosa County School Board to consider the imposition of discipline against Mr. Rosado, Respondent read from his false remarks in the disciplinary referral form, Petitioner's Exhibit numbered The school board relied upon this information in making its decision to expel Mr. Rosado, reflected in its order entered March 22, 2000. Petitioner's Exhibit numbered 14. While Mr. Rosado's criminal case was pending his attorney, Martin Knopes spoke to Respondent. In the course of that conversation Respondent told Mr. Knopes that he touched Mr. Rosado on the arm while in the gym and that Respondent was pushed backwards by Mr. Rosado. Both remarks are contrary to the truth. In preparation for the criminal case Respondent's deposition was taken by Mr. Knopes. While under oath Respondent said that he touched Mr. Rosado in their encounter somewhere between the elbow and the shoulder. This is as contrasted with what actually happened, in that Respondent grabbed Mr. Rosado's upper arm. Respondent in the deposition was not truthful when he testified that "He pushed me away with his -- with his forearm," referring to Mr. Rosado. In the deposition in the criminal case, Petitioner's Exhibit numbered 2, Respondent explains that as a result of the alleged assault, he was going to go back and talk with Mr. Rosado in the hallway near the boys' locker room and let him go. Then he modifies his testimony to the effect that he was going to go back and talk to him and see how "he" (Mr. Rosado) reacted and let him go. According to the testimony in the deposition the decision to press charges was ". . . because of the remarks he kept making and I saw that I couldn't reason with him is when I asked the police officers to take him away." This explanation provided in his testimony in the deposition related to the criminal law case affords clear insight into his mindset when he set upon the course that has led to this place in his career. Some discipline could have been expected in relation to Mr. Rosado's conduct given the nature of the charges in the case for expulsion, but the aspect of the discipline related to the alleged assault on a school district administrator comes from the false premise about an assault supplied by Respondent, as did the criminal prosecution. To that end, Respondent is partially responsible for Mr. Rosado's embarrassment and humiliation caused by the incident and the emotional disruption in Mr. Rosado's life. Disciplinary History There was no indication that Respondent has been subjected to prior discipline.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED that a Final Order be entered which finds Respondent in violation of Counts 1 through 7, and revokes Respondent's educator's certificate for a period of one year, subject to reinstatement in accordance with Section 1012.795(4), Florida Statutes (2003). DONE AND ENTERED this 10th day of June, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2004.
Findings Of Fact Respondent was issued Florida Teacher's Certificate No. 482561 on April 23, 1981, which certified her as authorized to teach elementary education and act as an elementary and secondary school counsellor until June 30, 1985. This certificate is valid now and was valid at all times pertinent to this hearing. On December 16, 1981, at the time of the incidents alleged, Respondent was working for a telephone answering service in Fort Lauderdale, Florida. She was in the process of moving to Jacksonville and had hired an individual named James Dallas to move her possessions for her. Since the day prior to the day in question, she had seen Dallas and his friend going through her luggage, she became convinced he was planning to rob her. As a result, she removed certain items from her luggage to her purse, which items included the handgun and the "knife" in question. Respondent admits to having the gun in her possession concealed in her purse. She contends, however, she had purchased it legally and was of the opinion it was properly registered. Whether it was or not is immaterial, as the ultimate fact is it was concealed in her purse and she did not have a license to carry a concealed gun. As to the "knife," she contends it was not a knife, but part of a manicuring set. The probable cause affidavit executed by the police officer who arrested her, however, indicated that he found a 4 1/2 inch black- handled steak knife in her purse along with the handgun. At no time did Respondent draw or threaten with either weapon, although at the time of her arrest she was involved in a disturbance with Dallas. I find, therefore, that the "knife" in question was in fact a knife. On March 5, 1982, Respondent pleaded guilty in the Circuit Court for Broward County, Florida, to carrying a concealed firearm and carrying a concealed weapon (misdemeanor) She was placed on probation for three years for carrying the gun and for one year, to run concurrently with the three, for carrying the knife, and adjudication of guilt was withheld with a provision for expungement of the record upon successful completion of probation. She immediately moved to Jacksonville. She initially intended to apply for employment in the Duval County school system, but found that she needed to attach a copy of her teaching certificate, which had, in fact, been stolen from her luggage. Therefore, on April 2, 1982, she submitted an application for a duplicate certificate on which she listed her arrest for and the disposition of her offense. It was on the basis of her application for a duplicate license that this action to discipline her was initiated. In January, 1983, almost a year later, there was no showing of any report by the courts to Petitioner or any complaint or report by any other agency. Respondent is currently working at Edward Waters College in Jacksonville as Recruitment and Admissions Counsellor and has been so employed since December, 1982. Her supervisor, the Dean of Student Affairs, finds her to possess high skills and creative abilities and to have much to offer the field of education, even though he is aware of her plea of guilty and the offenses to which it relates. Her probation officer, who has observed her since she