Findings Of Fact The Respondent holds Florida teaching certificate 195597 covering the area of industrial arts. During the school years of 1973-1974 to 1983-1984, Respondent had no persistent pattern involving professional incompetency or unprofessional conduct. The Respondent was employed as a teacher of industrial arts at Vero Beach Junior High School in the Indian River County School District during the 1983-1984, 1984-1985, and the first three weeks of the 1985-1986 school years, until his suspension effective September 16, 1985. During 1983-1984, he also apparently taught mathematics. At various times, the classes Respondent taught at Vero Beach Junior High School included some classes directed to regular students and others directed to exceptional students, including the educable mentally handicapped (EMH). EMH students have intelligence quotients (IQs) of less than 70. At all times, all of the industrial arts classes taught by Respondent were elective. THE 1983-1984 SCHOOL YEAR Mr. Marion Bass was the Respondent's supervising principal at all times material to the administrative complaint. As the Respondent's supervising principal, Mr. Bass observed and evaluated the Respondent's teaching performance. Prior to evaluating the Respondent's teaching performance, Principal Bass received formal training in the evaluation of teachers and had 12 to 13 years of practical experience in conducting teacher evaluations. Principal Bass observed the Respondent's teaching performance informally on two or three occasions during the 1983- 1984 school year and twice formally at the end of that school year. In his observations and evaluation of Respondent, Bass found the Respondent's performance to be unsatisfactory. Specifically, Bass observed that the Respondent did not satisfactorily control students in his classroom, his planning was not as complete as it should be, implementation of his lesson plans was not acceptable, and Respondent's "voice procedures" (i.e., diction and volume) were unsatisfactory. Bass opined that the Respondent did not have a specific structure to his industrial arts class. Even if students were knowledgeable of their assigned task on a given day, the students were not always on-task. Instead, they would be out of their seats, moving around the room and discussing topics unrelated to class work. In Bass' view, Respondent failed to provide proper supervision of the students, and as a result, the students did not appear to respect the Respondent's instructions. Bass observed that students ignored Respondent's instructions to sit down and be quiet. On other occasions, he observed that the Respondent ignored some students' off-task behavior while he was involved with others. However, none of Bass' observations in the 1983- 1984 school year were reduced to writing nor formally discussed with Respondent, and the formal year-end evaluation of Respondent of March 16, 1984, by Laurent Smith, Assistant Principal, rated Respondent as overall satisfactory and his contract was subsequently renewed for the 1984-1985 school year. On or about May 15, 1984, Bass inadvertently discovered that the Respondent was not knowledgeable of his mathematics students' progress in their skills continuum. This was particularly disturbing to Bass in that each student is required by the Indian River County School Board to accomplish at least 70 percent proficiency in state-mandated skills in order to be promoted to the next higher grade. Thereafter, Bass made an attempt to ascertain the level of skills accomplishment by the students in Respondent's classes. While doing so, Bass questioned Respondent about the matter. The Respondent indicated that certain students were in the Compensatory Education Program. Bass subsequently learned that those students were not compensatory education students but were Level Two students. It alarmed Bass to discover that the Respondent did not even know what level of students he had been teaching for seven months. THE 1984-1985 SCHOOL YEAR On September 17, 1984, Bass prepared a memorandum to Dr. Douglas King, Director of Personnel for the School Board. In that memorandum, Bass outlined his concerns regarding Respondent's teaching performance. The memorandum addressed seven general areas of deficiency: failure to control students' behavior; failure to provide meaningful structure and direction and failure to support an enthusiasm for learning; failure to demonstrate the ability to plan a course of study with overall goals and objectives providing direction and continuity in the subject matter; difficulty in implementing what lesson plans the Respondent did develop; addressing only a small percentage of the students in his class when presenting a lesson; difficulty with proper grammar and diction; and a demonstrated lack of understanding for the basic academic and social skill needs of his students. Following preparation of his September 17, 1984 memorandum, Bass continued to make observations of the Respondent's teaching performance. Bass observed the Respondent's teaching performance on October 15, 1984 and completed a Classroom Observation Instrument containing his notes of that observation which rated the Respondent's performance in the classroom as "extremely poor, one of great concern." The notations on the Classroom Observation Instrument itself indicate that the Respondent gave directions to a limited number of students, assisted only a small number of students, engaged in very little class communication, did not enunciate well, used poor diction, utilized "very poor" classroom management, and failed to keep the students on task. Following Bass' observation of the Respondent on October 15, 1984, he prepared a written memorandum of his concerns and his suggestions for improvement. He met with the Respondent and discussed both his concerns and suggestions for improvement. The Respondent received a copy of the memorandum. During this conference, Bass told the Respondent that he was there to help him in any way that he knew how to help. Bass expressed similar sentiments in other conferences with Respondent regarding Respondent's teaching performance and offered to allow Respondent to visit other schools and other teachers both in and out of the school district in an effort to help Respondent remediate his observed deficiencies. On September 13, 1984, Theresa Wagner, chairperson of the vocational department of Vero Beach Junior High School, sent all teachers within that department a memorandum establishing dates for computer usage. One of the components of the Respondent's industrial arts curriculum was demonstration of computer literacy. Respondent received a copy of the memorandum. On October 15, 1984, the first day of the Respondent's assigned time block for use of the computers, the Respondent advised Ms. Wagner that his class was not ready to use the computers and would probably not be ready the following week. However, until that date, Respondent had expressed no problem with the time block assigned to him and had requested no assistance in preparing for this new function of the curriculum. When Ms. Wagner reminded him that computer skills were a part of his required curriculum at that time, Respondent replied that he could not understand why he had to teach something he did not know anything about. Further, he stated that he could not learn it. Respondent apparently made two attempts to learn the computer and gave up. Respondent's failure to adapt himself to the new computer programming time blocks inconvenienced Ms. Wagner and others who were required to share the single computer during the finite time available in a school day/school year. At hearing, Respondent advanced the theory that because his major was in TIE (Trade Industrial Education), he ought not to be required to adapt to teaching manufacturing, woodworking, and computer literacy, which are outside of his expressed field of interest, but which apparently are very much contemplated within the general field of industrial arts. Additionally, he felt he certainly should not be required to adapt to teaching all these "new" areas at one time. However, it appears he had been teaching woodworking for some period of time anyway. Overall, Respondent made it clear he did not want to teach the curriculum assigned to him. As a part of her assigned responsibilities as department chairperson, Ms. Wagner was required to observe each of the teachers within the vocational department. On October 10, 1984, she observed the Respondent. Her memorandum to the Respondent dated October 10, 1984, outlined her observations as well as her suggestions for his improvement. Ms. Wagner had difficulty understanding the Respondent when he was teaching. She suggested that he talk louder and make a special effort to enunciate clearly. She observed that the Respondent failed to provide a handout for one girl in the class. The girl raised her hand and had it up for five minutes before the Respondent noticed the student and gave her the handout. Ms. Wagner observed a lot of non-essential, non-productive movement of students in the classroom. Finally, she noted among other things that the last lesson plans which the Respondent turned in were