The Issue Whether the Respondent’s conduct of December 10, 11, and 12, 1996, on the Rosenwald Exceptional Education Center campus constitutes insubordination, conduct unbecoming a school board employee, and just cause for termination/discipline.
Findings Of Fact The Respondent, James Byrd, is employed by the Petitioner, Seminole County School Board, as an instructional assistant at Rosenwald Exceptional Education Center. The employment relationship between the school board and the Respondent is subject to the terms and conditions of collective bargaining agreement between the school board and the Seminole Educational Clerical Association (SECA), for the period July 1, 1995-June 30, 1998, as amended August 14, 1996. The applicable collective bargaining agreement does not require progressive discipline as a predicate to termination. Respondent had been employed by Petitioner since August 25, 1991. There were no incidents of discipline involving Petitioner prior to his arrival at Rosenwald. Respondent received satisfactory ratings in his performance evaluations during his employment with the Petitioner, including his current supervising teacher, Annette Hill. On September 30, 1996, Respondent had engaged in a dispute with another employee, LaCeina Walker, in the presence of a student. Respondent also engaged in inappropriate conduct regarding John Wyatt, a teacher at Rosenwald, relating to the incident regarding Respondent and Walker on September 30, 1996. At a meeting held by Dr. Michael Kahn (Kahn) with Respondent to discuss the incident of September 30, 1996, the Respondent became quite agitated and aggressive. Respondent accused Kahn of being racially unfair regarding the letter of reprimand. Kahn is the administrator in charge of the Rosenwald Exceptional Education Center. Respondent received a Letter of Concern for conduct relating to the September 30, 1996, incident from Kahn. The Letter contained a directive not to engage in verbal disputes with employees in the presence of students and that he was to make an effort to get along with other staff members. Walker was also given a similar letter. On December 10, 1996, Respondent received a two-day suspension for an incident involving Margie Robinson, which was a violation of the September 30, 1996, Letter and directive. The two-day suspension did not require school board action. The incident underlying the two-day suspension involved a dispute between Robinson and Respondent concerning a student’s point sheet. As a part of Rosenwald’s behavior management program, students earn points for certain positive behavior. The points are then used to earn rewards. Robinson thought that the Respondent had given a student points when they had not been earned. Upon meeting with the two employees, Robinson and the Respondent, Kahn concluded that the dispute was the result of a misunderstanding, primarily on the part of Respondent. Kahn resolved the misunderstanding and sent Robinson and Respondent on their way. After leaving Kahn’s office, Respondent became verbally abusive of Robinson. Respondent’s verbal confrontation of Robinson was a direct violation of the September 30th directive. On December 12, 1996, when Kahn attempted to discuss the incident concerning Robinson with Respondent, Respondent came to Kahn’s office. He refused to discuss the matter and then, without permission to leave, exited Kahn’s office and went to his classroom. After Respondent left Kahn’s office, Kahn followed Respondent to his classroom in an attempt to deliver the Letter of Suspension. Respondent refused to respond to Kahn’s statement, and Kahn then left the letter on Respondent’s desk in front of Respondent. Kahn then left the room. Respondent has engaged in disrespectful or confrontational conduct with other Rosenwald employees after joining the Rosenwald staff and before December 13, 1996. Respondent’s conduct on December 11 and 12, 1996, was insubordinate and conduct unbecoming a school board employee.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent’s action on the Rosenwald Exceptional Education Center on December 10, 11, and 12, 1996, constitutes insubordination and conduct unbecoming a school board employee, and that Respondent’s conduct constitutes just cause for termination. RECOMMENDED this 4th day of September, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1997. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County Public School Educational Support Center 400 East Lake Boulevard Sanford, Florida 32773 Ronald G. Meyer, Esquire Anthony D. Demma, Esquire Meyer and Brooks Post Office Box 1547 Tallahassee, Florida 32302 Dr. Paul J. Hagerty, Superintendent Seminole County School Board Educational Support Center 400 East Lake Boulevard Sanford, Florida 32773
The Issue The issues to be resolved in this proceeding concern whether the Respondents demoted the Petitioner from the position of school principal to that of assistant principal in violation of Section 760.10, Florida Statutes, by reason of his race.
Findings Of Fact The Petitioner was the principal at Rosenwald at times pertinent hereto. He had been the principal of that school since July 1, 1980. The Petitioner had had generally satisfactory performance evaluations for the school years up to and including 1987-1988. In November 1988, Respondent, Jack Simonson, was elected superintendent of the Bay County school system. Mr. Simonson, had run on a platform which included a position that he would insure that school administrators and employees at all levels were rigorously and objectively evaluated as to their performance. It is undisputed that the Petitioner was employed on an annual contract which had to be renewed each year upon renomination by the superintendent. Upon until the first year of Mr. Simonson's tenure as superintendent, the Petitioner had received overall evaluations of achievement "at the level of expectation", which are generally satisfactory evaluations overall. In those evaluations, however, the Petitioner's evaluator did find that the Petitioner needed to communicate on a more ready, relaxed or less formal basis with his personnel and needed to create an atmosphere in which others working with him would feel freer to express themselves in a constructive and orderly manner. In the 1985-86 evaluation, it was found that the Petitioner needed to improve in areas of proper care and maintenance of the school plants, as to plant materials and equipment, and to improve in the area of employee discipline. Although these evaluations were overall at a satisfactory level of performance, these problems or areas of improvement correspond to deficiencies later determined under evaluations under Mr. Simonson's administration. In the first year of Mr. Simonson's administration, which was the 1988- 89 school year, assistant superintendent, Curtis Jackson, was assigned to evaluate the Petitioner. He was unable to complete that evaluation, and Mr. Simonson ultimately declared the evaluation incomplete and unofficial on June 28, 1989. The Petitioner, however, has admitted that this inability to complete the evaluation is not evidence of racial discrimination. The Petitioner had been having problems with a particular student and felt it necessary to request a meeting with Mr. Simonson to discuss those problems. Accordingly, a meeting was held on May 2, 1989 between the Petitioner and Mr. Simonson. The Petitioner's problems with the student in question were discussed, and Mr. Simonson also discussed several areas of dissatisfaction he felt with the Petitioner's performance as principal. The meeting concluded and thereafter on June 21, 1989, the Petitioner, by memorandum, advised Mr. Simonson that his evaluation for the 1988-89 school year had not yet been completed. After declaring the Petitioner's evaluation incomplete on June 28, 1989, on August 1, 1989, Mr. Simonson drafted a memorandum describing the matters discussed at the May 2, 1989 meeting and further addressing areas of the Petitioner's performance as principal, which he viewed as substandard. Mr. Simonson met with the Petitioner on August 24, 1989 to discuss the contents of that memorandum and to discuss the areas in which Mr. Simonson felt the Petitioner's performance to be inadequate. A copy of that memorandum was placed in the Petitioner's personnel file on August 24, 1989. The Petitioner then prepared a statement of his contentions of what had occurred or been discussed at the May 2, 1989 meeting. That statement or memorandum does not appear to have been placed in his personnel file apparently because the Petitioner did not request that it be so placed. In both the August 1, 1989 memorandum and the meeting of August 24, 1989, Mr. Simonson expressed dissatisfaction with a number of performance areas concerning the Petitioner's performance as principal at Rosenwald. He perceived an apparent lack of direction and supervision of staff and students; was concerned about alleged incidents involving sexual acts and acts of violence among students which resulted in the transfer of several students away from Rosenwald. He felt this indicated student unrest and lack of maintenance of disciplinary standards and which ultimately required the placement of a deputy sheriff at the school. He was concerned about complaints he had received concerning a "black heritage program". He admonished the Petitioner that no sort of racism, black or white, would be tolerated in the school system and that racist comments or inappropriate programs should not occur at the school site. Mr. Simonson apparently felt that the Petitioner had made an inappropriate response to the May 2, 1989 meeting consisting of criticizing other school personnel rather than focusing on constructive improvement ideas for the areas Mr. Simonson felt needed improvement in the Petitioner's performance. Mr. Simonson also expressed concern with the Petitioner's handling of school personnel matters and employee evaluations and his skill in staff selection. Mr. Simonson was also concerned with a perceived lack of support for school and district personnel, possible insubordination on the part of the Petitioner and his poor communication skills or efforts with staff and students. Mr. Simonson then advised the Petitioner, by memorandum, that the following areas needed improvement: (1) student discipline, (2) recording keeping on discipline referrals of students, (3) administration of teacher evaluations in terms of the evaluations needing to be more rigorous