Findings Of Fact Mr. Swiger was certified by the Commission as a law enforcement officer on March 29, 1982, and issued certificate number 44-82-002-02. Mr. Swiger was employed as a patrol officer with the Police Department of the City of Lake Worth, Florida. On the evening of May 8, 1988, Officer Swiger and Officer Lorenzo Odum were patrolling the south end of City of Lake Worth as part of an overtime detail which had been established by Department management to deter prostitution and drug traffic in that area. Officer Swiger and Officer Odum were in uniform, in a marked police car. Officer Swiger was driving. Officer Swiger saw Rickey Spencer walking on the east side of Dixie Highway; he slowed the police car, parked it in a driveway near Mr. Spencer and then exited the car while Officer Odum remained in the passenger seat. When Officer Swiger approached Mr. Spencer, Swiger asked Spencer what he was doing in Swiger's zone; Swiger had warned Spencer not to be in that area. Officer Swiger strongly disliked Mr. Spencer, because Officer Swiger believed Mr. Spencer was a male prostitute. Whether true or not, Spencer has a reputation among Lake Worth police officers as one who dresses as a woman, engages men in oral sex and while their pants are around their ankles often lifts their wallets. Officers had been informed at meetings held at shift changes that city officials were unhappy about the prostitutes on Dixie Highway and wanted them off the street. After receiving no adequate explanation from Mr. Spencer as to why Spencer was on Dixie Highway that evening, Officer Swiger forcefully punched Mr. Spencer in the abdomen with his fist, which caused Mr. Spencer pain and brief difficulty in breathing. 1/ After regaining his breath, Spencer asked Officer Swiger if he were under arrest. Swiger told Spencer that he did not want Spencer in the area. After hearing the sound of the blow, Officer Odum got out of the police car and looked where Officer Swiger and Mr. Spencer stood. Officer Odum told Swiger to "cut it out" because the use of physical force against Mr. Spencer was inappropriate. At that point Mr. Spencer was told by Officer Swiger to "get out of here" and when Mr. Spencer turned to walk away Officer Swiger, who was wearing black combat boots, kicked Mr. Spencer in the buttocks with enough force to lift him off the ground. Officer Swiger and Officer Odum then got back into their police car and drove on. At no time during the encounter between Officer Swiger and Mr. Spencer did Mr. Spencer verbally or physically threaten any violence to Officer Swiger. Officer Odum did not report the incident between Officer Swiger and Mr. Spencer to the Police Department, and Mr. Spencer did not report it to the police or file any complaint at that time. Later, an unrelated incident occurred which caused the management of the Police Department to try to terminate Officer Swiger. Thereafter, Sergeant Ryan and Lieutenant Garson learned of the incident with Ricky Spencer and encouraged Mr. Spencer to bring the present complaint. In May, 1988, Officer Swiger was involved in a department operation which attempted to make controlled buys of beer by minors in the Lake Worth area. As part of that operation, Officer Swiger observed an employee of a Cumberland Farms convenience store sell beer to a minor who was working with the police. The store clerk was Mr. Muhammad Sami Iqbal. The police took no action at that time, because they were engaging in similar attempts to buy beer at other locations. By experience the police knew that it would interfere with their operation if any clerks were served with a Notice to Appear in court to answer the charge of unauthorized sale of beer to minors. Clerks served would quickly put the word out about the operation to other store clerks by telephone. Cheryl Ann Daggert was the manager for the Cumberland Farms Store where Mr. Iqbal worked. On the morning of May 18, 1988, at about 10:30 a.m., Officer Swiger and another officer came to the store and tried to determine when Mr. Iqbal would have his next shift, so that they could serve him with the Notice to Appear at that time. Ms. Daggert told Officer Swiger that Mr. Iqbal would next be at work at 7:00 p.m. that day. Although she did not have Mr. Iqbal's address, Ms. Daggert gave Officer Swiger Mr. Iqbal's home telephone number. Officer Swiger then left the store. Swiger was anxious to serve Mr. Iqbal because he had been off work for three days since the buy at Mr. Iqbal's store, and management at the department wanted to wrap up the operation by serving all the Notices to Appear as soon as possible. Mr. Iqbal reported to work, but was immediately terminated by Ms. Daggert for having sold alcohol to a minor. She told Mr. Iqbal that the police would be looking for him. Shortly after the shift began Ms. Daggert's boyfriend, Jesus Nieves, took Mr. Iqbal to the police station so Mr. Iqbal could take care of whatever the police wanted to see him about. The police officer on duty at the station told Mr. Iqbal that Officer Swiger was not on duty and to return tomorrow. At about 8:30 p.m. Office Swiger returned to the store. Ms. Daggert was still there and her boyfriend, Jesus Nieves, was also there to keep her company. There were five to seven customers either purchasing items in the store or there to pay for gasoline from the store's gasoline pumps. At that time Officer Swiger asked Ms. Daggert about Mr. Iqbal's address, and she again told Officer Swiger that she did not have it. Mr. Nieves told Officer Swiger that he had taken Mr. Iqbal to the police station earlier that day, and that Mr. Iqbal would go back to the police station the next morning. Officer Swiger then became angry and told Ms. Daggert that he was going to lock the store until he obtained the information that he wanted. Officer Swiger ordered the customers in the store to leave, including Mr. Nieves, then told Ms. Daggert that he would not permit her to accept payment from customers from items in the store or to activate the store's gasoline pumps until he obtained the information he wanted: Mr. Iqbal's address. As a result, some of the customers were unable to pay for items they had removed from the store shelves. Ms. Daggert also had to return a customer's $10.00 prepayment for gasoline because she had been forbidden by Officer Swiger to permit the customer to pump gasoline. In deference to Officer Swiger's directives the customers in the store, as well as Mr. Nieves, exited. Outside the store, Mr. Nieves told several customers that the store was closed and that they would have to wait. After all the customers and Mr. Nieves had left, Officer Swiger locked the door from the inside and angrily told Ms. Daggert that the store would remain locked until she gave him Mr. Iqbal's address. Ms. Daggert did not consent to being locked in the store and she was not free to leave the store. Officer Swiger told Ms. Daggert to call the Cumberland Farm's Office and to get him the information he wanted. Ms. Daggert told Officer Swiger that the office was closed at that time. Ms. Daggert telephoned her supervisor, Keith Newmark, at his home, to explain that a police officer had closed the store and that it would remain closed until he obtain Mr. Iqbal's address. Ms. Daggert gave the telephone to Officer Swiger who spoke to Mr. Newmark. Officer Swiger then repeated to Mr. Newmark that he needed Mr. Iqbal's address, and that the store would remain closed until Officer Swiger got the information he wanted. Mr. Newmark questioned Officer Swiger's authority to take that kind of action. Mr. Newmark did have some records at his home, in his company car. He retrieved them, and found he had Mr. Iqbal's address, which he gave to Officer Swiger. About 20 to 30 minutes after the convenience store had been closed and locked, Officer Swiger unlocked the door and permitted Ms. Daggert to resume business. Officer Swiger had received no formal training for conducting beer buy projects, but he had learned from other officers similar tactics to obtain information about persons who had sold beer to minors, when they needed to serve those persons with Notices to Appear. Other clerks and store managers are generally uncooperative in such matters.
Recommendation As a consequence, under Rule 11B-27.005(5)(d), it is recommended that the certification of Mr. Swiger be revoked. DONE and ENTERED this 1st day of October, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990.