for the week of September 17, 1984, although he was on notice that he was supposed to turn in lesson plans weekly. Ms. Wagner observed little, if any, instruction being provided by the Respondent. The students failed to respond to the Respondent's directions and did not pay attention to him or obey his directions. In fact, the majority of the students ignored the Respondent during this observation by Ms. Wagner. Lesson plans were an on-going problem between Ms. Wagner and Respondent. Only when Ms. Wagner specifically asked the Respondent for lesson plans did she receive them. Those which she did receive from the Respondent were not satisfactory. In her opinion, any substitute teacher would have had a very difficult time teaching effectively based upon the plans which Respondent did submit to her. Although other departmental personnel sometimes missed turning in lesson plans timely, everyone except the Respondent eventually "caught up" with their lesson plans. Ms. Wagner later observed Respondent on several other occasions. Those observations of the Respondent's teaching performance were consistent with her observations on October 10, 1984. On September 14, 1984, Richard Thomas, Vero Beach Junior High School Dean and Assistant Principal, observed the Respondent's classroom performance. Mr. Thomas is trained for such evaluations. Using the teacher evaluation form containing 39 observable "behaviors," Thomas rated the Respondent as "needs improvement" in 14 of the 39 categories based upon his observations on September 14, 1984. Thomas categorized the Respondent's performance on that date as incompetent. On September 20, 1984, Thomas became aware that the Respondent was sending a large number of student referrals to the Guidance Department for the purpose of having the students seek reassignments from his classes to other classes. Respondent's action was creating problems for the Guidance Department, the students, and the Respondent himself because by that point in the school year, a change of classes under the circumstances was impossible. Thomas prepared a letter dated September 20, 1984 to Respondent requesting that he refrain from such conduct. In the letter, Thomas offered to discuss the matter with the Respondent. Respondent's reasons for his acceleration of referrals was never made entirely clear. However, one explanation offered by the Respondent at formal hearing was that when he had behavioral problems with students in his classes and was not permitted to lock them out of the class (see findings of fact 21, 32, and 33 infra.) and was not otherwise "backed up" by Principal Bass and Assistant Principal Thomas, Respondent felt justified, as a strict disciplinarian, in referring those students whom he viewed as troublemakers to the Guidance Department either to be dealt with by Thomas or for reassignment elsewhere. Under the circumstances, this explanation by Respondent of strict discipline is flawed and unreasonable and evidences lack of classroom control. At hearing, Respondent expressed his objection to having exceptional and special education students in his classes due to their low IQs, even though he admittedly had taken courses in this area. Although all school and School Board personnel assumed Respondent was certified for EMH students, Respondent was not specifically so-certified. He maintained that because of their low IQs, EMH students created special discipline problems, which fact was confirmed by Mr. LaPointe and Mr. Bass. However, Mr. LaPointe, a specialist in the field, also opined that an industrial arts certificate should qualify Respondent to teach industrial arts to EMH students. Respondent attributed much of his professional troubles to the inability of the exceptional education students to learn as opposed to his own inability to teach. At first, Respondent further suggested Bass and Thomas had also assigned students with disciplinary problems to both his regular and exceptional classes. However, he could not substantiate this premise in light of the elective nature of all industrial arts classes. Overall, Respondent only made it clear that he did not want to teach the students assigned to him. On October 17, 1984, as a follow-up to his September 14, 1984 visit, Thomas observed Respondent teaching and prepared a Classroom Observation Instrument. He concluded that the Respondent's "with-it-ness" was poor because Respondent was oblivious to a fight which was about to break out between students in the back of his classroom and because a student had to approach the Respondent and almost physically pull on the Respondent's arm to get his attention. Thomas observed that the Respondent was not in control of his class and that he failed to maintain the attention of all students. Thomas observed no improvement in Respondent's performance on his October 17, 1984 return, except that on that particular date, the Respondent did attempt to implement some organizational structure through the use of an overhead projection covering four items. On November 9, 1984, Thomas wrote the Respondent a letter in regard to the manufacture of weapons by students in the Respondent's manufacturing class. Prior to that date, Thomas had verbally cautioned the Respondent about the manufacture of weapons by students in his class. No direct competent substantial evidence nor any corroborated hearsay supports a finding of fact that "weapons" per se were in fact created in Respondent's class with his knowledge. It was, however, demonstrated that various lathe-produced wooden objects, possibly intended by Respondent for use as chair legs, were smuggled out of his class by students. Although Respondent denied certain items described as "swords" and "paddles" were weapons and even that some of the "chair legs" were made in his class, the fact that he admitted that a paddle and certain "chair legs" could have been smuggled out by students indicates an appalling nonchalance for his duties of supervision of young people. It was further demonstrated that a sign bearing the expression "I LOVE SEX" and that a paddle bearing the expression "DUCK BUT!" [sic] were manufactured in Respondent's class without his disapproval. On October 16, 1984, Jean Carter, the Director of Vocational Adult and Community Education for the Indian River County School District, observed the Respondent's second period class. Ms. Carter is a qualified observer with the Florida Performance Measurement System. During her observation on October 16, 1984, Ms. Carter noted that the Respondent did not begin his class promptly. Students talked in loud voices and milled around the room. The Respondent had difficulty communicating with his students. Most of his comments were inaudible. The Respondent turned his back on some students when he spoke to other students. Few students attempted to write the notes shown on the overhead projector as the Respondent ordered. Other students never faced the projector, and the Respondent seemed to be unaware that they were not taking notes. Ms. Carter observed several students off task. Four or five students were throwing paper and spitballs around the room. The word "important" was misspelled on the transparency. Respondent exhibited no enthusiasm for the subject matter, never praised the students, spoke positively, or smiled. He did not appear to enjoy teaching. In November 1984, a request was made to the Florida Department of Education to provide an assistance review of the Respondent's teaching performance. The purpose of the assistance review was to provide the Respondent with assistance in becoming a more proficient teacher. Following the assistance review, a very lengthy, detailed report was prepared by the reviewer and submitted to the Indian River County School District. On February 7, 1985, a conference was held involving Superintendent Burns; Principal Bass; Dr. Eddie Hudson, Personnel Coordinator; Mrs. Shirley Hanawait, Assistant Superintendent; Ms. Carolyn Sheppard, CEA President; Jean Carter, Director of Vocational Education; Dr. Douglas King, Director of Personnel; and the Respondent. The purpose of the conference was to review the report prepared by the Department of Education assistance reviewer and to make arrangements to provide Respondent with additional help and assistance as needed. In that conference, Respondent's supervisors made arrangements to correct, repair, or adjust equipment in Respondent's classroom; to have another industrial arts teacher assist Respondent; to provide Respondent with relief time to observe other professional teachers in the same vocational area; to send the Respondent to two professional conferences; to provide Respondent with professional journals; to provide Respondent with assistance through the department head; and to provide assistance from Mr. Bass in the areas of grading, lesson plans, supervision, management, and organization. Mr. Bass, Superintendent Burns, and Dr. King emphasized to Respondent that he must begin to show improvement in his performance immediately. Respondent was advised that if no improvement were demonstrated immediately, Respondent could be removed from continuing contract status or dismissed altogether. The Respondent received a copy