and thorough, (4) school assembly programs should emphasize Americanism and not embarrass any child because of his or her race, (5) statements made to members of the public should be factually accurate, (6) Petitioner's acceptance of responsibility, (7) support for assistant principals, (8) need for improvement in cleanliness and appearance of the school, and (9) use of school facilities to conduct personal business. Mr. Simonson then advised the Petitioner that the means or methods to correct these perceived deficiencies should be in place by the end of the first semester of the 1989-90 school year, at which time another conference would be scheduled to review the areas of concern. This memorandum was designed to give further notice to the Petitioner that Mr. Simonson perceived there were problems in his performance at Rosenwald and that the Petitioner was expected to make improvement in the areas of perceived poor performance. The memorandum was not and was not represented to be an annual evaluation for the year 1988-89 and states that the Petitioner did not receive an evaluation for that year. The Petitioner, in turn, prepared a memorandum in response to that August 1, 1989 memorandum and had that memorandum placed in his personnel file. The school district administration, including Mr. Simonson, received complaints from various sources in the 1988-89 and 1989-90 school years concerning disciplinary problems, safety problems, and problems involving poor academic progress of students at Rosenwald. Incidents occurred and others were alleged from reports of parents, students, or school employees concerning student violence and possible sexual assaults at Rosenwald. The concern over student safety ultimately culminated in the necessity of placement of a deputy sheriff as a school resource officer at the school. Through repetitive complaints of parents and others having contact with the school and its operations, Rosenwald had acquired a poor reputation for its academic quality and the safety of its students in terms of disciplinary problems and resulting dangers to student safety. Aside from the Petitioner's denial that Rosenwald had such a reputation, the evidence concerning it was unrebutted. The evidence establishes that there were a number of areas where the Petitioner's performance was unsatisfactory. In such areas as mentioned above concerning discipline and student safety, as well as the scope of their duties, the Petitioner had communication and personal relationship problems with both his assistant principals in the 1988-89 school year. Those assistant principals had been assigned to Rosenwald with the Petitioner for several years. Until the 1988-89 school year, they had had a cordial working relationship, as well as a friendly, warm social relationship even to the extent of socializing with the Petitioner away from the school environment. They became disappointed with the Petitioner's performance as their leader and principal during the 1988-89 school year in such areas as his handling of student discipline, particularly his alteration of their disciplinary measures, as well as disagreements with the Petitioner concerning the scope of their duties, in terms of additional duties he delegated them. These problems culminated in these assistant principals being reassigned by Mr. Simonson so that the Petitioner had a new set of assistant principals for the 1989-90 school year, Ms. Love and Ms. Stryker. However, the problems of poor communication and poor interpersonal relationships, particularly with Ms. Love, continued in that second school year. There was also poor communication and interaction between the Petitioner and other district and school personnel. The Petitioner on a number of occasions did not appropriately handle severe disciplinary problems. He allowed the parents of a student, who had committed a severe disciplinary violation, to berate the assistant principal who had sought to impose discipline on the student. He should not have allowed a confrontation between the assistant principal and the student's parents to occur. There was a severe disciplinary incident where a number of male students had stripped the clothes from a female student in the gymnasium while several teachers stood by and allowed the incident to happen. Even though the incident happened rather quickly, the teachers did not act quickly and decisively enough to prevent the incident from happening or happening in the severe manner in which it did. Mr. Simonson learned of the incident and wrote a letter to the Petitioner indicating his assumption that the Petitioner would certainly reprimand the teachers. After a substantial number of days elapsed and no reprimands were issued to the teachers, Mr. Simonson, in effect, ordered that they be reprimanded. He felt that the Petitioner displayed indecisive and weak leadership in handling this disciplinary situation, as well as others set forth in the evidence of record. On another occasion, a teacher brought several male students to the Petitioner's class for discipline because of disruptive, disrespectful conduct, including their reference to the Petitioner as "Uncle Eli" in the vein that he was thusly related to one of the miscreant students. It was their belief that "Uncle Eli" was their ally. The Petitioner heard the teacher's explanation of the problem and seemed to handle it in a lighthearted or casual fashion and dismissed the teacher from the presence of himself and the students and had an undisclosed discussion with the students out of the teacher's hearing. The result was that very little was done to discipline the students and the problem continued. The student related to the Petitioner continued to refer to him as "Uncle Eli" and appeared to rely on his relationship with the Petitioner to fail to follow proper rules of deportment. The Petitioner displayed poor leadership abilities. He has typically blamed his disciplinary problems and other problems, such as poor communication skills at Rosenwald, on other teachers or non-instructional personnel and even blamed the disciplinary problems on the high number of minority students and students of a low socioeconomic class, which he characterized as the minority or black students. This was a pattern observed by Mr. Simonson and the assistant principals assigned in both years to the Petitioner, by which the Petitioner, instead of attempting to resolve the problem in a decisive way himself, would shift the blame for problems which were his responsibility to others. He was repeatedly unable or unwilling to accept responsibility for his own mistakes or for decisions that he was required, in his position as principal, to make without delegating them to others. He had a habit of delegating duties or responsibilities of his office to others without following up to see that the delegated duties were carried out. Then when the desired results were not achieved by the person to whom they were delegated, he would fail to accept responsibility for the failed task and instead would blame the failure on the person to whom the task had been delegated without accepting any responsibility himself. He displayed a substantial degree of disorganization in his administrative duties and responsibilities. He did the required teacher evaluations belatedly and hurriedly so that they were fraught with numerous mistakes. In the course of attempting to do the teacher evaluations, he asked his assistant principals to make negative comments about certain teachers which made them uncomfortable because this was not appropriately their duty. Rather, the evaluations of the teachers was the sole responsibility of the principal. The Petitioner asked a parent to sign an affidavit in his support which was later listed as a potential exhibit in this proceeding during a meeting with the parent where the parent's stepchild's discipline was discussed and on that occasion, reduced. In the instance where the female student's clothes were torn off by a group of boys in the gymnasium, the Petitioner was slow to investigate and to make a decision concerning whether or not the teachers involved were negligent and whether or not they should be reprimanded. This necessitated Mr. Simonson's intervention in the question of discipline of the teachers who allowed the situation to occur. The condition of the school plant and grounds was another matter of concern of the county administration and Mr. Simonson. The plant condition had been allowed to deteriorate over time during the Petitioner's tenure as principal. His attention was called to it by Mr. Simonson and the county administration, and his reaction was that he had sent in work orders and the maintenance department had repeatedly refused to act upon them in a timely way. He also maintained that Rosenwald was getting reduced funds with which to make capital improvements or repairs, compared to other middle schools which he seemed to allude was for racially discriminatory reasons. In fact, it was established that the maintenance personnel of the county system had not delayed or refused to act upon maintenance request orders submitted by Rosenwald or the Petitioner, and it was established that Rosenwald had suffered no deficit in terms of capital outlay funds as compared to other schools. In fact, it had received more than some schools. When funds were not forthcoming for the projects which the Petitioner wanted accomplished, it was because of the great expense of constructing a new school and because of the preexisting maintenance, repair and capital outlay schedule arrived at and imposed by the prior superintendent's administration. Mr. Simonson was not able to alter this in a short period of time. Funds were scarce and had to be parceled out and scheduled for each school, taking into account that scarcity. The evidence shows in an unrefuted way, however, that Rosenwald received as much as any other school for the same items of maintenance or capital outlay and, in fact, received more than some schools. The Petitioner's testimony was impeached in these particulars. In short, it was demonstrated that the Petitioner exhibited poor leadership skills and abilities in a substantial number of the areas that, indeed, Mr. Simonson had complained to him about, verbally and in the above- mentioned memoranda. In these memoranda, and particularly the August 1, 1989 memorandum, Mr. Simonson gave specific directions to the Petitioner regarding improvement of his performance and