The Issue The issue is whether Respondent should be terminated from her position as an instructional employee for gross insubordination and being willfully absent from duty.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this termination case, Petitioner, Lake County School Board (Board), seeks to terminate Respondent, Brenda Armstead, an instructional employee, on the ground that she was willfully absent from duty without leave and guilty of gross insubordination by virtue of having repeatedly refused to report to her job assignment. In a letter dated May 26, 2000, Respondent asked for a hearing "as soon as possible," contending that the "termination was illegal." In school year 1999-2000, Respondent was employed as a teacher at Lake Hills School in Eustis, Florida, where she taught 3 to 5-year-old children with severe emotional disabilities. In September 1999, Respondent was arrested for stalking. However, the criminal charges were later dropped or reduced to a lesser charge. Pending the disposition of the matter, Respondent continued working in the classroom. In January 2000, Respondent reported to her supervisor that she had been exposed to "CMV," an infectious viral disease. Despite being tested as negative, Respondent continued to have concerns with her health and began to exhibit unusual or bizarre behavior in the classroom. Among other things, Respondent constantly wore gloves in the classroom, avoided physical or close contact with her aides, and exhibited other unusual habits or practices. She also began sending "unusual" correspondence to the Superintendent. Because of this, she met with her principal and the Board's Assistant Superintendent on February 14, 2000. At that meeting, Respondent was orally directed to report to the Board's MIS Copy Center (Copy Center) effective immediately until she "could meet with a medical doctor." This action was authorized by School Board Policy 6.171(4), which allows the Board to "require a physical, psychological, and/or psychiatric examination by a physician licensed in the state of Florida when in the School Board's judgment such an examination is relevant to the teaching performance or employment status or a School Board employee." Given Respondent's behavior, the transfer to a non-teaching position was also appropriate and necessary since Respondent was working with emotionally handicapped children. Accordingly, the Board arranged for an evaluation of Respondent by a Dr. Kendall on February 17, 2000; that physician recommended that Respondent be further examined by a psychiatrist. By letter dated February 24, 2000, the Board's Superintendent again directed Respondent to report to the Copy Center for temporary duty pending the results of the examination. The letter was hand-delivered to Respondent on February 25, 2000. Despite both orders, Respondent never reported to work at the Copy Center. Although she "came on campus" a couple of times, she never returned to work. She was later given another oral instruction by telephone on March 16, 2000, by the Board's Assistant Superintendent. By certified mail sent on April 13, 2000, the Board's Superintendent again directed Respondent to report to work, and he warned that if she did not do so by April 19, 2000, she would be subject to being terminated for being absent without leave, gross insubordination, and willful neglect of duties. Respondent received the letter the following day. Even so, she never reported to work. It is fair to infer from the evidence that Respondent was willfully absent from work without leave. On April 21, 2000, the Superintendent recommended to the Board that Respondent be terminated because of her "continuing intentional refusal to report to work despite repeated direct orders, reasonable in nature, and given by and with proper authority to do so." This recommendation was accepted by the Board at its meeting on May 8, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order determining that Respondent is guilty of gross insubordination and being willfully absent without leave, and that she be terminated as an instructional employee for just cause. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 16th day of August, 2000. COPIES FURNISHED: Dr. R. Jerry Smith, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Stephen W. Johnson, Esquire McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Brenda Armstead 32412 Crystal Breeze Lane Leesburg, Florida 34788 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether respondent should be dismissed from his employment with the Palm Beach County School District on charges of engaging in misconduct and immorality which impaired his effectiveness as a teacher, in violation of Section 231.36, Florida Statutes, and of exploiting a professional relationship with a student for personal gain in violation of Rules 6B-1.06(3)(h) and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or "Garden Shop." Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. He then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. He had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Loss Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Palm Beach County dismiss respondent from his employment for violating Section 231.36(4)(c), Florida Statutes, and Rule 6B- 1.06(3)(h), Florida Administrative Code. DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 11th day of May, 1984. COPIES FURNISHED: John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Abbey G Hairston, Esquire School Board of Palm Beach County 3323 Belvedere Road Building 503, Room 232 West Palm Beach, Florida 33402 Thomas J. Mills, Superintendent School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since January 19, 1999. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, and is covered by the collective bargaining agreement between the School Board and TALC. Respondent is certified in the area of Physical Education, Grades K through 12. From the time of his hiring until the fall of 2004, Respondent was a physical education ("PE") teacher at the elementary and high school levels. In the fall of 2003, Respondent applied and was hired for a position as an adaptive PE teacher. An adaptive PE teacher works exclusively with Exceptional Student Education ("ESE") students, generally those who have physical disabilities or are developmentally delayed. This adaptive PE teacher position was itinerant. Respondent drove a circuit of several schools, teaching one or two classes at each, including Mirror Lakes. Prior to the 2003-2004 school year, Respondent had never taught at Mirror Lakes. During the 2003-2004 school year, Respondent drove to the various schools in his personal car, a blue Nissan Altima. Respondent commenced his duties as an adaptive PE teacher during the second quarter of the 2003-2004 school year, either in October or November 2003. He came to Mirror Lakes an average of once a week1 for two consecutive class periods. Respondent would arrive at the school between 8:30 a.m. and 9:00 a.m. He would park his car in the visitor's parking lot at the front of the school. Respondent would enter the school office just inside the main entrance, sign in, and walk to the classroom to meet his first class of students. With the classroom teacher and the teacher's aides,2 Respondent would accompany the class outside to the PE field, where he would provide instruction to the ESE students. Following completion of the first period, Respondent would accompany the students back to their classroom, in the company of their classroom teacher and the teacher's aides. Respondent would then go to the adjacent classroom, taught by ESE teacher Gail Joyal. Ms. Joyal, her two aides, and Respondent would walk the class of 14-to-16 ESE students through the hallway to the art and music rooms. Half of the class would stay for art or music, and the other half would walk outside to the PE field under the supervision of Ms. Joyal, her aides, and Respondent. At the PE field, Ms. Joyal's class joined approximately 50 students from other classes for instruction by PE teacher Robert Bates and his two aides. Ms. Joyal would return to her classroom, but her two aides would remain on the PE field to supervise the class. Thus, there would be at least six adults on the PE field with the students: Mr. Bates and his two aides, Ms. Joyal's two aides, and Respondent. The PE field was about the size of a football field and was surrounded by a chain link fence. The field could be accessed through the school, as was done by the children going in and out for PE class, or via an outside gate. The outside gate was plainly visible from Mr. Bates' office and from the PE pavilion where the students gathered at the beginning and end of PE class. At the beginning of PE class, the students would take their assigned spaces in the covered PE pavilion. Mr. Bates would lead the entire class in ten to 15 minutes of calisthenics. He would then explain the day's planned activity to the class. Once the activity began, Respondent would work with the ESE students from Ms. Joyal's class. Among these students was J.P., a seven-year-old boy classified as educable mentally handicapped, with speech and language impairments. J.P. functions at the approximate level of a three-year-old. Respondent taught J.P. and the other ambulatory students as a group. The only student with whom Respondent worked one-on-one was wheelchair-bound. The PE class lasted 45 minutes. Near the end of class, Mr. Bates would reassemble the students in their assigned spaces under the PE pavilion. Ms. Joyal's aides would take a head count of their students. Ms. Joyal would rejoin the class. Once Mr. Bates dismissed the class, Ms. Joyal and her aides would accompany the children back to their classroom. Respondent would walk with the class as far as the entrance to the school hallway, then would walk to the front office to sign out and move on to his next assigned school. Kelly Bach, J.P.'s mother, testified that during the middle of the 2003-2004 school year, J.P. began telling her about someone at school named "Mr. Bob." J.P. told Ms. Bach that he had kissed Mr. Bob, which caused Ms. Bach no alarm because J.P. "kisses everybody." J.P. also mentioned something about "marrying Mr. Bob." Ms. Bach thought Mr. Bob might be another student at Mirror Lakes. Out of curiosity, she asked J.P.'s teacher, Ms. Joyal, if there was someone at the school called Mr. Bob. Ms. Joyal told Ms. Bach that "Mr. Bob" was the students' name for Respondent. This fact was confirmed at the hearing by Respondent. Ms. Bach testified that two or three months passed with J.P. making no mention of Mr. Bob. Then, one evening in late May 2004, J.P. told her that he had ridden in Mr. Bob's car.3 Ms. Bach questioned J.P. further, but he was reluctant to say more. J.P. told Ms. Bach that "Mr. Bob is going to be mad at me, and Daddy is going to be mad at me, and Daddy is going to give me a spanking."4 After Ms. Bach assured J.P. that no one was going to hurt him, J.P. told her a disjointed story about being taken away from school, having his pants removed, being handcuffed, and having his "butt" touched by a person variously identified as "Mr. Bob," "Big Bird," and "Christmas tree." J.P. told his mother that "Brian" was supposed to save him but didn't. "Brian" is the lead character in the film "The Fast and The Furious," which J.P. watched repeatedly at home. Ms. Bach held J.P. out of school on May 27, 2004, and took him to the emergency room of Lehigh Regional Medical Center to be examined for a suspected sexual battery. The hospital referred her to the Children's Advocacy Center of Southwest Florida. The Lee County Sheriff's Office was also contacted because of the nature of the allegations, and the Lee County CPT became involved. Lee County Sheriff's Office Deputy Kim Swanson responded to the hospital and interviewed Ms. Bach. Deputy Swanson filed an incident report recounting the interview with Ms. Bach. Deputy Swanson did not interview J.P. The relevant portions of Deputy Swanson's report stated: Ms. Bach advised that the victim described being brought by Mr. Bob during his physical therapy session on 5/26/04[5] to a white car parked at the school. The victim stated to his mother that the car was dark inside and he couldn't see outside. Victim stated there was country music playing in the car. The victim told his mother that Mr. Bob took off his clothes and was naked and that Mr. Bob took off the victim's pants so the victim was naked from the waist down. Then the victim told his mother that Mr. Bob hurt him in the butt, bit his butt, put something in his butt and touched the victim on different parts of his butt. The victim advised his mother that Mr. Bob slapped his face with an open hand when he started to cry. The victim also told his mother that Mr. Bob put "handcuffs" on his hands and then cut them off. Ms. Bach advised the