Findings Of Fact Respondent Eloisa Sacerio has been employed by Petitioner as a classroom teacher for approximately 20 years pursuant to a continuing contract. Respondent is certified to teach Spanish in kindergarten through 12th grade, elementary education, English for Speakers of Other Languages, English, and middle school. Respondent has primarily taught Spanish. During that 20 years of service, she has been assigned to approximately 11 different work sites due to Respondent being "surplused" from site to site. Surplusing is a contractual procedure that arises when there are not enough students to fill a class for an elective subject. Spanish is an elective subject. Respondent's first five years of service were at the elementary school level. During these first five years, her performance was satisfactory. During the following 13 years, Respondent taught at three different middle schools. Her performance at the middle school level was "mixed" in that she had some performance problems at two of those schools. Respondent experienced some difficulties in her teaching performance during the 1987-88 school year and a portion of the 1988-89 school year when she was teaching at McMillan Middle School. Although she brought her teaching skills up to an acceptable level thereafter, she was surplused from McMillan at the end of the 1991-92 school year because not enough students signed up for her classes. She was assigned to the elementary school level for the 1992-93 school year since she was trained and certified to teach at the elementary school level and had taught at that level without difficulty. For the next two years, Respondent was assigned to Coral Reef Elementary School and Howard Drive Elementary School as a teacher of Spanish as a Second Language (Spanish SL) and Spanish for Spanish Speakers (Spanish S). A teacher assigned to two schools is an itinerant teacher. One of those schools is designated as the teacher's home school, the one primarily responsible for evaluating the teaching performance of an itinerant teacher such as Respondent. Coral Reef was the home school for Respondent. It is not unusual for a Spanish teacher to be an itinerant teacher. At the beginning of the 1992-93 school year, Respondent attended a faculty meeting at Coral Reef. At that meeting, she received a faculty handbook which contained School Board rules, policies, procedures and labor contract provisions. Howard Drive also gave Respondent its faculty handbook at the beginning of the school year. Just prior to the 1992-93 school year, Hurricane Andrew struck Dade County. Its aftermath impacted both Coral Reef and Howard Drive, affecting scheduling for the schools and the teachers. Coral Reef started the school year operating on double shifts paired with Perrine Elementary School. Many schedule adjustments were made until well into the school year. Respondent was given half as much planning time as the other Spanish teachers at Coral Reef since she taught there only half of the school day. Respondent filed a grievance alleging insufficient planning time. The grievance was resolved during a meeting between the administration of Coral Reef and members of the teacher's union to which Respondent belongs. The schedule Respondent had grieved was no longer in place and had been revised prior to that meeting. Respondent's performance in the classroom during the 1992-93 and 1993- 94 school years was evaluated utilizing the Teacher Assessment and Development System (TADS). TADS is an objective instrument used to observe minimal teaching behaviors. The categories of teaching behaviors evaluated by TADS are preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relations, and assessment techniques. These six categories are evaluated during a formal class observation of the classroom teacher. A seventh category, professional responsibility, reflects the duties and responsibilities of a teacher in complying with School Board rules, contractual provisions, statutes and regulations, site directives and the policies and procedures that deal with record keeping and attendance. The union filed grievances on behalf of Respondent with the TADS Monitoring Committee (TMC) for ten or eleven formal observations of Respondent's teaching during the 1992-93 and 1993-94 school years. The TMC was established by contractual stipulation between the union and the School Board. The committee was set up to monitor the TADS process for procedural irregularities, by reviewing only the records and the paper process resulting from a formal observation. It does not review the judgment of the observers who conducted the formal observation. Even after Respondent utilized the TMC process to scrutinize the formal observations of her, she was still found to be unacceptable in classroom management and techniques of instruction for both the 1992-93 and 1993-94 school years. On October 27, 1992, Respondent was formally observed in the classroom and rated unsatisfactory in techniques of instruction by Joe Carbia, principal of Coral Reef. The students in the class did not appear to possess the preliminary skills or background to be successful in the lesson being taught and did not understand the material. The lesson observed had no beginning and no closure. It ended simply by Respondent telling the students to do their homework. The entire class period was spent trying to elicit answers to questions taken from the workbook although none of the students were able to answer the questions presented by Respondent. Respondent was prescribed activities to help her overcome her deficiencies in her techniques of instruction. She was to observe two other Spanish SL teachers as scheduled by the assistant principal Valerie Swanson in order to give Respondent an opportunity to observe good instructional techniques. She was to read, discuss and implement guidelines from the TADS Prescription Manual. She was to meet with Swanson to receive assistance on the materials that dealt with teaching techniques. Carbia held a post-observation conference with Respondent and discussed the deficiencies observed and the prescribed activities. Prescriptive activities are directives. Swanson met with Respondent to offer support and to discuss the various prescriptive activities assigned to Respondent as a result of the October 27, 1992, observation. Specifically, Swanson met with Respondent on November 1, 10, 16, 18 and 25, 1992. Swanson answered any questions posed by Respondent. On November 14, 1992, Respondent was present at Coral Reef but failed to appear to teach one of her regularly-scheduled classes. Principal Carbia taught the class in Respondent's place. Elective teachers are required to check in with the classroom teacher at the beginning of the class period. Respondent did not check in as she was required to do. Respondent's explanation was that when she went to her prior class, she was told by that classroom teacher that the students were watching a closed circuit television program so Respondent did not have to teach that class that day. Respondent concluded that her next class would also be watching the program. Respondent never asked anyone if that were the case. Respondent's assumption was incorrect. Carbia informed Respondent that the class rules she sent home to students' parents were inappropriate for elementary school students. These rules were the same class rules Respondent used when she taught middle school. Respondent was directed not to send the parents any communication without prior administrative approval. Respondent sent subsequent communications to parents without prior approval. Parents complained to the administrators at Coral Reef about Respondent's teaching, both orally and in writing. Some children did not like Respondent's Spanish class and did not want to go to school because they were in Respondent's class. Those children were crying, getting stomachaches and going home upset. When advised by administrators of these complaints, Respondent replied that the students were spoiled and not used to studying. She accepted no responsibility for the problems the children experienced. Conferences were held with complaining parents, Respondent, and the administration at Coral Reef concerning Respondent's grading policy. In these conferences, Respondent was unable to explain the grades she had given students. Carbia changed some students' grades because Respondent's gradebook did not justify the grades she had given the students. On November 12, 1992, Carbia held a conference-for-the-record with Respondent to address the parental complaints received by the Coral Reef administration regarding Respondent. Carbia gave Respondent copies of several written complaints he had received. The parents complained about Respondent's instruction, inappropriate grade level homework, and the manner in which Respondent dealt with the children. Respondent admitted that she screamed at the children. On November 25, 1992, Swanson held an informal conference with Respondent. She gave Respondent suggestions on how to organize her gradebook in a manner that would substantiate the grades Respondent gave her students. Conduct, class work, homework, and tests were to be specifically and clearly labeled in the gradebook for each student. On December 4, 1992, Respondent was absent. Respondent failed to comply with the directive contained in the Coral Reef Faculty Handbook to have emergency lesson plans on file in the main office at Coral Reef. Respondent is required by Petitioner and state law to have emergency lesson plans on hand. On December 10, 1992, Respondent was again formally observed in the classroom by Carbia and was rated unacceptable in knowledge of subject matter and techniques of instruction. Respondent was rated unacceptable in knowledge of subject matter because the lesson was taught at one cognitive level, i.e., the students were merely involved in recall activities. Respondent was rated unacceptable in techniques of instruction because twenty-five minutes of the thirty-minute class time was devoted to Respondent attempting to elicit responses from the students. The students could not give Respondent the correct answers, and she made no attempt to give feedback to the students. Respondent made no provision for closure to the lesson. The students exhibited a great deal of confusion regarding the activity and repeatedly requested clarification. Respondent offered no clarification. She only gave reprimands. Respondent was prescribed activities to help her in overcoming her deficiencies in knowledge of subject matter and techniques of instruction. She was directed to read, discuss and implement guidelines for improvement found in the TADS Prescription Manual. She was directed to observe two other classroom teachers' techniques of instruction. She was to meet with Swanson to receive assistance in understanding the reading materials and to discuss any questions she had regarding her observations of the other teachers. On or about December 17, 1992, a conference-for-the-record was held. Respondent was placed on prescription for Category VII of TADS, professional responsibilities. There was also a review of her performance on the formal observations of October 27 and December 10, 1992. Respondent was rated unacceptable in Category VII, because she failed to obey the directive to observe Ms. Navarro's Spanish SL class (she observed only part of the class), failed to attend her regularly-scheduled Spanish S class, sent home communications without prior administrative approval, did not maintain gradebooks which could be used to substantiate the grades she gave students, and did not have emergency lesson plans available in the office. Respondent was prescribed activities to help her overcome these professional responsibility deficiencies. Respondent was to read and review the Code of Ethics of the Educational Profession in Florida. Swanson continued to assist Respondent with her gradebook and emergency substitute folder. Respondent was to observe a master Spanish teacher, Rebecca Sosa at Kendale Elementary School. On February 8, 1993, Respondent was again formally observed by Carbia and was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent was rated unacceptable in preparation and planning because the lesson plan objective was not an instructional objective for Spanish SL but was only a listing of activities. No attempt was made by the teacher to make the lesson meaningful to the students. The only involvement of the students in the activity was limited to filling in blank items on two xeroxed worksheets. Respondent was prescribed activities to help her overcome her deficiencies in preparation and planning. Under the direction of Swanson, Respondent was to read and discuss the preparation and planning unit in the TADS Prescription Manual. Respondent was to review samples of other teachers' lesson plans. Respondent was rated unacceptable in knowledge of subject matter because the entire instruction was at one cognitive level, i.e., recall and responses. Respondent was prescribed activities to help her overcome her deficiencies in knowledge of subject matter. She was to read, discuss and implement the guidelines for improvement found in the TADS Prescription Manual. Respondent was also to observe other Spanish SL teachers and regular classroom teachers, as scheduled by Swanson. Respondent was rated unacceptable in techniques of instruction because there was no variety in her instruction. The materials used in the lesson were merely two xeroxed sheets with fill-in-the-blank recall items. The activities were not related to the instructional objectives. Several students in the class were confused by Respondent's instructions, but Respondent made no attempt to clarify. Respondent was prescribed activities to help her overcome her deficiencies in techniques of instruction. Respondent was to read and discuss the guidelines for improvement found in the TADS Prescription Manual. Swanson assisted Respondent in those prescriptive activities and was available for conferences regarding those activities. Carbia held a post-observation conference with Respondent to go over the prescription. Respondent was still exhibiting the same deficiencies as before. At the conference, Respondent gave no explanation for her failure to improve her performance. Respondent was told that she had not incorporated in her teaching the prescriptions previously given to her. On March 15, 1993, a conference-for-the-record was held with Respondent. Although Respondent had been provided assistance to help her overcome the deficiencies in her gradebook, her gradebook remained unacceptable. Respondent was placed on prescription for Category VII and was prescribed activities to assist her. Respondent was to submit her gradebooks to Swanson on a weekly basis for review. She was also provided with samples of good gradebooks. On March 16, 1993, Respondent was formally observed by Swanson and Wally Lyshkov, a foreign language supervisor. That formal observation was an external review. In an external review, there are two certified observers: one from the school site and the other from outside the school site. The observers complete the TADS observation forms independently. Respondent was rated unacceptable in knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated unacceptable in knowledge of subject matter because there was no logical sequencing of the material presented in the observed lesson. The lesson was based on furniture vocabulary. There was no attempt made by Respondent to contextualize the vocabulary. The lesson was at one cognitive level, i.e., simple choral repetition. Respondent was rated unacceptable in techniques of instruction and assessment techniques because the lesson lacked sequence and was inappropriate for that grade level. Although the students were confused by Respondent's instruction, she provided no clarification to the confused students. Further, there was no evidence of formal assessment of the students in her gradebook or work folders. Respondent was prescribed activities. She was directed to read and discuss certain materials. A post-observation conference was held with Respondent to discuss the prescriptive activities. Thereafter, Swanson met with Respondent on numerous occasions to assist her with these prescriptive activities. On May 4, 1993, Respondent was formally observed by Florine Curtis, the principal of Howard Drive, and Diana Urbizu, an outside observer. Respondent was rated unacceptable in