regarding the expectations the superintendent had regarding the Petitioner's administration of the Rosenwald school for the upcoming 1989-90 school year. Thus, the Petitioner was clearly on notice that he was expected to improve his performance with regard to the areas Mr. Simonson had discussed and forewarned him about as early as the spring of 1989, if he wished to remain as principal of Rosenwald. There is no question that Mr. Simonson attributed the various discipline, leadership, organizational and management problems existing at Rosenwald to the Petitioner's poor performance as a principal. Although some improvement was noted by assistant superintendent Hamby when she evaluated the Petitioner during the 1989-90 school year, in large part, the Petitioner, instead of conscientiously seeking to effect improvements in his administration, embarked on an effort to challenge Mr. Simonson, in the electronic media and otherwise, regarding his views about the Petitioner's performance, even to the extent of publicly challenging various steps Mr. Simonson took to improve the situation at Rosenwald including his appointment of Ms. Love as assistant principal. He otherwise sought to transfer blame for shortcomings existing in the administration and management of Rosenwald to others, and to make excuses, including the attempt to publicly allege that his problems were the result of racial animus. He rallied the assistance of some of the faculty and black community to assist him in his effort to challenge Mr. Simonson. One of Mr. Simonson's major campaign positions in seeking election as superintendent was to more rigorously evaluate school personnel. He carried this intent out after his election by regularly reminding administrators of his desire that they conduct accurate evaluations of the employees they supervised. During his term as superintendent, he strictly pursued the evaluation of district administrators. This policy resulted in the non-renewal of the contracts of four administrators, who were white. They were either returned to the classroom or left the school system. During his term, he reduced one black administrator from principal to assistant principal, the Petitioner. No black administrators were either returned to the classroom or terminated. Mr. Simonson repeatedly reminded the assistant superintendents and other administrators under him, responsible for evaluating the employees they supervised with the necessity for accurate, objective, and fair evaluations. Accordingly, with a view toward evaluating the Petitioner for the 1989-90 school year, Mr. Simonson sought an evaluator who could objectively, fairly and accurately evaluate the Petitioner. Assistant superintendent, Glenda Hamby, had been hired as an assistant superintendent in June of 1989. She had not been in the Bay County school district administration or employ during the previous 1988-89 school year, having been a school superintendent herself in another county at that time. Mr. Simonson believed, because she had not been a part of the school system or administration, that she could have an objective, fresh approach in the evaluation process for the Petitioner with no preconceived notions concerning his capabilities or past or current performance. Therefore, Ms. Hamby commenced the evaluation process for the Petitioner for the 1989-90 school year. She evaluated him in accordance with appropriate, applicable procedures, and he was evaluated in the same manner as were all other principals. In accordance with Mr. Simonson's instructions to her, she actively lent assistance to the Petitioner to aid him in improving his performance in certain areas, such as pupil discipline. Ms. Hamby visited Rosenwald and the Petitioner numerous times during the 1989-90 school year. She observed him at monthly principal meetings, middle school curriculum meetings, and sometimes at special curriculum meetings. She tried to help him by suggesting that he be more visible on campus, visit classrooms more frequently, in order to project the image that learning is important, as well as to help him in making teacher evaluations. She, at all times, "bent over backwards...to be very fair". Ms. Hamby found that the Petitioner needed to make improvements in the area of leadership skills through better communication with students, faculty and other staff members, as well as administrators. She explained that an effective leader communicates well with students, parents, and staff. She rated the Petitioner "below expectation" in communicating skills because of a need to improve on internal communications with his staff, the need to give clear directions, make sure that his expectations were clearly understood, and the need to give clear, concise and properly-structured written communications. Ms. Hamby gave the Petitioner an overall evaluation of "below expectation" for the 1989-90 school year. He was given "below expectation" ratings in the areas of leadership, decisiveness, managing interaction, and communication skills. In the area of "persuasiveness", he was rated between "at expectation" and "below expectation". She tried to give him the benefit of the doubt in this area and used her discretion to not rate him at "below expectation", even though that was the category next lower than "at expectation", because she was trying to assist the Petitioner and be fair to him. Some specific examples of the communication problems exhibited by the Petitioner in his performance as principal included miscommunication concerning the location and number of students to be in attendance at the "Freedom Shrine" dedication ceremony, a faculty meeting misunderstanding between the Petitioner and assistant principal, Ms. Love, exhibited in front of the other staff members, and a misunderstanding concerning funding for an ESOL program which resulted in the Petitioner erroneously firing an aide at Rosenwald because of his belief that funds for the program were exhausted. His misunderstanding concerning the aide's salary, funding situation, and his failure to accurately investigate the situation before acting is a clear example of poor communication skills, efforts and leadership. Poor communication skills by the Petitioner are also evidenced by a summary he prepared of the May 2, 1989 meeting with Mr. Simonson. This summary, which was attached to Petitioner's FCHR complaint, contained numerous grammatical errors. The Petitioner acknowledged that the summary contained grammatical errors and admitted that improper grammar in a written communication diminishes the effectiveness of that communication. Additionally, while he attempted to blame the numerous errors in Respondent's exhibit 1 on "typos" (although it was attached to his FCHR complaint) a handwritten memorandum from the Petitioner also contains fundamental grammatical errors. See Petitioner's exhibit 68D in evidence. Ms. Hamby rated the Petitioner "below expectation" in the area of decisiveness, because she had observed the Petitioner "a number of times" not being as decisive as he should have been. She particularly noted that he had the habit of delegating tasks to other staff members without accepting any further responsibility for those tasks. He would typically not follow up on a task he delegated, but later, if he disagreed with the way the task was handled, he would disclaim responsibility on the basis of the delegation and blame mistakes on the staff person carrying out the delegated task involved, even though his was the ultimate responsibility as principal to see that the task was accurately carried out. In regard to the Petitioner's "below expectation" rating in managing interaction, Ms. Hamby recommended that he participate in a review seminar or in-service program on problem-solving techniques. Some of the reasons for the "below expectation" rating in managing interaction were the considerable difficulties he had in his relationships with two different sets of assistant principals and complaints from parents concerning discipline problems or miscommunications. Although Ms. Hamby explained her rating as to persuasiveness "at expectation" but above the "below expectation" rating as an attempt to be fair, she stated that she did see some improvement in this area in terms of persuasion and motivation of staff and students and focusing on learning, although not sufficient improvement. Her rating of the Petitioner at "below expectation" in the area of organizational ability and delegation of authority was also based upon poor communication with his staff and failure to follow up and accept responsibility for delegated tasks. Ms. Hamby explained her overall evaluation of "below expectation" in terms of the Petitioner being an administrator of substantial years of experience but who was still demonstrating many of the behaviors seen most frequently in a first-year administrator which should be corrected after the first year. In a veteran administrator, Ms. Hamby felt one should not observe those same inadequate performances. Therefore, she ranked him at "below expectation". When Ms. Hamby finished this evaluation, she wrote a memorandum to Mr. Simonson recommending that the Petitioner be re-assigned because she felt that he was simply not competent to be a principal at Rosenwald, especially given the fact that he had been a principal for a number of years and had not improved to an adequate degree. Thus, based upon her observations and consideration over the course of a substantial part of the school year, she made this recommendation to Mr. Simonson, and he approved it. In many or most of the areas concerning the Petitioner's performance, the testimony of Ms. Hamby and Mr. Simonson is in direct opposition to that of the Petitioner. In this regard, it is determined that the Petitioner was the least credible witness of the three. He was impeached a number of times upon cross-examination. He testified, for instance, in a deposition, that three maintenance directors under three different superintendents' administrations had refused to timely perform work orders requested of them for work to be done at Rosenwald. At hearing, however, the Petitioner testified that, instead, he did not feel this was the case. He answered evasively concerning whether he had really meant capital improvement projects, instead of mere maintenance work orders (capital improvement projects are not necessarily the sole decision- making responsibility of maintenance directors), and testified, in effect, that he did