victim stated he was "scared of his arms getting cut." Ms. Bach stated she asked the victim what he used to cut the handcuffs and the victim said a "knife." Ms. Bach advised that the victim was scared of Mr. Bob finding out that he told. Ms. Bach advised that off and on while making his statements about the events, the victim would say that the events happened to the Spider Man doll he was holding during the conversation. Ms. Bach advised that the victim has not seen any movies or TV that would demonstrate such events as the victim was describing and Ms. Bach believes that the event(s) may have been ongoing during the school year from 8/03 to 5/27/04 but does not know how many times. Ms. Bach stated that Mr. Bob provides physical therapy to other of the students as well. Ms. Bach advised after this conversation she recalled previous incidences during the past months when the victim had occasional episodes of blood on the toilet paper when she wiped him after going to the bathroom and stated "it hurts" when she wiped him. On other occasions the victim would come home from school mad and state he was sad because someone hurt him but the victim would not say who it was. Ms. Bach advised that the victim stated he wanted his friend to go to school and beat up Mr. Bob. Ms. Bach advised that the victim used to love school and now does not want to go and is scared to go. Ms. Bach also advised he takes a bath with his younger brother and that the victim has been touching his younger brother's private areas while bathing but she thought it was normal behavior for his age. Also on May 27, 2004, at the request of the Lee County CPT, J.P. was examined by Kathleen Mahan, an ARNP with the Children's Advocacy Center. Before the exam, Ms. Bach told Ms. Mahan that J.P. had complained of pain in his buttocks and said someone had abused him. Also prior to the exam, Ms. Bach told Ms. Mahan that the hospital examination had revealed blood in J.P.'s rectum. However, Ms. Mahan never received confirmation of this statement from the hospital. No such confirmation was offered in evidence at the hearing. Ms. Mahan's examination revealed no conclusive evidence that J.P. had been sexually assaulted. She found no marks on J.P.'s body consistent with the allegations that he had been bitten, hit, or cut with a knife. She found a minor fissure in J.P.'s rectum, but testified that such fissures are a "nonspecific finding" that could result from penetration, but could also be caused by a bowel movement. Ms. Mahan testified that she spoke to J.P. during the examination. She stated that J.P. was unable to state a timeframe for the abuse, which was consistent with Ms. Bach's testimony that J.P. had no concept of time and would state that any past event had occurred "yesterday." Ms. Mahan asked J.P. if anyone had hurt him. J.P. said that Mr. Bob had hurt him. J.P. also told Ms. Mahan that his wrists hurt because Mr. Bob had handcuffed him, that Mr. Bob "touched my penis with his penis," and that Mr. Bob "touched my butt, and he was naked." Also on May 27, 2004, Shaston Boyd, a therapist at the Children's Advocacy Center, conducted a videotaped interview with J.P.6 At the outset, Ms. Boyd established that J.P. could recite the alphabet and count to ten. She used crayons to establish that J.P. knew his colors. Ms. Boyd next attempted to establish that J.P. could distinguish "things that are real" or that "really happened" from "things that are fake." J.P. understood that a Mickey Mouse doll was a "fake" mouse, not a real one. He also assented to the proposition that Brian from "The Fast and The Furious" was not real. Nonetheless, J.P. persistently volunteered that he had raced cars with Brian and that he sees Brian at school. Throughout the interview, J.P. would return to the topic of Brian and race cars at every opportunity. J.P. was also preoccupied with his shoes and socks, because of some sand in his shoes. Ms. Boyd had great difficulty keeping J.P. focused. His responses were often simply free associational statements having nothing to do with Ms. Boyd's questions. When Ms. Boyd first asked about Mr. Bob, J.P. volunteered that he had watched fire safety movies with Mr. Bob and that he would go to lunch in the cafeteria with Mr. Bob. In fact, Respondent's only contacts with J.P. occurred on the PE field. Unable to get J.P. to volunteer sexual allegations about Mr. Bob, Ms. Boyd began to lead the child toward the topic. She asked J.P. about Mr. Bob's car. J.P. told her that he listened to country music in the white car with Mr. Bob. J.P. later specified that Mr. Bob drove a white Toyota.7 He played with Mr. Bob, ate a sandwich, and got a Dr. Pepper. J.P. said that they raced in Mr. Bob's car. J.P. also mentioned Spider-Man and his Aunt Tracy in connection with riding in Mr. Bob's car. After several minutes of questions focused on Mr. Bob, with still no mention of sexual allegations, Ms. Boyd directly asked J.P. whether anyone had ever touched him on his butt. J.P. said that Mr. Bob had touched him on his butt, and it "felt brown."8 Mr. Bob's clothes were on. Mr. Bob called J.P. "stupid" and told him to "shut up." Ms. Boyd asked what Mr. Bob did to his butt. J.P. answered, "Clock," because he had noticed the clock on the wall. J.P. then told Ms. Boyd that he had a new car, but that it didn't work because it needed "big, big batteries." Ms. Boyd again asked J.P. what Mr. Bob had done to his butt. J.P. answered, "Couch," then talked about "black speakers" that he had seen in a dream, and said that the smoke detector at his old house scared him. He said that "fire safety" had been in the car with Mr. Bob and him. In response to Ms. Boyd's gentle but persistent questioning, J.P. said that Mr. Bob had cut him with a "white knife" and that Mr. Bob had called him a "butthead." Contradicting his earlier statement, J.P. said that Mr. Bob's clothes were off when he touched J.P.'s butt. Ms. Boyd asked where else Mr. Bob touched him. J.P. answered, "My race car." A little later, Ms. Boyd repeated the question, and J.P. answered, "My shoe." J.P. told Ms. Boyd that Mr. Bob had a tattoo on his belly. Respondent does not have a tattoo on his stomach. J.P. also stated that Mr. Bob had a "green ball" on his belly. J.P. told Ms. Boyd that Mr. Bob "hit me on my face." J.P. said that a policeman saw Mr. Bob hit him and that J.P. told a fireman that Mr. Bob had hit him. At no point during the interview did J.P. appear upset. He raised his voice at one point late in the interview, saying, "I am telling the truth." In the context of J.P.'s conversation and demeanor throughout the 45-minute interview, this statement was extraordinary. It was the first time J.P. indicated any concern with Ms. Boyd's response to anything he was saying or doing. It also did not impress the undersigned as a statement this child would have spontaneously conceived on his own, without adult coaching. Toward the end of the interview, J.P. remarked that someone named "Mikey" had also touched his butt. Ms. Boyd did not follow up on this statement to ascertain the identity of "Mikey."9 For reasons explained in the Conclusions of Law below, the videotaped interview of J.P. is admissible only as hearsay pursuant to Subsection 120.57(1)(c), Florida Statutes (2004). Even if the tape were admissible over objection pursuant to the hearsay exception in Subsection 90.803(23), Florida Statutes, no findings of fact could be derived from this interview, aside from the recitation of J.P.'s statements. The child's imaginary statements were so commingled with his "real" statements about Mr. Bob that it is impossible to separate them with any degree of confidence. "Brian" seemed as real to J.P. as "Mr. Bob." J.P. related the story of Mr. Bob with the same level of emotion he evinced when speaking of the sand in his shoes. Verifiable portions of J.P.'s stories about Mr. Bob were not true, if Respondent was indeed "Mr. Bob": Respondent did not drive a white Toyota or any kind of white car, Respondent did not have a tattoo on his stomach, Respondent did not have lunch with J.P. in the school cafeteria, and Respondent did not watch fire safety movies with J.P. Detective Tim Fisher of the sex crimes division of the Lee County Sheriff's Office witnessed J.P.'s interview. Both he and his supervisor believed that the interview provided grounds for an investigation. Though he obtained approval from the state attorney's office to conduct his own interview of J.P., Detective Fisher did not conduct the interview because of J.P.'s difficulties in articulating. Detective Fisher hoped that counseling might help J.P. to "get it out," and he decided to wait until some future date to interview J.P.10 As of the date of the hearing in this matter, the interview had not occurred. Detective Fisher interviewed Ms. Bach on some date shortly after J.P.'s examination. By this time, Ms. Bach claimed that J.P. had given her more details about events with Mr. Bob. According to Ms. Bach, J.P. told her that, during the school day, Mr. Bob drove him to Mirror Lakes Golf Club and bought him a sandwich and a Dr. Pepper. Mr. Bob sexually abused him on this excursion. Because Mirror Lakes Golf Club is less than a half-mile from the school, this story seemed plausible to Detective Fisher. Even later, Ms. Bach came forward with additional allegations against Mr. Bob. J.P. told her that on a class bowling trip, Mr. Bob smacked him in the head and called him "stupid" and told him that "he needs to fix his brain." Ms. Bach also stated that J.P. told her that Mr. Bob bled on him, that it was "white blood," and that Mr. Bob put it on his back and stomach. Detective Fisher could not recall Ms. Bach telling him these details. On June 10, 2004, after the 2003-2004 school year had ended, Detective Fisher phoned Karen Holliday, the principal of Mirror Lakes. He told her that J.P. had been physically assaulted by a male teacher at the school and had been removed from campus by this teacher several times during the school year. He provided a general description of the assailant and asked Ms. Holliday for the names of male personnel who might have had contact with J.P. Detective Fisher requested that Ms. Holliday wait to notify the School Board, because he did not want a School Board inquiry to interfere with his own investigation. Ms. Holliday agreed. However, one week later, during a face-to-face meeting, Detective Fisher told Ms. Holliday that Respondent was the target of his investigation. At this point, she told Detective Fisher that she could not keep the matter from her superiors. Ms. Holliday contacted the School Board counsel's office and was referred to Becky Garlock, an investigator in the School Board's human resources department. Ms. Garlock opened her own investigative file. Ms. Holliday testified that she saw Ms. Bach with J.P. on the Mirror Lakes campus twice during the summer of 2004.11 On both occasions, Ms. Bach was walking J.P. up and down one hallway leading to and from the PE field. Ms. Holliday told both Detective Fisher and Ms. Garlock that she was concerned about these visits. Ms. Holliday stated that J.P. was "impressionable" and Ms. Bach could have been attempting to influence the investigation by planting ideas in J.P.'s mind. On this point, Ms. Bach testified that she was following Detective Fisher's instructions to have J.P. show her how Mr. Bob got him out of the school. Detective Fisher did not testify on this point, though his testimony generally indicated that he spent a lot of time dissuading Ms. Bach from being a "little detective" and obstructing his investigation. Ms. Garlock officially opened her investigation in June 2004. She was contacted by Detective Fisher, who requested that she delay her investigation until the criminal investigation was completed. Ms. Garlock notified her superior of the request, and the School Board agreed to hold its investigation in abeyance until Respondent returned to work after the summer break. In June 2004, Detective Fisher, acting on Ms. Bach's information, went to Mirror Lakes Golf Club.12 Detective Fisher interviewed Steve Knott, the golf pro at the club. Detective Fisher testified that he verbally described J.P., who is red- haired, somewhat overweight, and wears glasses. Mr. Knott recognized J.P. from the description, even without a photograph to confirm it. Detective Fisher testified that he then conducted a photo lineup that included Respondent's driver's license photograph. According to Detective Fisher, Mr. Knott went straight to the photo of Respondent and identified him as "the guy that brings" J.P. Mr. Knott stated that he had seen Respondent at the club "many times." Mr. Knott was an extremely reluctant witness. He did not appear at the hearing, though he was subpoenaed by Respondent. In lieu of live testimony, Mr. Knott's deposition was admitted into evidence. Mr. Knott's sworn version of the