classroom management during that external review because the class was chaotic. Respondent appeared unaware that several students were off-task while she taught the lesson. The students were not properly instructed because of the lack of classroom management. After the observation, Urbizu and Curtis discussed the types of activities that would assist Respondent to improve her performance. Curtis wrote the prescription to help Respondent overcome her deficiencies. Respondent was directed to read certain materials, to complete a specified activity and submit the activity to Curtis, to observe the other Spanish teacher at Howard Drive conduct a Spanish SL class, to write a brief summary of her observation, and to develop a plan for effective classroom management with suitable consequences and submit the plan to Curtis for review. Curtis held a post-observation conference with Respondent and discussed with her all of the prescribed activities and areas of deficiency. Respondent was given the opportunity to explain her performance. Curtis submitted the rough draft of the TADS observation form to Dr. Joyce Annunziata to review. Annunziata reviewed the form to assure that all the deficiencies were procedurally correct and faxed it back to Curtis with her notations. Annunziata did not make any substantive changes to the evaluation. Curtis worked informally with Respondent at Howard Drive to help Respondent improve her performance. Respondent could not be placed on a second formal prescription at Howard Drive since she was on prescription at Coral Reef, Respondent's home school. Spanish teachers at both schools are not assigned a classroom. Since elementary school students remain in the same classroom, these teachers travel from classroom to classroom and conduct a thirty-minute lesson. Respondent wanted the classroom teachers to manage the classroom while she conducted the Spanish lesson. Classroom management is always the responsibility of the teacher conducting the lesson. It does not matter whether the teacher travels to the classroom to conduct the lesson or whether the students travel to the teacher. On May 28, 1993, a conference-for-the-record was held to notify Respondent of her unacceptable annual evaluation for the 1992-93 school year and to remind Respondent of the negative implications for her future employment with Petitioner if she failed to remediate her deficiencies. Respondent indicated in the conference that the prescriptions had been a waste of time. She indicated that her only motivation for getting off prescription was to transfer to another school since she never wanted to teach at Coral Reef. During the 1992-93 school year, Swanson, while performing her routine duties, informally observed Respondent in the classroom. During these occasions, Respondent was observed yelling at the students and using a negative approach to teaching. Respondent would demean children, make derogatory remarks, and call them stupid. Curtis informally observed Respondent in the classroom during the 1992-93 school year. During these occasions, Respondent was observed to lack classroom management skills and to use inappropriate methods of instruction. Respondent's classroom was always noisy. Her method of instruction was to "teach to a test" rather than to teach the objective of the lesson. Respondent spent the week going over material that would be on the Friday test. Curtis held numerous informal conferences with Respondent to help Respondent improve her performance. Curtis suggested specific classroom management skills and techniques of instruction. She also suggested that Respondent properly maintain her gradebook by labeling the entries. Aida Helbig, the Bilingual Supervisor for Foreign Language Skills, visited Respondent at Coral Reef and Howard Drive in order to help Respondent improve her performance. During the 1992-93 and 1993-94 school years she met with Respondent nine times. Helbig informally observed Respondent to be unsatisfactory in classroom management and techniques of instruction. Audrey Dillaman taught third grade at Coral Reef during the 1992-93 school year. Respondent taught Spanish SL to Dillaman's class. Respondent's instruction was composed of primarily worksheets and conjugating verbs which was inappropriate for the grade level. The students and parents became frustrated, and the parents withdrew their children from Respondent's class. Only seven of Dillaman's students remained in Respondent's class at the end of the second grading period although 18 had started out at the beginning of the year. Respondent wrote in cursive on the blackboard for third grade students who had not yet learned to read or write cursive. Respondent expected first grade students who had not learned to read English, to read Spanish words from the blackboard and charts. The goal of teaching Spanish to elementary school students is to expose them to a foreign language. The emphasis is on an oral program. The sequence of learning a language is oral, reading, and then writing. Respondent's emphasis was on a written program. Respondent required second- grade students to have a Spanish/English dictionary although the district curriculum does not. In September of 1993, Swanson had a discussion with Respondent concerning written communications sent home to parents. Swanson suggested methods Respondent could use to communicate with parents. Swanson even typed a sample letter for Respondent which explained Respondent's classwork to parents. On October 1, 1993, Respondent was formally observed in the classroom by Carbia and rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because more than fifty percent of the class period was spent passing out and collecting an assignment, with much confusion and disorder. Sixty to seventy percent of the students were off-task, and Respondent did not redirect those off-task students. Instead, Respondent used verbal threats to address inappropriate behavior. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet. The only instructional methodology used was a game of questions and answers among students. During the game, the students were not clear about what team they were on. There was a great deal of inattention, stumbling, and wrong answers during the game. Respondent did not attempt to clarify the students' confusion. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. Respondent was to visit other Spanish SL classes at Coral Reef and Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson. Coral Reef and Howard Drive continued to receive parental complaints about Respondent's performance. At Coral Reef students dropped Respondent's classes, and parents requested that their children be switched to another Spanish teacher. Respondent's gradebook continued to be a problem. These concerns were discussed at a November 1, 1993, conference-for-the-record. On November 2, 1993, Respondent was formally observed in the classroom by Swanson and rated unacceptable in classroom management and techniques of instruction. She failed to obey the directive to post her classroom behavior rules during the class time and failed to refer to her classroom rules until just prior to the end of the class time. Students were off-task and Respondent failed to redirect them. The students attended to Respondent only when individually asked a specific question. During the lesson Respondent did not mention the strengths and weaknesses of the students. The majority of the lesson was devoted to one-on-one teacher-to-student dialogue while the rest of the students were inattentive. There were no opportunities for the students to contribute ideas, make comments, or ask questions of the Respondent. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. She was to visit other Spanish SL classes at Coral Reef and at Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson. Swanson provided Respondent with the Competency Based Curriculum (CBC). During the 1993-94 school year, Petitioner began phasing in its CBC. The phasing in of this curriculum is not a factor that would effect the evaluation and assessment of teaching competency under TADS. In November 1993, Swanson discussed with her Respondent's gradebook. Swanson gave Respondent written instructions on how to set up her gradebook and class rules. However, Respondent's gradebook remained unacceptable throughout the 1993-94 school year. On December 2, 1993, Respondent was formally observed by Jean Moeller, assistant principal at Howard Drive, and was rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because she did not use non-verbal techniques to obtain the students' attention from the beginning of the lesson. During the first fifteen minutes of the lesson, i.e., half of the class period, students were off-task. Several of the students were involved in activities other than Spanish. There was no attempt by Respondent to redirect off-task behavior. Respondent was unacceptable in techniques of instruction because she used inappropriate teaching materials. Respondent had two xeroxed sheets in Spanish that were incorrectly utilized. She wrote English on the chalkboard and the students were required to copy English responses to some of the Spanish phrases on the xeroxed papers. The Spanish SL objectives avoid English translation activities. This is stated in the teacher's guide. At this level, children should be responding primarily in Spanish. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was required to read the TADS Prescription Manual on classroom management. She was to make a list of non-verbal techniques that could be implemented in her class to effectively increase on-task behavior and submit the list to Moeller. She was to discuss her reading with Moeller. Respondent was to turn in her daily lesson plans to Moeller a week in advance from December 8, 1993, to January 12, 1994, on Wednesdays. Moeller recommended both Spanish teacher Grijalva and Spanish SL specialist Helbig as resources to assist Respondent in overcoming her deficiencies. Respondent was to observe Grijalva in the classroom. Grijalva is an excellent Spanish teacher who has good classroom management skills and techniques of instruction. Grijalva also knows the curriculum and utilizes appropriate assessment techniques. Grijalva is a specialist in CBC and has trained teachers in CBC. Grijalva provided assistance to help Respondent improve her performance. Respondent observed Grijalva playing a tic-tac-toe game with her students. Respondent attempted to play the same game with her students. However, the game as Respondent structured it resulted in the brighter students repeatedly asking difficult questions of the same student that was least likely to know the answers to the questions. When that student did not know the answers, Respondent made demeaning comments to the student. The student put her head down and cried. On December 8, 1993, a conference-for-the-record was held with Respondent to address her performance, the continuing parental complaints about her performance, and her future employment with Petitioner. Respondent was reminded that she had been on prescription since October 1992 and continued to be unacceptable in classroom management and techniques of instruction. Respondent was given an opportunity to address all the concerns noted. Respondent's written explanation was not responsive to any of the concerns that came up at the conference. On January 27, 1994, Respondent was formally observed at Howard Drive by Principal Curtis and Mercedes Toural, an outside observer. Respondent was rated unacceptable in classroom management and techniques of instruction. Respondent did not have control of the classroom. The children appeared to be in control, and Respondent did not use strategies to prevent, identify, or redirect off-task behavior. Further, the lesson involved having an answer to a test item as opposed to being a lesson with an objective, an activity, and a means of assessment. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was to read the TADS manual, complete written activities, and observe Grijalva. That external review was the second formal observation by Curtis. It occurred almost a year after the first formal observation done by Curtis. Respondent's performance continued to be deficient despite the guidance and assistance provided during that time. At Howard Drive, Respondent used food to reward and punish students in her class. The use of food to reward good behavior and/or to punish inappropriate behavior is a poor teaching technique. After the observation of January 27, 1994, Curtis met with Respondent informally on numerous occasions. Respondent remained deficient in classroom management and techniques of instruction for the 1993-94 school year. There was no improvement in her performance at Howard Drive. On April 29, 1994, there was an external review observation done by Margarita Alemany and by Carbia at Coral Reef Elementary. Carbia rated Respondent unacceptable in classroom management and techniques of instruction. Alemany rated Respondent unacceptable in knowledge of subject matter, classroom management, and techniques of instruction. Respondent was unacceptable in classroom management because a substantial number of students were off-task at different times, and students were inattentive. Respondent used no verbal techniques to redirect the students who were off-task and no techniques to maintain the attention of the students. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet entitled "First Grade Vocabulary of April 25." None of the students were able to read the sheet and provide correct responses. Respondent was prescribed activities to assist her in overcoming her deficiencies. Respondent, under the direction of Swanson, was to read, discuss, and implement guidelines for improvement found in the TADS Prescription Manual. On June 6, 1994, a conference-for-the-record was held at Coral Reef to review the annual evaluation and its consequences. Respondent over the two school years, 1992-93 and 1993-94, had numerous classroom observations and four external reviews. Respondent had been provided assistance to improve her performance by both the administration of Howard Drive and that of Coral Reef. Yet, Respondent remained unacceptable in classroom management and techniques of instruction for the 1993-94 annual evaluation. Respondent failed to turn in her gradebooks for the 1992-93 and the 1993-94 school years. Respondent was required to turn in her gradebooks from both school locations to the individual school at the end of each school year. This is required by School Board policy and was addressed in the end-of-the-year directives. Respondent kept the gradebooks in her possession until they were given to Petitioner on February 16, 1995. By that date, the gradebooks had been altered to include labeling and more grades which were not in the gradebooks when they were formally evaluated. During the 1992-93 and 1993-94 school years, many students withdrew from the Respondent's Spanish classes. Classroom teachers complained to the administrators of Howard Drive and Coral Reef concerning Respondent's rapport with the students, her classroom management techniques, and her methods of instruction. Respondent exhibited a negative approach to teaching that did not change over the two-year period. Her approach negatively impacted the Spanish program at both schools because students chose not to take Spanish if Respondent was their teacher. Respondent did not accept responsibility for any problems and deficiencies she had in the classroom. She always blamed others. Although Respondent completed all the prescribed activities, she did not incorporate what she learned into her performance. Petitioner provided substantial assistance to Respondent to help her improve her performance. She received assistance from the administrators of two schools and from other teachers and district personnel. For 1993-94 Respondent was assigned to teach the same grade levels as the prior year to allow her to build on her experiences from 1992-93. All the Spanish teachers at Coral Reef had the same planning time during 1993-94 in order to make it convenient for Respondent to get assistance from them. Yet, Respondent failed to communicate with and relate to her students to such an extent that she deprived them of a minimum educational experience. She also taught inefficiently and ineffectively and failed to comply with Petitioner's prescribed course of study using appropriate materials and methods.