arrived in Jacksonville, relates a glowing picture of her probation and indicates she has been very satisfactory and absolutely no problem. She follows and lives up to all standards of her probation. In fact, she has been so good, he intends to recommend early termination of her probation as soon as she has completed half the term, which is the earliest he can do so. The Director of Personnel Systems and Records for the Duval County school system does not know Respondent, knows nothing of her professional record or competence, and has not reviewed any application from her to teach in the Duval County schools. However, he is of the opinion that by virtue of her involvement with the law alone, and regardless that upon completion of her probation her record would be expunged, her effectiveness in an educational situation would be lessened because of the knowledge by others within the system of her offenses. Under the teachers' Code of Ethics, a teacher should set an example for the students. A teacher is responsible to not only the students, but also to the faculty and parents, and a teacher's off-campus conduct can and does have an effect on the teacher's performance. Respondent does not feel her effectiveness as a teacher has been reduced. In fact, she feels that because of what she has learned from this situation she has become more aware of her responsibilities to society and to the educational system. This, she feels, enhances her effectiveness.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. RECOMMENDED this 8th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1983. COPIES FURNISHED: J. David Holder, Esquire Berg & Holder Post Office Box 1694 Tallahassee, Florida 32302 Marvin I. Edwards, Esquire Edwards, Willis & Marinucci 3300 Independent Square Jacksonville, Florida 32202 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D. TURLINGTON, as Commissioner of Education, Petitioner, vs. CASE NO. 83-501 BEVERLY J. MCNAIR, Respondent. /
The Issue The issues for determination are whether Respondent threatened to shoot students with a firearm located in his vehicle that he parked on campus, and whether the acts proved during the administrative hearing constitute just cause to terminate Respondent's professional services contract pursuant to Subsection 1012.33(6)a), Florida Statutes (2006).1
Findings Of Fact Respondent has taught diesel mechanics at the Ridge Vocational Technical Center (Ridge Center) in Polk County, Florida, for over 12 years. Respondent teaches diesel mechanics pursuant to a professional services contract. By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent that she was suspending Respondent from his employment with pay. The letter also states that, on June 12, 2007, the Superintendent would recommend to Petitioner that Petitioner terminate the professional service contract of Respondent. On June 12, 2007, Petitioner followed the recommendation of the Superintendent. The letter dated May 14, 2007, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of his employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: On May 11, 2007, an investigation revealed that you had a 9mm pistol in the front seat compartment of your personal vehicle. When asked if you understood that it was against School Board policy to bring a weapon on campus, you indicated that you were aware of the policy. You were arrested by the Winter Haven Police Department for having a weapon on campus. The arresting officer also indicated that further charges may be made against you regarding threatening comments that you allegedly made to the students. * * * Your conduct in this situation is aggravated by the fact that you made reference to the weapon and threatened to use it against students and by the fact that you admitted you were aware that bringing the weapon onto campus was a violation of both state law and Board policy. This was a knowing, intentional act on your part involving students and constitutes just cause for termination. It is undisputed that Respondent possessed a firearm on the Pine Ridge campus on Friday, May 11, 2007. On the morning of May 11, 2007, Respondent placed a 9mm pistol into its holster and put both items into the center console of his truck. Respondent drove the truck to work and parked the truck in the Ridge Center parking lot. The truck was parked approximately 25 feet from the school. The pistol was securely encased and not readily accessible for immediate use within the meaning of Subsections 790.001(16) and (17). The possession of a firearm on the Ridge Center campus violated the written policy of Petitioner. In relevant part, the policy provides: It is the expressed policy of the Polk County School Board that no weapons/firearms shall be taken upon school property by any one other than law enforcement personnel. . . . Petitioner's Exhibits 8 and 10. The charging document notifies Respondent of several aggravating factors that are alleged as grounds to support a finding of just cause to terminate Respondent's employment. The document alleges that the violation of the written school policy was a knowing and intentional act; that Respondent made reference to the weapon and threatened to use it against students; and that the possession of the firearm by Respondent was unlawful. The violation of the written school policy was knowing and intentional. Respondent knew of the written school policy prohibiting the possession of firearms on campus but brought the firearm to school in his truck to take with him that night to a weekend job discussed in subsequent findings. Respondent did not make reference to the firearm and threaten to use it against students. The accusing student complains that Respondent referred to the firearm and threatened to shoot students on May 10, 2007. However, there is no evidence that Respondent possessed a firearm on campus on May 10, 2007. The weight of the evidence does not support the testimony of the accusing student that Respondent threatened to retrieve his firearm from his truck and shoot Pine Ridge students on May 10, 2007. On the afternoon of May 10, 2007, Respondent was grading papers in his classroom at the Ridge Center. Several