not feel that that was the case until he was confronted by his earlier testimony, which he attempted to rationalize. Additionally, he testified at hearing that he had never attributed disciplinary problems at Rosenwald to the large number of blacks at the school, while in his written summary of the May 2, 1989 meeting with Mr. Simonson, he repeatedly does so and blames the disciplinary problems at Rosenwald on the large number of blacks with their attendant socioeconomic disadvantages and cultural differences. In this document and in his testimony at hearing, he affirmatively expressed the desire that the proportion of blacks in the "mix" of the student population at Rosenwald be reduced in order to improve the disciplinary problems. Another instance of the Petitioner's testimony being impeached occurred when, in the course of his testimony, the Petitioner disputed the testimony of David Ruttenberg. The Petitioner emphatically testified that Mr. Ruttenberg had signed a letter of reprimand issued to him by the Petitioner. The letter was then produced and introduced into evidence and clearly was unsigned by Mr. Ruttenberg. Further, in carefully considering the testimony of Mr. Simonson, Ms. Hamby, and the Petitioner, and in observing their various personal demeanors on the witness stand, it is obvious to the Hearing Officer that the Petitioner in delivering his testimony was repetitively evasive and argumentative. He repeatedly sought to avoid directly answering questions, particularly those posed upon cross-examination. His evasiveness and argumentativeness effectively rendered his testimony pervasively self-serving. Contrastingly, the testimony of Mr. Simonson and Ms. Hamby was not effectively impeached. Their testimony regarding the deficiencies in the Petitioner's performance, when considered with that of the Petitioner, is more credible and worthy of belief. The Petitioner claimed repeatedly, but never established, that Mr. Simonson and Ms. Hamby, the various assistant principals and other administrators who had served under the Petitioner and Mr. Simonson were part of an illegal conspiracy to demote the Petitioner on account of his race. He never established that those persons had any communication between themselves concerning a scheme or concerted plan of action to get rid of the Petitioner for any reason, much less that of his race. Mr. Simonson may have expressed the intention to the Petitioner that he intended to remove him from his position if improvements were not made in the following school year, but there is no evidence whatever that Mr. Simonson and the other persons whom the Petitioner accuses of engaging in an illegal conspiracy ever communicated any illicit desire to demote or "get rid of" the Petitioner among themselves. In summary, the evidence establishes that the Petitioner did not possess the qualities of leadership, communication skills, and disciplinary effectiveness, and other skills to a sufficient degree in order to be an effective principal at a middle school such as Rosenwald. The evidence establishes that he was unable to adequately perform those duties and functions as principal. It is important to note, and it is found, that although the evidence establishes that the Petitioner did not possess these skills to a sufficient degree to justify his retention as principal at Rosenwald, it is also established that Mr. Simonson had a good faith belief that the Petitioner's performance as principal in these particulars was so deficient and acted on that belief, rather than for reasons of discrimination against the Petitioner because of his race. Upon receipt of Ms. Hamby's evaluation of the Petitioner, with the accompanying memorandum, Mr. Simonson recommended to the Respondent, Bay County School Board (Board), that the Petitioner be removed from the position of principal of Rosenwald. He did not, however, recommend his termination but rather that he be reassigned to another position. In due course, the Board voted 4 to 1 to adopt Mr. Simonson's recommendation that the Petitioner's principal contract not be renewed. Before taking the vote, the Board was advised that they could reject Mr. Simonson's recommendation that the Petitioner not be renominated should they believe it to be for discriminatory reasons and in violation of relevant federal law. The Board voted 4 to 1 to adopt Mr. Simonson's recommendation. In discussing this course of action and recommendation with the Petitioner, Mr. Simonson told the Petitioner that there was a need for and that he had a desire to create a position in the county administrative office for which he felt the Petitioner would be well-suited, which was a position that would promote the recruitment of minority teachers. It would involve a lateral transfer at the same salary level. The Petitioner said that the offer "sounded good" and that he would like to discuss it with his wife and advise Mr. Simonson at a later time whether he wished to accept the position. Mr. Simonson agreed, but the Petitioner later advised Mr. Simonson that he did not want to accept that position and thereafter, the Petitioner embarked on the campaign culminating in the filing of the petition with the Human Relations Commission accusing Mr. Simonson and the Board of racial discrimination. Thus, the evidence reveals that, initially, Mr. Simonson did not intend to demote the Petitioner, but rather, sought to reassign him to a different position in the county administration at the same salary level. Ultimately, thereafter, the Petitioner was assigned to an available position as assistant principal at MowatMiddle School. The assistant principal's position in the school district's pay scale of necessity carried a lower salary level associated with it so that the Petitioner's salary was, therefore, reduced by his assignment to that position instead of the one offered by Mr. Simonson. Mr. Simonson stated, when asked his reasons "in a nutshell" for reassigning the Petitioner, were that he had not seen the degree of improvement in the situation at Rosenwald that he would have liked to have seen exhibited during the past school year. Mr. Simonson testified that he felt Rosenwald needed a "change in direction" and it is obvious that Mr. Simonson meant that he was dissatisfied with the performance of the Petitioner as principal of Rosenwald and that, as described in his testimony, the degree of improvement he had indicated to the Petitioner was required before the 1989-90 school year commenced had not been realized at the end of that school year and the Petitioner was re-assigned. It is obvious that Mr. Simonson believed and testified, in effect, that a change in principals could bring a change in direction toward improvement of the conditions at Rosenwald, which he described in his testimony needed improvement, and which he had described as needing improvement to the Petitioner. Mr. Simonson was the decision-maker who recommended to the Board that the Petitioner be removed as principal for reasons of inadequate performance and the Board adopted that recommendation and reasons by its 4 to 1 majority vote. The evidence in the record clearly demonstrates in the form of Mr. Simonson's direct testimony that the above-mentioned reason articulated for the removal of the Petitioner as principal and his reassignment was for reasons of inadequate performance, in the context of the reasons clearly articulated in Mr. Simonson's direct testimony as the decision-maker who made the decision and recommended it to the Board. Mr. Simonson has clearly and adequately articulated nondiscriminatory reasons for the action he took and recommended to the Board and which the Board adopted. During Mr. Simonson's four years as superintendent of Bay County schools, no other black employees instituted charges against him involving racial discrimination. During his tenure as superintendent, which was only one term, Mr. Simonson hired six black administrators. This was three times more black administrators hired than had been the case with the previous administration. When the Petitioner was removed as principal, Mr. Simonson recommended, and the Board approved, the non-renewal of the contracts of four other administrators, all of whom were white. Two of those white administrators were reassigned as classroom teachers, rather than being afforded the opportunity afforded the Petitioner to remain in an administrative capacity, albeit at reduced salary. At least one of those four white administrators who were demoted left the school district either by discharge or voluntarily in order to avoid the effect of demotion. Upon the Petitioner's removal as principal, Mr. Simonson recommended, and the Board approved, his assignment of Ms. Carol Love, an assistant principal at Rosenwald, to be principal. Ms. Love is a white female. The evidence establishes that Ms. Love did provide a change in direction toward improvement of the conditions perceived as problems by the Petitioner. Students' test scores improved, discipline improved, and communication with the district personnel and amongst the school staff improved. Progress was made in terms of awards earned by the school and its students, as for instance in the local science fair competition. Under Ms. Love's administration at the school, parental and community involvement improved; and improvement was shown in instructional operations. Planning and involvement of the staff in planning and carrying out plans were shown to be improved, as were staff evaluations. Gradually, as a result of these measures, the community image of Rosenwald as an effective school improved. More efforts were made to seek new and different learning opportunities for students and educational enhancements for the school. The evidence clearly establishes that Mr. Simonson and the Board's intent and reasons for re-assigning the Petitioner was not to discriminate against him because of his race or for any other discriminatory reason, but rather to seek improvements in the educational and disciplinary environment at Rosenwald. The remarks made by Mr. Simonson during a Lions Club meeting speech concerning which there was testimony and argument in this proceeding or those made regarding the celebration of "black history month" at Rosenwald did not establish that his reasons for demoting the Petitioner were pretextual. The remarks did not express any contempt, hostility, or a discriminatory animus toward blacks as a race or toward any blacks, including the