Recommendation Based upon 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 Petitioner's Amended Notice of Specific Charges as Corrected, sustaining Respondent's suspension without pay, and dismissing her from her employment. DONE and ENTERED this 2nd day of October, 1995, at Tallahassee, 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 2nd day of October, 1995. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4316 Petitioner's proposed findings of fact numbered 2, 4-23, and 25-117 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 3 and 24 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 13 and 17 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 5, 8-12, 15, and 18 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 4, 6, 7, 14, and 19-22 have been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Twila Hargrove Payne, Esquire Patricia D. Bass, Esquire Madelyn P. Schere, Esquire 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 Ronald S. Lieberman, Esquire NationsBank Building, Penthouse 2 9350 South Dixie Highway Miami, Florida 33156 Mr. Octavio J. Visiedo Superintendent of Dade County School Board Suite 403 1450 Northeast Second Avenue Miami, Florida 33132-1308 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent has taught in the State of Florida for 33 years. The last 26 of those years have been with the Dade County school system. His most recent assignment was at Coral Gables Senior High School as a Cooperative Education teacher. Part of the duties of a Cooperative Education teacher is to work two weeks each summer doing preplanning activities prior to the opening of the fall term. The two weeks are to be used for job development, developing training plans, getting training agreements signed by employers, visiting parents of students that will be in the program in, the fall, recruiting, and reviewing student files. One week is required to occur just prior to the opening of school in the fall. The second week can be taken at any time during the summer after summer school starts on July 5. During the summers of 1978, 1979, 1980 and 1981, Respondent had a summer job with the City of Miami as director of the lunch program in the City's parks. In that job, he supervised four monitors employed by the lunch program, who visited the parks and reported back to Respondent. Respondent also visited the parks to ensure that the lunch program operated efficiently, and he was responsible for much of the paperwork involved in the program, including tally reports. During each of the summers in question, the lunch program for the City of Miami ran for eight weeks. Although the Recreation Department of The City of Miami requires that its administrative offices be open during the normal working hours of 8:00 a.m. until 5:00 p.m., the same schedule was not required of persons working in the lunch program. The monitors working in the lunch program were part-time employees for the reason that the caterer commenced delivering lunches to the various parks at approximately 10:30 a.m. The anticipated schedule was that lunches would be served to the children involved in the program between noon and, hopefully, 1:00 p.m. but by 2:00 p.m. at the latest. Although there were more parks involved in the program than monitors, each park had its own supervisors overseeing operation within the park. If a problem arose regarding delivery of the lunches or during the serving of the lunches and neither Respondent nor any of the monitors were on site, the park's employees could temporarily resolve the problem and call the office at the City of Miami to advise of the need for any further assistance. During most of his eight-week employment with the City of Miami, Respondent worked normal hours involved in a 40-hour work week. However, during the summers of 1978, 1979, 1980 and 1981, two weeks of the City's lunch program involved the same two weeks when Respondent was employed by the School Board for his preplanning activities. The two-week periods (actually ten working days) when Respondent was on the payrolls of both the School Board of Dade County and the City of Miami were as follows: August 7-18, 1978; August 6-17, 1979; July 28-August 8, 1980; and August 10-21, 1981. Respondent was hired each of the summers involved by Basha Schlazer, the Recreation Program Supervisor for the City of Miami. Prior to Respondent's acceptance of the summer job each year, he advised Schlazer that he had a two- week preplanning period which would overlap the City's employment, during which time he would be a full-time employee of the School Board and he would have to work at Coral Gables Senior High School before he could undertake his duties at the City of Miami. Schlazer told Respondent not to worry about it, since his duties with the City could be worked around his duties with the School Board. Because his employment at the City of Miami would not interfere with his work hours at Coral Gables Senior High School during those two weeks inn question each year, Respondent accepted the position with the City of Miami. Schlazer was Respondent's immediate supervisor during his employment with the City of Miami. During the two-week employment overlap period each summer, Respondent went to Coral Gables Senior High School at approximately 7:30 to 8:00 a.m. He worked there each day completing the activities previously planned for in the plans completed by him, as required of all teachers prior to their summer employment. He completed all of the activities listed in his daily plans and left Coral Gables Senior High-School at approximately 1:30 p.m. each day. He then went to his job at the City of Miami, arriving there at approximately 2:00 to 2:30 p.m. He then worked at the City of Miami until approximately 5:00 p.m. He took home with him the paperwork he did not complete at his job with the City and completed that paperwork during the evenings and on weekends. The hours during which Respondent worked at home were supplemented, at Schlazer's request, by Respondent working on other activities involving the City of Miami, such as working at talent shows, dog shows and a hula-hoop contest, all during the evening or weekend hours. Respondent was not compensated for these extra activities, but rather, at Schlazer's direction, he continued to simply fill out payroll sheets so they reflected that he continued to work eight hours a day during those two weeks in question each year. By devoting his own time to his duties at the City during the two weeks in question each year, Respondent continued to enjoy his reputation at the City as a good worker, and the park lunch program ran smoothly at all times under his direction. The only difference which occurred in The lunch program during the two weeks of overlap is that during that time the park employees and monitors were instructed not to call in if there were a problem until after 2:00 p.m., when Respondent came to work. During each of The two weeks of each of the four summers in question, Respondent was never at the City of Miami in the mornings except on one occasion during the summer of 1981. On that day, Respondent worked at Coral Gables Senior High School until 11:00 a.m., when he was entitled to a break. During that break, he drove to the City of Miami to drop off a report that he had completed at home the night before. As he was leaving the City of Miami office to return to Coral Gables Senior High School, he received a telephone call from his department chairman at the school telling him that his principal wished to speak with him. During the regular school year, Respondent is not expected to be at Coral Gables Senior High School throughout the normal teaching day because of the nature of his teaching position. Rather, he is expected to be off the campus canvassing to find prospective employers, visiting parents, following up on job leads and otherwise doing the normal activities expected of a teacher in the Cooperative Education program. Although the contract between the School Board and the teachers' union specifies that the contractual workday for teachers in senior high schools is 7 hours and 20 minutes long, commencing at 7:30 a.m. and ending at 2:40 p.m., That was not necessarily Respondent's workday normally, since his job took him off the school site. Respondent believed that the work hours required during The two-week preplanning period were more lenient, and no evidence was introduced that Respondent had ever been advised of the specific time frame contained within the union's contract with the School Board. The School Board utilizes a form entitled "Voucher for In-County Travel Reimbursement and Monthly Visitation Report for Vocational Cooperative Teachers." Although Cooperative Education teachers are required to provide such forms for travel reimbursement regarding mileage and have been so advised during various monthly inservice meetings, some of those teachers do not fill out those forms for reimbursement, since they choose to claim those items on their personal income tax returns. Respondent is one of those teachers. If a teacher chooses not to fill out such a form, no monitoring is done by the School Board since there is no specific rule which would be violated by the failure to fill out such a form. It simply means that the School Board will not have to reimburse its employees for travel expenses. In his 33 years of teaching in the State of Florida, 26 years of which have been for the School Board of Dade County, Respondent has never been suspended or disciplined. No evidence was presented to show that Respondent's work with the City of Miami interfered with his School Board job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Notice of Charges filed against Respondent and reinstating him to his former position with full back pay. DONE and RECOMMENDED this 4th day of October, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 4th day of October, 1983. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County School Board 141 Northeast Second Avenue Miami, Florida 33132 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 83-464 GEORGE Y. BUTLER, Respondent. /
Findings Of Fact The Parties. Petitioner, Frank T. Brogan, as Commissioner of Education, is authorized to file and prosecute formal complaints against persons holding teaching certificates in the State of Florida. Respondent, Lee Christine Gaul, is certified to teach in Florida. Ms. Gaul holds Florida Educator's Certificate 716132. The certificate authorizes Ms. Gaul to teach in the area of history and is valid through June 30, 1997. Ms. Gaul's Employment as a Teacher. Ms. Gaul is currently employed as a teacher at Belle Vue Middle School (hereinafter referred to as "Belle Vue"), in Tallahassee, Leon County, Florida. Laura Hassler, Ph.D., is the principal of Belle Vue. Ms. Gaul has been employed continuously as a teacher at Belle Vue since 1993. Ms. Gaul is responsible for some of the most difficult and troubled students at Belle Vue. Ms. Gaul's students are all students that have been unable to function in other classes. None of the students which Ms. Gaul is responsible for in her position as a teacher at Belle Vue were involved in any way in the incident which is the subject of this proceeding. Leon Crew Boosters, Inc.. Leon Crew Boosters, Inc. (hereinafter referred to as "Leon Crew"), is a not-for-profit corporation. Leon Crew is exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code. Leon Crew was created in 1992. As a corporation, Leon Crew operates through its board of directors, officers and committees. The purpose of Leon Crew is to provide an opportunity for high school students to participate in the sport of rowing or "crewing". To date, only students at Leon High School have participated in Leon Crew. The Board of Directors has considered allowing students from other schools to participate in Leon Crew. To date, however, students from other schools have not been allowed to participate so that the crews could participate in state high school championships. Approximately 80 to 100 students participate in Leon Crew activities. Several boats are manned by several crews. Leon Crew provides all equipment needed for crew members. Leon Crew owns all boats, trailers and other equipment utilized by crews. All funding for Leon Crew comes from its supporters and members. Leon Crew receives no public funding from any source, including Leon High School or the Leon County School Board. Leon Crew and the crews are not members of, or directly regulated by, the entity that regulates publicly funded high school sports programs in Florida, the Florida High School Activities Association. Coaches for the crews are interviewed and hired by Leon Crew. Coaches need not be certified to teach. Leon Crew is responsible for the payment of any salary paid to coaches. Leon High School officials do not participate in the process of hiring or firing coaches. Nor does Leon High School contribute to the salary of any coach. Although Leon Crew does not practice on the grounds of Leon High School (there is no water available), they are allowed to utilize Leon High School facilities. Leon Crew members are featured in the Leon High School student yearbook. Leon Crew teams are allowed to use the name "Leon" and to participate as "school" crews at state championships. Although Leon Crew is a separate corporation over which Leon High School has no legal authority, the relationship of Leon Crew and Leon High School requires mutual agreement of Marvin Henderson, the principal of Leon High School, and the Board of Directors of Leon Crew to continue operating in the manner they have been operating. Without mutual agreement and cooperation, Mr. Henderson could limit Leon Crew's association with Leon High School. For example, Mr. Henderson could eliminate Leon Crew from the yearbook, prohibit use of school facilities, not allow the use of the school's name and not authorize students to travel to regattas. On the other hand, without Mr. Henderson's cooperation, Leon Crew could disassociate itself from Leon High School. Ms. Gaul's Association