male students outside of the classroom were using long broom handles to "sword-fight." Respondent readily admits that he yelled words from his classroom on May 10, 2007, to the effect that, "I'm going to shoot all of you guys one of these days if you don't straighten up." Respondent did not make reference on May 10, 2007, to the firearm he possessed on campus on May 11, 2007. The admitted statement was not a threat to shoot students and did not expose any student to conditions harmful to his or her physical or mental health. Respondent continued grading papers, and Respondent and the students remained on campus until shortly after the school day ended at 2:00 p.m. One of the students playing in the hall on May 10, 2007, testified that Respondent said, "The next one of y'all that breaks a broomstick, I'm going to go to my truck, I'm going to get my nine and come back and shoot you." The student further testified that he asked Respondent, "You're going to shoot them?" and that Respondent replied, "Yeah, I'm going to shoot them." The testimony of the accusing student is not credible and persuasive and conflicts with material facts in the record. Respondent did not possess a firearm in his truck on May 10, 2007, when he allegedly threatened to fetch the firearm. A finding based on the testimony of the accusing student would require the trier of fact to ignore the weight of the other evidence as well as the candor, forthrightness, and cooperative nature of the testimony of Respondent. The accusing student is an older high school student with a history of discipline problems at the Ridge Center. The accusing student did not return to the Ridge Center after May 10, 2007, and, on the date of the hearing, was no longer pursuing a trade or degree in any school. He is hoping to enter a military academy within five months of the date of the hearing. Testimony from the accusing student that he did not return to the Ridge Center for fear of Respondent is not persuasive. The accusing student was a problem for other teachers and administrative staff at Pine Ridge, and the testimony of teachers and administrators shows they preferred that the student had never attended the Ridge Center. Petitioner did not prove that possession of the firearm on campus on May 11, 2007, was unlawful. Rather, the evidence and relevant legal authority discussed in the Conclusions of Law shows that the firearm was in Respondent's truck on Friday, May 11, 2007, for a lawful purpose pursuant to Subsection 790.115(2)(a)3. Respondent was scheduled to work that weekend on a truck delivery route that would take him into Liberty City, Florida, between midnight and 5:00 a.m. Respondent drove directly from the Ridge Center to his weekend job and took the firearm on his truck delivery job for self defense. Local law enforcement officials arrested Respondent for allegedly committing a third degree felony in violation of Section 790.115, Florida Statutes (2006).2 At the conclusion of the criminal investigation, not only were additional charges for threats against students not filed against Respondent, as alleged in the charging document in this proceeding, but the state attorney refused to prosecute Respondent on June 12, 2007. It is unclear from the record whether Petitioner knew of the decision of the state attorney on June 12, 2007, when Petitioner terminated Respondent's employment, in relevant part, for the unlawful possession of a firearm on May 11, 2007, and alleged threats against students. The criminal investigation began on May 10, 2007, when local law enforcement officials received an anonymous telephone complaint sometime concerning the alleged threat by Respondent. On May 11, 2007, an officer from the Winter Haven Police Department (Department) visited the Ridge Center to investigate the complaint against Respondent. The police officer questioned Respondent on May 11, 2007, and Respondent acknowledged that he had a pistol holstered and securely encased in his truck in the campus parking lot. Respondent took the officer to the truck, directed the officer to the location of the firearm in the center console, and otherwise fully cooperated in the investigation. The police officer arrested Respondent for possessing a firearm on a school campus in violation of Section 790.115. The Department conducted a full investigation, Respondent fully cooperated in the investigation, and the state attorney dismissed the charges against Respondent on June 12, 2007. Relevant legal authority is discussed further in the Conclusions of Law. At the hearing, Petitioner submitted evidence intended to prove the presence of several aggravating factors that the charging document does not allege. These un-alleged aggravating factors are that Respondent previously possessed an unloaded hunting rifle on campus in Respondent's truck; violation by Respondent had impaired Respondent's effectiveness as a educator; and Respondent failed to protect students from conditions harmful to their physical or mental health. The charging document does not provide Respondent with notice that Petitioner intended to submit evidence at the hearing of the un-alleged aggravating factors. However, Respondent did not object to questions asked during the hearing pertaining to the un-alleged aggravating factors. The ALJ admitted the relevant evidence and considered the evidence in this proceeding. The evidence supports a finding of only one unalleged aggravating factor in this proceeding. Sometime before May 11, 2007, Respondent possessed an unloaded hunting rifle in the back of his truck while the truck was parked on the campus of the Ridge Center. The events of May 10 and 11, 2007, and the prior possession of a hunting rifle did not expose any student to conditions harmful to his or her physical or mental health and did not seriously impair Respondent's effectiveness as a teacher. The testimonies of the director of the Ridge Center and a fellow teacher show that Respondent has consistently been an effective and competent teacher at the Ridge Center. Respondent has no prior discipline in his employment history.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 December, 2007.