of the conference summary prepared by Dr. King as a reminder of the action Respondent was expected to take to improve his classroom performance. Ms. Carter participated in the conference held with the Respondent on February 7, 1985, to review the assistance review report and to provide the Respondent with help. Her purpose in attending the conference was to provide the Respondent with assistance in any way possible to improve his performance. Ms. Carter later made sure that all of the Respondent's equipment was in proper working order, that he had copies of the performance standards mandated for the courses he taught, that he received professional journals, and that he was authorized to attend two conferences relating to his subject matter area. Respondent did not, however, attend either conference. Subsequent to the February 7, 1985 conference, Bass conducted five classroom observations of the Respondent's teaching performance. On each occasion, Bass completed a Classroom Observation Instrument. On March 8, 1985, Bass observed the Respondent's class and found that no valid learning activity was going on in the classroom. On March 12, 1985 at 7:35 a.m., Bass observed the Respondent's industrial arts class for exceptional education students. There were seven or eight students in the class. Bass observed that the Respondent gave the students approximately 15 vocabulary words to look up while the Respondent straightened up the classroom. In Bass' opinion, such an assignment for exceptional education students was inappropriate due to their limited intelligence, attention span, and the purpose for which such students were enrolled in the course. Mr. Bass characterized Respondent's performance on that date as poor. Subsequently, on the same date, Bass observed the Respondent teaching manufacturing to a regular class of about 17 students. Although Bass characterized Respondent's performance in this class as better, he still gave it an overall score of poor because Respondent's presentation lacked continuity and his discourse was "disjointed." Bass continued to note that the Respondent had difficulty with grammar, enunciation, and projection of an enthusiasm for the subject matter. On March 18, 1985, Bass again observed Respondent's manufacturing class for exceptional students. Although Bass also termed this observation better than those he had made of Respondent in the past, he still considered it a below average observation. On the observation instrument itself, Bass noted that the Respondent was late to class, wasted time by marching the students to a film which was set up in a classroom in a separate building, provided no orientation or preview prior to showing the film, and conducted no discussion of the film after it had been shown. He further noted that the Respondent performed much of the project work himself, thereby limiting the hands-on experience that the students were in the class to receive. That same day, Bass observed the Respondent's manufacturing class for regular students, which viewed the same film as had been shown to the exceptional education students. The content of the film would have been acceptably pitched for both types of classes if Respondent had appropriately introduced the film and had led post-film discussions appropriate to each level, which he did not. Bass felt that once again a lot of time was wasted, there was scant review of the film's content, and there existed the same problems with diction and discourse by the Respondent. Bass concluded that the Respondent's teaching performance remained virtually unchanged from what it had been prior to the assistance review. Bass' March 27, 1985 Annual Teacher Evaluation for Respondent's 1984- 1985 school year resulted in a rating of "needs improvement" in 23 of the 39 "behaviors" evaluated on the form. Bass met with Respondent on March 28, 1985 to review the evaluation and discuss it with him. Before Bass could begin discussion of the evaluation, Respondent stated, "Let me make a long story short, Mr. Bass, I am not going to sign my evaluation even if we talk all week. You're 100 percent right on what you wrote, but I'm still not signing it." On more than six occasions, Thomas found the Respondent's students out of class when they were supposed to be in his room. On certain occasions Respondent locked them out. When the Respondent locked students out of his classroom, those students were free to roam the halls with the excuse that they had been locked out of their classroom. On one occasion, school staff members caught one of the Respondent's students committing a theft at a time when he was supposed to be in Respondent's class. Although the theft incident was not conclusively tied to a date Respondent locked students out of his classroom, Respondent was still responsible for indicating to the administration that the student was "cutting" and had not done so. On June 4, 1985, Bass learned that the Respondent was locking his students out of his classroom. Final examinations were being conducted at the time. The Respondent told Bass that he could not make the students stay in class without this procedure, which he had designed to catch students when a student still in the classroom tried to let those who had left the classroom back into the classroom from the outside. Respondent also told Bass he could not give an examination and control the students if the door were not locked. Respondent repeated this explanation from the stand at formal hearing as if his plan were designed to catch those who "cut" class, but Respondent also maintained it was a method of timing the number of minutes students remained out of class so that Respondent could tell their parents why he would not permit them ever to leave the room again, apparently even for reasons as mundane and urgent as using the bathroom. Such reasoning process is flawed and unreasonable, if not downright silly. The Respondent refused to sign the incident report resulting from this incident and further refused to discuss the incident report with Mr. Bass. As a vocational education teacher, Respondent was required to submit end of the year reports to Ms. Carter as a part of state and federal funding requirements. Ms. Carter had informed Respondent of the requirement that he prepare and submit the reports prior to leaving school. Respondent testified he submitted the required reports at the end of the 1984-1985 school year by placing them in the school office mail box of Ms. Wagner. Ms. Carter testified that she did not receive them. The problem with transmittal of the reports appears to be one that could have been resolved by Ms. Wagner or someone notifying the Respondent immediately by telephone that they had not been received. This was not done, although Ms. Carter and Dr. King followed up with written reproofs. Such an infraction under these circumstances will not support discipline of Respondent. Respondent's annual evaluation for the 1984-1985 school year, dated March 27, 1985 and referenced above, was not satisfactory, but Respondent's contract was subsequently renewed for the 1985-1986 year. THE 1985-1986 SCHOOL YEAR On September 3, 1985, Howard LaPointe, then a staff associate in the Exceptional Education Program of the Indian River County School District, observed Respondent teaching exceptional students in his manufacturing class. Although school had begun on August 17, 1985, Respondent took his class on a tour of the other building on September 3, 1985. Mr. LaPointe observed numerous deficiencies during his observation and noted that the Respondent needed assistance in the areas of classroom management, instructional materials, orientation to class work, utilization of student notebooks, and competency based upon the curriculum guide. On September 13, 1985, the Respondent met in Principal Bass' office with Bass, LaPointe, Carolyn Sheppard (president of the teachers' union) and Dr. King to review LaPointe's observation conducted on September 3, 1985 and to discuss suggestions for Respondent's professional improvement. As Mr. LaPointe began to present his plan for providing assistance to the Respondent, Respondent became angry and upset. After a sharp exchange between LaPointe and Respondent, wherein LaPointe asked Respondent "What the hell do you expect the children to do?" or some similarly-phrased question, Respondent left the meeting and did not return. Bass and Dr. King walked down to the Respondent's office, a glass- enclosed room. They could see Respondent was in a highly emotional, agitated state. The Respondent had knocked his personal television set onto the floor. It was not demonstrated that Respondent damaged a projector or any other school property or that two obscenities uttered by Respondent were heard by anyone other than a fellow teacher, Mr. Humphrey, who had entered the enclosed room as a friend to calm down the Respondent. Had Bass and King not followed Respondent to his own office they would not have even observed his agitated state. Respondent was excused for the remainder of the school day after Mr. Humphrey calmed him down. Later that day, Superintendent Burns suspended the Respondent without pay. Respondent was subsequently terminated by