with Leon Crew. In 1992, Ms. Gaul was interviewed and hired by Leon Crew as the coach of the men's and women's crew teams. She initially served without pay as a volunteer coach. Ms. Gaul was the first coach hired by Leon Crew. Ms. Gaul, who was living in Jacksonville, Florida when hired, moved to Tallahassee. She worked at a stock brokerage firm until her employment at Belle Vue. At not time has Ms. Gaul been employed by Leon High School. Nor has she been associated with Leon High School except through Leon Crew. Ms. Gaul is not evaluated as a teacher or coach by Leon High School. Ms. Gaul did not answer directly to Mr. Henderson. Mr. Henderson's authority over Ms. Gaul was not based upon a teacher-principal relationship. It was based upon the cooperative association of Leon High School and Leon Crew. As coach, Ms. Gaul has established rules of behavior which crew members are required to follow in order to continue to participate in Leon Crew. Ms. Gaul has imposed discipline to members of crews that have violated those rules. The Sunday, May 22, 1994 Incident. At the end of the crew season and the state championships in the Spring of 1994, a few of the better boat crews traveled to Atlanta, Georgia to participate in a crewing event known as the "Southeast Regionals". One of the students who attended the Southeast Regionals, T. C., planned to have a party at her home upon the return to Tallahassee of the students that had travelled to Atlanta. The party was to be held upon the students' return on Saturday evening, May 21, 1994 and Sunday morning, May 22, 1994. T. C. had obtained permission from her parents for the party. T. C.'s parents were not to be home during the party. An adult house sitter was to be at the home, however. T. C. had invited some of the crew members who participated in the Southeast Regionals to attend the party. At some time on Saturday, May 21, 1994, before leaving Atlanta, T. C. and some of the other crew members invited Ms. Gaul to attend the party. Ms. Gaul agreed. The crew members returned from Atlanta on Saturday evening, May 22, 1994, in several vans. Those crew members that attended the party drove directly to T. C.'s house. Ms. Gaul was in the last van to arrive at the party. Ms. Gaul arrived at approximately 2:00 a.m., Sunday, May 22, 1994. Most of the individuals attending the party were already at T. C.'s house. There were approximately 20 to 25 people in attendance at the party, some of whom were crew members and students at Leon High School. T. C.'s older brother, D. C., and some of his friends were also in attendance. D. C. and his friends were not associated with Leon Crew. The evidence failed to prove the ages of most of the participants. D.C. and his friends and the members of the crew in attendance were, however, high school students. Most of the crew members in attendance were juniors and seniors in high school. T. C., however, was 14 years of age at the time of the party. The party was not a school or Leon Crew official function. Ms. Gaul did not have supervisory authority over all of the students in attendance at the party. Some of the Leon Crew members in attendance had completed their participation in Leon Crew. Ms. Gaul could, however, have attempted to control the activities of the Leon Crew members who were not graduating. She had established strict rules for all crew members concerning the behavior of crew members and the consumption of alcohol and tobacco. On one trip, two students were caught shoplifting. They were immediately sent home by Ms. Gaul. The adult house sitter was also present and Robbie Drew, the mother of a crew member, was also present in the house. Beer and liquor was available at the party before and after the crew members arrived. It had been planned from the beginning by at least some of the participants of the party that beer and liquor would be available. Some, but not all, students in attendance at the party, including some crew members, consumed beer and liquor both before and after Ms. Gaul arrived. The evidence failed to prove how much beer and liquor was consumed or the number of students or crew members that consumed beer and/or liquor. Upon arriving at T. C.'s home, Ms. Gaul confirmed with the adult house sitter that T. C.'s parents had authorized the party. At some point after her arrival, Ms. Gaul noticed that some students, including crew members, were consuming beer and liquor. Ms. Gaul did not make any effort to prevent the students from drinking. Nor did she leave the party. It had been arranged by some of the students for additional beer to be brought to the party. Those plans fell through, however, sometime after Ms. Gaul arrived. Some of the students began taking up a collection of money to go purchase more beer. Some of the students believed that they would have been able to obtain additional beer that evening. Ms. Gaul overheard two of the students discussing their plan to go purchase more beer. Ms. Gaul was concerned about the students leaving the house to purchase beer because the house at which the party was held was a considerable distance from the nearest store, the road to the nearest store was dark and winding and she knew some of the students had been drinking. Ms. Gaul had doubts as to whether she could stop the students from going to purchase more beer. Therefore, rather than attempt to stop them, Ms. Gaul decided that she would drive to the store and purchase the beer herself. This decision was made at least in part because she believed that the students had the means to purchase the beer regardless of what she did. Because of her concern over students leaving the house who had been drinking, Ms. Gaul got the students to agree that no one would leave the party that evening if she went and purchased the beer for them. Ms. Gaul drove to a store to purchase the beer. J.E.G., a female crew member, and L.A.G., another female crew member, accompanied Ms. Gaul. Ms. Gaul purchased one and one-half to two cases of beer, which she brought back to the party. Some, but not all, of the participants at the party consumed the beer. For the first time that evening, Ms. Gaul also consumed at least one can of beer after returning from the store. Ms. Gaul spent most of the time in a room away from where the students were located. Students did, however, walk through the room where Ms. Gaul was located and where she consumed beer. Ms. Gaul felt a need to "keep a lid on the party" and to ensure that none of the participants left T. C.'s house until morning because she did not want anyone who had been drinking to drive. Throughout the evening, the participants at the party were well- behaved. At no time did the party get too loud or otherwise get out of hand. Ms. Gaul's presence at the party contributed to this fact. No one, including Ms. Gaul, left T. C.'s house until after daybreak, Sunday morning. Ms. Gaul's Actions Immediately After the Incident. After daybreak, Ms. Gaul began to reflect on her actions during the party. She realized that she had made an error in judgement by purchasing beer for the participants of the party, especially the crew members, for letting crew members drink alcohol and for drinking in their presence. On Monday morning, May 23, 1994, Ms. Gaul arranged to meet with the members of the crew teams that had attended the party at T. C.'s. She met with them at Leon High School immediately before classes began that morning. Ms. Gaul told the students that what she had done, purchasing the beer, allowing them to drink beer, and drinking in their presence had been wrong. Ms. Gaul told them that she did not want them to get the wrong message: [w]hile they were young, they might not see that what I had done was wrong. They might have gone so far to think that it was cool, but it was not. That I had done them a huge disservice. And whether they figured it out then or later, that I had hurt them, and that I was sorry. Transcript, Page 166, Lines 12-17. Approximately one and one-half weeks later, on June 3, 1994, Ms. Gaul reported the incident of May 22, 1994, to her supervisor at Belle Vue, Dr. Hassler. Ms. Gaul submitted her resignation as a teacher at Belle Vue to Dr. Hassler. Dr. Hassler, who had a child on a Leon Crew team at the time, decided to not accept the resignation at that time so that the incident could be investigated further. The incident was reported to Marvin Henderson, the principal of Leon High School, by Dr. Hassler. Ms. Gaul met with Mr. Henderson and admitted her errors in judgement. Ms. Gaul also reported the incident to the Board of Directors of Leon Crew at a regularly scheduled meeting on June 6, 1994. Ms. Gaul offered her resignation as crew coach at that meeting. Ms. Gaul admitted that she had made a mistake, took responsibility for her actions and apologized for her conduct. Sanctions Imposed on Ms. Gaul. Dr. Hassler ultimately declined to accept the resignation offered by Ms. Gaul. On or about September 14, 1994, Dr. Hassler did, however, issue a letter of reprimand to Ms. Gaul. Dr. Hassler cited the attendance by Ms. Gaul at the party where alcohol was consumed by Ms. Gaul and minor-students and Ms. Gaul's purchase of beer for consumption by minors as the reason for the reprimand. Initially, after being informed of the incident on June 6, 1994, the Leon Crew Board of Directors accepted Ms. Gaul's resignation. They did so without further investigation. In August of 1994, after further investigation and consideration of all of the events and circumstance surrounding the incident, the Board of Directors of Leon Crew reinstated Ms. Gaul as coach. On or about September 29, 1994, Mr. Henderson issued a letter of reprimand to Ms. Gaul. Mr. Henderson discussed the discipline outlined in the letter with the Board of Directors of Leon Crew. The Board of Directors concurred with Mr. Henderson's decision. The letter of reprimand from Mr. Henderson restricted Ms. Gaul's activities as coach of Leon Crew during the 1994-1995 school year, including the following: Because of the severe nature of this incident, the following consequences are imposed: (1) Probation for a period of seven months; it is understood that during this period, you are to have no contact with members of the team for socialization purposes. (2) A sixty day suspension; (during the first thirty days, you are permitted to work with team members as long as you are accompanied by at least one other Crew coach. During the second thirty days, no contact with Crew Team members shall be permitted.) This arrangement is allowed because of your value to the Crew Team's workout schedule and in the interest of safety. (3) At the end of the school year, an assessment of your position with Crew will be made to determine your continued involvement with Leon High School and the Leon Crew Team. The discipline imposed on Ms. Gaul through Mr. Henderson's letter of September 29, 1994, was modified on or about October 31, 1994. In particular, Ms. Gaul was allowed to associate with crew members through November 21, 1994 and then the thirty day period of disassociation was to begin. This modification was suggested by Leon Boosters in the interest of crew members. Ms. Gaul did not contest any of the actions taken by Dr. Hassler, Mr. Henderson or the Board of Directors of Leon Crew. She accepted the discipline proposed by all of them. Ms. Gaul completed the suspension and the probation period imposed on her. The Impact of the Incident on Ms. Gaul's Ability to Teach. Two of Ms. Gaul's fellow teachers and her principal, Dr. Hassler, uniformly testified that Ms. Gaul has evidenced exemplary ability as a teacher. According to Dr. Hassler, Ms. Gaul is an extremely important and valuable member of the teaching staff of Belle Vue and contributes greatly to the welfare of her students. Dr. Hassler described Ms. Gaul as "one of the most outstanding teachers I have ever had the opportunity to work with." Transcript, Page 53, Lines 8 and 9. The evidence in this case failed to prove that the incident of May 22, 1994, has impaired in anyway Ms. Gaul's ability to carry out her responsibilities as a teacher. In fact, the incident has matured Ms. Gaul and improved her ability as a teacher. Since the incident, she has continued to carry out her duties at Belle Vue in an exemplary fashion. She has been evaluated once since the incident and received a very high evaluation from Dr. Hassler. The evidence also failed to prove that the incident has had any negative impact on participants of Leon Crew. Again, the incident matured Ms. Gaul and improved her ability to act as one of the coaches of Leon Crew. Ms. Gaul has continued to function as a coach of Leon Crew in an effective manner and without any impairment. All the students who participated in crew after the incident and the parents of students who are participating in crew who testified in the hearing of this case spoke highly of Ms. Gaul and her ability to effectively act as a coach. The incident of May 22, 1994 was an isolated incident of failing to exercise good judgement on Ms. Gaul's part. The parents of students involved in Leon Crew who testified at the hearing of this matter and all other witnesses who testified indicated their belief that Ms. Gaul is of high moral character, an outstanding role model and an excellent teacher. The evidence also failed to prove that Ms. Gaul's conduct was sufficiently notorious to bring her or the educational profession into public disgrace or disrespect. Only those immediately involved in the incident, her immediate supervisors (her principal, Leon High School's principal and Leon Crew's Board of Directors) and two teachers at Belle Vue were aware of the incident. The incident was not, however, known among the parents and the general teacher population at Belle Vue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the portion of the Administrative Complaint charging Lee Christine Gaul with a violation of Section 231.28(1)(c), Florida Statutes. It is further RECOMMENDED that the Education Practices Commission find Lee Christine Gaul to have violated Section 231.28(1)(i), Florida Statutes. It is further RECOMMENDED that Lee Christine Gaul be placed on probation for a period of two (2) years and that she be issued a letter of reprimand. As a condition of her probation, Ms. Gaul should be required to attend appropriate courses dealing with the harm of alcohol on minors. DONE AND ENTERED this 26th day of February, 1996, in Tallahassee Florida. LARRY J. SARTIN, 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 26th day of February, 1996. APPENDIX Case Number 95-4047 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact 1 Accepted in 2. 