Findings Of Fact The Respondent, Leonard Lawrence Buxton, currently holds a Rank II (Masters) teaching certificate (number 154610) expiring on June 30, 1989. In September, 1980, the Respondent was a teacher of Spanish students at American Senior High School in Dade County, Florida) Mr. Buxton was appointed class sponsor for the "class of 83" a short time after the beginning of the school year and after the initial orientation of sponsors. Some time soon after being appointed class sponsor, Mr. Buxton received authorization to conduct a class candy sale for money-raising purposes. The school treasurer, Mrs. Person, as well as Aaron Brumm, the director of student activities, instructed Mr. Buxton on financial matters concerning the candy sale and Mr. Brumm personally delivered all the subject boxes of candy to Mr. Buxton at the commencement of the sale activity. The record is not clear as to whether Mr. Buxton was instructed to turn in all monies derived from candy sales on a daily basis, weekly basis, or in some other fashion. The Respondent experienced difficulties soon after the beginning of the sale on January 20, 1981, involving collecting monies from students and missing boxes of candy. The missing candy disappeared while in Buxton's custody, since Brumm accounted for every box upon delivering it to Buxton. The Respondent's collection problems with his students concerning the proceeds of candy sales caused the sale to extend over a three month period. At the urging of Mr. Brumm, as well as his principal Lonnie Coleman, Respondent ultimately attempted to resolve the matter of collection of money and the missing boxes of candy, finally writing a personal check in the approximate amount of $302.40 payable to the school. That check was returned for insufficient funds by the payer bank. The Respondent contended that the account the check was written on had insufficient funds because his foster child, unknown to him, had withdrawn approximately $800 from that account, leaving insufficient funds to cover the check. In any event, the Respondent's principal, Lonnie Coleman, became aware of the deficiency and had a conference with the Respondent. Mr. Coleman told the Respondent to make the check good and "nothing will ever happen, there will be no problem". The Respondent paid the check and the principal considered the incident closed and initiated no negative job action toward the Respondent, merely orally reprimanding him. The principal felt this was an adequate remedy for any wrong the Respondent had committed in this instance, and following the incident, the principal recommended the Respondent for continued employement at his high school and found all his behavior as a teacher to be acceptable. The principal established that Buxton's personal problems did not render him ineffective as a teacher. Indeed, the principal found the Respondent to be a highly motivated, quite effective teacher, especially with Spanish-speaking students, and the principal would rehire the Respondent at the present time. It has been the practice in Dade County in the past for negative job action to only be initiated upon the principal's initial recommendation. On or about December 30, 1980, the Respondent was a passenger in his 1972 Pontiac which was being driven by an acquaintance, James Dausey, a young man who performed mechanical work on the vehicle. While Dausey was driving, the car was struck by a vehicle driven by Mrs. Ida LaPlant. Mrs. LaPlant offered to settle any damage claim Mr. Buxton might have "on the spot" or after he had obtained an accurate estimate of the damage to his car. The two parties negotiated for a time discussing the amount and the method of reaching the amount. Mrs. LaPlant offered approximately $500 to Mr. Buxton, but Mr. Buxton demanded $1,000 as he represented to Mrs. LaPlant that that amount was needed to cover any injury to Mr. Dausey as well as damage to his car. Mrs. LaPlant expressed the desire that they go to a body shop and obtain an estimate. He refused and demanded that she pay him $1,000 or he would call the police to investigate the accident. She did not want the police to become involved, so ultimately, at the Respondent's insistence, they went together to her bank where she withdrew $1,000 and gave it to the Respondent. The driver, Mr. Dausey, never complained of any injuries in her presence. In any event, the Respondent ultimately filed a claim for payment for damages sustained to his vehicle with his own insurance company representing that he had received no monies in payment for any damages sustained in that accident. Because of his misrepresentation concerning his reimbursement for damages sustained to his vehicle, the Respondent was prosecuted by the State Attorney for the Eleventh Judicial Circuit on, a two-count information charging the Respondent with filing a false and fraudulent insurance claim contrary to Section 817.234, Florida Statutes, and a count of grand theft pursuant to Section 812.014, Florida Statutes. On or about September 30, 1981, Respondent entered a plea of guilty to both counts and was placed on probation for a term of three years, although adjudication was withheld. He was ordered to make restitution to the Allstate Insurance Company in the amount of $294.00. The Respondent maintained he was attempting to get money from his insurance company to reimburse Mrs. LaPlant some of the money she had given him. In any event, it is uncontroverted that Mr. Buxton misrepresented to his insurance company the fact that he had received monies from Mrs. LaPlant, hence the prosecution. In March, 1979, the Respondent received from an employee and friend at the Salon of Music, located in Palm Beach County, a Sony radio "on approval". His friend who was employed at the store asked the Respondent to leave a check with him to hold "as security" while the radio was in the Respondent's possession. Respondent left a check for $436.75 with the Salon of Music, indicating at the time that there was probably not enough money to cover the check in the account. The two of them envisioned the check primarily as a receipt to secure future payment for the radio should the Respondent elect to buy it rather than present payment for the radio. After taking possession of the radio, the radio was stolen from the Respondent's apartment. The Respondent informed his friend at the Salon of Music and the check was then presented to the bank for payment and returned for insufficient funds. This check later became one of a number of checks for which the Respondent was criminally prosecuted in Palm Beach County, with the result that a plea of guilty was entered, with adjudication withheld and a full restitution made in the matter. Some time in May or June, 1980, the Respondent's life became emotionally and financially awry. The Respondent had been recently divorced, apparently without custody of his son. The Respondent became involved in an "affair of the heart" with a married woman who lived next door. This relationship apparently was concluded rather abruptly when her