the School Board for incompetence, misconduct, and gross insubordination. On December 12, 1985, Dr. King notified the Florida Department of Education that the Respondent had been dismissed from his position of employment. Dr. King recommended that the Respondent's teaching certificate be permanently revoked. Based upon Bass' observations and evaluations of the Respondent's teaching performance over a period of more than two years, Bass holds the professional opinion that the Respondent is an incompetent teacher. Bass would not recommend the Respondent for employment in Indian River County or any other school district. In Bass' professional opinion, students in the Respondent's regular classroom did not receive even a minimal educational experience and the exceptional students received only a minimal educational experience. No evidence whatsoever supporting the allegations of unprofessional conduct at Clemans Elementary School was offered and no such unprofessional conduct is found. No direct competent substantial evidence nor any corroborated hearsay supports the allegation that Respondent used profanity in the presence of students and no such conduct is found. Respondent's pre-1983-1984 school year evaluations are technically irrelevant to the charges at bar but were admitted to give Respondent every opportunity to "prove up" his allegations that his current problems arose from personal or personality conflicts with Bass and Thomas. Unfortunately for Respondent, these exhibits show some of his deficiencies are long-standing but were sporadic as opposed to forming a consistent pattern early on. Otherwise, these exhibits are too remote in time to have great weight. Respondent also defended, pursuant to Rule 6B-4.08(2), Florida Administrative Code, upon the premise that after a bombardment of evaluations and conferences he felt he was being harassed rather than given corrective assistance and that he was given too little time in which to make the adjustments required. Rule 613-4.08(2) requires Respondent's immediate supervisor to make all efforts possible to aid Respondent to correct the matter which caused his dismissal. Although this is a questionable defense when, as here, Petitioner and the School Board are not one and the same entity, some of Respondent's allegations have a mitigating effect. There is some merit to his allegations with regard to the timeframe and limited assistance provided but none as to the allegation of harassment. Respondent did unsuccessfully apply for transfer and volunteer to accept a custodial job at the same pay in order to avoid his problems with Bass and Thomas, but he could not demonstrate at formal hearing any reason other than his own attitude and teaching performance for Bass' and Thomas' poor evaluations and refusal to transfer him. Moreover, the consistency of the other observers' analyses belies any conspiracy or vendetta against Respondent on the part of Bass and Thomas. There is some evidence that Respondent made some minimal improvements in technique after assistance was provided by the professional reviewer, which assistance Mr. Bass characterized as the only significant remediation provided the Respondent. Upon his superiors' advice, Respondent also conferred with at least one other teacher in his field who came to his school. Ms. Carter testified that Respondent was authorized to attend two professional conferences and he did not, in fact, attend, but it is unclear from her testimony and the supporting documentary evidence whether federal grant monies were ever authorized for Respondent's attendance at either of these conferences. Mr. LaPointe's evidence that special assistance with regard to exceptional students was offered by him but rebuffed by Respondent is indicative of Respondent's poor attitude. There is evidence that equipment was repaired for Respondent and although not stated by any one witness in so many words, it may be inferred from the collective testimony of several witnesses that Respondent could have requested time off to observe other industrial arts classes and confer with other industrial arts teachers outside his own school but failed to do so. In light of Respondent's satisfactory rating in the 1983-1984 school year, the fact that significant efforts to assist Respondent did not commence until November 1984 (reviewer visit) and that internal assistance did not begin in earnest until the February 7, 1985 conference, I find Respondent had really only from February to March 1985 to avoid an initial unfavorable annual evaluation. From March 1985 to school's closing in June and part of August and September in the 1985-1986 school year was all the time permitted Respondent for remediation because he was dismissed in mid-September 1985. Even so, he showed some minimal improvement which has been considered.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Florida teaching certificate be suspended for three years with provision for reinstatement as provided by statute. DONE AND ORDERED this 22nd day of June, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4101 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF). Petitioner's Proposed FOF: Covered in FOF 1. Covered in FOF 3. Covered in FOF 5. 4-5 Covered in FOF 6. 6-8 Covered in FOF 7 but amplified to conform to the record as a whole. Covered in FOF 8. Covered in FOF 9. Accepted that there were such reports but rejected as set forth in FOF 41. Covered in FOF 10. Covered in FOF 11 except as to the subordinate and unnecessary. 14-15. Covered in FOF 12 except as to the subordinate and unnecessary. Covered in FOF 25. Covered in FOF 26. 18-19. Covered in FOF 27. 20. Covered in FOF 29. 21-23. Covered and amplified in FOF 30 to conform to the record, but eliminating the legal argument from proposal 23. 24. Covered in FOF 31. The commentary about the presence of a secretary and Respondent's mood are rejected as immaterial in light of no charges of insubordination. Further, mild anger in the presence of the Principal's secretary is hardly likely to impair Respondent's effectiveness. 25-26. Covered, modified and amplified as necessary in FOF 33 to convey the full scope of the material facts of record. That which is cumulative, subordinate and unnecessary has been rejected. 27. Covered in FOF 36; what is rejected is subordinate and unnecessary. 28-29. Covered in FOF 39; what is rejected is cumulative. 30-31. Covered in FOF 13-14 and amplified to more accurately convey the evidence of record as a whole. Covered in FOF 16 but modified for clarity. Covered in FOF 18. Except for elimination of the cumulative, covered in FOF 17. Except as cumulative, subordinate and unnecessary, covered in FOF 19. Covered in FOF 19. 37-38. Covered and amplified in FOF 20 to more accurately reflect the evidence of record as a whole. 39-42. Except as cumulative, subordinate or unnecessary, covered in FOF 22. 43-46, and 49 Rejected as not supported by the direct, credible competent substantial evidence of record as a whole. 47-48. Accepted that reports were written but rejected on the basis of uncorroborated hearsay, unsupported by direct credible competent substantial evidence in the record as a whole as covered in FOF 41. 50. Covered and amplified to more accurately reflect the record evidence as a whole in FOF 32. See also FOF 33. 51-53. Except for the cumulative, subordinate and unnecessary, covered in FOF 24. Covered in FOF 28 and 42. Rejected as not supported by the record as a whole. All witnesses are entirely credible on this point and Respondent's testimony is not truly contrary to other testimony. The benefit of the doubt must be resolved in his favor in this penal procedure. 56-58. Rejected as stated as not supported by the credible competent substantial evidence of record as a whole which is set out in FOF 37. 59. Covered in FOF 38. 60-61. Rejected as subordinate and unnecessary except as covered in FOF 38. 62. Covered in FOF 38. 63-65. Rejected as irrelevant except as covered in FOF 42. Rejected as cumulative. See FOF 20, 21, 32 and 33. Accepted but covered as set forth in FOF 23 since the proposal does not constitute an ultimate, material fact. Rejected as legal argument except to the extent it is peripherally covered in FOF 42. Respondent's Proposed FOF: 1-3. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. 4. Rejected as stated in that it constitutes argument but the topic is covered in FOF 7, 21 and 42, as supported by the record as a whole. 5-8. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. This proposal is not a sentence and is therefore rejected. Accepted that Respondent had the feelings and made the statement but rejected as stated as misleading of the record as a whole. See FOF 37. Except as covered in FOF 4, rejected as irrelevant, although true. Accepted but this goes to Respondent's overall incompetency and is not an ultimate material fact and therefore not adopted. See FOF 21. Rejected as some of these were not admitted in evidence and those in evidence do not support the proposal, neither does the record evidence as a whole. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Charles L. Hendley, Esquire 1500 Delaware Avenue Fort Pierce, Florida 33450 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 =================================================================