Petitioner, in particular. In fact, Mr. Simonson expressly stated that he cared for his students, both black and white, and that he desired that the Bay County school system would begin to observe Martin Luther King Day as an official holiday. He stated that while he did not have any particular strong feeling about Dr. Martin Luther King and stated, in effect, that his attitude was essentially neutral concerning the subject of Dr. King and the holiday (much like he felt about Columbus Day) that he understood that it meant a great deal to black people and black students, or words to that effect. He also stated that he would not tolerate racism of any kind in his administration and the school system, or words to that effect. These statements, and the statements he was reputed by the Petitioner to have made, concerning the manner in which the "black history month assembly" was conducted and concerning the purported singing of the song "we shall overcome" at that assembly also did not exhibit any racial animus toward the Petitioner or any other black person, individually, or as a race. The gravamen and tenor of the remarks made by Mr. Simonson were clearly to the effect that he would not tolerate racism of any kind perpetrated by any person and expressed a particular concern that no student should be made to feel embarrassed on account of his race. Such remarks and statements do not show that the employment action taken, and the reason given, was a pretext for discrimination nor do they constitute direct evidence of racial discrimination because of the substance of the statements themselves, and the context in which they were made clearly shows that Mr. Simonson did not intend to express nor to mean by the statements any verbal act of hostility or discriminatory attitude, motive, or animus directed toward any individual because of his or her race, or to any group, because of the racial makeup of that group. There was no evidence establishing an immediate past history of discrimination in the Bay County school system. Bay County had not just recently converted from a racially-dual system. The desegregation order in the Youngblood case was entered in 1970. The consent order concerning which testimony and argument has been elicited was entered in 1988. The consent order, however, cannot constitute evidence of an immediate past history of discrimination because there was no admission or proof, in the proceeding culminating in that consent order, that the Board and school district had engaged in racial discrimination. Rather, the consent order is merely a contract between the Board and school district and the potential litigants who entered into the agreement culminating in the consent order. That agreement was entered in hopes of avoiding litigation and in order to satisfy the concerns of one segment of the community concerning the issue of closing of some "sixth grade centers". The Board did not admit in the discussions culminating in the consent order, nor in the consent order, that any discrimination had or was taking place. Consequently, there has been no evidence in this case which can show an immediate past history of discrimination with regard to the Bay County school district. Neither has there been any evidence which establishes that Rosenwald had been discriminated against in terms of capital outlay funding or in the completion of work orders for maintenance or other work. Concerning capital outlay, more money per student was spent at Rosenwald than at the other three middle schools. Additionally, nine out of every ten work orders submitted by Rosenwald were performed by the district. Mr. John Bruce, chairperson of the executive council of Acure (Advisory Committee for Urban Revitalization Equity), a plaintiff in the Youngblood case and a community supporter of the Petitioner during his tenure as principal at Rosenwald and during his efforts to regain that position, admitted that he did not contend nor believe that the Respondents had not fulfilled their obligations to eliminate discrimination in the area of facilities for a period of three years or longer. In summary, the greater weight of the probative and relevant material testimony and evidence establishes that the Respondents, including Mr. Simonson, never took any discriminatory action against the Petitioner on account of his race. Mr. Simonson, as the decision-maker in the employment decision regarding the Petitioner, clearly articulated in his testimony a legitimate, nondiscriminatory reason for the action taken in removing the Petitioner as principal of Rosenwald, offering him another position suited to his talents and of equal salary, and ultimately, because he refused that position, appointing him as an assistant principal at reduced salary. The evidence establishes that the Petitioner's performance as principal at Rosenwald during the two school years in question was deficient and inadequate in such a way as to render him not qualified to hold or retain that position. The Petitioner has simply failed to prove his case.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order by entered by the Florida Commission on Human Relations finding that the Respondents have not violated Section 760.10, Florida Statutes, with regard to the employment action taken against the Petitioner, Eli Campbell. DONE AND ENTERED this 10th day of August, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 10th day of August, 1993.
Findings Of Fact This matter comes on before the undersigned for consideration following an Administrative Complaint brought by Ralph D. Turlington, Commissioner of Education for the State of Florida, against Robert J. Browne, Respondent. No genuine factual issue is in dispute because no communication, including an election of rights or an appearance from the Respondent, has ever been received. Pursuant to the above-cited rule, the matter was required to proceed to hearing before the undersigned for the presentation of a prima facie case by the Petitioner, regarding the establishment of the reputed facts alleged in the Administrative Complaint upon which the Petitioner seeks revocation of the Respondent's Certificate. The Administrative Complaint is dated July 1, 1981. After the Administrative Complaint was filed, various efforts were made to achieve service of the same on the Respondent. The Respondent never responded to the Administrative Complaint. Diligent search and inquiry failed to locate the Respondent, or a means or location whereby he might be served with the Complaint. Attempts to serve him at his last-known forwarding address resulted in the certi- fied mail being returned unclaimed and unforwardable. The undersigned attempted to serve notice of this proceeding itself upon the Respondent at the last known address with the same result. Service by publication of the Administrative Complaint was achieved by the Petitioner. The Respondent holds Florida Teaching Certificate Number 440435, Post Graduate, Rank II, which expires on June 30, 1998, authorizing him to engage in the profession of teaching in the areas of mental retardation, junior college, administration, and supervision. At all times pertinent hereto, he was employed at the Exceptional Student Educational Center in Broward County, Florida, at Eastside Elementary School. The Respondent's position was that of administrator or assistant principal at the school. The Respondent was employed at the school during the summer of 1980. Mrs. Annie Turner was employed at the school as the custodian during that same summer. She worked from the hours of 3:00 p.m. to 7:00 p.m. in the evening. She often took her son Ronnie, who was the youngest of seven children, to the school with her during her working hours. She did this in order for him to assist her in her job duties. On an early visit to the school, Ronnie met the Respondent, Mr. Browne. They met on frequent occasions thereafter, when Ronnie was at the school with his mother and talked of sports and other things of interest to Ronnie, and they ultimately struck up a friendship. Mrs. Turner began noticing that her son would go to a distant bathroom in the school and stay an inordinate period of time. This happened on a number of occasions and she noticed that Mr. Browne would follow her son into the mens' bathroom while she was engaged in cleaning another room nearby in the school. She did not feel anything was amiss until this happened on a regular basis. Finally, on a Thursday evening (she does not remember the date), in the summer of 1980, Mr. Browne and Ronnie entered the bathroom and stayed so long she opened the door to check on her son and observed the Respondent on his knees committing a homosexual act on the person of her son. She was not observed by Mr. Browne. She ultimately informed-the County Superintendent and Mr. Browne was confronted with the subject accusation by his superiors. Sometime thereafter the Respondent resigned his position at the school. Mrs. Turner no longer respects Mr. Browne and would not want one of her children in a school where he was principal or a teacher due to her apprehension regarding their physical and emotional welfare. The testimony of Ronnie Turner corroborates that of his mother, Annie Turner, and in addition, establishes that the homosexual act observed by Mrs. Turner occurred on three (3) other occasions in a substantially similar fashion and location. The occasion when Annie Turner discovered the Respondent committing a homosexual act on her son was the fourth and last of those occasions, all of which occurred during a three-week period during the summer of 1980. Ronnie Turner sougnt on several occasions to avoid association with the Respondent during this time after he became aware of the Respondent's intentions. He would not want to attend a school at which the Respondent was employed and fears that the same fate will befall other children at any school at which the Respondent should be employed. Ronnie Turner was fourteen years of age at the time the pertinent events occurred. After the Respondent resigned from his position with the Broward County School System, there ultimately ensued an Administrative Complaint brought by Ralph Turlington, Commissioner of Education of the State of Florida, seeking revocation of the Respondent's Florida Teacher's Certificate.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of counsel for the Petitioner, it is, RECOMMENDED: That the Respondent, Robert J. Browne, have his Teacher's Certificate in and for the State of Florida revoked permanently. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER 203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302 Mr. Robert J. Browne 1771 Northeast 12th Street Fort Lauderdale, Florida 33304