2 Accepted in 8, 10, 15 and 17. 3 Accepted in 12. 4 Accepted in 22. 5 Accepted in 5. 6 Accepted in 36 and hereby accepted. 7 See 27. 8 Accepted in 31-32. 9 Accepted in 33. Accepted in 37. Accepted in 34-35. Accepted in 38. Accepted in 38 and 41. The evidence failed to prove what a "Jello shooter" is. Accepted in 42-44. 15 See 36 and 44-46. Accepted in 47-48. Accepted in 45 and 49. Accepted in 52 and hereby accepted. The testimony concerning whether the competency applies to students in teh classroom and out involves and conclusion of law and is rejected as such. Accepted in 53. Accepted in 4 and 55. Accepted in 54. Accepted in 55. Accepted in 57. Accepted in 60. Accepted in 58. The last sentence is irrelevant and ignores Dr. Hassler's explanation of why she made the statement. 26-27 See 21. The last sentence is not supported by the weight of the evidence. 28 Accepted in 61. 29 Accepted in 62. 30 Accepted in 63. 31 Accepted in 39, 41, 45 and 47-48. 32 Accepted in 41. 33 See 26, 36 and 45. 34-35 Argument. Hereby accepted. Not supported by the weight of the evidence. Accepted in 41. The last two sentences are not supported by the weight of the evidence. Accepted in 65-71. While Ms. Gaul has admitted a lapse in judgement, the evidence failed to prove that she lacks an "indispensable necessity for her to be entrusted with the education of young people." Not supported by the weight of the evidence. Ms. Gaul's Proposed Findings of Fact Accepted in 8-10. Accepted in 15. Accepted in 17. Accepted in 22 and hereby accepted. Accepted in 14. See 18. Accepted in 16. Accepted in 11-12. Accepted in 22-23. Accepted in 4-5 and 24. Accepted in 24 and hereby accepted. Accepted in See 21. 13 See 27-51. Accepted in 27. Accepted in 28. Accepted in 29. Accepted in 31 and 37. Accepted in 34 and 37. Accepted in 33. Accepted in 40. Accepted in 37. Accepted in 41. Accepted in 39. Accepted in 28 and hereby accepted. Accepted in 13. Accepted in 42-43. 27-28 Accepted in 44-45. 29-30 Accepted in 45. 31 Accepted in 48. 32-33 Accepted in 47. 34-35 Accepted in 50. 36-37 Hereby accepted. Accepted in 43. Accepted in 52. See 53. Hereby accepted. Accepted in 57. Accepted in 57 and 59. Hereby accepted. Accepted in 54. Accepted in 55. Accepted in 60. Accepted in 61-63. Hereby accepted. Accepted in 71. Accepted in 26 and 36. Accepted in 65-71. Accepted in 5-6. Accepted in 65-71. See 72. 56-59 Accepted in 65-71. 60-61 Hereby accepted. COPIES FURNISHED: Ronald G. Stowers, Esquire Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Davisson F. Dunlap, Esquire Post Office Box 10095 Tallahassee, Florida 32302-2095 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Room 224-C Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent Francis J. Sortino has been employed by the School Board of Broward County at Deerfield Beach High School in Deerfield Beach, Florida, since 1970 when the school opened. For ten years, he served as the school's planetarium director. In 1979 or 1980, he returned to teaching science in the classroom. In the fall of 1981, he taught a third-hour science class in which Thomas Bates, Debbie Landoskey, Lonnie McKever, Ricky Huntley, Steve Santiago, and Joe Sawyer, among others, were enrolled. On October 28, 1981, Joe Sawyer took the seat near the back of the class to which he had been assigned at the beginning of the school year, even though he had been subsequently reassigned to a seat in the front of the class. When Joe Sawyer and Steven Santiago began talking to each other, Mr. Sortino directed Joe Sawyer to take the seat at the front of the class. Joe Sawyer, who stood five feet one inch, weighed 97 or 98 pounds, and was 15 years old at the time of the hearing, complied with this request, but soon struck up a conversation with Thomas Bates. Thereupon Mr. Sortino told Joe Sawyer to move again, over near Debbie Peck. Joe Sawyer stood up, began moving in the direction Mr. Sortino had indicated (T. 293), and asked, "Where do you want me to move?" at least once. Mr. Sortino then picked up an empty desk, threw it so that it slid some ten feet across the floor and stopped against the wall, grabbed Joe Sawyer by the nape of the neck, forcibly set him down in the desk, and struck him with his open hand, using first his palm and then the back of his hand. These cuffs, no more than four in all, were not administered with Mr. Sortino's full strength; they fell on Joe Sawyer's shoulder or on the back of his neck. All this occurred in the presence of some 30 classmates, a few of whom called out urging Joe Sawyer to go to the school office to report the incident. Joe Sawyer did not cry, call out or resist. His face reddened and he laid his head down on his desk, but he was not seriously hurt. He did not require medical assistance or sustain any permanent injury. Aside from Mr. Sortino, no adult was present when respondent struck Sawyer. Mr. Sortino made no effort during third-hour science class on October 28, 1981, to secure the presence of another adult. The school principal, Rosa J. Lawson, had not delegated to respondent or any other teacher the authority to administer corporal punishment. On October 28, 1981, the School Board of Broward County had in force the following policy, No. 5301: Discipline - Corporal Punishment The principal, or in his/her absence, the person in charge of the school, shall have the responsibility for maintaining overall disci- pline within the school setting. The principal shall share with the teacher the responsibility for maintaining proper school conduct and morale. Further, he/she may delegate to the teachers such responsibility for control and direction of the students as he/she considers desirable. When and where such responsibility has been delegated the teachers shall be sup- ported in any reasonable action they may take. Each pupil enrolled in a school shall, during the time he/she is being transported to or from school at public expense, during the time he/ she is attending school, and during the time he/she is on the school premises, be under the authority of the principal or teacher in charge of the school, and under the immediate control and direction of the teacher or other member of the instructional staff or of the bus driver to whom such responsibility may be assigned by the principal. The board shall do everything within its legal power to protect and support the principal and teachers in their disciplinary role. This shall include legal support in accordance with Florida Statutes, Section 230.234. In addition, the board shall assist the principal, teacher, bus driver and/or other school staff members in bringing about penalties for the disruption of school functions or assault upon the instruc- tional staff as set forth under Florida Statutes, Section[s] 231.06 and 231.07. Corporal punishment may be administered at the discretion of the principal or his/her designated representative. Normally this should be done only after other corrective measures have been tried without success. A teacher shall not inflict corporal punish- ment except upon approval of the principal and only then in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment. Such punishment may not be degrading or unduly severe in its nature. (For clarification, see Florida Statutes, Section 232.27) All suspensions or expulsions shall be made in accordance with Florida Statutes and board policy 5006. Rules When corporal punishment is administered, the following rules shall be observed: The punishment shall be administered by the principal or by some other member of the professional staff designated by him/ her. Under no circumstances shall a stu- dent be struck about the head or shoulders. The punishment shall be administered poste- riorly by striking the student below the waist and above the knees. The administration of corporal pun- ishment shall be witnessed by at least one (1) other member of the staff. Corporal punishment shall not be administered in the presence of other students. When disciplinary action is taken by the principal and/or his/her designee the teacher referring the disciplinary case will be advised in writing of the action taken. A teacher may not suspend a child from school or class. However, in cases where an emergency situation develops, the teacher shall take such steps as are rea- sonably necessary to protect the students. The use of reasonable force necessary to isolate the disruptive student from the classroom shall not constitute corporal punishment as defined in accordance with Section 232.27, Florida Statute[s] , and shall not be used as a basis for the sus- pension of any member of the school staff nor for holding anyone liable for such an act unless the force used is degrading or unduly severe as to its nature. The designated member of the pro- fessional staff or principal who has admin- istered punishment shall provide the pupil's parent or guardian with a written explana- tion of the reason for the punishment and the name of the other adult who was present. Petitioner's Exhibit No. 11. The substance of this policy was fully explicated in the Deerfield Beach High School Teachers' Handbook at pp. 16, et seq., Petitioner's Exhibit No. 9. The policy of the School Board of Broward County with respect to corporal punishment has not changed, in substance, for a decade or more. Respondent was furnished a copy of Petitioner's Exhibit No. 9 at the beginning of the 1981-1982 school year. The Deerfield Beach High School Teachers' Guidebook also contained the following: Referrals to the Administrative Assistants The control of students is not something that can be achieved by so many rules or by the work of a few individuals, but rather by sincere and cooperative effort on the part of the entire faculty and staff to understand pupils and their problems. Teachers are encouraged to handle their own disciplinary problems whenever possible. Adequate lesson planning and consistancy [sic] of discipline are probably the best means of avoiding disciplinary difficulties. However, when a student becomes persistently unmanageable in the classroom to the detriment of the learn- ing situation or when his offense is of such a nature that he should be referred to some- one else, the teacher should write to the Administrative Assistant. This should be done only after the teacher has exhausted every means at his disposal to corre[c]t that student's conduct. In cases of EMERGENCY nature, the teacher should use the BUZZER to summon an Administrative Assistant to accompany the student to the office. When a referral becomes necessary, please use the three-part referral provided by the Administrative Assistant's office. Give as much information as possible about the reason for the referral in order to help the Administrative Assistant determine the measures to be taken. If the referral form is not adequate, please feel free to use an attachment. Petitioner's Exhibit No. 9. Respondent Sortino's own personal approach to discipline problems in the classroom is, he testified, fully consistent with the foregoing: If I have a child that's, you know, a minor infraction, the first thing I do is ask him to write a composition, have him take it home and get it signed by his parents. Then they bring the composition back to me. This way I ask the child to do something on why--let's say, for instance, he's just talking in class, or chewing gum, whatever it is. Whatever the infraction, I ask the student to write me a one page composition as to why they shouldn't do that in school, to take it home and have it signed by the parents, and bring it back to me. If they do it again, they write another composition. Generally, I ask them to write three compo- sitions. Generally, after three compositions, what I do is call home. That is not always successful, but I have made phone calls to parents at home. In many cases they tell me, I can't control him at home, can't you. At that point, then I would give detentions, which is school policy to give a student detentions. If he fails to serve detentions, I would write a referral on that student and send him to an adminis- trative assistant, and then they're supposed to take care of it from there. And that's the policy I've been follow- ing, as far as administering discipline in the classroom. (T. 302-303.) Even though he could not remember ever asking Joe Sawyer to write a composition, and never telephoned his parents, Mr. Sortino thought, at the time of the hearing, that his striking Joe Sawyer on October 28, 1981, "was proper." (T. 282.) This episode "was a second occurrence of this type incident." (T. 221.) Mr. Sortino did not refer Joe Sawyer to the school administration for discipline on October 28, 1981, or at any other time, although he did make several other such referrals of students in the fall of 1981. On October 28, 1981, he referred a student named Donald Evans to Rubin C. Ransaw, Jr., an administrative assistant at Deerfield Beach High School, for disciplinary action after Evans, in the presence of Mr. Sortino and other students, said, "Sortino sucks," twice. Petitioner's closing argument was made in written form and filed on May 11, 1982, Respondent's proposed findings of fact, conclusions of law and recommended order were filed on May 13, 1982. These submissions were considered in preparation of the recommended order. Respondent's proposed findings of fact have been adopted, in substance, for the most part. To the extent they have not been adopted they have been deemed unsupported by the weight of the evidence or immaterial to this cause.