Findings Of Fact Respondent in this proceeding is Lloyd Wright. At all times pertinent to these proceedings, he was a social studies teacher employed by the St. Lucie County School District on a professional contract status and assigned to Westwood High School. He holds Florida Teaching Certificate No. 395537. On February 17, 1987, Respondent was suspended from his duties as a teacher for the school district. After an administrative hearing on issues relative to his employment, final order dismissing Respondent from his employment was issued by the school district on September 8, 1987. James Andrews is the principal of Westwood High School. Andrews has known Respondent as a friend, and as a member of the teaching staff at the school, for many years. On February 4, 1987, Andrews was at home with his ill son. His secretary telephoned him regarding allegations being voiced against Respondent by a female student. That student's allegations, and statements of other students alleged to be witnesses, were reduced to writing at Andrews' instruction and reviewed by him upon his return to the office on February 5, 1987. That evening he met with the complaining student, Tenecia Poitier, and her father. He assured them that the matter would be taken up with his superiors. On the morning of February 11, 1987, Andrews brought the allegations to the attention of the school district's Director of Secondary Education during a visit by the director to the Westwood Campus. That afternoon, the director telephoned Andrews and requested that additional statements be obtained from the students. Pursuant to those instructions, Andrews met with the students who had given the previous statements and instructed them to provide the additional statements to him. He forwarded these statements to the district school board office. Andrews has been the principal at Westwood High School for seven and a half years. He holds a master's degree in guidance and counseling and has completed course work in the areas of administration and supervision in excess of 30 academic credit hours. He has served in the educational system for approximately 35 years. Service in the positions of classroom teacher, guidance counselor, assistant principal and principal are included in the scope of his experience. Andrews regularly instructed the staff at the school to refrain from using slang in the classroom, becoming familiar with students or putting their hands on students unless necessary to prevent injury to a student or others. This admonishment by the principal was applicable to all students without regard to race or sex. He does not think it appropriate for a teacher to use the word "fuck" or the phrase "I am going to fuck your brains out" in the classroom. Andrews also finds the use of the phrases "Girl, I want that thing" and "Girl, I'm going to take you to the bushes" inappropriate for a male teacher to use in conversation with a female student. He would not want a male teacher who touched female students intentionally on the buttocks or thighs, or used such words or phrases in the classroom, on his teaching staff. Tenecia Poitier graduated from Westwood High School in 1988. In the 1986-87 school year, she was a student in Respondent's World History class. On one occasion, Respondent pushed Poitier against the wall of the classroom with other students present and told her "One of these days, I'm going to fuck your brains out." Once, when she was going to the school cafeteria, Respondent told her "Girl, I want that thing." Respondent touched Poitier on the leg and buttocks on other occasions and made suggestive statements to her. In response, Poitier rejected Respondent's advances by cursing him and, on one occasion, striking him. Another incident occurred when Respondent seated himself in front of Poitier's desk and propped his feet on her desk in a crossed fashion. The result of Respondent adopting this seating posture meant that Poitier had to look between Respondent's legs when she looked up from her desk work. Poitier got out of her desk, struck Respondent with her notebook, cursed him and told him to get his legs off her desk. Poitier did not observe Respondent engage in this seating conduct with other students. JoAnna McGee was a ninth grade student when she had Respondent as her teacher for World History. Respondent saw McGee walking down the street one day. He sounded his automobile horn at her. Later, when he saw her in the classroom, he told her that if he saw her walking on the street again he would take her "in the bushes." Respondent hugged McGee and other female students on occasion. Tony Lee was a student in Respondent's World History class, along with Poitier. Lee was aware of Respondent's joking and bantering with students. Female students would congregate around Respondent's desk when these sessions occurred. On one of these occasions, female students laughingly said they needed some candy to suck, and Lee heard Respondent reply "I've got something to suck on right here." Lee also heard Respondent make the statement "fuck your brains out" during an exchange with students. Lee overheard Respondent using the phrase "pull your clothes down" in a conversation with Poitier. Lisa Frazier was also a classmate of Poitier during the World History class taught by Respondent. She observed Poitier curse Respondent and strike him with her notebook. Frazier also testified that Poitier had a reputation for disruptive behavior and that Respondent used slang language with students. Respondent admitted using slang expressions, including the phrases "take you to the bushes" and "take you to the woods," in classroom settings with female students. Respondent admitted to a practice of hugging male and female students. Respondent also testified that he never told Poitier that he wanted to "F--- her brains out." When confronted with his sworn testimony from a previous proceeding that he did not recall making the statement, Respondent explained that his previous answer was made upon advice of his counsel at that time. Respondent's denial in this proceeding that he never made such a statement to Poitier, along with his testimony that hugging of students was an unintentional result of previous coaching experience, is not credited in view of his demeanor while testifying. Further, his testimony that his use of the phrases "take you to the bushes" or "take you to the woods" resulted from a film observed in the class and were meaningless slang terms devoid of sexual innuendo, is not credible. Also, the testimony of students Lee and McGee corroborates Poitier's version of Respondent's behavior and further discredits Respondent's testimony, including his explanation that Poitier's complaint against him resulted from Respondent writing up Poitier for academic and disciplinary reasons. Other students were also written up as often as Poitier.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate. DONE AND ENTERED this 28th day of November, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the clerk of the Division of Administrative Hearings this 28th day of November, 1988. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed Findings 1.-2. Addressed. Unnecessary to result reached. 4.-12. Addressed. 13. Unnecessary to result. 14.-15. Adopted in substance. 16. Unnecessary to result reached. 17.-21. Addressed. 22.-24. Unnecessary to result reached. Addressed in part, remainder unnecessary to result. Unnecessary to result reached. 27.-28. Addressed. 29.-30. Adopted in substance. 31. Unnecessary to result reached. 32.-33. Addressed. 34.-35. Unnecessary to result reached. Addressed. Rejected as a conclusion of law. Respondent's Proposed Findings 1.-2. Addressed. 3.-6. Unnecessary to result reached. 7.-8. Cumulative, subordinate and unnecessary to result. 9.-13. Unnecessary to result reached. 14. Addressed. 15.-17. Unnecessary to result reached. Rejected as cumulative. Rejected, contrary to weight of the evidence. Rejected as a conclusion of law. Rejected, not supported by weight of the evidence. Unnecessary to result reached. Addressed in substance. 24.-25. Unnecessary to result reached. 26.-27. Addressed in substance. 28. Unnecessary to result. 29.-30. Addressed. COPIES FURNISHED: Betty J. Steffens, Esquire Post Office Box 11008 Tallahassee, Florida 32302 Lorene C. Powell, Esquire 208 West Pensacola St. Tallahassee, Florida 32301 Sydney H. McKenzie, Esquire. General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Hon. Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