husband presented himself on the premises one day threatening the life of the Respondent and, being armed with a gun, demonstrating the present ability to carry out those threats. With some aid from the Boca Raton Police Department the Respondent precipitously and permanently vacated the area, and "went into hiding" for approximately one month. The Respondent "hid out" for approximately a week at an establishment called "the Bridge Hotel", later moving to the Florida Keys for the remainder of the month he was "under cover". The Respondent was obviously frightened and in fear of his life. As described by the psychiatric social worker with whom the Respondent counselled for approximately one year, the Respondent, during this period of hiding, made a series of precipitate "inappropriate decisions". The Respondent in effect, lived for the month he was under cover, at least in part, on checks written for cash, or directly for shelter or incidentals, to hotels and small commercial establishments in Palm Beach and Monroe counties, which proved to be invalid. In some instances the Respondent believed he had sufficient funds on deposit or could "cover" the checks before presentment. In at least one instance, a motel operator took his check with knowledge of its invalidity, allowing him time to secure its payment. The charges involved herein, or all but two of them, each relate to one of those invalid checks. The Respondent has admitted, in the pretrial factual stipulation, that he entered pleas of guilty to the criminal charges in Palm Beach and Monroe counties which stemmed from those various checks which had been written on insufficient funds. Both the judges in Palm Beach and Monroe counties accepted those guilty pleas, withheld adjudication of guilt in each case and established restitution schedules as part of the probation they imposed on the Respondent. The checks relating to Palm Beach county have all been paid. The Respondent is meeting all his probation requirements and is making regular payments as scheduled on the restitution plan imposed on him. His probation officer has found him very cooperative and making a genuine effort to reorganize his life and live it on a more positive and responsible plane. The genuineness of the Respondent's effort at personal improvement is borne out by the fact that he voluntarily sought aid from a psychiatric social worker, Cynthia Leesfield. Ms. Leesfield testified on behalf of the Respondent. She established him to be highly motivated and genuinely remorseful at the offenses he committed. She demonstrated those offenses to be unique and peculiar to the period of mental and emotional stress he was experiencing at the time. Ms. Leesfield established that the Respondent had engaged in a number of unfortunate illegal acts, but that he did not truly do so with a criminal intent, rather, during a stressful period when he was under fear for his life, he simply fled his apartment with his belongings and checkbook and wrote checks in order to live while he was in hiding and not earning any money. Ms. Leesfield had been a teacher with seven years experience prior to embarking on her present career. Her expert opinion, after counseling and treating the Respondent over a period of approximately one year, was that none of the behavior she had seen manifested by the Respondent made it inappropriate for him to return to a classroom setting. The episodes involving the invalid checks were not a planned pattern of misconduct, but rather related to his fear and anxiety concerning his personal life at the time. Two individuals with direct knowledge testified regarding the charges pertaining to the School Board's original action which thus only relate to the issue of dismissal. They were the Respondent himself and Lonnie Coleman, the Respondent's principal at American Senior High School. Regarding the incident charged involving kicking a student, Mr. Buxton readily admitted the incident. He stated that the kick was merely "in jest" or in the form of good-natured horseplay, and that he had, both before and after the incident, an excellent rapport with the student (a "mariel refugee") and the student's sponsor. Mr. Coleman, the principal, was aware of the kicking incident and orally reprimanded Mr. Buxton for it. He did not feel the incident was serious. He felt that such a reprimand was an adequate admonishment for this occurrence and established that there was obviously no intent to injure the student. No negative job action was suggested by the School Board at the time of the incident and after the discussion between the principal and Mr. Buxton regarding that matter it was considered closed by both of them. Indeed, a number of months later, after the incident was well known to Mr. Coleman, he still recommended Mr. Buxton for continued employment at American High School. Pat Gray, a personnel administrator in the school system, admitted that it was very unusual to bring charges against a teacher on an incident such as kicking a student unless the principal himself suggested such an action. The Respondent's principal, Lonnie Coleman, was the only witness other than the Respondent himself, to testify regarding the Respondent's competency and effectiveness as a teacher. He performed the annual evaluation on Mr. Buxton for the 1980-81 school year. He gave him a favorable evaluation. He found even after the incidents in question that he would continue to recommend Mr. Buxton for a position in instruction at American Senior High School. He found his behavior and record as a teacher to be consistently superior. Mr. Buxton performed well in the classroom and experienced problems only with his personal life. Mr. Coleman did not find the Respondent's personal problems of a sufficiently serious nature to alter his recommendation for continued employment. Mr. Buxton is an exceptional teacher, very effective at getting students interested in his subject matter, and in his preparation before his classes. Mr. Coleman was fully informed regarding the "candy sale charges" and the "kicking incident", and counselled with Mr. Buxton about those two situations and considered them closed without the necessity for any negative job action, and he is still of that opinion. The Respondent was recommended for summer employment in the school system after each of the acts charged against him in this case had occurred and were matters of record. Mr. Coleman initially recommended him for half-time work in the school system's summer program. Subsequently, at the request of the principal at Miami Springs Summer School where he was teaching half-time, he was asked to work full-time for the remainder of the summer. Mr. Buxton has held no other job in his adult life except teaching positions. He remains a highly effective and dedicated teacher, both in his preparation for and presentation of his subject matter, his conduct of classes, as well as his relations with his fellow professionals and his students. He presently works as a substitute teacher and does private tutoring during the period of his suspension. He is earnestly attempting to rehabilitate himself and keenly desires to continue his profession as an educator.