interview was very different from Detective Fisher's. Mr. Knott confirmed that Detective Fisher first asked about J.P. and that he did remember that J.P. had come to the golf club. Then, Detective Fisher showed Mr. Knott a photograph of Respondent, and asked if he looked familiar. Mr. Knott said that Respondent did look familiar, but that he sees hundreds of people every day and could not positively say whether he had seen Respondent. Then, Detective Fisher "showed me a lineup and the same picture [of Respondent] was in the lineup." Mr. Knott said, "Well, I'm not an idiot," and picked Respondent's photo out of the lineup. Mr. Knott testified that he recalled J.P. coming to the golf club twice, the second time with Ms. Bach. Mr. Knott could not recall who J.P. was with the first time, though he remembered J.P. pounding on the fish tank in the pro shop. However, Mr. Knott could not say that he had seen Respondent with J.P. In fact, Mr. Knott could not say definitely that he had ever seen Respondent, even after meeting him in person at the deposition. He could only say that Respondent looked "familiar," but that "a lot of guys look the same." At the hearing, Detective Fisher was questioned as to Mr. Knott's version of events. Detective Fisher stated that he did not recall showing Mr. Knott the picture of Respondent prior to showing him the lineup, but that he was willing to take Mr. Knott at his word. Detective Fisher candidly admitted that, if Mr. Knott's version of events was accurate, then "that would have made my lineup worthless." Detective Fisher elaborated: You're telling me that he is giving you a statement contrary to what he gave me. That is not the statement he gave me, sir. If he is saying that this is his sworn statement that you're looking at right now [i.e., Mr. Knott's deposition], then I can't say that Mr. Bob is Robert Vandeventer. [Emphasis added] Detective Fisher conceded that Mr. Knott was the only witness who could place Respondent and J.P. together away from the Mirror Lakes campus. Detective Fisher also conceded that he had been unable to establish probable cause sufficient to arrest Respondent. Though the criminal case had not been officially closed, Respondent had not been arrested or charged with any crime as of the date of the hearing. On August 6, 2004, Detective Fisher contacted Respondent at a school where Respondent was participating in a training session for the upcoming 2004-2005 school year. Respondent agreed to drive across town to the Sheriff's Office and submit to an interview with Detective Fisher. Respondent testified that, as he drove to the Lee County Sheriff's Office, he telephoned a friend who works in the criminal justice system. This friend advised Respondent to cooperate with Detective Fisher, but to stop the interview and ask for a lawyer if any of the questions made him uncomfortable. During the interview, Detective Fisher attempted to elicit a confession from Respondent by falsely suggesting that a witness had seen Respondent removing J.P. from the Mirror Lakes campus. Respondent immediately declined to answer any more questions without a lawyer. Detective Fisher told Respondent that his refusal to continue the interview just made him look guilty, but did not pursue the interview any further. After hiring a criminal defense lawyer, Respondent contacted Detective Fisher to reschedule their interview. Respondent answered all of Detective Fisher's questions and submitted to a voice stress analysis test conducted by another Lee County Sheriff's Office employee. The test indicated that Respondent's denial of having committed abuse on J.P. was truthful. The test was inconclusive as to Respondent's denial of ever having been to Mirror Lakes Golf Club.13 After the initial interview on August 6, 2004, Detective Fisher notified Ms. Garlock that he had interviewed Respondent and that Respondent had refused to answer his questions. The School Board immediately suspended Respondent with pay, pending the outcome of its own investigation, which was activated at that time. Ms. Garlock phoned Ms. Bach to arrange an interview, which was scheduled to take place at Ms. Bach's home. When Ms. Garlock arrived at the appointed time, Ms. Bach was not home and had left no explanatory message for Ms. Garlock. After Ms. Garlock made several attempts to reschedule the interview, Ms. Bach agreed to meet with her at the School Board's office on September 2, 2004. During this interview, Ms. Bach told Ms. Garlock that J.P. had identified Mr. Bob's car as a white Toyota SUV. Mr. Bob had a camera in the car with a green light just like a camera owned by J.P.'s uncle. Ms. Bach stated that J.P. told her that he hated it when Mr. Bob would fold down the seats and place the camera on a speaker in the back, because that is when J.P. would get hurt. J.P. accompanied Ms. Bach to the interview, but Ms. Bach would not allow Ms. Garlock to speak with J.P. During the interview, Ms. Bach told Ms. Garlock about the CPT interview and reports and offered to provide them to Ms. Garlock.14 Ms. Bach never provided those materials to the School Board. Ms. Bach also agreed to prepare a written statement for Ms. Garlock. She never provided a written statement, claiming that Detective Fisher had told her that doing so would impede his criminal investigation. At the hearing, Detective Fisher could not recall telling Ms. Bach that she should decline to cooperate with the School Board's investigator. On September 10, 2004, Ms. Garlock interviewed Respondent. In the interest of speeding up the interview, Respondent declined Ms. Garlock's offer to have his attorney present. Ms. Garlock described Respondent as cooperative and to all appearances open and honest during the interview. Respondent told Ms. Garlock that he always signs in and out of the offices of the schools on his schedule and that he is never alone with students, including J.P. Respondent explained to Ms. Garlock the procedure for taking the children as a group to and from PE class, and recounted that there were always four or five other adults on the Mirror Lakes PE field during the period in which he taught J.P.'s class. Respondent told Ms. Garlock that he had been driving a blue Nissan Altima for more than a year, had previously driven a blue Ford Escort, and had never driven someone else's car to work. In other words, during the relevant period, Respondent had never driven a white car, a white SUV or a white vehicle of any kind. Respondent told Ms. Garlock, as he had Detective Fisher, that he had no tattoos on his stomach. After interviewing Respondent, Ms. Garlock contacted the principals of all eight schools at which Respondent provided adaptive PE services. Each principal reported that no complaints of any kind had been lodged against Respondent by any parent, student, teacher, or administrator. On September 15, 2004, Ms. Garlock interviewed Mr. Knott at the Mirror Lakes Golf Club. Mr. Knott identified a Mirror Lakes yearbook photo of J.P. as a boy who had been to the golf course "a few times." Mr. Knott also identified a driver's license photo of Respondent as someone he had seen at the golf course. Mr. Knott could not say "for sure" whether Respondent and J.P. had been at the course together. Ms. Garlock interviewed and obtained written statements from Mr. Bates, the Mirror Lakes PE teacher, and from Ms. Joyal's two teacher's aides, Nancy Busack and Teresa Rosales. Each of these three interviewees told Ms. Garlock that he or she never saw Respondent alone with J.P. Both Mr. Bates and Ms. Busack stated that they did not see how Respondent could arrange to be alone with a student, given the logistics of the PE class. Mr. Bates also stated that he did not see how Respondent could take J.P. off the campus in his car, drive to the golf course, and return during the PE class because of the time involved and because at least one of Ms. Joyal's aides was always with him. Ms. Garlock did not seek to obtain the results of the voice stress analysis test taken by Respondent or of the medical exam performed on J.P. by Ms. Mahan, though Ms. Garlock was aware of them. Ms. Garlock made no further efforts to obtain the CPT records after Ms. Bach failed to provide them as promised during her interview. Though every piece of adverse information about the alleged abuse available to Ms. Garlock had been filtered through Ms. Bach,15 Ms. Garlock conducted no inquiry regarding Ms. Bach's background or credibility. At the hearing, Ms. Garlock conceded that ascertaining the credibility of the sole witness against Respondent would probably be important. At the hearing, Ms. Bach admitted that she had pled no contest to a child abuse charge for allowing J.P. to be bitten on the head by a snake at a friend's residence when he was an infant, an incident that possibly caused his mental disability. Ms. Bach also admitted to having been convicted of petit theft, admitted to having been a victim of repeated domestic violence that J.P. had witnessed, admitted to having multiple live-in boyfriends, and admitted to having had three children by three different fathers. Though Ms. Bach claimed to have exposed J.P. to nothing that could have caused him to invent the allegations he made against Mr. Bob, her background at least suggests otherwise. Ms. Bach's stated intention to sue the School Board if she could prove the allegations against Respondent,16 coupled with her criminal history and her refusal to allow J.P. to testify in any way (including her defiance of this tribunal's subpoena),17 gives rise to an adverse inference regarding Ms. Bach's motive to fabricate the details of J.P.'s story. J.P. never testified in this proceeding. Over the strenuous objection of Respondent, the undersigned has considered the videotaped interview conducted by Ms. Boyd at the Children's Advocacy Center, pursuant to the hearsay provision of Subsection 120.57(1)(c), Florida Statutes (2004). As noted above, even if it met the standard for a hearsay exception, the statement would be wholly unreliable as the basis for findings of fact due to J.P.'s constant commingling of apparent reality and obvious fantasy. At no time prior to the hearing in this case did the School Board have access to this videotaped statement or to any other direct evidence that Respondent committed sexual battery on J.P.18 The medical examination was inconclusive, and the alleged eyewitness, Mr. Knott, refused to give the School Board a written statement or to confirm in any way that he saw Respondent and J.P. together at Mirror Lakes Golf Club. The School Board's own employees, including Ms. Holliday, Mr. Bates, and Ms. Busack, were skeptical that these allegations could be true,19 both because of Respondent's observed behavior on the PE field and because of the logistics of the situation. In the space of approximately 45 minutes, Respondent supposedly managed to take J.P. off the PE field, walk him across campus to the visitors' parking lot, put him into his car, drive off campus to the golf course, strip naked and sodomize J.P., re-dress himself and J.P., then drive back to campus and return J.P. to the PE field in time to line up with his class. In at least one instance, Respondent allegedly also bought J.P. a sandwich and Dr. Pepper at the golf club. Further, Respondent supposedly managed to do all this, on several occasions, without ever being noticed by anyone at the school. On August 6, 2004, Respondent received notice that the School Board was suspending his employment with pay and benefits pending the outcome of the School Board's investigation. A pre- determination conference was scheduled for and held on October 1, 2004. Respondent appeared at the conference with his criminal defense attorney, Joseph A. Simpson. Also at the conference were Georgianna McDaniel, the School Board's director of personnel services; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment; and J. Paul Carland, II, the School Board's staff attorney. At the outset, Mr. Carland stated that Respondent had the Fifth Amendment right not to speak at the conference and to communicate through his counsel. Mr. Simpson answered that Respondent was there to disclose all he knew. Respondent answered all questions put to him at the conference, and Mr. Simpson made a detailed presentation refuting the factual allegations as they were then understood.20 Among the telling points made by Mr. Simpson: Respondent did not drive a white car, every School Board employee actually on the PE field stated that Respondent was always in plain sight and never alone with J.P., Ms. Holliday was concerned that Ms. Bach had led J.P. through the school to coach him in making a statement, Mr. Knott refused to give the School Board a written statement, and Detective Fisher had told Ms. Garlock that his case against Respondent was going nowhere. Nonetheless, by letter dated October 7, 2004, the School Board