Findings Of Fact In the 1984-1985 regular school year. Eduardo Hernandez was in the 7th grade at Nautilus Junior High School. On December 4, 1984 Eduardo disrupted science teacher Ralph William Schmidt's science class by speaking loudly in Spanish and called the teacher a pejorative name in Spanish before the entire class. He was assigned classroom detention by Mr. Schmidt which he did not serve. On December 6, 1985 Mr. Schmidt tried to send him to the principal, Mr. Walker, with a note of detention but Eduardo ran out of the room. On that date, Eduardo wrote some obscene notes to Mr. Walker containing curse words in Spanish and passed the notes in class. On February 6, 1985 Eduardo wrote with blue magic marker on a science lab table. Thereafter, the same markings (fancy signature marks and cartoons) were discovered in bathroom stalls, on desks, and other parts of the school and Eduardo and another boy were discovered in the vicinity with blue magic markers in their possession. Dr. Paul Smith, assistant principal of Nautilus Jr. High School confirmed that Eduardo was referred for discipline as a result of this incident. In this year, Eduardo's science grades were mostly failures with many absences. He frequently disrupted the concentration of other students in the class. Some days he was cooperative and other days he was not. In most cases he was disruptive and discourteous to the teacher and students. In response to many referrals by Mr. Schmidt, Dr. Paul Smith, spoke to Eduardo on a number of occasions. Very frequently Dr. Smith was required to speak with him about tardiness and cutting classes. In the first nine weeks grading period alone Eduardo was absent without proper excuse two times from one class, two times from another class and three times from another. On December 11, 1984 Dr. Smith counselled with Eduardo due to a disruptive behavior referral from another teacher, Mr. Lawless. On January 18, 1985, Dr. Smith personally received Eduardo when he was brought to school by the police as a truant. On another occasion, Dr. Smith caught Eduardo "skipping" or truant after lunch period. On March 19, 1985 Dr. Smith counselled with Eduardo on a referral for disruptive behavior in the classroom of another teacher, Mr. Burger. On April 1, 1985, Eduardo was brought to the office for refusing to work in class and he thereafter left the office without permission from Dr. Smith. Throughout the 1984-1985 school year, Eduardo's unexcused absences increased and his grades decreased. Eventually he was absent 20 days out of 45 in a grading period. His highest grade was a "D" and the others were failing or - unsatisfactory, designated as "F3F." In Dr. Smith's opinion, Eduardo cannot successfully complete a regular school program and although the Opportunity School may not be the only acceptable program, it was selected as the best solution under present circumstances. Jorge A. Hernandez opposed the alternative school assignment on the basis of danger from other students behavior to his son. He did not challenge the existence of his son's prior disruptive behavior but submitted that a telecommunication program would be a better alternative if Eduardo cannot be returned to a regular school program. He offered that Eduardo's behavior will change since Eduardo is now living with his father and certain family stresses contributing to his disruptive behavior have been resolved.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order continuing the alternative placement of Eduardo Harnandez at Jan Mann Opportunity School-North until such time as an annual or other evaluation indicates other appropriate assignment. DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 27th day of September, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools, Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building Suite 100, 2780 Galloway Road Miami, Florida 33165 Mr. Jorge Hernandez 461 Southwest 10th Street, Apt 2 Miami Beach, Florida 33130 Mrs. Maeva Hipps School-Board Clerk 1450 Northeast 2nd Avenue, Room 401 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Mrs. Maeva Hipps School Board Clerk 1450 Northeast 2nd Avenue, Room 401 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issues in this case are whether Respondent violated Section 231.28(1)(i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), by using unauthorized methods of disciplining a student before allowing the student to visit the school nurse. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 416888. Respondent's Florida teaching certificate is valid through June 30, 2003. Respondent is employed as a Special Education Teacher at Moore Haven Junior High School (the "school") in the Glades County School District (the "District"). Respondent has a long-standing practice in his classroom of disciplining male students by making them do push-ups and hold books while their arms are extended in front of them. Both practices violate rules and policies of the school and the District. Respondent had actual or constructive knowledge that discipline by push-ups and holding books violated the policies of the school and the District. The student handbook distributed to each teacher, including Respondent, prescribed the authorized methods of discipline. None of the authorized methods included pushups or holding books. Respondent submitted some evidence that administrators in the school deviated from officially stated policies and rules by condoning unauthorized methods of discipline such as pushups or holding books. However, the evidence submitted by Respondent was less than a preponderance of the evidence and was adequately refuted by evidence submitted by Petitioner. All of the students in Respondent's class are exceptional education students. Each student has an identified disability. Any method of discipline other than that authorized by applicable policies and rules must be clearly stated and authorized in each student's individual education plan ("IEP"). C.W. was an exceptional education student in Respondent's class on February 9, 2000. The IEP for C.W. did not authorize any alternative methods of discipline. During class on February 9, 2000, Respondent approached C.W. because C.W. had his head on his desk during class. Respondent instructed C.W. to do his assignment. C.W. complained that he felt sick and requested to see the school nurse. Respondent and C.W. exchanged brief repartees. The evidence is less than clear and convincing that during the exchange Respondent prevented C.W. from going to the nurse's office. Some witnesses testified that Respondent refused C.W.'s request to go to the nurse's office. Other witnesses in the classroom during the exchange testified that Respondent initially instructed C.W. to go to the nurse's office but that C.W. refused either to go to the nurse's office or to do his assignment. The testimony of all of those witnesses was credible. Because C.W. refused to do his assignment in class, Respondent instructed C.W. to stand at the back of the class with his arms extended in front of him. C.W. complied with Respondent's instruction. Respondent successfully completed the alternative method of discipline that required C.W. to stand at the back of the class. However, Respondent failed to effectuate other unauthorized methods of discipline that Respondent attempted. When Respondent placed books in C.W.'s arms, C.W. did not hold the books in his arms. Rather, C.W. dropped his arms, and the books fell to the floor. When Respondent instructed C.W. to do push-ups, C.W. refused Respondent's instruction. C.W. left Respondent's classroom under his own volition and went to the office of the school nurse. The evidence does not reveal the amount of time that transpired between Respondent's initial instruction for C.W. to stand at the back of the class and the time when C.W. left for the nurse's office. Therefore, there is no evidentiary basis to quantify the delay in medical attention. When C.W. arrived at the nurse's office, the school nurse determined that C.W. was feverish, suffered chills, and that his complexion was "splotchy." The nurse telephoned C.W.'s parents. The parents took C.W. home and subsequently to the hospital. The examining physician at the hospital diagnosed C.W. as suffering from mastoiditis. The physician admitted C.W. to the hospital for two days and successfully treated the medical condition. The medical condition represented an exigent threat of harm to C.W.'s physical safety within the meaning of Rule 6B-1.006(3)(a). As previously found, however, the evidence is less than clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect the student from a medical condition that was harmful to the student's physical safety. Conflicting evidence was less than clear and convincing evidence that Respondent delayed C.W.'s attempt to see the school nurse or the length of any delay allegedly caused by Respondent. C.W. left Respondent's class under his own volition and went directly to the nurse's office. The conflicting evidence was less than clear and convincing that any delay between Respondent's initial contact with the student and the student's departure to the school nurse was significant enough that Respondent failed to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety. The evidence is clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect C.W. from conditions harmful to learning. The methods of discipline attempted by Respondent were harmful to C.W.'s ability to learn, violated C.W.'s IEP, and violated school policy. For the same reasons, Respondent violated Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment and disparagement. Administrative staff at the school conducted a full investigation of the matter. Upon conclusion of the investigation, the District issued a written letter of reprimand to Respondent. The letter of reprimand issued by the District is disciplinary action by Respondent's employer. The judicial doctrine of double jeopardy does not preclude disciplinary action by Petitioner against Respondent's license. No evidence shows that Respondent has any prior disciplinary history by either Petitioner or the District. Petitioner seeks to have Respondent's teaching certificate suspended for 12 months. However, Petitioner's proposed penalty is based on the premise that Respondent committed all of the allegations in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e), and suspending Respondent's teaching certificate in Florida for six months. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver & Associates 528 East Park Avenue Tallahassee, Florida 32301-1518 Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Moses N. Mwaura 214 Tenth Street Post Office Box 856 Moore Haven, Florida 33471