Findings Of Fact During times pertinent to this consolidated proceeding, the Respondent, Eugene Lamar Moore, has held teacher's certificate number 271828 issued by the State of Florida Department of Education for the subject areas of English and Bible studies. The Respondent was employed as a teacher by the Escambia County School District at Washington High School during times pertinent to the facts in this proceeding. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 231, Florida Statutes, as they relate to licensure of teachers and regulation - and enforcement of the practice standards which teachers are required to observe in the practice of that profession in the State of Florida. The Petitioner, Escambia County School Board, is a local government agency charged, as pertinent hereto, with regulating the practice and practice standards of teachers and professional conduct of teachers in its employ in the Escambia County school system. The Respondent was employed at times pertinent hereto by the Escambia County school system as a teacher at the Washington High School. He began teaching in the County under an annual contract of employment in 1970. At the conclusion of the 1973-74 school year, the Respondent was awarded a continuing contract of employment by the County School Board and has been employed by Escambia County as a continuing contract teacher ever since. On May 27, 1985, during a change of classes in his classroom, at a time when other students were present, the Respondent kissed student Rebecca Cleveland on the cheek. He had known her for approximately one year and eight months at the time the incident occurred. He felt he knew and understood her personality well enough to have no fear that lightheartedly kissing her on the cheek would embarrass her or offend her. It was not his intention to derive personal benefit or gratification by hugging or kissing Rebecca Cleveland on the cheek nor did he intend to offend, embarrass or expose her to disparagement in any way. Rebecca Cleveland acknowledged that the Respondent had never attempted to kiss her before that day and also acknowledged that she did not really believe Respondent intended to hurt her or to intentionally embarrass her. Michelle Clawson was another female student at Washington High School and contended in her testimony that the Respondent put his arm around her, attempted to kiss her and attempted to "french kiss" her. Indeed, the Respondent had put his arm around Michelle Clawson on a number of occasions for the purpose of generally encouraging her and encouraging her to take tests, but had not attempted to kiss her on any occasion. Ms. Clawson additionally contended that Mr. Moore was trying to maintain a good personal relationship with her by giving her undeserved high grades and stated that she asked several boys in the class to stay with her in Mr. Moore's room after class on the day he allegedly attempted to kiss her (presumably for protection). She also stated that Mr. Moore requested that she go to a football game with him, presumably as his date. This testimony is not credited, however, for a number of reasons. Firstly, Ms. Clawson's claim that Respondent tried to "french kiss" her was a recent addition to previous and different versions of the alleged kissing incident related in her previous statements. Concerning her charge that he was giving her undeserved good grades, it was established unequivocally that indeed Mr. Moore had actually given her an "F" during the grading period in question. Concerning her staying in his class after others had left and asking several boys to remain with her, Ms. Clawson was unable to explain why she remained in Mr. Moore's room in the first place, especially after the "boys" supposedly informed her that they could not stay with her. Concerning the alleged "football game date," she conceded that the entire class was present when the conversation occurred. It is very implausible that Mr. Moore would have asked Ms. Clawson for a date, had he been inclined to do so at all, in the presence of any other students, especially not the entire class. If such an incident had occurred it seems likely that there would have been at least one other witness to verify the nature of the conversation in question. It was also established by independent, uncontradicted proof that the Respondent was in charge of arranging buses and other logistics for football game trips and other school trips and served as a chaperone on some occasions for such events. The Respondent's version of this conversation to the effect that, if it occurred, he was merely trying to determine if Michelle Clawson would be able to attend the football game and offering to obtain permission for her from her parents, is accepted over Ms. Clawson's version. Ms. Georgette Floyd is another ninth grade English teacher at Washington High School, like Respondent. Michelle Clawson had been in Ms. Floyd's class the year previous to the one when the alleged incident supposedly occurred in the Respondent's class. Ms. Clawson did not pass Ms. Floyd's freshman English class and was required to repeat the course. She was thus assigned to repeat freshman English in the Respondent's class the year after she was in Ms. Floyd's class. Prior to the time Respondent had Michelle Clawson enter his class, Ms. Floyd warned him that Ms. Clawson might present some problems. Ms. Floyd had found that Ms. Clawson, on occasion, would attempt to provocatively expose parts of her body by sitting in a suggestive or provocative fashion and had been known to spread false comment about teachers, particularly Ms. Floyd. In summary, it is concluded that Michelle Clawson's testimony is not credible and is not credited herein. Her version of the events is simply not plausible in the face of the Respondent's and Ms. Floyd's testimony; further, she was shown to have a motive for giving an untruthful version of the events in question, to wit, her poor academic performance and failing grades in Respondent's and Ms. Floyd's classes. Ms. Floyd's testimony that Ms. Clawson had previously made a false accusation against her was uncontradicted. 1/ Concerning the charges about the Respondent's alleged loss of effectiveness in the school system, Mr. Sherman Robinson, the principal of Washington High School testified that he did not believe Mr. Moore was any longer an effective teacher at Washington High School. Mr. Robinson based this opinion on his belief that the Respondent's effectiveness was diminished as a result of the Rebecca Cleveland incident of May 1985. He conceded, however, that the Respondent had taught school at Washington High School for the entire following 1985-86 school year and indeed for a portion of the 1986-87 school year. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident became known concerning Rebecca Cleveland. That evaluation covers areas involving professional responsibility (encompassing the types of conduct in question) as well as academic performance. The Respondent's evaluation for the 1984-85 school year demonstrates that he received the highest possible score in four out of five sub-categories. He received the next highest score in the remaining sub-categories. No part of that evaluation was unsatisfactory. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident concerning Rebecca Cleveland became known. The Respondent's 1985-86 evaluation demonstrated that he received the highest possible score on that part of the evaluation that deals with professionalism or professional responsibility. All of the Respondent's teaching, after the Rebecca Cleveland incident occurred, was at Washington High School, and he received all satisfactory or higher evaluations on each category for that period of time after the Rebecca Cleveland incident.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Education Practices Commission dismissing the complaint by the Department of Education against the Respondent, Eugene Lamar Moore, in its entirety. It is Further RECOMMENDED that the Petition for Dismissal filed by the Superintendent of Schools for Escambia County should be denied and that the Respondent, Eugene Lamar Moore, should be reinstated to his position of employment as a continuing contract teacher with full back pay from the date of suspension. DONE and ORDERED this 12th day of October, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of October, 1987.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2017.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Dillard High School, Thurgood Marshall Elementary School, and Deerfield Park Elementary School) and for otherwise providing public instruction to school-aged children in the county. Respondent is employed by the School Board as a professional service contract teacher. He has worked as a teacher for the School Board since 1982 (except for a year's leave of absence following the 1994- 1995 school year). He has an unblemished disciplinary record as a School Board employee. Respondent taught music at Dillard High School (Dillard) from 1982 until the end of the 1994-1995 school year, at Thurgood Marshall Elementary School for the 1995-1996 school year, and at Parkview Elementary School from the beginning of the 1996-1997 school year until early 2005, when he was placed on administrative reassignment pending the outcome of an investigation of an allegation of sexual misconduct made against him by a former student, T. H. At Dillard, Respondent was the director of the school band and a popular teacher. Allegations of Sexual Misconduct T. H. graduated from Dillard in 1989. In her ninth, tenth, eleventh and twelfth grade years at Dillard, she was in the school band and a student of Respondent's. T. H., who lived in a fatherless household, looked up to Respondent and considered him to be a "father figure" and "role model." A personal relationship developed between the two. They began conversing with one another on a daily basis, talking "about people and about the world and different things like that." Respondent did most of the talking, with T. H. "listen[ing] to [the] the things he had to say." During "summer band," before the beginning of T. H.'s tenth grade year, the conversations between T. H. and Respondent