informed Respondent that it had found probable cause for disciplinary action and was recommending to the Superintendent of Schools that Respondent be terminated from his position. On October 13, 2004, the School Board filed the Petition, alleging that Respondent "committed a sexual battery on a student during the 2003-2004 school year." In a letter dated October 29, 2004, counsel for Respondent notified the School Board of Respondent's intention to seek an award of attorney's fees should the School Board elect to proceed with its intended action. The Petition was heard by the School Board on November 4, 2004. The School Board voted to suspend Respondent without pay and to forward the Petition to DOAH for a formal hearing. The case was forwarded to DOAH on November 12, 2004. Respondent filed a motion for attorney's fees on January 3, 2005, and filed an amended motion on March 7, 2005, seeking an award of attorney's fees pursuant to Subsections 120.569(2)(e) and 57.105(1) and (3) and Sections 120.595 and 1012.26, Florida Statutes (2004). On January 20, 2005, the School Board filed a motion for protective order seeking to prevent counsel for Respondent from taking J.P.'s deposition "now or in the future," because his therapist at the Child Advocacy Center believed that the deposition would be "detrimental to his emotional stability." The motion also disclosed that the School Board had become aware of the existence of the videotaped interview and offered that tape to Respondent in lieu of taking J.P.'s discovery deposition. After a telephonic hearing, an order was entered denying the motion on January 21, 2005. On January 25, 2005, the parties filed an agreed motion for an order directing the Lee County CPT to release the confidential videotaped statement to both the School Board and Respondent, pursuant to Subsection 39.202(6), Florida Statutes (2004). By Order dated February 9, 2005, the undersigned denied the motion because the cited statute provides for release of these confidential CPT materials pursuant to "order of the court." Because DOAH is an executive branch tribunal, not a "court," the undersigned concluded that he was without authority to enter the requested order. On February 9, 2005, Ms. Bach and J.P. were subpoenaed to testify at the final hearing on March 15, 2005. On March 8, 2005, counsel for Ms. Bach entered an appearance and filed a motion for protective order on behalf of J.P., pursuant to Section 92.55, Florida Statutes (2004). On March 11, 2005, counsel for the School Board filed an emergency motion for continuance, which related the following: "Counsel [for Ms. Bach] also advised the undersigned today that should the motion [for protective order] be denied, the mother has stated that she will not make the student/victim available to testify despite having been subpoenaed to do so." Ms. Bach never retreated from this position. As noted above, Ms. Bach reiterated at the final hearing that she would not permit J.P. to testify, at least not under circumstances that would allow counsel for Respondent to cross-examine the child. Respondent testified without contradiction that he had received a supplemental coaching contract worth approximately $1,600.00 annually every year he was employed by the School Board. Respondent's undisputed testimony was that he had been offered the supplemental coaching contract for the 2004-2005 school year and that he would have signed the contract had he not been suspended. In summary, it is found that the School Board failed to prove by a preponderance of the evidence that Respondent committed a sexual battery on J.P. during the 2003-2004 school year. In fact, the School Board produced no evidence that would cause a reasonable person to suspect that Respondent did or even could have done the acts attributed to him. J.P. did not testify, and his videotaped interview was unreliable. The sole alleged eyewitness, Mr. Knott, denied having seen Respondent with J.P. At the hearing, the School Board was reduced to asking its own employees whether it was "possible" that Respondent could have taken J.P. off the campus and back, unseen, during the 45-minute PE period, after those employees testified as to the extreme unlikelihood of that scenario. The undersigned cannot find that Ms. Bach formed her allegations from whole cloth, despite her stated intent to sue the School Board. She took the fragmentary elements of J.P.'s May 26 conversation and constructed a narrative that implicated Respondent. She later came forward with details that became increasingly less likely to have originated with J.P. It cannot be stated with any degree of certainty whether J.P. was initially relating something that actually happened to him or was telling a story based on something he had witnessed, either in a movie or at home. The hearsay statement of Ms. Joyal rings true in this regard: "[J.P.] is simply innocent and not socially aware enough to make up such a horror story. It would not be in his realm of awareness to imagine such a thing." Whatever embellishments his mother added to his story,21 J.P. may well have been the victim of sexual abuse. It certainly made sense that the police and the School Board investigated the matter. It also made sense that Respondent would be the initial focus of the investigation, given that he was apparently the only "Mr. Bob" known to J.P. However, at some point well before the filing of the Petition, it should have been obvious to any objective observer that it was a virtual certainty Respondent was not and could not have been the perpetrator. The School Board conceded that Respondent's only point of contact with J.P. was during the 45-minute PE class, obviously not time enough for Respondent to accomplish without notice the acts of which he stands accused. The School Board's own investigator believed that the factual scenario offered by the School Board was "implausible." Nothing in the record of this proceeding gives reason to dispute Ms. Garlock's conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing the Petition and reinstating Respondent as an assistive physical education teacher with the Lee County School Board, with an award of back pay and benefits to include his supplemental coaching contract for the period in question. Jurisdiction is reserved to enter a final order, pursuant to Subsections 57.105(1) and (5) and 120.569(2)(e), Florida Statutes (2004), that the School Board shall pay Respondent his reasonable attorney's fees and costs in connection with the defense of this case. If the parties are unable to agree upon the amount of fees and costs to be awarded pursuant to this paragraph, and document this agreement, within 60 days from the date of the School Board's final order, Respondent shall file a motion seeking a hearing on, and determination of, the amount of such fees and costs. If Respondent fails to do so within 180 days from the date of the School Board's final order, Respondent shall have waived his right to obtain such an award. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2005.
The Issue The issue in the case is whether the Respondent completed the applicable probationary period while employed as a teacher with the Polk County School System.
Findings Of Fact The Respondent was employed as an eighth grade teacher at Boone Middle School from the beginning of the 1998-1999 school year until October 6, 1998. The Boone Middle School principal and an assigned peer teacher observed the Respondent’s teaching techniques. The observers had certain concerns related to the Respondent’s methods, and on October 2, 1998, the principal met with the Petitioner to discuss the concerns. A second conference was scheduled for October 6, 1998. When the Petitioner arrived at the conference, she announced that she was resigning her employment. At the time of the resignation, the Respondent was asked to submit a written resignation. Although the written resignation was never received, on October 12, 1998, the Respondent turned in her grade book and other documents. By statute, a teacher employed under an "initial annual contract" must complete a 97-work day probationary period, during which time the employment may be terminated without cause and the teacher may resign without being in breach of the employment contract. The Respondent was employed at Boone Middle School for 47 days. She did not complete the probationary period. The Respondent asserts that she did not resign from Boone Middle School, but transferred from Boone Middle School to Cypress Lake Middle School. The evidence fails to establish that a transfer took place. Polk County School Board policy requires that the principals of the employing schools approve teacher transfers. There is no evidence that either the Boone Middle School or the Cypress Lake Middle School principals approved of an official transfer between the schools. There is no evidence that the Boone Middle School principal was aware of the Respondent’s intention to leave until October 6, 1998, when the Respondent announced her resignation from employment. At the hearing, the Boone principal testified that, given the difficulty in hiring math teachers, she would not have approved a transfer in the middle of the school term. The Respondent asserts that she took October 7, 1998, as pre-approved leave time. There is no credible evidence that October 7, 1998, was approved for the Respondent as a personal leave day by any appropriate authority. She had resigned her employment from Boone Middle School, and had not begun her employment at Crystal Lake Middle School. It is unclear as to which employer would have approved a request for leave. The Respondent began employment at Crystal Lake Middle School on October 8, 1998. The Petitioner worked at Crystal Lake until February 12, 1999. After the first grading period was completed, Crystal Lake administrators were concerned about the number of failing grades the Respondent had assigned to her students. Crystal Lake administrators met with the Respondent and asked that she reconsider the grading scale. On February 1, 1999, the Respondent submitted her resignation to Crystal Lake administrators. The Respondent was employed at Crystal Lake Middle School for 82 days. She did not complete the probationary period. Following her resignation from Crystal Lake, she occasionally worked as a substitute teacher. The Respondent was employed at Bartow High School at the beginning of the 1999-2000 school year. She taught nutrition and wellness courses. She was assigned a peer teacher. After classes began, the Bartow High School principal began to receive complaints from students, parents, and others regarding the Respondent’s teaching performance. Based upon the complaints, the principal terminated the Respondent’s employment effective September 28, 1999. The Respondent was employed at Bartow High School for 42 days. She did not complete the probationary period. The Respondent asserts that her employment at Bartow High School was as a "re-appointee" not under an "initial contract," that the probationary period is inapplicable, and that she may not be terminated without cause. The Respondent testified that an employee of the Polk County School Board personnel department told her upon her employment at Bartow High School that she would be considered a "re-appointee." The Respondent was unable to specifically identify which employee allegedly provided the information; however, employees of the personnel office testified that they did not recall speaking to the Respondent about this issue, but further testified that Respondent’s recollection is contrary to school board policy. The employees testified that a teacher, once resigned, who later returns to employment, is treated as a "new" employee and receives an "initial" annual contract. The board policy was further confirmed by the testimony of the Petitioner’s director of employee relations. The Respondent asserts that she was not in fact treated as a new teacher, in that she was not required to complete a new employment application and was not asked to provide fingerprints or medical documents which are required of a new hire. The personnel department employees testified that generally it is not necessary for a person in the Respondent’s position to resubmit such materials when those already on file are of recent vintage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Polk County enter a Final Order terminating the employment of Rita Clarkson. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. 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 25th day of April, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-4620 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33830-0391 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent is guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and whether disciplinary action should be taken as a result.