Findings Of Fact Based upon my observation of the witnesses-and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times material hereto, the Respondent held teaching certificate number 516212, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the area of substitute teacher. During first period on October 30, 1984, Mr. Mark Fisher, a teacher at Nautilus Junior High School in the Dade County School District, called Dr. Frederick, assistant principal in charge of curriculum, to advise that he was ill and needed to leave school. Mr. Fisher's teaching assignment consisted of five regular classes of industrial arts and one class of crafts with special education students. The special education class was held during the sixth period, from 3:00-4:00 p.m. Ten students were assigned to the sixth period class. The category of special education students in the class included learning disabled, educationally mentally handicapped and emotionally handicapped children. The Respondent was called to substitute for Mr. Fisher at the end of the first period on October 30, 1984. The Respondent reported to the Nautilus Junior High School at approximately 11:00 a.m. and was assigned to Mr. Fisher's class, Room 141. The Respondent had previously substituted at Nautilus Junior High School on October 9, 1984. On that day, Dr. Frederick reviewed the guidelines for emergency substitute teachers with the Respondent. The Respondent signed the guidelines certifying that he had read and understood the school's procedures. The Respondent received a written assignment when he reported to Nautilus Junior High School on October 30, 1984. The assignment specifically noted that the sixth period class was a special education class. Prior to leaving the classroom, Mr. Fisher wrote the lesson plans for his various classes on the black board. After the 5th period class was over and immediately prior to the commencement of the 6th period, anywhere from one to four students who were not regularly assigned to Mr. Fisher's class entered room 141. When the bell rang for the commencement of the 6th period class the Respondent called roll. There were ten students assigned to the class. Eight students responded to the roll call and the Respondent marked two students absent. After roll was called, the Respondent allowed the students to work on their projects. The students went to a closet, retrieved their projects and began working on them. The students were situated at work benches in the class actively working on projects which involved sanding, gluing, nailing and similar processes. The students were not allowed to use any of the electrical equipment or power tools. The students' activity involved a certain amount of movement within the classroom such·as standing up, comparing projects and going to the supply closets for more paste and other materials. At some point during the class period D.W., a female student, went into a closet located in the rear of the classroom. While D.W. was in the closet two male students, at separate times, went into the closet with her. While in the closet, D.W. had oral sex with at least one of the boys. While D. W. and the boys were in the closet, several other students went over to the closet and looked in. One of the students in the class got a stool and stepped up and looked through a hole at the top of the closet door. Two other students also stood on the stool and looked into the closet. (Although D.F. testified that he was on the stool for five to ten minutes, his testimony as to the amount of time that he was standing on the stool was not persuasive. Likewise, his testimony was neither clear nor persuasive enough to determine whether the two other students went back and stood on the stool at the same time or whether they went back separately.) The testimony concerning the amount of time that D. W. and the other students were in the closet was not persuasive and it is impossible to determine the amount of time that D. W. and the other students spent in the closet. Several days following the incident, D.W. informed Ms. Spearman, a special education teacher, about what had happened during the 6th period class on October 30, 1984. Official recognition was taken of the fact that two boys and one girl entered guilty pleas to charges arising from the incident of October 30, 1984. Room 141 is specially designed to be utilized as an industrial arts or "shop" class. Room 141 is larger than typical classrooms at Nautilus Junior High School. According to the diagram introduced as Petitioner's Exhibit 2 and included herein as Appendix B, the entrance is located in the upper northwest corner of the classroom. The teacher's desk is located in the extreme northwest portion of the classroom next to the main entrance. The classroom is approximately 69 feet long (east to west) and 43 feet wide (north to south). There are several cupboards or closets located along the front of the west side of the classroom and a walk-in closet located in the upper northeast corner. The doors of the walk-in closet face to the south. The rear closet is approximately 15 feet deep, 8 feet high and 8 feet wide. The rear closet has double doors and at the top of the right door there is a small cutaway portion in a rectangular shape. Wood supplies are kept in the rear closets and other , types of supplies are kept in the forward closets. The classroom contains two work tables, nine work benches and one bench saw. The teacher's desk faces the work tables and work benches. The Respondent was unable to see the front part of the rear closet from where he was sitting at the teacher's desk. The Respondent first obtained his teaching certificate for substitute teaching from the Department of Education for the State of Florida in December of 1981. The Respondent substituted at over fifty different schools in Dade County and was teaching on the average of four to five days a week prior to the incident on October 30, 1984. The Respondent was employed on numerous occasions as a substitute teacher at Biscayne Elementary School in Dade County, Florida, during the years 1982, 1983, and 1984. According to Ms. Glick, the principal of that school, the Respondent's work was very satisfactory and to her knowledge, there were no incidents in any of his classes involving student misconduct nor were there any complaints about his teaching ability. The Respondent was called to teach frequently at Biscayne Elementary School because his work was satisfactory and he was "pleasant to the children and related well to the rest of the staff." The Respondent served as a substitute teacher at Comstock Elementary School in Dade County several times during the period of 1983-1984. Mr. Levin, the principal at that school, observed the Respondent on several occasions while working at Comstock and each time the Respondent was observed, the students in his classes were involved in a learning process, there were no disciplinary problems and the students seemed to like him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE and ORDERED this 16th day of December, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1986. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 David Rappaport, Esquire 265 Northeast 26th Terrace Miami, Florida 33137 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 4. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 8. Rejected as subordinate. Partially adopted in Findings of Fact 5 and 6. Matters not contained therein are rejected as recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 141. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as not supported by competent substantial evidence and/or a recitation of testimony. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 12. Matters not contained therein are rejected as not supported by competent substantial evidence and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or a recitation of testimony. Rejected as subordinate. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 19. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Rejected as subordinate. Adopted in Finding of Fact 3. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary.
The Issue Whether disciplinary action should be taken against Respondent's educators certificate.