became more intimate in nature and their relationship evolved into a physical one. The first physical contact they had that summer was in the music library adjacent to Respondent's office, when Respondent walked up to T. H., "embraced" her, and gave her an "[i]ntimate, on-the-mouth kiss." Later that summer, Respondent started driving T. H. home (but not always straight home) in his Toyota Camry after band practice. In the car, there was intimate touching between the two, including Respondent's penetrating T' H.'s vagina with his hand. Thus began the sexual relationship between T. H. and Respondent, which lasted until after she had graduated from Dillard. "[N]umerous times," after school and on weekends, Respondent drove T. H. in his car to various hotels, where they had sexual relations. They also had "dozens" of sexual encounters on school grounds, usually after school hours, in a "little back room," near the school auditorium, that was used as a dressing area. As a result of her having been intimate with Respondent, T. H. was able to observe that Respondent's penis was uncircumcised and that he had a "branded tattoo on his chest." Respondent sometimes set up a video camera to tape his sexual liaisons with T. H. He would also "send [T. H.] home with the camera" on weekends, requesting that she tape herself fondling herself and "and then bring the camera back to him on Monday" (which T. H. did). One day while T. H. was in Respondent's office, Respondent handed her a piece of "notebook paper" on which he had written the following poem: How then, can I tell you of my love? Strong as the eagle, soft as the dove, Patient as the pine tree that stands in the sun and whispers to the wind you are the one!!!![2] On another occasion when T. H. was in Respondent's office, she had a tape recorder with her and asked Respondent to "say something" that she could record. What Respondent said in response to this request was: "I love you baby, suck my dick," and "I love you baby, sit on my face."3 T. H. ended her relationship with Respondent during her first year as a student at the International Fine Arts College in Miami. It was not until 2003, approximately 14 years after she had graduated from Dillard, that T. H. decided to come forward and tell authorities about the sexual relationship she had had with Respondent when she was a student at the school. She had not come forward sooner because she did not have the courage to do so. Only after receiving "church counseling" was she able overcome her fear and become sufficiently emboldened to report what had occurred years earlier between her and Respondent. T. H. first went to the Fort Lauderdale Police Department, but was told that Respondent could not be criminally prosecuted because the limitations period had expired. In January 2005, the School Board's police unit was advised of the allegation that T. H. had made against Respondent and commenced an investigation into the matter, which included interviews with both T. H. and Respondent. On January 28, 2005, Respondent was placed on administrative reassignment with pay pending the outcome of the investigation. T. H. has "hired an attorney to pursue a civil claim against the School Board" for damages she allegedly suffered as a result of her relationship with Respondent when she was a student at Dillard. Allegations of Residing with Students From 1985 to 1987, Respondent resided in Dade County, Florida, with his wife4 and two minor daughters. For at least a portion of that time, two Dillard students stayed with Respondent and his family. One of these students was P. R., who was in the school band. When Respondent learned that P. R. was living in a residence with "no running water [and] no mom or dad," he invited P. R. to move in with him, an invitation that P. R. accepted. "Eventually," Respondent was able to make contact with P. R.'s mother and obtain her approval to "keep" P. R. P. R. lived with Respondent and his family for a year and a half. He moved out after he graduated and joined the military. The other student that stayed with Respondent and his family was C. M. Respondent's oldest daughter and C. M. both played flute in the school band and were close friends. C. M. stayed at Respondent's house on weekends and when school was not in session. C. M.'s mother never had any problem with these living arrangements. Respondent did not notify the School Board that P. R. and C. M. were staying with him inasmuch as he did not know that he was required to do so. Allegations of Corporal Punishment From 1982 to 1985, Respondent administered corporal punishment to students contrary to School Board policy (hitting female students on the hand with a ruler and male students on the buttocks with a paddle). He did not "seek permission from anyone in the [school] administration before administering [this] corporal punishment," nor did he administer this corporal punishment in the presence of another School Board employee, as required by School Board policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for having had a sexual relationship with T. H. when she was a student of his at Dillard. DONE AND ENTERED this 23rd day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2006.
The Issue Whether Respondent should receive back-pay for the period of time he was suspended without pay by the School Board of Highlands County, Florida (Board) under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to these proceedings, the Respondent was employed by the Board as a guidance counselor at Sebring High School, Sebring, Highlands County, Florida. Sometime around November 1989, N.S., a student in the Respondent's peer counseling class at Sebring High School notified Rebecca Clark (Clark), Assistant Principal, Sebring High School, that Respondent had engaged in inappropriate behavior with her and other students in the class. Thereafter, in early January 1991, J.N.A., another student in Respondent's peer counseling class, met with Clark to confirm N.S.'s allegations. As a result of the allegations by N.S. and J.N.A., Clark notified Jim Bible, (Bible) Principal, Sebring High School, of the nature of the allegations. Bible contacted John Martin, (Martin) Associate Superintendent for Administration by phone concerning the necessity of discussing the allegations, and both Bible and Clark met with Martin. Bible was instructed by Martin to interview the Respondent about the allegations, and on January 5, 1990 a conference was held which included Bible, Clark and the Respondent wherein the Respondent was confronted with the allegations. With the Respondent's approval, the conference was electronically recorded by a tape recorder. The tape was transcribed, and the transcript received into evidence as Petitioner's exhibit 5. During the conference, the Respondent talked candidly about the allegations, and although he did not deny specific allegations such as, kissing a female student on the lips or whispering to students about being pretty, or sexy or that he or some one loved them, he did not recall any specific incident where he kissed a female student on the lips or just breathed heavily into their ears or licked their ears or kissed them on the ear. Additionally, he did not recall any student pulling away from him or telling him to stop. In fact, it was Respondent's recollection that most of the contact was initiated by the students, and he had had no indication from the students that they were uncomfortable with his mannerisms or behavior. Following the January 5, 1990 conference, Martin was furnished a copy of the tape which he and the Superintendent reviewed. Following this review, the Superintendent asked Martin to talk with the Respondent. During this conference with Martin, Respondent assured Martin that there was nothing beyond what had already transpired, and Martin assured Respondent that if there wasn't then there would probably be only a letter of reprimand, but that PPS and HRS would have to be notified. Following Martin's conference with the Respondent, the Superintendent issued a letter of reprimand to the Respondent. This letter of reprimand was dated January 8, 1990 and advised the Respondent that: (a) his behavior in regards to the allegations was "totally inappropriate and unacceptable" and "enough to indicate a possible violation of Section 6B-1.06(sic), Principles of Professional Conduct for the Education Profession in Florida"; (b) he was to "consider this an official reprimand which will be placed in your personnel file upon completion of the investigation"; (c) "any future or similar behavior may result in action to terminate your teaching contract with the Highlands County School Board"; and (d) "the matter must be reported to the Department of Health and Rehabilitative Services and the Professional Practices Services of the Florida Teachers Profession". There was no evidence that Respondent repeated the conduct discussed in the January 5, 1990 conference, or the conduct referred to by the Superintendent in her letter of reprimand on January 8, 1990, or the conduct discussed with Bible in the informal conference referenced in Finding of Fact 29. The Superintendent reported the matter to HRS and PPS, and although Martin was kept abreast of the pending investigations by HRS and PPS, neither the Board nor the Superintendent made any further investigation of the Respondent's conduct which formed the basis for the Superintendent's action set out in her letter of reprimand of January 8, 1990, before the Board's suspension of the Respondent without pay on February 13, 1990. In early February 1990, HRS informed Martin that "a confirmed finding of sexual abuse had been reached by the HRS". On February 5, 1990, solely as a result of the disclosure by HRS that sexual abuse had been "confirmed", the Superintendent suspended the Respondent with pay and recommended to the Board that the Respondent be suspended without pay. In apparent disregard of the confidentiality provided for such records in Section 415.51, Florida Statutes, a copy of the complete entire HRS files in this matter was given to Martin who in turn had the files reproduced, and provided a copy to each Board member and the Board attorney before the Board's February 13, 1990 meeting. No written or other notification was provided to the Respondent that the contents of the confidential files were being provided to the Board. As a result of its receipt and review of the HRS file, the Board on February 13, 1990, acting pursuant