Findings Of Fact The Respondent was certified by the Petitioner on February 5, 1993, and was issued Correctional Certificate No. 134881. The Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout Florida, pursuant to Sections 943.085 - 943.255, and is authorized to discipline individuals licensed thereunder who violate the law. On November 28, 2002, Lake City Correctional Facility Correctional Officer Martha Escobar was approached by Inmate Aaron Smiley concerning his allegations of having fallen down the stairs the previous day as the result of his having been forced by the Respondent to carry six chairs up and down the stairs as a disciplinary measure. The alleged incident had taken place nearly 24 hours before Inmate Smiley reported it to Officer Escobar. Officer Escobar reported the statement on an incident report that she gave to her supervisor. Officer Escobar believed that Inmate Smiley was telling the truth about the incident. Inmate Smiley confirmed the facts previously stated to Officer Escobar to Captain Ruth Shaw who also completed a supervisory report. Lake City Correctional Facility Inspector Paul French interviewed numerous correctional officers under oath and prepared a written report concerning the alleged chair-carrying incident. Inspector French’s report covered the investigation of two charges: that the Respondent threatened Inmate Smiley with bodily harm if he told anyone about the alleged incident; and that the Respondent was untruthful in his responses as to what occurred during and following the alleged incident of November 27, 2002. No inmates who were listed as witnesses by Inspector French in his report were present to testify at the hearing. Officer Escobar had personally witnessed inmates carrying chairs up and down the stairs for disciplinary purposes under the Respondent’s watch in the past. Officer Escobar did not personally witness the alleged incident concerning Inmate Smiley. Officer Escobar had never reported to her supervisors in the past that inmates had been forced to carry chairs up and down the stairs for disciplinary reasons. Correctional Officer Joyce Joseph, who serves as a “mini warden” supervising the unit in which the alleged incident took place and another unit, spoke with the Respondent on one occasion about an incident involving an inmate under his watch carrying chairs up and down the stairs for disciplinary purposes. Officer Joseph neither reported the chair-carrying incident involving the Respondent to her superiors nor did she personally write-up the Respondent for the incident. Officer Joseph did not personally witness the alleged incident of November 27, 2002. Travis Smith, the Lake City Correctional Facility Recreation Director, had been told in the past by an inmate that the Respondent had ordered him to carry chairs up and down the stairs as a form of discipline. Mr. Smith never reported to his superiors the inmate’s statement that he had been disciplined by having been forced to carry chairs up and down the stairs. Mr. Smith did not personally witness the alleged incident of November 27, 2002. Captain Ruth Shaw received a report from her lieutenant, Phillip Mobley, that had been made by Officer Escobar concerning the alleged incident with Inmate Smiley on November 27, 2002. Captain Shaw has a close personal relationship with the Respondent. Captain Shaw had never witnessed the Respondent ordering inmates to carry chairs up and down the stairs as a form of discipline. Captain Shaw did not witness the alleged incident of November 27, 2002. Captain Shaw reported that Inmate Smiley told her he had tripped and fallen over chairs while carrying them up and down the stairs. Correctional Officer Maurice Gardner had previous discussions with the Respondent concerning the Respondent’s disciplining of inmates by requiring them to carry chairs up and down the stairs. Officer Gardner does not discipline inmates by having them carry chairs up and down the stairs. Officer Gardner had witnessed inmates in the past carrying chairs up and down the stairs for discipline when he came on his shift immediately following the Respondent’s shift in the correctional facility. Officer Gardner did not witness the alleged incident of November 27, 2002. Officer Gardner and the Respondent were friends when they worked together at the correctional facility. Sometimes inmates report incidents that are not true. Inspector French interviewed the Respondent once not under oath and a second time under oath. Under oath, on December 31, 2003, the Respondent stated to Inspector French that he had never ordered inmates to carry chairs up and down the stairs as a form of discipline. The Respondent was well respected at the Lake City Correctional facility prior to the alleged incident. If the Respondent had been found to have ordered inmates to carry chairs up and down the stairs as a form of discipline he most likely would have received a PSN, a “problem solving notice,” which is a mild form of discipline. The Respondent had never received a PSN or any form of discipline for having required inmates to carry chairs up and down the stairs as a form of discipline since no such incidents had ever been reported as to the Respondent in the past. The Respondent and all correctional officers at Lake City Correctional Facility had received instruction in the past about the importance of not lying under oath. The senior staff at the correctional facility instruct the correctional officers concerning how serious an infraction the Florida Department of Law Enforcement considers lying under oath. The Respondent had never been untruthful to Inspector French in the past. Sergeant Donna Murphy was aware that Officer Escobar went from cell to cell after the alleged incident of November 28, 2002, seeking statements about the incident from inmates. Inmate Smiley is a small individual who would have had a difficult time carrying six chairs up and down the stairs. Sergeant Murphy had never witnessed the Respondent requiring inmates to carry chairs up and down the stairs as a form of discipline. Sergeant Murphy did not witness the alleged incident of November 27, 2002. The Respondent believes that the witnesses who testified against him were forced to make the statements concerning his past disciplinary practices. The Respondent and Officer Escobar have experienced working relationship problems in the past. During his tenure at the Lake City Correctional Facility, the Respondent received one of the highest officer’s evaluations for 2002, and he was recommended for and completed four instructor’s courses: firearms instructor, defensive tactics instructor, instructor techniques, and chemical agents instructor. The Respondent has suffered personally as the result of losing his position at Lake City Correctional Facility. He has been forced to take a low-paying position as a youth counselor at a local community center in order to keep up with his child support payments and living expenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: The Respondent violated Section 837.02(1), Florida Statutes, and, as a result, failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes; That his certification be suspended for two years from January 16, 2003. DONE AND ENTERED this 23rd day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 23rd day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael A. Kelly Route 7, Box 517 Lake City, Florida 32055 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be resolved in this proceeding is whether Respondent discriminated against Petitioner based upon his handicap in violation of the Florida Civil Rights Act of 1992, as amended ("FCRA"), more specifically Section 760.10, Florida Statutes (2004).2/
Findings Of Fact Petitioner, Dana D. Ripley, was, at all times relevant to this proceeding, certified by the Criminal Justice Standards and Training Commission as a law enforcement officer. He was employed as a police officer by the Lake City Police Department from 1997 until March 2002. On March 15, 2002, Mr. Ripley completed a sworn "pre- application" for a deputy sheriff's position with the PCSO. The pre-application is used as a screening device to reject candidates who are ineligible for employment with the PCSO, such as persons with felony convictions or activities related to illegal drugs. The pre-application asked a series of questions regarding criminal convictions and drug activities. One of the questions was, "Have you ever sold, purchased or offered for sale any illegal drug?" Mr. Ripley circled the answer, "Yes." He indicated that he had possessed steroids "5 to 10 times," the last time being in 1994. In the space provided in the pre- application to explain any "yes" answers, Mr. Ripley wrote, "During my years in university [sic] I purchased and used anabolic steroids to assist my athletic pursuits while in school." Cpl. B. J. Lyons, the PCSO background investigator who oversaw Mr. Ripley's application, testified that the answers regarding steroids were a "concern," but not alone sufficient to stop the application process. As part of the pre-application process, Mr. Ripley attested that he had read the job duties and functions for the deputy sheriff's position and was "capable of performing the duties of the job as described with or without a reasonable accommodation." Nowhere in his pre-application or full application did Mr. Ripley indicate that he had a disability, an impairment of a major life function, or the need for any accommodation. Having met the criteria on the pre-application, albeit with one "concern," Mr. Ripley went on to complete the full application process, which included signing waivers and obtaining a physician's clearance to take a physical abilities test. On October 30, 2002, Mr. Ripley's physician certified that there was "no unreasonable danger of harm" in Mr. Ripley's undergoing the physical abilities test "with/without a reasonable accommodation." On November 25, 2002, Mr. Ripley was given a "Notice of Conditional Offer of Employment" by the PCSO. The conditional offer stated that, if Mr. Ripley satisfactorily completed psychological testing, a psychological interview, a drug test, and a medical examination, he would be eligible for appointment to a deputy sheriff's position by the sheriff. The conditional offer expressly stated that placement in the applicant pool does not assure that the sheriff would appoint the applicant to a deputy sheriff's position. On November 26, 2002, Mr. Ripley took the PCSO's physical abilities test, in which he went through a test course that included running 220 yards, climbing a wall, running over hurdles, crawling under obstacles, dragging a 150-pound dummy a distance of 50 feet, and simulated firing of a police weapon. The maximum acceptable time for completing the test course was six minutes and 30 seconds. Mr. Ripley completed the course in two minutes and 50 seconds, which Cpl. Lyons termed a very good time. Also on November 26, 2002, Mr. Ripley sat for a polygraph examination conducted by Allen Stein, an independent polygraph examiner under contract with the PCSO. Mr. Stein's report stated the following in relevant part: During the pretest interview, Mr. Ripley said he resigned from the Lake City Police Department following