Findings Of Fact In the 2000-2001 school year, Respondent, Elizabeth Weisman, held a Florida Teaching Certificate No. 475382. The certificate covered the areas of elementary education and mathematics and was valid through June 30, 2005. When the events herein occurred, Respondent was employed as a dropout prevention teacher at Second Chance School in Tallahassee, Florida. The school is part of the Leon County School District. There is no evidence that Respondent has been disciplined by Petitioner on any prior occasion since she began teaching in Leon County in October 1980. Second Chance School is a school for children with disciplinary problems and who have a history of being extremely disruptive and cannot be handled in a regular school setting. Ms. Weisman was in a difficult position when she started teaching at Second Chance School. She was assigned to teach outside her field and was replacing a teacher who was not as strict a disciplinarian or as demanding of performance as Ms. Weisman. In general, her students did not react well to the increase in discipline and expectations of performance and likely caused increased referrals to the principal's office. Both Ms. Weisman and the students had to adjust to each other On April 6, 2001, J.M. entered Respondent's classroom. Respondent asked him to leave her classroom. He was not supposed to be in the classroom because he had been referred to the principal's office the day before for discipline. J.M. attempted to comply with Respondent's request, but a number of students entering the room blocked him from leaving. Respondent made a shooing motion with her hands to J.M. and raised her foot to indicate for J.M. to leave the room. The gestures were done in a playful manner and were intended as such. While Ms. Weisman's foot was raised, she accidentally brushed or pushed J.M.'s buttocks with her foot. J.M. could feel the push. However, it did not cause him to lose his balance or cause any harm to him whatsoever. The evidence did not demonstrate that J.M. was unduly embarrassed or otherwise affected academically by the incident. Indeed, the incident gave J.M. a good story to tell to others at school. The evidence did not demonstrate that the push was inappropriate or violated any state rules or statutes governing teachers. There was no evidence that Ms. Weisman was less effective as a teacher due to this incident. W.F. testified that on two occasions he witnessed Respondent state to the class that they were "acting like jackasses." J.F.'s testimony was vague and inconsistent. Specifically, W.F. testified that on the first occasion, Respondent stated to the class that they were "acting like jackasses" after class members refused to return to their seats during an altercation between two students occurring outside the classroom. The classroom students were generally cheering the fight on. With respect to the second instance, W.F. testified that Respondent made the statement after W.F. and several of his classmates tricked Respondent into placing her hand on a pencil sharpener covered with glue. W.F. conceded the description was an accurate description of the behavior of the students at the time. At no time did Respondent call an individual student an improper name. Although W.F. testified he was embarrassed by Ms. Weisman, W.F.'s testimony is not persuasive on this point. Nor is it realistic to conclude any significant embarrassment given the bold nature of W.F.'s behavior which preceded these comments. W.F. also testified on direct examination that he witnessed Respondent call the class "a bunch of rat bastards." Again W.F.'s testimony was vague and inconsistent. During cross-examination, however, W.F. testified that the remark was made to a specific female student during a verbal altercation between the student and Respondent. However, Respondent denies ever using or knowing the term "rat bastard." Given Respondent's demeanor, the inconsistency, and the unreliability of the other evidence, Respondent's testimony is the more credible. There was no credible evidence that any student was ever affected in any way by these incidences. No evidence of any change in grades or reduced test scores was introduced at the hearing. An increase in disciplinary referrals was noted by the principal, but that increase was not shown to be tied to these incidences. The increase, if any, was more likely to be due to the fact that she was a new teacher, teaching out of field, who was more strict with her students and demanded more from them. Moreover, statistics supporting this perceived increase in disciplinary referrals was not offered at the hearing. Indeed, later testing showed Ms. Weisman's students improved their test scores. However, the testing was for a different year and class. It was not clear that the same students were being tested. The improvement does show that Ms. Weisman is an effective teacher.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 23d day of December, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23d day of December, 2002. COPIES FURNISHED: Matthew K. Foster, Esquire Edward T. Bauer, Esquire Brooks, Leboef, Bennett & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 John O. Williams, Esquire Williams & Holz, P.A. 211 East Virginia Street The Cambridge Centre Tallahassee, Florida 32301 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Robert B. Wheeler be DISMISSED. DONE and ENTERED this 13th day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of June, 1984.
The Issue The issue for determination in this case is whether Respondent’s Florida Educator’s Certificate should be revoked or otherwise disciplined for misconduct as alleged in the Administrative Complaint.
Findings Of Fact Petitioner, FRANK T. BROGAN, as Florida Commissioner of Education, is statutorily responsible for maintaining teaching certification standards, and is authorized to enforce the provisions of Chapter 231, Florida Statutes. Respondent, JOEL M. BURKI, at all material times hereto, was a certified teacher in the State of Florida. STIPULATED FACTS Respondent holds Florida Educator’s Certificate 686763, covering the area of Art Education, which is valid through June 30, 1997. At all times pertinent hereto, Respondent was employed as an alternative education teacher at St. Pete Challenge School in the Pinellas County School District. During 1992, Respondent was reported to Professional Practices Services for allegedly using excessive force with students. On or about September 22, 1992, the Department of Education and Respondent entered into a Deferred Prosecution Agreement extending through the end of the first semester of the 1992-1993 school year. Respondent satisfactorily completed the agreement, and on or about April 9, 1993, the Commissioner issued a finding of no probable cause to take disciplinary action concerning his educator’s ceritficate. On or about January 30, 1996, the Pinellas County School District investigated Respondent for allegedly engaging in inappropriate conduct with students. The district subsequently reported Respondent to Professional Practices Services. On or about March 20, 1996, Respondent resigned his teaching position effective March 22, 1996. THE ALLEGED INCIDENT OF MISCONDUCT An incident occurred at the St. Pete Challenge School at some time shortly after January 26, 1996, in which five male students, aged nine-to-ten years old, fell down at the door outside Respondent’s art and music classroom. As a result of this incident one student suffered a cut lip, and one other complained of a headache. The students involved in this incident initially had been disrupting Respondent’s class prior to roll call. Respondent had instructed these students to wait outside the classroom door until Respondent attended to the remaining students in the classroom. Respondent then intended to address this disciplinary situation. The five misbehaving students were outside for a very short period of time when they observed another teacher approaching. Upon seeing the teacher approaching, the five students attempted to re-enter Respondent’s classroom; however, Respondent at this time was also opening the door from the other side. The force of Respondent opening the door caused a chain reaction resulting in the fall of the five students on the outside of the door. The injured students were taken to the front office for treatment. None of the injuries sustained was serious. Respondent did not intend to cause any physical contact with the five students, nor to cause any physical harm to the students. Respondent was not physically abusive to the five students involved in this incident. It is the policy of the Pinellas County School District that a teacher shall not use physical force upon a student absent extraordinary circumstances which require physical intervention for the protection of other students or school personnel. Respondent in this incident did not use physical force in a manner inconsistent with the policy of the Pinellas County School District. Respondent is considered mild-mannered, cordial, and friendly in both his professional and personal capacities. MOTION FOR LEAVE TO AMEND THE ADMINISTRATIVE COMPLAINT The Administrative Complaint filed in this matter alleged in paragraph 4 that "Respondent grabbed minor student J.M. and pushed him," and "Respondent also pushed minor student,” A.H. into other students causing A.H. and the other students to fall." No evidence was presented at final hearing to support these allegations; however, there was testimony from minor student, K.D., that Respondent pushed another of these students, B.W., which then caused the chain reaction fall. Petitioner, accordingly, made an ore tenus motion for leave to amend the administrative complaint to conform to the evidence. The student in question, B.W., testified at final hearing and did not state that Respondent pushed him. On cross- examination, B.W. testified that Respondent pushed some other unidentified student during the incident. There was no clear and consistent evidence that Respondent pushed any identified student including B.W. or A.H. during this incident. Another student involved in the incident, C.G., who also testified at final hearing, on cross-examination confirmed Respondent's account of this occurrence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order dismissing the Administrative Complaint filed in this matter. DONE AND ENTERED this 21st day of July, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1997. COPIES FURNISHED: Bruce P. Taylor, Esquire 501 First Avenue, Suite 600 St. Petersburg, Florida 33701 Mark Herdman, Esquire HERDMAN and SAKELLARIDES, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Karen B. Wilde, Executive Director Education Practices Commission 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399