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That the Education Practices Commission enter a final order suspending teacher's certificate number 154610 issued to Leonard Lawrence Buxton for a period of one year, provided however, that the imposition of that suspension be stayed so long as the Respondent remains in compliance with the terms of his probation as determined by the Circuit Courts in and for Palm Beach and Monroe counties, Florida, and is guilty of no other violations of Chapter 231, Florida Statutes, during the suspension period. Should those courts revoke his probation for any reason, or should he be found guilty of such violations, that stay should immediately be lifted and his license suspended for the remainder of the suspension period. The final order should provide that if he successfully completes his term of probation then these proceedings shall be dismissed. It is further recommended that the School Board of Dade County reinstate the Respondent in his position of employment, but retain his back pay. DONE and ENTERED this 7th day of July, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1982. COPIES FURNISHED: Craig R. Wilson, Esquire Ruffolo & Wilson 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Jesse McCrary, Esquire 3050 Biscayne Blvd., Suite 300 Miami, Florida 33137 Elizabeth J. Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education The Knott Building Tallahassee, Florida 32301
Findings Of Fact Respondent, Charles L. Smith, holds a temporary state teaching certificate number 514251 issued by the State Department of Education covering the area of physical education. He has been a teacher for fourteen years and holds a master's degree in special education. He is presently the head football coach and a physical education instructor at Stewart High School in Lumpkin, Georgia. This is not respondent's first involvement with a disciplinary proceeding. On June 8, 1983, petitioner, Ralph D. Turlington, as Commissioner of Education, filed an administrative complaint against Smith alleging that while he was employed as a teacher at Dunnellon High School (Marion County) in school year 1982-83, he made derogatory statements to students and engaged in improper conduct of a sexual nature with a minor female student. The matter eventually culminated in an administrative hearing held on August 11, 1983, where one of petitioner's witnesses was Ruth Annette Edwards, a teacher's aide in Smith's class. Her testimony in that proceeding has been received in evidence as petitioner's Exhibit 3. The testimony can be characterized as damaging, for Edwards gave testimony which tended to corroborate the allegations against Smith. Although the Hearing officer recommended that Smith be found guilty of all charges and that his certificate be revoked for two years, in its Final Order rendered on November 9, 1983, the Education Practices Commission (EPC) expressed "strong doubts that the incident (with the female student) actually occurred" and instead placed respondent on probation for one year and imposed the following conditions: The Respondent will break no laws, nor any rules of the State Board of Education. The Respondent will perform in a satisfactory manner as a teacher, and will cause reports of his performance to be forwarded to the Education Practices Commission. Therefore, under the terms of pro- bation, if respondent violates any state law or EPC rule during the ensuing year, he risks the loss of his teaching certificate. The probation period expires on November 9, 1984. Respondent's contract to teach at Dunnellon High School was not renewed in school year 1983-84. However, Smith's failure to teach there was not due to the EPC disciplinary action, but rather was attributable to his failure to pass the mathematics part of the teacher certification examination. Because of this, he weighed alternative offers from Alachua County School Board and the State of Georgia, and accepted the latter offer because of its higher pay. Sometime prior to 10:30 a.m. on Sunday morning, January 29, 1984, the Clara Davis household in Dunnellon, Florida, received a telephone call. Mrs. Davis answered the telephone and was asked by the caller to speak to her grandson, Pretis Griffin, then nineteen years old and a senior at Dunnellon High School who resided with her. Pretis was a former student in Smith's English class in 1982-83, and also knew him from varsity athletics. Mrs. Davis responded that Pretis was still asleep and hung up. The same caller telephoned back a few minutes later and said he was calling long distance from Gainesville and needed to talk to Pretis. She roused Pretis, who answered the call. Pretis testified the caller identified himself as respondent and sounded like Smith. Although Smith denied he made the call, it is found that Smith did indeed telephone Pretis on January 29. After the two made small-talk initially, Smith then asked Pretis if he would do him a favor. Pretis said "yes," and Smith said "I want you to tell Mrs. Edwards something." Pretis asked "What," and Smith replied, "Tell Mrs. Edwards thanks for what she's done, and I will get back at her through her husband." After some more small-talk, the two ended the conversation by Smith saying, "Don't forget to tell her," followed by a "little laugh." After the call ended, Pretis told his grandmother the caller was Coach Charles Smith. The next day, Monday, January 30, Pretis approached Ruth Edwards at school and told her respondent had telephoned him and wanted to convey a message. Pretis then told her "Coach Smith said thanks for what you done and he'll get you back through your husband." Upon hearing this, Edwards simply shrugged and walked away. The following Sunday, February 5, 1984, the Davis household received another telephone call for Pretis prior to 10:30 a.m. According to Pretis, it was the same caller as the previous Sunday, and despite Smith's denial, it is found that respondent made a second call to Pretis on February 5, 1984. After making small-talk, Smith eventually asked if his message had been delivered and what Edwards' response had been. When Pretis responded that he had, and that Edwards had merely shrugged and walked away, Smith commented "Oh, she thought it was a joke," and Pretis said "I guess." The two then discussed an upcoming basketball game at Dunnellon the following Saturday night and the fact that Smith might attend the game. In the next day or so, Pretis told Edwards at school that Coach Smith had telephoned again and that he might attend the high school basketball game that weekend. Edwards gave no visible response to Pretis' comment. Edwards, who readily acknowledged she dislikes Smith, initially claimed that Pretis relayed three separate messages to her from Smith, and also gave a more threatening account of the conversations between Pretis and Smith. However, it is found that only two calls took place, and the substance