a discussion with the Chief of Police in which they agreed a change of scenery would be desirable for him. Mr. Ripley had been absent from work for about a nine month period because of three colon surgeries because of a colitis condition. Following his return to duty, he had an amnesia episode while on duty, which resulted in the meeting with the Chief. It was suggested to Mr. Ripley that the City Manager wanted him to be terminated. In an earlier instance, he fainted as a result of dehydration resulting from the removal of a large part of his large intestine. A blood test was done after he had fainted which disclosed prohibited substances in his system. He had neglected to tell his supervisor about the various controlled substances that he had to take to assist in weaning him from the narcotics that had been prescribed for him following the surgeries. In both cases mentioned above, internal affairs investigations were conducted that resulted in a written counseling and then, the requested resignation. He resigned in March 2002. Mr. Ripley said he has operated a motor vehicle not more than ten times after having consumed enough alcoholic beverages that if stopped, he might have been charged with driving under the influence. The last time was in June 2002. Mr. Ripley said that in 1988 through 1996, he took steroids to assist him in competing in bodybuilding and power weight lifting events. He consumed about two cycles per year. He estimated that he had spent about $800.00 to purchase steroids. Cpl. Lyons was concerned about several of the statements Mr. Ripley made to Mr. Stein during the pretest interview. He took the "change of scenery" in the conversation with the police chief to mean that Mr. Ripley should quit the Lake City Police Department and leave town. This conclusion was supported by the reference to the city manager's wanting Mr. Ripley terminated. Cpl. Lyons believed something was "not right" about Mr. Ripley's having an amnesia episode, but then meeting with the chief, rather than going for medical attention. Cpl. Lyons was concerned about the blood test that revealed the presence of prohibited substances in Mr. Ripley's system. Cpl. Lyons was concerned regarding Mr. Ripley's admission that he had operated a motor vehicle after consuming enough alcohol that he could have been charged with driving under the influence, particularly the admission that he had done so as recently as June 2002, which was after Mr. Ripley applied for employment with the PCSO. Finally, Cpl. Lyons noted that Mr. Ripley's statement that he took two annual cycles of steroids over a period of eight years, ending in 1996, conflicted with his statement in his pre-application that he had possessed steroids only "5 to 10 times," the last time being in 1994. On December 11, 2002, Mr. Ripley and seven other candidates sat for the PCSO's oral examination. Mr. Ripley scored 57 out of a possible 63 points, a passing score, but the lowest of the eight candidates who sat for the oral examination on that day. Cpl. Lyons was surprised at Mr. Ripley's low score because applicants who have prior law enforcement experience usually obtain higher scores on the oral examination than do inexperienced applicants. On or about November 20, 2002, Cpl. Lyons obtained from the Lake City Police Department an offense report regarding Mr. Ripley. On January 25, 2002, at around 4:00 p.m., a Lake City patrol car was dispatched "in reference to a disoriented person running around in the street in his underwear." While the officers in the patrol car were unsuccessfully searching the area to which they had been dispatched, they received a second call concerning the same person. The officers contacted the complainant, who told them she had seen a barefoot man, in long underwear and a shirt, walking down the middle of a residential street mumbling to himself and stumbling around. She saw the man fall several times and was worried he would be run over by a car. She and her son coaxed the man into sitting on their front porch until the police could arrive. The lead officer, Sgt. Marshall Sova, recognized the disoriented man as Mr. Ripley, who said he was working on a robbery case. Sgt. Sova walked Mr. Ripley to the patrol car and placed him in the back seat, told the other officer, Misty Gable, to call Columbia County EMS to the scene, then radioed his lieutenant to come to the scene. Sgt. Sova reported that Mr. Ripley was hallucinating, pointing to the empty yard next door, and telling Sgt. Sova, "There they are, go get them," believing he was seeing the men who "committed the robbery." Sgt. Sova sent Officer Gable to Mr. Ripley's residence, one street away from where he was apprehended, to make sure it was secured. Officer Gable drove to Mr. Ripley's house and found the front door standing wide open. She looked inside and saw "no fewer than two hand guns, two full gun magazines, four boxes of ammunition, two police radios, and the keys to the Lake City Police squad car that was parked in his driveway, along with household electronics such as a large TV, video game players and games, a cable box, etc., in plain view from the open front door." Officer Gable radioed a report to Sgt. Sova, who told her to wait there until he and their superior officer, Lt. Dubose, could come over to the house. Columbia County EMS arrived at the scene and carried Mr. Ripley on a stretcher to the rescue vehicle. The paramedics checked Mr. Ripley's blood sugar and found that it was low. Mr. Ripley was transported to the Lake City Medical Center. Lt. Dubose arrived and went with Sgt. Sova to Mr. Ripley's residence for the purpose of obtaining the Lake City Police Department property that Officer Gable reported was inside Mr. Ripley's open apartment. The house was in a state of complete disarray, with standing water in the bathroom. In addition to the Lake City Police Department property, the officers found several prescription drug bottles and body- building supplements. All of the prescription drug bottles were empty, including one that had been refilled with 30 pills two days prior to these events. The officers took possession of the police department property, secured Mr. Ripley's apartment, then returned to headquarters. At the hearing, Cpl. Lyons of the PCSO testified that this police report from the Lake City Police Department caused him great concern about Mr. Ripley's suitability for the position of deputy sheriff. However, nothing in the report caused him to suspect that Mr. Ripley was disabled. At the hearing, Mr. Ripley recounted his medical history and provided his version of events in Lake City. In June 2000, Mr. Ripley suffered a severe sprain of his right ankle while on duty. The medications prescribed for the pain in his ankle exacerbated a colitis condition for which Mr. Ripley was already taking medication. The aggravated colitis required three hospitalizations in the course of one month. In late August 2000, Mr. Ripley underwent surgery to remove his large intestine and rectum, then an ileoanal J-pouch anastomosis, the surgical construction of a fecal reservoir using the lower end of the small intestine. For the better part of a year after the surgery, Mr. Ripley was prescribed large doses of pain medications. He qualified for long-term disability for a period of four months and was sporadically off work for nine months. He returned to work full time in March 2001, then was back in the hospital during June 2001. At the end of July 2001, Mr. Ripley returned to work. His physicians were attempting to wean him from the opiates he was taking for pain. His physician wrote to the Lake City Police Department in support of Mr. Ripley's request for either light duty or night duty. The department placed him on night duty. Mr. Ripley testified that he struggled with his recovery for two years. He suffered from pouchitis, an inflammation of the ileal reservoir created by the reconstructive intestinal surgery. Mr. Ripley suffered from the flu in January 2002 and stated that he was in a state of dehydration when found wandering his neighborhood on January 25, 2002. On January 29, 2002, four days after the "underwear incident" described above, Mr. Ripley entered a substance abuse treatment program for his dependence on prescription medications at Shands at Vista, in Gainesville, Florida. He successfully completed the program on February 22, 2002. Mr. Ripley did not inform the PCSO of his participation in or completion of this program while he was an applicant for a deputy sheriff's position. The PCSO did not learn of Mr. Ripley's treatment until after he filed the amended charge of discrimination that initiated this proceeding. The incident of January 25, 2002, triggered an internal affairs investigation by the Lake City Police Department. At the conclusion of the investigation, several charges against Mr. Ripley were sustained, including conduct unbecoming a police officer, immoral conduct, possessing prescription drugs in a police station without notifying his supervisor, and violations of department policy on the use and secure possession of weapons. The Lake City Police Department internal investigation report form dated March 1, 2002, contains the following notation: "Actions were sustained; employee resigned prior to disciplinary action." At the hearing, Mr. Ripley's chief contentions were that the PCSO was ready and willing to hire him, that it was dissuaded from doing so entirely due to the Lake City Police Department's report of the January 25, 2002, incident, and that this incident was caused by his disability. The disability claimed by Mr. Ripley was prescription drug dependency, subsequently rehabilitated through his successful completion of the Shands substance abuse treatment program in February 2002. Accepting arguendo that Mr. Ripley's claimed disability meets the criteria of "handicap" for purposes of Subsection 760.10(1)(a), Florida Statutes, the evidence did not establish that the PCSO was ever made aware of this disability, much less based its decision not to hire Mr. Ripley on that disability. Cpl. Lyons, who was Mr. Ripley's main point of contact with the PCSO, was unaware of any of Mr. Ripley's medical records, except for the medical clearance form authorizing Mr. Ripley to take the physical abilities test. In their discussions, Mr. Ripley never mentioned to Cpl. Lyons that he had a drug dependence problem or any other disability, nor did he request any form of accommodation. Cpl. Lyons believed Mr. Ripley to be "very physically fit," as evidenced by his exceptionally good time in the physical abilities test and saw nothing that made it appear Mr. Ripley would need an accommodation. Cpl. Lyons testified that Mr. Ripley's medical condition was not considered because it could not be used as a factor in eliminating Mr. Ripley from consideration.4/ Cpl. Lyons brought Mr. Ripley's file to the attention of Lt. Dean LaChance, his superior in the PCSO's Human Resources Division. Cpl. Lyons told Lt. LaChance that one of the applicants had been seen "in his neighborhood running around in his underwear" and that Lt. LaChance might want to look at Mr. Ripley's file and make a hiring decision. Cpl. Lyons sent the file to Lt. LaChance, attaching a note that stated, "Prior [experience