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Broward County, Florida. As of September, 1980, there were approximately 130,000 students enrolled in the Broward County School System, which makes that system one of the largest in the country. Respondent is required by statute to promulgate rules and regulations that establish attendance zones for grades Kindergarten through 12. During late 1980 and early1981 the School Board engaged in its annual review of existing attendance boundaries to determine whether changes should be made for the 1981- 82 school year. In performing such reviews and in making necessary recommendations, it is the School Board's policy to consider the following factors: existing overcrowded schools; proper utilization of existing physical facilities; maintenance of a unitary school system; student safety; student feeder patterns; transportation costs; establishment of new schools; consolidation of small school attendance areas; and community involvement. The dispute in this proceeding arises from the School Board's rezoning decision as it relates to four north area high schools: Coral Springs; Ely; Pompano Beach; and J. P. Taravella. In reaching its rezoning decision for these four high schools, the School Board was concerned primarily with the existence of overcrowded schools, underutilized physical facilities and the problem of racial composition to the student bodies in the various schools. In order to fully understand the import of the School Board's ultimate decision, and the magnitude of the problem which the Board faced, some historical perspective is necessary. Prior to 1970, the school system in Broward County was operated on a dual, biracial basis, with separate school facilities for black and white students. In 1970, litigation was commenced in Federal Districts Court which resulted in the School Board being ordered to commence efforts to establish a "unitary" school system. The Board's proposal to close Dillard High School in Fort Lauderdale and Ely High School in Pompano Beach, both of which were predominantly black, was rejected by the Federal Court. Instead, the School Board was ordered to redraw attendance zones in such a fashion as to assure the operation of these schools as racially integrated facilities. Although Ely High School was closed for a time due to inadequate physical facilities, it was later reopened. The Federal District Court subsequently relinquished jurisdiction in the desegregation litigation on July 31, 1979. In an attempt to continue compliance with the Federal Court directive to establish a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, to attempt to maintain approximately the same percentage of minority enrollment in its high schools as existed at the time the Federal Court relinquished jurisdiction in 1979. The School Board's policy in this regard is based on the assumption that the "unitary" status of the school system as it existed in 1979 met with Federal Court approval, as evidenced by the order relinquishing jurisdiction. The dynamic growth of Broward County over the last several years has, however, to some extent complicated the Board's efforts to maintain the required "unitary" system. The primary problem in this regard has been a change in the demographic makeup of the school-age population in Broward County. Over the last several years the location of the high-school-age population in Broward County has shifted from the eastern portion of the county to the west. Because the bulk of the high-school-age population has historically resided in the eastern portion of the county, the majority of physical plant facilities had been constructed there. In recent years, however, the western portion of the county has developed rapidly to such an extent that those physical facilities located in that portion of the county are now seriously overcrowded, and the older facilities located in the eastern portion of the county have become "underenrolled," and, therefore, "underutilized." For example, Coral Springs High School, which is located in the western portion of the county, had a student enrollment of 2,168 for the 1976-77 school year; 2,994 students for the 1977-78 school year; 3,406 for the 1978-79 school year; 3,704 for the 1979-80 school year; and, 3,764 students for the 1980-81 school year. The physical plant at Coral Springs High School has a student capacity of 2,283, thereby requiring the School Board to operate Coral Springs High School on double sessions in order to accommodate the burgeoning enrollment. As a result of overcrowding at Coral Springs High School, the School Board determined to build a new facility, A J. P. Taravella High School, which opened in August, 1981. This new high school, with a student capacity of 1,829, opened in August, 1981, with a total enrollment of 1,228 students, all but seven of whom were reassigned from Coral Springs High School. Taravella High opened under its design capacity because the Board determined not to require students to change schools for their senior year so that Taravella presently serves only grades 9 through 11. As a result of the construction and opening of J. P. Taravella High School, Coral Springs High School is no longer on double session. In addition, the percentage of black students attending Coral Springs High School as the result of the reassignment of students to J. P. Taravella High School actually rose from six percent during the 1980-81 school year to nine percent during the 1981 82 school year. A complicating factor in the School Board's rezoning decision as it relates to these high schools was the problem of under-enrollment at Ely High School and Pompano Beach High School, both of which are located in the eastern portion of the county. Ely High School has a physical plant capacity of 1,857, and Pompano Beach High School has a physical plant capacity of 1,921. During the 1979-80 school year, there were 1,172 students enrolled at Ely High School, and 1,793 enrolled at Pompano Beach High School. For the 1980- 81 school year there were 1,430 students enrolled at Ely and 1,634 students enrolled at Pompano Beach High School. During the 1980-81 school year, the student population of Ely High School was 53 percent black, and, under the rule being challenged in this cause, that percentage remained the same for the 1981-82 school year. Blacks comprised 14 percent of the student population at Pompano Beach High School during the 1980-81 school year, and that percentage fell only one percent under the school attendance zones being challenged in this proceeding. As previously indicated the population of the western portion of Broward County has markedly increased over the last several years. Most of the increase in school age population in the western portion of the county is composed predominantly of white students. The black population in Broward County is concentrated in the eastern portion of Broward County. Consequently, in order to maintain the desired racial composition in the county schools, relieve overcrowded conditions in some of its schools, and, at the same time efficiently utilize the physical facilities of all its schools, it became necessary for the Board to make some extremely difficult policy choices. The choice ultimately made by the Board is reflected in the rule here being challenged. Petitioners Barbara Most, Lorraine Shifrel and Thomas Bell are each residents of North Lauderdale with children who, under the rule here in dispute, are assigned to and attend Ely High School. Ely High School is located approximately 10-1/2 miles from the Most home, while the recently opened J. P. Taravella High School is approximately two miles from their home. Taravella High School is also located two miles from the Shifrel home, while Ely High School is located some distance farther away. Finally, Ely High School is located approximately 15 miles from Petitioner Bell's home, whereas Taravella High School is only three and a half miles away, and Coral Springs High School is only four miles from his home. Petitioner Sylvia Liberto lives approximately two and one-half miles from Taravella High School. However, she has one child who is assigned to Coral Springs High School, which is located five miles from her home, and another child who is assigned to Pompano Beach High School, which is located approximately 17 miles from her home. Petitioners object to their children being assigned to Ely High School and Pompano Beach High School when they feel they could more conveniently attend the newly opened J. P. Taravella High School, which is located much closer to their residences. Petitioners also object to their children being subjected to a lengthy bus ride twice daily to and from either Ely or Pompano Beach High Schools, and further assert that the children are unable to participate in after-school extracurricular activities because of the distances from their homes to their assigned schools. Although the School Board furnishes transportation in the form of an "activity bus," Petitioners assert that this mode of transportation is at best unreliable, and is, therefore, an unacceptable substitute for what they consider a more appropriate school assignment. The record reflects that the North Lauderdale area in which all Petitioners' residences are located has been zoned to attend either Ely High School or Pompano Beach High School since approximately 1977. Consequently, the rule being challenged in this proceeding does not change the school assignments for these families from that which has been in existence for several years. However, J. P. Taravella High School has been in the planning stages for several years, and Petitioners' families had anticipated that upon completion of the new high school their children would no longer have to be bused to attend high school.
Findings Of Fact At all times material hereto, Respondent is the holder of a teacher's certificate duly issued by the Department of Education for the State of Florida. Such certificate bears number 282363 and is a Rank 2 certificate, expiring on June 30, 1986. On or about August 11, 1970, Respondent caused to be filed with the Department of Education for the State of Florida his application for issuance of a teaching certificate. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Respondent had been arrested by the Fort Lauderdale Police Department on or about July 1, 1965, for the offense of petit larceny (shoplifting). As a result of that arrest, Respondent was adjudicated and fined $125, and his sentence of 15 days of incarceration was suspended. On or about September 2, 1969, Respondent was again arrested by the Fort Lauderdale Police Department for the offense of contributing to the delinquency of a minor and violation of the curfew laws. Respondent pled nolo contendere to the first charge, and adjudication was withheld. The second charge was nolle prossed. As a result of filing that application with the Department of Education, Respondent was issued a teaching certificate for the academic school year 1970-1971. On or about May 1, 1973, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a full-time teaching certificate under the Department of Education Number 282363 with a preference in physical education. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. As a result of filing that application, Respondent was issued a teaching certificate as a full-time instructor under Department of Education Number 282363, certificate type 04. In September 1976, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a teaching certificate under Department of Education Number 282363. Respondent, under oath, stated within that application that he had never been arrested or involved in a criminal offense other than a minor traffic violation. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. On or about October 3, 1973, Respondent was arrested in Duval County, Florida. Subsequent thereto, an Amended Information was filed against Respondent charging him with breaking and entering the dwelling house of another with the intent to commit a misdemeanor therein, to wit: assault and battery, and also charging him with committing assault and battery on Evelyn Rebecca May. On December 10, 1973, Respondent entered a plea of guilty to the offense of trespassing with malice. Adjudication was withheld, and Respondent was placed on probation for one year. As a result of filing that application, Respondent was issued a teaching certificate under Department of Education Number 282363, Rank 2, Type 2. On or about May 30, 1979, Respondent caused to be filed with the Department of Education for the State of Florida his application for the issuance of a duplicate teaching certificate. Respondent, under oath, stated in that application that he had never been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation and that there were no criminal charges pending against him other than minor traffic violations. Accordingly, Respondent did not reveal the prior two arrests by the Fort Lauderdale Police Department set forth above. Respondent also thereby failed to disclose his arrest in Duval County, his plea of guilty to the offense of trespassing with malice, and the withholding of adjudication and placing him on probation as a result of that arrest and guilty plea. Respondent, while attending a high school basketball championship play-off in Lakeland, Florida, was arrested on or about March 10, 1979, for the offense of "scalping." As a result of that arrest, Respondent was formally charged with violation of Section 817.36, Florida Statutes, in the County Court of Polk County, State of Florida, case number MO79-000450-LD. Subsequent to the filing of those formal charges, Respondent tendered a plea of nolo contendere and had court costs assessed against him in the amount of $112. As a result of filing the application for the issuance of a duplicate certificate, Respondent having previously stated that he had lost his original certificate, the Department of Education issued a duplicate certificate under Department of Education Number 282363, Rank 2, Type 2. On or about May 27, 1970, Respondent filed an application for employment with the Duval County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. Between September 1971 and September 1973, Respondent was employed by the Duval County School Board at Sandalwood Junior-Senior High School. On or about September 4, 1973, Respondent filed an application for employment with the Nassau County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. During the academic year of 1973-1974, Respondent was employed by the Nassau County School Board at West Nassau Senior High School. During the 1973-1974 school year, Marilyn B. Grimmage was a student at West Nassau High School where Respondent was then a physical education teacher. Grimmage was 15 years of age. She and Respondent began to date. After a period of two to three months, they engaged in several acts of sexual intercourse. While there were no acts of sexual intercourse committed on the school grounds, there were times when Grimmage and the Respondent would sneak off to private areas of the school and kiss. Grimmage and Respondent engaged in sexual intercourse on three occasions: two of the occasions occurred at the residence belonging to a friend of the Respondent, and one occasion occurred in a wooded area. Grimmage knew that Respondent was married at the time and believed that their relationship was common knowledge at the school. While Respondent was employed at the West Nassau Senior High School, he made contact with Belinda Yvette Morris, who was 15 years of age and attending a junior high school within the Nassau County public school system. Contrary to the allegations of paragraph 33 of Count VII, Morris was not then attending West Nassau High School, but rather went there daily in order to practice for cheerleading. Respondent engaged in sexual intercourse with Morris. He was married at the time. Respondent made a second attempt to engage in sexual intercourse with Morris following a basketball game when Morris was on her way home with other students. At Respondent's request, she entered his automobile and drove with him to an isolated area. He gave her a necklace and then made physical advances toward her in attempt to consummate sexual intercourse. His advances were rebuffed, and Respondent drove her to a location near her home and let her out of the automobile. On or about June 23, 1975, Respondent filed an application for employment with the Dade County School Board. That application failed to disclose his arrests by the Fort Lauderdale Police Department and also failed to disclose his arrest in Duval County, his plea of guilty to the offense of trespassing with malice, and the withholding of adjudication and placing him on probation as a result of that arrest and guilty plea. Rather, Respondent specifically denied that he had been arrested for any offense other than minor traffic violations. On that application for employment with the Dade County School Board, Respondent also failed to note that he had been previously employed with the Duval County School Board and with the Nassau County School Board. Rather, Respondent stated that he had been a professional basketball player for a period of years which would roughly correspond to the period of time he was employed with the Duval County School Board, and he further stated that he had been employed during that time period by a non-public school employer, the Jacksonville Marine Institute. On that application, Respondent also denied that he had ever been a member of the Florida Retirement System. As a result of filing that application, Respondent was employed by the Dade County School Board between September 1978 and October 1981 at American Senior High School. Sharon Colbert met Respondent when she was 15 years of age and a student at American Senior High School in Dade County, Florida, where Respondent was employed as a physical education teacher. Respondent was also the head coach for the varsity basketball team, and he approached Colbert and asked her to be on the "stat team," which consisted of students who would work with him and assist in keeping statistics for the basketball team. Colbert replied she could not afford to purchase the uniforms, and Respondent purchased her uniforms for her. One evening during the 1980-1981 school year, while Colbert was a member of the stat team, she accompanied Respondent and some of his basketball players to scout a game that was being conducted at Miami-Dade Community College. After the game, Respondent dropped off the other students and invited Colbert to the home of a friend