of the calls was accurately portrayed by Pretis. After Pretis told Edwards that Smith had telephoned a second time, she went to the assistant principal and advised him that Smith had threatened her. Later, Edwards and Pretis were interviewed, and the matter was then turned over to the Marion County School Board, and eventually referred to petitioner. That prompted the issuance of the administrative complaint herein. Smith, who has never met Edwards' husband, denied making the calls. He seemed fully aware of the terms of his probation, and recognized that any violation might jeopardize his teaching certificate. He contended it would be "stupid" to threaten Edwards because it would lead to the exact predicament he finds himself in. On the two mornings in question, he claimed he was either at work (as a clerk at a 7-11 store in Gainesville) or in church. However, his wife was unable to confirm this because of the passage of time since January and February, 1984. Until the hearing, Smith has not seen nor spoken to Edwards (or her husband) since the administrative hearing conducted in August, 1983 and has never carried out any threats against her.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 6B-1.06(3)(m) and that he be placed on probation for a period of one (1) year. DONE AND ENTERED this 8th day of November, 1984, at 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 November, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Arthur G. Haller, Esquire 771 N.W. 23rd Avenue, Suite 1 Gainesville, Florida 32301 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact This matter comes on before the undersigned for consideration following an Administrative Complaint brought by Ralph D. Turlington, Commissioner of Education for the State of Florida, against Robert J. Browne, Respondent. No genuine factual issue is in dispute because no communication, including an election of rights or an appearance from the Respondent, has ever been received. Pursuant to the above-cited rule, the matter was required to proceed to hearing before the undersigned for the presentation of a prima facie case by the Petitioner, regarding the establishment of the reputed facts alleged in the Administrative Complaint upon which the Petitioner seeks revocation of the Respondent's Certificate. The Administrative Complaint is dated July 1, 1981. After the Administrative Complaint was filed, various efforts were made to achieve service of the same on the Respondent. The Respondent never responded to the Administrative Complaint. Diligent search and inquiry failed to locate the Respondent, or a means or location whereby he might be served with the Complaint. Attempts to serve him at his last-known forwarding address resulted in the certi- fied mail being returned unclaimed and unforwardable. The undersigned attempted to serve notice of this proceeding itself upon the Respondent at the last known address with the same result. Service by publication of the Administrative Complaint was achieved by the Petitioner. The Respondent holds Florida Teaching Certificate Number 440435, Post Graduate, Rank II, which expires on June 30, 1998, authorizing him to engage in the profession of teaching in the areas of mental retardation, junior college, administration, and supervision. At all times pertinent hereto, he was employed at the Exceptional Student Educational Center in Broward County, Florida, at Eastside Elementary School. The Respondent's position was that of administrator or assistant principal at the school. The Respondent was employed at the school during the summer of 1980. Mrs. Annie Turner was employed at the school as the custodian during that same summer. She worked from the hours of 3:00 p.m. to 7:00 p.m. in the evening. She often took her son Ronnie, who was the youngest of seven children, to the school with her during her working hours. She did this in order for him to assist her in her job duties. On an early visit to the school, Ronnie met the Respondent, Mr. Browne. They met on frequent occasions thereafter, when Ronnie was at the school with his mother and talked of sports and other things of interest to Ronnie, and they ultimately struck up a friendship. Mrs. Turner began noticing that her son would go to a distant bathroom in the school and stay an inordinate period of time. This happened on a number of occasions and she noticed that Mr. Browne would follow her son into the mens' bathroom while she was engaged in cleaning another room nearby in the school. She did not feel anything was amiss until this happened on a regular basis. Finally, on a Thursday evening (she does not remember the date), in the summer of 1980, Mr. Browne and Ronnie entered the bathroom and stayed so long she opened the door to check on her son and observed the Respondent on his knees committing a homosexual act on the person of her son. She was not observed by Mr. Browne. She ultimately informed-the County Superintendent and Mr. Browne was confronted with the subject accusation by his superiors. Sometime thereafter the Respondent resigned his position at the school. Mrs. Turner no longer respects Mr. Browne and would not want one of her children in a school where he was principal or a teacher due to her apprehension regarding their physical and emotional welfare. The testimony of Ronnie Turner corroborates that of his mother, Annie Turner, and in addition, establishes that the homosexual act observed by Mrs. Turner occurred on three (3) other occasions in a substantially similar fashion and location. The occasion when Annie Turner discovered the Respondent committing a homosexual act on her son was the fourth and last of those occasions, all of which occurred during a three-week period during the summer of 1980. Ronnie Turner sougnt on several occasions to avoid association with the Respondent during this time after he became aware of the Respondent's intentions. He would not want to attend a school at which the Respondent was employed and fears that the same fate will befall other children at any school at which the Respondent should be employed. Ronnie Turner was fourteen years of age at the time the pertinent events occurred. After the Respondent resigned from his position with the Broward County School System, there ultimately ensued an Administrative Complaint brought by Ralph Turlington, Commissioner of Education of the State of Florida, seeking revocation of the Respondent's Florida Teacher's Certificate.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of counsel for the Petitioner, it is, RECOMMENDED: That the Respondent, Robert J. Browne, have his Teacher's Certificate in and for the State of Florida revoked permanently. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF 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 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER 203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302 Mr. Robert J. Browne 1771 Northeast 12th Street Fort Lauderdale, Florida 33304
The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 2nd day of May, 2016.