with] Lake City. Need to read his [polygraph report]. Also see the report from Lake City [Police Department] . . . Not the greatest pick so far." Lt. LaChance reviewed Mr. Ripley's file, including the pre-application and polygraph. Lt. LaChance recommended that Mr. Ripley's file be closed, meaning that Mr. Ripley should be removed from the pool of eligible applicants. Lt. LaChance based his recommendation on the facts that Mr. Ripley's oral examination scores were low and that "we had better applicants in the file," as well as on the "underwear incident." Lt. LaChance also noted the discrepancies regarding steroids between Mr. Ripley's polygraph examination and his pre- application. Lt. LaChance noted other problems with Mr. Ripley's polygraph: his statement that the city manager wanted him fired; the fact Mr. Ripley resigned during an open internal affairs investigation; Mr. Ripley's "change of scenery" language, which Lt. LaChance took to mean that Mr. Ripley was told to quit or be fired; and Mr. Ripley's admission that he had operated a motor vehicle at least ten times under the influence of alcohol, even while he was going through the PCSO's background investigation. Lt. LaChance never met Mr. Ripley and never spoke to him prior to the hearing in this matter. He had no knowledge that Mr. Ripley claimed a disability and saw nothing in Mr. Ripley's file to make him suspect that Mr. Ripley had a disability. He had no knowledge that Mr. Ripley had gone through a drug abuse treatment program. The only medical information available to Lt. LaChance was Mr. Ripley's polygraph statements regarding his prior surgeries. Based on Mr. Ripley's statements, Lt. LaChance considered Mr. Ripley's medical condition to have been temporary and "fixed" by his surgery. Mr. Ripley had done a "great job" on the physical abilities test, and Lt. LaChance did not consider him to be disabled in any way. Lt. LaChance testified that it is the PCSO's general practice not to hire people who have been terminated or have resigned under investigation from other law enforcement agencies. He stated that his agency has more than enough qualified applicants and has no need to hire an applicant with "the kind of baggage" that Mr. Ripley presented. Mr. Ripley believed that part of the "understanding" between him and the Lake City Police Department was that the internal investigation report of the January 25, 2002, incident would not be circulated to potential employers. This belief explains why Mr. Ripley apparently thought he could finesse the question of why he resigned with casual references to a "change of scenery," and why Mr. Ripley did not mention his prescription drug dependency and rehabilitation in his PCSO application. Based on the foregoing Findings of Fact, it is found that the PCSO had no knowledge of Mr. Ripley's claimed disability. No PCSO employee perceived Mr. Ripley as having a disability. Mr. Ripley's application file was closed based on factors unrelated to his alleged disability.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2005.
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Petitioner's Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto and since 1980, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract. She was assigned to Pine Lake Elementary School for the 1992-93 school year. She is familiar with the School Board's rules regulating employee conduct and prohibiting the use of corporal punishment. Prior to the 1992-93 school year and as a result of complaints from parents, Respondent was given written directives, reasonable in nature and given by and with proper authority, to desist from using abusive, sarcastic, and disparaging language with elementary school children. Those directives specifically reminded Respondent of her obligation as a teacher to not intentionally expose students to unnecessary embarrassment or disparagement and to avoid using abusive language in the presence of children. She was also cautioned against the use of intimidation and ridicule. Prior to the 1992-93 school year Respondent received another written directive, reasonable in nature and given by and with proper authority, to refrain from intimidating or being disrespectful to other employees. Respondent was further specifically ordered to stop directing profanity at members of the staff and to avoid situations that result in confrontations. In December of 1992 a fight broke out between Respondent's son and Tony, another elementary school student, while they were in the breakfast line in the school cafeteria. Frederick Collins, the route salesman for Velda Farms Dairy, was delivering milk to the cafeteria and saw the two boys fighting. He put down his milk so he could stop the fight. As he ran toward the two boys, he saw Respondent, whom he knew to be a teacher at that school, running toward the two boys. Respondent got to the boys first. Respondent grabbed Tony around the neck with both hands and began choking him and shaking him. Respondent was choking Tony so hard that his tongue was out of his mouth. She was hysterical and kept screaming at Tony over and over again about him "messing" with her son. Collins reached Respondent and tried to pull her away from the frightened child. By that time, Moses Holcomb, the head custodian at the school, had heard the noise and the other children calling to him to come help. He ran to where Respondent was choking and shaking the child, and together Holcomb and Collins were able to separate Respondent from Tony. Even after the two men were able to pull Respondent away from the child, she tried to get to him again. Holcomb had to physically get between Respondent and Tony, and Collins had to physically hold her to prevent her from grabbing Tony again. Tony did not kick at Respondent during the altercation. Further, Tony did not flail his arms at her and did not try to hit her. He was passive during the entire time that she was choking and shaking him and screaming at him. Holcomb took Tony to the principal's office and reported Respondent's conduct to the principal. When the principal spoke to Respondent about her attack, Respondent admitted hitting, choking, and shaking Tony. Respondent's attack on Tony was observed by students, parents, faculty, and staff members. Collins expressed his shock at seeing a teacher behave in such a manner. The incident became widely known. On January 20, 1993, Respondent's son and the son of Cynthia Williams, another teacher at Pine Lake Elementary School, fought with each other. After the fight, Mrs. Webb, the assistant principal, spoke to Williams and to Respondent and explained that she had investigated the circumstances of the fight, that Respondent's son had started the fight, and that the Williams boy had only defended himself. On the following day, Cynthia Williams waited for the school bus to bring her son from his nearby school to Pine Lake Elementary. When she saw Respondent also waiting for the bus, she knew there would be trouble based on Respondent's reputation and past behavior. Williams asked another teacher to wait with her. When the bus came, Williams and the other teacher walked over to the bus to get Williams' son. Respondent approached them and it was apparent that Respondent was very angry. She began grilling the Williams boy as to why he had been fighting with her son. Mrs. Williams calmly told Respondent that she would take care of it and would speak to her son after they got home. Respondent continued grilling the boy in a very threatening and intimidating manner and shaking her finger in Mrs. Williams' face. As Williams and her son began backing away from Respondent, the other teacher ran to get a principal. As a result of her aggressive behavior, Respondent was given another written directive ordering her to stop intimidating and abusing other faculty members and to conduct herself in a professional manner. Respondent was subsequently given an alternate assignment and was relieved of her teaching duties at Pine Lake Elementary School. In April of 1993 in the late afternoon Respondent returned to Pine Lake to pick up her personal belongings. When she encountered Williams, she told Williams "this isn't over" in such a threatening manner that Williams reported that incident to the principal at Pine Lake Elementary. The principal wrote a letter to Respondent ordering her to stay away from that school. During the week of November 9, 1992, Respondent was on jury duty. Although the courthouse was closed on November 11 and Pine Lake Elementary School was open, Respondent failed to report for work at the school. Instead, she falsely claimed that she had been on jury duty the day the courthouse was closed, in order to receive her regular pay from the School Board. When the principal discovered Respondent's false report, she instructed the staff to report Respondent as having taken a personal day rather than reporting Respondent as having been on leave without pay in order that they could avoid the expected confrontation by Respondent. Yet, in spite of the principal's attempt to be very fair with Respondent, Respondent thereafter kept harassing the attendance staff to pay her for that day. On March 1, 1993, a conference for the record was conducted with Respondent by Dr. Joyce Annunziata, the director of Petitioner's Office of Professional Standards. Because of Respondent's history while employed by Petitioner, she was placed in an alternate work assignment and referred for a medical evaluation to determine her fitness to carry out her duties. The clinical interview and psychological testing revealed that Respondent has difficulty handling stress, avoids dealing with problems, and blames others when problems occur. She has paranoid tendencies and is defiant of authority. Her personality structure is stable, and she is unlikely to change. She should not be in a teaching position but should be in a position where stress is unlikely to occur. Further, Respondent's difficulties with stress, with authority figures, and with co-workers existed well prior to the occurrence of Hurricane Andrew and are not attributable to stress following the hurricane.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Notice of Specific Charges filed against her in this cause, suspending her without pay up to the date of termination, and terminating her employment by the School Board of Dade County, Florida. DONE AND ENTERED this 21st day of December, 1993, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2452 Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law and recitation of the testimony. Respondent's proposed findings of fact numbered 1, 16, 21, and 22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-5, 8, 9, 11-15, 19, 20, and 23-29 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 6 and 10 have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact number 7 has been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 17 and 18 have been rejected as being not supported by the weight of the credible evidence in this cause. COPIES FURNISHED: James C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One 2929 Southwest Third Avenue Miami, Florida 33129 Octavio J. Visiedo, Superintendent School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400