of his for something to eat before he took her home. When Colbert and Respondent arrived at his friend's home, Respondent and his friend began "snorting coke." After his friend left, Respondent forcibly took Colbert into a bedroom, where he performed sexual intercourse. As a result of that sexual intercourse, Colbert contracted the "crabs." When she confronted Respondent about her predicament, he said he would assist her by taking her to the doctor. However, he instead took her to another residence and forcibly engaged in sexual intercourse with her. He then took her to a convenience store, where he obtained some pills and ointment for her to use to eradicate her crabs. In September 1981, while Respondent was teaching at American Senior High School, he approached Paulette Brown, who was then 15 years of age and a student at that school. Respondent asked Brown to remain after school to discuss her interest in becoming a member of the "stat team." After receiving permission from her father to remain after school, Brown went to the coach's office and waited while Respondent completed some last-minute errands. After Respondent returned to the coach's office, he asked Brown about her boyfriends and then told her he wanted to show her "his layout." Respondent took Brown through the boys' locker room to an equipment room. When they were inside the equipment room, Respondent closed the door and persuaded Brown to remove her clothing. He then engaged in sexual intercourse with Brown. Frederick Bertani and Desmond Patrick Gray, Jr., offered expert opinion that Respondent's effectiveness as an employee of a school board has been not only diminished but severely impaired, not only within Dade County but within the entire profession itself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in Case No. 82-1604 finding Respondent Otis Fells guilty of the allegations contained within the Administrative Complaint and permanently revoking his teaching certificate number 282363; and it is further RECOMMENDED that a Final Order be entered in Case No. 82-2742 finding Respondent Otis J. Fells guilty of the allegations contained within the Amended Notice of Charges and dismissing the Respondent from his employment with the School Board of Dade County and denying any claim he may have for back pay. DONE and RECOMMENDED this 7th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street West Palm Beach, Florida 3340l Jose Martinez, Esquire 201 Alhambra Circle, Suite 1200 Coral Gables, Florida 33134 Mr. Otis J. Fells 1216 Walsh Avenue, Apt. 25-A Coral Gables, Florida 33146 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Lindsey Hopkins Building, Suite 200 1410 NE Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Education Practices Commission Department of Education 125 Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SHCOOL BOARD) ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA EDUCATION PRACTICES COMMISSION, DEPARTMENT OF EDUCATION, Petitioner, vs. CASE NO. 82-1604 OTIS FELLS, Respondent. / SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 82-2742 OTIS J. FELLS, Respondent. /
Findings Of Fact Respondent, Palm-Miami Beach Academy of Beauty Culture, Inc. (school), is licensed to operate a cosmetology school at 634 Belvedere Road, West Palm Beach, Florida. Official agency records reflect that respondent was assigned license number CT 0000333 by petitioner, Department of Professional Regulation, Board of Cosmetology (DPR or Board) effective August 14, 1987. The school's owner and president is Hasan Shihada, who has operated another licensed cosmetology school, Miami Beach Unisex Beauty School, Inc., in Miami Beach, Florida for almost ten years. Shihada purchased the school in 1987 from Ena Salup, who previously operated the school under the name of Ena's Beauty School. Shihada considers the school to be a division of his Miami Beach facility although he understands that each school must be operated as a separate entity with its own license. After being advised that a license number had been assigned to respondent, a DPR investigator, Jean Robinson, made an initial inspection of the facility on September 24, 1987. She returned several times that fall but never found the school open. After checking with the Board's office in Tallahassee to ascertain if the school had actually opened, Robinson learned that the school had sent the Board average daily attendance reports for the months of November and December, 1987. These reports reflected that twelve and five students, respectively, had attended the school during those two months. Robinson thereafter telephoned Shihada and made an appointment to meet him at the school on Tuesday, January 12, 1988. The purpose of the visit was to review the school's records and to otherwise verify that the licensee was in conformity with all Board regulations. On January 12, 1988 Robinson met Shihada at the school. The school was closed but Shihada gave her access to the premises. Upon entering the premises, Robinson saw no students, cosmetology supplies or other evidence of an active operation. She also observed that the license of only one instructor was on the wall even though Board rules require that the school have two licensed instructors in its employ during the first year of operation. When Robinson asked to see the student records, Shihada called Salup, who had an office in an adjacent building. After Salup came to the school, she and Shihada retrieved a handful of 5x7 file cards which contained the names and addresses of a few students and the apparent payments made by them to the school. Only three of the names matched up with the names previously sent by respondent to the Board's Tallahassee office. There were also no student attendance records, executed student enrollment contracts or monthly statements of student hours. These records are required to be maintained by the licensee for all active students. When Robinson asked where the other student records were, Shihada and Salup spoke in Spanish and then Shihada advised Robinson that all files were at Salup's home. Robinson instructed Shihada to bring the student files to the DPR district office the following Monday. Before she left, Robinson gave Shihada a copy of the Board's rules and discussed the recordkeeping requirements imposed on a licensee. When Shihada did not appear at the DPR offices the following Monday, Robinson telephoned Shihada. He told her that a robbery had occurred at his office and that all files had been stolen. He also stated he did not report the robbery to local police. At hearing, Shihada denied telling this to Robinson and maintained instead that the files were simply missing from his unlocked office. Both explanations are rejected as not being credible. On May 24, 1988 Robinson returned to respondent's establishment to conduct a follow-up inspection. At that time, she reviewed the student records and found all files to be complete, although the school had only one full-time student. There was only one instructor on the premises, Angenorai Mathews, but the license of a second instructor, Earl Threats, was on the wall. At hearing Shihada contended that, although he purchased the school in 1987, he authorized Ena Salup to continue operating the school until January, 1988. According to Shihada, he did not open the school for business until that month but still had no students. He attributed this to a lack of financial aid for potential students. As to the records mailed to Tallahassee in November and December, 1987, Shihada explained that Salup's employees had mailed these, and that the students reflected thereon were actually Salup's students who were permitted by Shihada to finish their courses without charge. As to the lack of records on January 12, 1988, Shihada contended that (a) the records were missing from his office, and (b) in any event, he had no students in January and therefore there was no need to maintain any records. Shihada claimed also that the school had three licensed instructors in January, 1988. However, there were no records to corroborate this assertion. Finally, he denied that Robinson ever requested to see the student files on her January 12, 1988 visit. This contention is rejected as not being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 21F- 21.003(1), Florida Administrative Code (1987), and Subsection 477.029(1)(i), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended respondent pay a $500 fine within 30 days of date of Final Order. DONE AND ORDERED this 1st day of August, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 2nd day of August, 1988.
Findings Of Fact On November 27, 1985, Respondent Samuel David Sorrells entered the seventh grade at Nautilus Junior High School. On January 10, 1986, Respondent did not have his textbook with him in his math class. He was given permission to get another book to use during that class, and when he did so another student took that book away from him. Respondent started cursing that other student. When a third student told Respondent to control his language, Respondent physically attacked that third student. On February 14, 1986, Respondent's apparent intention to cut school that day was thwarted when he was picked up by the Miami Beach Police Department and escorted by the police to school in time for his second period class. Although Respondent went to the physical education field, he refused to "dress out" for physical education, refused to stand where he was instructed to by the teacher, and then cursed the teacher and threatened her with physical violence. On March 17, 1986, Respondent was caught writing on the walls in the school hallways and in the school bathrooms. A conference among various school personnel and Respondent's mother was held on March 17, 1986, to determine how to best fulfill Respondent's needs. The recommendation by school personnel attending that conference was that Respondent would be better served by the educational alternative program at Jan Mann Opportunity School-North for the reasons that that school offers smaller classes so that more attention can be given to each individual student and there are more trained counselors available to assist the students with their specialized needs. Between November 27, 1985, when Respondent first enrolled at Nautilus Junior High School and April 8, 1986, when Petitioner determined that Respondent should be administratively re-assigned, Respondent was absent from school on 10 days and was suspended from attending classes on 18 additional days. Respondent received F's in all classes at Nautilus Junior High School although he is able to do the work given to him. He simply does not do it.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Samuel David Sorrells to the educational alternative program at Jan Mann Opportunity School-North until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 9th day of September, 1986, at Tallahassee, Florida. LINDA M. RIGOT, 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 9th day of September, 1986. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Patricia Sorrells Simpson 1321 Biarritz Drive Miami Beach, Florida 33184
The Issue Whether Respondent's teaching certificate should be revoked or otherwise disciplined on grounds that he violated Section 231.28(1), Florida Statutes (1979), as alleged, by making sexual advances toward his female students on four separate occasions.
Findings Of Fact Based upon the evidence presented at hearing, including consideration of the validity and demeanor of witnesses, the following facts are determined: Respondent, Lawrence Longenecker ("LONGENECKER"), at all times material hereto held a Florida teacher's certificate: Certificate No. 283801, Post Graduate, Rank II, valid through June 30, 1986, covering the areas of secondary biology, junior high science, guidance, and junior college. (Joint Exhibit 1.) LONGENECKER was employed as a science teacher at Madeira Beach Middle School, a public school in Pinellas County, Florida, during the 1976-1977 and 1977-1978 school years, until his resignation in January, 1978. (Joint Exhibit 1.) I. Longenecker's Sexual Advances Toward Three Female Students The COUNCIL alleged, and has established that LONGENECKER made sexual advances toward three (3) female students on four separate occasions. The first incident occurred during the early morning of January 1, 1977. Robin Hamilton, an eighth grade student of LONGENECKER's at Madeira Beach Middle School, had just finished babysitting for LONGENECKER on the evening of December 31, 1976. While driving her home, LONGENECKER stopped behind a Publix Supermarket across from Madeira Beach Middle School, and asked her if he could "take her up on her offer", referring to his missing a chance to kiss her during a friendly mistletoe Christmas celebration at school earlier in the day. Thinking little of it, she said "okay"; he then kissed her. Five minutes later, he said, "What about one for the good luck of next year--in ninth grade?", and kissed her again. She let him. He then continued driving her home, but took a longer route than required. She told him, "This isn't the right way" home, and he answered, "Don't worry about it, I'll take you home." He then kissed her on the lips, again, putting his arms around her and pulling her closer. She became scared, and insisted he take her home, which he then did. She reported the incident to her parents the next day, and they insisted she tell the school principal; she then reported the incident to John Larson, the assistant principal. LONGENECKER denies having made these advances toward Miss Hamilton. However, her demeanor was direct and detached; she evinced no bias, interest, or motive to falsify, and her testimony is accepted as persuasive. (Testimony of Hamilton.) The second incident involved LONGENECKER and Elizabeth Karen James, another eighth grade student at Madeira Beach Middle School. He taught science, and she was his student assistant who helped prepare the laboratory, grade papers, and take roll. During January or February, 1977, she was working alone in the back room of the science laboratory; she had her face toward the wall and was leaning against a table. LONGENECKER, while attempting to show her something, leaned heavily against her--the lower part of his body pressing against her lower back side--and placed his hands on her shoulders. The continued pressure of his body against hers--for 2 to 3 minutes--made her scared. While this was going on, he continued to instruct her on preparing the lab for the next day. She waited until he was through and then quickly left the room. Later, she reported the incident to her parents. Approximately 2 to 3 weeks later, the third incident occurred when she was, again, working in the laboratory, and standing two feet from the door. She was leaning against the counter; he came up behind her and leaned heavily against her, in the same manner as he had done previously. She became scared, turned around, and tried to leave. He took her hand, and asked her to remain because he wanted to show her something else. LONGENECKER denies having made sexual advances toward Miss James. However, her testimony was not tainted by bias, intent, or motive to falsify; she evidenced no ill-will or hostility toward LONGENECKER, and her testimony is accepted as persuasive. (Testimony of James.) In February or March, 1977, Miss Hamilton and Miss James separately reported the above incidents, involving LONGENECKER, to John Larson, the school's assistant principal. Larson spoke with Dr. Robert Moore, the principal, and they both met with LONGENECKER to discuss the complaints. Dr. Moore expressed his concern over the alleged behavior and explicitly warned LONGENECKER that such conduct was unethical and jeopardized his teaching position. LONGENECKER neither admitted or denied the accusations, but listened, quietly. (Testimony of Moore, Larson, Longenecker.) The fourth incident occurred approximately nine (9) months later, on or about December 3, 1977, and involved Sharon O'Connell, a ninth grade student at Madeira Beach Middle School. LONGENECKER was her science teacher; she was a good student and liked him as a teacher. On the evening of December 3, 1977, Miss O'Connell was babysitting for LONGENECKER. LONGENECKER and his wife returned home at approximately 12:30 a.m., and he drove her home. Instead of taking her directly home, he took her to Madeira Beach Middle School, ostensibly to "pick up something." (Tr. 87.) When they arrived, he took her on a tour of new buildings that were being constructed at the school. It was a cold evening, and he put his arm around her, as if to keep her warm. He moved closer to her, as she was leaning against a wall, and pressed his lower body against her buttocks area. At the same time, he put his hands underneath her arms and rubbed her breasts. She tried to tighten her arms, and became scared; he acted like nothing out of the ordinary was occurring, and continued to talk of the construction work. They then walked to another area of the school, where he leaned her against a door, and repeated his earlier conduct--pressing his lower front against her buttocks and fondling her breasts. He was breathing heavily, and Miss O'Connell was embarrassed and scared. She then pulled away, and asked him to take her home. After several requests, he complied. She reported this incident to her parents, who immediately contacted the Superintendent of Schools. LONGENECKER denies having engaged in this conduct toward Miss O'Connell. Her testimony is, however, accepted as persuasive; she was visibly embarrassed by having to describe this incident, but expressed no hostility toward LONGENECKER; indeed, she indicated sympathy for his plight. (Testimony of O'Connell.) II. Effect of Incidents Upon Longenecker's Effectiveness as a School Board Employee After the incident involving Miss O'Connell was reported, LONGENECKER was called to Dr. Moore's office and confronted with the accusation. LONGENECKER neither admitted, nor clearly denied, the accusation. He was asked to resign immediately, which he did. Since that time, he has held several jobs in commercial establishments, and his efforts to find work as a teacher have been unsuccessful. (Testimony of Moore, Larson, Longenecker.) LONGENECKER's complained-of actions toward the three female students seriously reduces his effectiveness as a teacher at Madeira Beach Middle School and the immediate area. His misconduct has become generally known to faculty members, students, and their families, and his reemployment as a teacher at Madeira Beach would be opposed by parents and students. (Testimony of Moore.)