Findings Of Fact Timothy M. Gray applied for an instructional position with the Pinellas County School Board in May 1984 and accepted an annual contract to teach at Safety Harbor Middle School for the school year starting in the fall of 1984. He taught a course to eighth grade classes called Power and Transportation, which is predominantly a shop course. Gray was certificated to teach industrial arts in 1980. The charges involved in these two cases stem from inappropriate remarks Gray allegedly made to various students in his class or in the school. Gray denies making the improper remarks attributed to him. Specifically, Respondent is alleged to have made inappropriate remarks of a sexual nature to Paul Bartolo and Mark Fulghum while driving them home from a school detention period that caused them to miss their bus. Respondent admits that he gave these 14- and 15- year-old boys a ride home after their detention. He lived in the same direction as the two boys and giving them a ride home was not out of his way. Both of these boys were discipline problems. During the school year Paul served about 15 detentions and was suspended twice. Both were in Respondent's Power and Transportation class and both had been placed on detention by Respondent. During the ride home Paul was in the front seat of Respondent's car and Mark was in the rear seat. Both boys testified that during the ride home an extensive conversation ensued and that Respondent, after answering a question regarding his marital status in the negative, continued with he liked snatch. Respondent admits the conversation and his attempts to reach these boys to improve their attitudes toward school but denies ever using the word "snatch." During discussions with girls on the school bus and at school regarding Respondent and his comments, Paul and Mark told the girls that Respondent said he liked snatch. At this time a lot of rumors were being circulated among the eighth graders in Respondent's classes about the way he looked at them and comments he had made they deemed inappropriate. The prime mover of this group was Dana Shaver, who testified only by deposition in these proceedings. Dana urged Paul and Mark to report Respondent's remarks to the principal. In a deposition (Exhibit 1) Dana testified that Gray had seen her at the beach over the weekend and told her in class Monday that he had seen her at the beach in her bikini and that she did not have much of a tan for a beach girl. This embarrassed Dana and she hung her head and did not hear Respondent say she would look better without it (bikini) on. This was later reported to Dana by an anonymous girlfriend. Respondent admits he saw Dana and another girl at the beach but denies saying anything more to her than she did not have as good a tan as he did. Dana's parents requested she be moved from Respondent's class in Power and Transportation (which she did not like) because of her being "embarrassed" by Respondent. Evidently, no embarrassment was involved discussing use of the word "snatch" with boys in her class. Kera Lampman is a bright 13-year-old who was in Respondent's Power and Transportation class. She testified that Respondent told her she had a nice butt and that she could get straight A's in his class. Respondent denies ever using the word "butt" to Kera but does not deny the remarks about her grades as Kera is a straight-A student. Respondent also testified that he was trying to get Kera moved to a more challenging class when he was suspended. Alissa Lanier, a 14-year-old student at Safety Harbor Middle School, testified that while walking from the bus drop to the entrance door immediately before classes started in the morning she heard someone say, "You've got a nice ass." When she turned around she saw Respondent some 20 feet away. She had never talked to Respondent, was not in his class, and testified Respondent was the only person on the ramp besides her. Respondent not only denies making such a remark but also testified that he frequently has bus ramp duty before school starts and he has never been in the area between the bus stop and school entrance doors shortly before school was due to start when the area was not crowded with students. The testimony that this area would be crowded immediately prior to school starting is deemed more credible. Respondent's denial that he made any comment to any girl he did not even know is more credible than is the testimony that this remark was heard from someone 20 feet distant in the bus ramp area immediately prior to school starting. Shelly Evans, a 14-year-old girl in Respondent's class heard Respondent say he had seen Kera and Dana at the beach and they looked great in their bikinis. During the period when others were reporting Respondent's actions she too reported this comment to the principal. One witness testified that Respondent looked at her in a strange way in class; that it appeared to her that he was staring. Such discussion and remarks including comments about bodies were being circulated among students at Safety Harbor Middle School and was brought to the attention of the principal who interrogated some of the students. The principal was told substantially what was testified to at these proceedings. During the investigation which followed Respondent denied using the words "snatch," "butt," or "ass," while talking to any of the students. Respondent, before coming to Safety Harbor Middle School, had worked in a Y conservation program involving young men. This age group was doubtless older than the 13-15 year olds in the eighth grade class Respondent taught at Safety Harbor Middle School and were less impressionable than eighth grade students. Hearing from one of her teachers that rumors were going around the school regarding Gray's language in the presence of students, Mrs. Raymond, Principal of Safety Harbor Middle School obtained the name of one or more students reported to be aware of such language and called them into her office. After obtaining statements from these students, who appeared as witnesses in these proceedings, Mrs. Raymond confronted Gray, who denied making inappropriate comments. Nevertheless, she recommended his immediate suspension with pay pending the next meeting of the School Board, who was authorized to suspend Gray without pay. Upon her recommendation, Gray was immediately suspended.