Conclusions Respondent is guilty, as alleged, of violating Section 231.28(1), Florida Statutes (1979). Due to the repetitive nature of his misconduct and the prior practice of the Board of Education in cases such as this, Respondent's teaching certificate should be permanently revoked.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Lawrence LONGENECKER's teaching certificate No. 283801 be permanently revoked. DONE AND ENTERED this 25th day of November, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a Caucasian male born December 30, 1952. At present he is 54 years old. Petitioner holds a bachelor's degree in criminology from Florida State University, which he obtained in 1976. He also holds a juris doctorate from Florida Coastal School of Law, obtained in December 1999. In between these two degrees, Petitioner's employment history, included with his application for employment with the School District, indicates that in 1976 he worked at Graham's Dairy farm; from 1979-1980, he worked in telephone communications doing telephone installation, repair, and telephone cable splicing for an unknown employer; and in 1981 he worked for GTE of Florida performing telephone installation and repair. In 1985 Petitioner was the operations manager for Ocala Mack Sales, handling small claims and tag and title work. In 1989, he returned to the telephone industry, splicing cable. There is no indication of the time frame or duration of each job. No credible explanation was given for the significant gaps in his work history, or the reasons for leaving the various jobs listed. Beginning in 1993, Petitioner substituted for a three- month period at Fort King Middle School in Ocala, Florida. This three-month period is the only experience in the education field that Petitioner possesses. That same year, Petitioner began taking additional classes at the community college level part time in an effort to go to medical school. He also stayed home caring for his children. When he was unsuccessful in getting admitted to medical school, he turned his efforts to law school. Beginning in 2001, after graduating from law school and passing the bar exam, Petitioner worked as an attorney for the Department of Children and Families. In April 2004, he resigned in lieu of termination.1/ After an eight-month period of unemployment, he was hired in November 2004 as a corrections officer with the Florida Department of Corrections, and remains in that position today. In 2004, Petitioner began applying for teaching positions in Marion County. To that end, he has applied for and received Statements of Status of Eligibility from the Florida Department of Education indicating that he is eligible for a temporary certificate in the areas of chemistry and biology, grades 6-12, for the period June 22, 2004, through June 22, 2007. The job description for a teaching position in the School District indicates that a candidate must have a bachelor's degree from an accredited institution and be certified by the State of Florida or have district vocational certification. School District Policy 6.10 requires that all personnel be appointed as prescribed by Florida Statutes and applicable rules of the School Board and the State Board of Education. The job description also lists the following in terms of required knowledge, skills and abilities: Knowledge of child growth and development, especially of characteristics of children in the age group assigned. Knowledge of prescribed curriculum. Knowledge of current educational research. Basic understanding and knowledge of use of current technology. Knowledge of learning styles and skill in using varied teaching methods to address student learning styles. Skill in oral and written communication with students, parents, and others. Ability to plan and implement activities for maximum effectiveness. Ability to effectively assess levels of student achievement, analyze test results, and prescribe actions for improvement. Ability to maintain appropriate student supervision so that students have a safe and orderly environment in which to learn. Ability to work effectively with peers, administrators, and others. Certification by the Department of Education in the subject matter to be taught is generally required. The School District may waive certification in a particular area only when there is a critical need for teachers in that area and there are no certified teachers available. Even in that instance, the School District usually looks for a closely related certification area. For example, when trying to fill special education positions, the School District will look first for applicants certified in reading if no one certified in special education is available. In addition to certification for individual subject areas, a teacher may obtain what is referred to as a middle grades integrated certification. Someone with this certification is preferred over other applicants in a middle school setting, because they can teach science, social studies, language arts and math, giving principals more flexibility in filling positions that might include teaching in more than one area. Petitioner does not hold a middle grades integrated certification. Petitioner has applied for 32 science teaching positions, two biology positions and one chemistry position in the School District. In addition to these 35 science-related positions, Petitioner has applied for 47 additional teaching positions in the reading and exceptional education, areas for which he understands there is a critical need, and in criminology and legal systems, areas where he believes he has practical experience. Because he is not certified in these areas, they would be considered out-of-field. Petitioner could only be considered for those positions in the event that there was no qualified and appropriately certified candidate available. He has also applied for approximately 50 other positions for which he is not certified. Petitioner has received five interviews for positions within the Marion County School District. He has received no offers of employment. The School District fills vacancies for teachers in several different ways. A person already working as a teacher in the School District may request a transfer, for example, to a different subject area for which they are qualified or to a different school. Under the teachers' collective bargaining agreement with the School District, that teacher is automatically considered as the preferred candidate for any vacancy consistent with their request, unless the principal at the hiring school presents a compelling reason why they should not be hired. Under these circumstances, no vacancy would be advertised. The School District also encourages applicants to participate at an annual district-wide Job Fair. At that Job Fair, principals at different levels (high school, middle school, elementary school) are available to conduct interviews. Candidates do not necessarily interview for particular positions; they interview with whatever principals are available. Finally, applicants may be called to interview with principals for openings at individual schools, should there not be a qualified applicant requesting a transfer or under "conditional contract" with the District. Conditional contracts will be discussed in more detail below. During interviews at the Job Fair, principals use standardized interview questions that have been approved by the School District. The standardized interview questions have eight categories of questions based upon qualities one would expect to find in a teacher: 1) likes kids; 2) dependable; 3) content knowledge; 4) ability to manage; 5) motivation; 6) positive attitude; 7) team player; and 8) communication. The interviewer selects a question from each category to ask the applicant, and awards one to three points per question, based on whether the answer exceeds expectations, meets expectations or does not meet expectations. The highest total score an applicant can receive based on his or her answers to these questions is 24. Principals may only choose from the questions provided. They may clarify a question should an applicant ask them to, but they may not ask other questions. If the principal is favorably impressed by an applicant and has a vacancy at his or her school in the area for which the applicant is certified, the principal may offer that applicant a position at the interview. If they have no such position available but think the candidate would be a good hire for the School District, they may offer what is referred to as a conditional contract. A conditional contract does not entitle the applicant to a job. However, as vacancies arise within the School District, if there are individuals with conditional contracts that are qualified for the vacancies, those individuals are referred to the hiring principal for consideration. The hiring principal chooses from among those candidates with conditional contracts, and if there is only one such candidate, he or she would, absent extraordinary circumstances, get the job. Petitioner participated in the School District's Job Fair in June 2006. He was interviewed by Lisa Krysalka, the principal at Belleview Middle School. When Petitioner appeared for his interview at the Job Fair, he was not wearing a suit and did not bring a resume. Ms. Krysalka's notes reflect that he did tell her he had served as a substitute 10 years before. Based on his answers to the standardized questions, Ms. Krysalka gave Petitioner an overall score of nine. She ranked his answers as not meeting expectations for eight out of nine questions. Her scoring was reasonable in light of the answers he gave. For example, when asked to describe his classroom management plan, Petitioner indicated that he had no plan because he did not have problems with discipline. When Petitioner was asked how he would get his students excited about entering the classroom, he stated that most kids are excited already, and he would have a plan (although unspecified) and stick to it. Other answers he gave were either not responsive to the questions asked or did not relate to a school setting or to work with children. Ms. Krysalka felt some of Petitioner's responses were unrealistic and showed that he was unprepared to teach middle school in today's climate. Ms. Krysalka's assessment is reasonable. Petitioner's answers to these standardized questions do not demonstrate that he possessed the knowledge, skills and abilities required to perform as a teacher in the Marion County School District. Petitioner interviewed at individual schools outside the purview of the Job Fair. None of those interviews resulted in offers for a teaching position. While Petitioner testified that he has applied for dozens of positions, he presented evidence regarding only seven of those positions. The qualifications for the successful candidates for the positions are listed below. Petitioner admitted at hearing that he had no personal knowledge as to the qualifications of any of these candidates. He simply felt that, given the number of positions for which he applied, the only reasonable explanation for his not getting a teaching position was his age. Matthew Bates was born in 1981, and is younger than Petitioner. He has a B.A. in history and is working on his master's degree in educational leadership. He has passed the M/J Integrated Certification exam. Bates was originally hired in September 2005 at Dunellen Middle School for a "split" position, teaching both seventh grade science and language arts. Mr. Bates requested and was granted a transfer within the School District under the collective bargaining agreement to fill a vacant seventh grade science position at the same school. Consistent with the School District's collective bargaining agreement, no other candidate was considered or interviewed. Petitioner has not established that he is equally qualified or more qualified than Mr. Bates for the position sought. Ronald Long was born in February 1981, and is younger than Petitioner. Mr. Long was selected for a science position at Forest High School. He holds a B.S. degree in biology; served as a substitute teacher for the School District during the 2003-2004 school year, and was an assistant and junior varsity basketball coach at Trinity Catholic High School during that time. Mr. Long's resume also indicates that he has worked with the Boy Scouts and several basketball teams at both the high school and college level. Based on his interview and experience, Milford Lankford, the principal at Forest High School, believed Long to be the better qualified candidate. Petitioner was interviewed for the position at Forest High School. At the time of his interview, Mr. Lankford was filling two positions in the science department. The first position was filled by Mr. Downs, who was 63 years old at the time he was hired. However, based on his interview, Mr. Lankford did not feel that Petitioner had the skills necessary to be successful in the classroom. His impression was confirmed after Petitioner interviewed with his assistant principal, Ms. Bounds. Mr. Lankford had eliminated Petitioner from consideration by the time he offered the second position to Mr. Long. In any event, his determination that Mr. Long was better qualified for the position is reasonable. David Mahfood, was born in 1983 and is younger than Petitioner. He was selected for a physics position at one of the high schools in the School District. The position required that the applicant be highly qualified in and certified to teach physics, and Mr. Mahfood met those qualifications. Petitioner is not certified in physics, as required for this position. Bret Mills, born in 1982, is also younger than Petitioner. He has a middle grades integrated certification. Mr. Mills holds a B.S. in animal biology and while his resume does not reflect any teaching experience, it does reflect experience working with children in church and little league, as well as working as a literacy program leader while at the University of Florida. Mr. Mills' certification was preferable for the position being advertised. Petitioner did not establish that he was equally or more qualified than the successful candidate for this position. Michael Orloff was hired for a seventh grade science position at West Port Middle School. Mr. Orloff was born in 1958, and is four years younger than Petitioner. He has a B.S. in marketing with a minor in chemistry. He was interviewed by Greg Dudley, the principal of West Port Middle School during the Job Fair. Based upon a favorable interview, he was offered a position at that school in accordance with School District policy. There is no evidence that Mr. Dudley even knew of Toms' application at the time that he offered Mr. Orloff the job. Mr. Richard Williams was born in 1971, and is younger than Petitioner. He was offered a position teaching science at Howard Middle School. Mr. Williams holds a B.S. degree in biology and a master's degree in environmental management. He also has experience as a resource teacher with Eckerd's Youth Alternatives and served in the Peace Corps as a forestry extension agent. Mr. Williams originally worked beginning in September 2005 as a substitute teacher at Howard Middle School. He participated in the 2006 Job Fair and interviewed with the incoming principal at Howard Middle School. Based on his outstanding scores on the Job Fair Interview, he was offered a job immediately. Petitioner was not a candidate brought to the attention of the hiring principal at the time of the Job Fair. As previously indicated, Petitioner's interview scores at the same Job Fair were not impressive. Unlike Petitioner, Mr. Williams' degrees and experience are in fields related to the area he was hired to teach. Mr. Williams was the more qualified candidate for the position for which he was hired. Finally, Kristen Wood was born in 1982 and is younger than Petitioner. She was hired to teach agriculture and biology. Ms. Wood graduated from the University of Florida with a major in agricultural education and had a teaching internship in agriculture. She was also certified to teach in both biology and agriculture, and had significant experience with the Florida Future Farmers of America Association. Petitioner is not certified in agriculture and had less experience related to education. Ms. Wood was the more qualified applicant for the position sought.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint and denying Respondent's request for attorney's fees and costs. DONE AND ENTERED this 17th day of August, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 17th day of August, 2007.