to the Superintendent's recommendation, suspended the Respondent from employment without pay effective February 14, 1990, and such suspension to continue "until investigations have been completed by the Professional Practices Services and other agencies". The Board provided that should the Respondent be "exonerated of all charges, he will receive back pay". The Board at its February 13, 1991 meeting did not have before it any of the PPS investigatory file or any other facts found by the PPS in its investigation and, therefore, in that sense, the PPS investigation was not a factor in the Board's decision to suspend the Respondent without pay. Although the Board did have the unlawfully disclosed contents of the HRS file at the time of its decision, there was no evidence presented at the hearing that the file contained any facts evidencing any misconduct by the Respondent other than those facts known by the Superintendent when she issued her official letter of reprimand. In fact, when Martin was asked at the meeting to elaborate on the facts in the HRS file, other than those facts known by the Superintendent at the time she issued her official letter of reprimand, that the Board considered in making its decision to suspend the Respondent without pay, he declined to answer on the basis of the HRS file being confidential. Yet, Martin's testimony was that the information in the HRS file was a "significant factor" in the determination by the Superintendent and the Board to effect the suspension without pay of the Respondent. Apparently, the only additional fact known by the Board at its February 13, 1990 meeting was that HRS had reached "a confirmed finding of sexual abuse" in regards to the Respondent's conduct and that fact was a significant factor in its determination to suspend Respondent. In the late summer of 1990, Martin recommended to the Superintendent that Respondent be reinstated, but assigned to a position that did not involve student contact. The Superintendent made such recommendation to the Board, and the Board, acting on the Superintendent's recommendation, reinstated Respondent at the beginning of the 1990/91 school year but declined to award back pay. The Respondent was assigned to work with an adult school. Subsequently, the Respondent voluntarily resigned his position with the Board, and accepted a position with South Florida Community College. Martin's recommendation to reinstate the Respondent was based on the following: (a) the Respondent being on a continuing contract and nothing being done to terminate this continuing contract; (b) the resolution of the allegations made against Respondent by HRS and PPS were taking longer than anticipated; and (c) the indication that Martin had from the school board attorney that the "confirmed" report of abuse would most likely be reclassified downward, and, as such, would not warrant terminating Respondent's continuing contract. On May 8, 1991, a final order was entered by HRS in the child abuse case involving the Respondent, granting the Respondent's request for expunction, and reclassifying the report from "confirmed" to "unfounded". The final order was the result of HRS adopting a recommended order of the Hearing Officer from the Division of Administrative Hearings who had conducted a formal evidentiary hearing in the child abuse case on February 19, 1991. The PPS commenced its proceedings on June 27, 1990 by filing an administrative complaint against the Respondent, and concluded those proceedings before the Educational Practices Commission with a final order dated May 20, 1991 adopting a settlement agreement dated February 19, 1991. The Respondent chose not to contest the allegation in the administrative complaint, and neither the settlement agreement nor the final order make any findings of wrongdoing against the Respondent. As a result of the PPS action, the Respondent received a reprimand to be placed in his personnel file and his certification file, and upon re- employment in the education profession in Florida, in a position which requires state certification, to be placed on probation for a period of three years under conditions set out in the agreement. Notwithstanding Martin's understanding that Respondent's teaching certificate was suspended for short period (2-3 weeks), the Respondent's teaching certificate was never suspended for any period of time, and no action was taken which deprived the Respondent of his ability to continue teaching in the public school system of Florida. N.S. was a minor female student at Sebring High School, and a member of Respondent's peer counseling class during the 1988/89 school year (S/Y) and the fall semester of 1989/90 S/Y. Often, during the time N.S. was in Respondent's class, Respondent would give her an affectionate hug or squeeze, and would give her a kiss or peck on the cheek, forehead, or the back of the head, and whisper such things in her ear as "love you" or "you're sweet" or "you're pretty" or "you're sexy". There were occasions when Respondent was whispering in N.S.'s ear that his lips brushed against her ear. When Respondent was hugging, whispering or making remarks to N.S. it was always in the presence of staff or students in a public area of the school such as the hallway, classroom or guidance area, but never in private or off campus. Although N.S. testified that Respondent's behavior made her uncomfortable, she did not ever ask Respondent to stop or tell him or anyone else that his behavior made her feel uncomfortable. J.N.A. was a minor female student at Sebring High School, and a member of Respondent's peer counseling class during the 1988/89 S/Y and 1989/90 S/Y. Basically, J.N.A. experienced the same type of behavior from Respondent as did N.S. as set out in Finding of Fact 25, and likewise, did not ever tell the Respondent to stop or that his behavior made her feel uncomfortable. As with N.S., the incidents with J.N.A. always occurred in the presence of staff or other students in the public areas of the school, but never in private or off campus. Y.W. was a female student at Sebring High School, and a member of Respondent's peer counseling class during the fall semester of the 1989/90 S/Y. On one occasion, while Y.W. was standing next to Respondent in the class where other students were present, Respondent asked Y.W. to sit on his knee and talk about a problem, and after some protest N.S. sat on his knee. Although Y.W. considered Respondent as a "father-figure", this made her uncomfortable because it was not usual for her to sit on her father's or grandfather's lap. Y.W. also testified that Respondent probably kissed her on the cheek one time as he did with all his students, but found nothing unusual about this. There was no evidence that Respondent made any sexual overtures to any student or touched any of the females on their breasts, inner thighs, genital areas or buttocks. Clark came to Sebring High School as assistant principal at the beginning of 1988/89 S/Y (having completed three years as assistant principal at the end of the 1990/91 S/Y), and observed the Respondent exhibiting behavior similar to that expressed by N.S. and J.N.A. through late November or early December 1989 (about a year and a half). Although Clark considered Respondent's behavior as being inappropriate, enough so that she counselled her daughter not to go near him, she never told him he should stop or counsel him as to her views on his behavior even though she was his supervisor. In fact, Clark did not report the Respondent's behavior to Bible until after the beginning of the 1989/90 S/Y, sometime around November, and again when N.S. and J.N.A. came to her in late December 1989 and early January 1990. After Clark advised Bible on the first occasion around November 1989, Bible had an informal conference with the Respondent. Although Clark did not sit in on this conference she heard the tail end of the conversation between Bible and Respondent wherein Bible told Respondent "you can't do that" or "it doesn't look right" or "people will misinterpret it". Carolyn Shoemaker, guidance secretary, Sebring High School, observed Respondent exhibiting behavior similar to that expressed by N.S., J.N. and Clark, which she considered inappropriate, for about the same period of time as Clark, but she never expressed to the Respondent that he should stop or that his behavior was inappropriate. However, she did report it to Clark and Bible. Natalie Smith, Chairman, Guidance Department, Sebring High School, observed Respondent exhibiting similar behavior as that expressed by N.S., J.N.A., Clark and Shoemaker, which she considered inappropriate, for about the same period of time as Clark and Shoemaker. Although Smith was head of the department where Respondent worked, and felt this behavior to be inappropriate, she did tell him to stop or express her views on this behavior with Respondent. Smith remembers telling Bible about Respondent's behavior, but doesn't recall when she told Bible. Until Respondent's informal conference with Bible referred to in Finding of Fact 30 and the January 8, 1990 letter of reprimand, the Respondent was never disciplined, counselled or otherwise directed to refrain from his affectionate interaction with students. The Respondent's suspension without pay by the Board in February 13, 1990 was premised on the same facts and conduct which had resulted in the January 8, 1990 letter of reprimand being issued to the Respondent by the Superintendent. While the Respondent may have used poor judgment in his method of establishing rapport with the some 400 students in any given year for which he had counseling responsibilities, and his conduct may have been inappropriate under the circumstances, his conduct as established by the substantial competent evidence in the record does not rise to the level of being so serious as to impair the Respondent's effectiveness in the Highlands County School system, notwithstanding the opinion of both Clark and Smith to the contrary.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Board enter a Final Order rescinding the Respondent's suspension, reimbursing him for any pay lost as a result of the suspension, and restoring any benefits that the Respondent may have lost as a result of the suspension. DONE and ENTERED this 31st day of July, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3758 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1(1); 2(4,5); 3(5,6); 4(7); 5(7,8); 6(10,11); 7(12,15); 8(18,19); 9(25,26); 10(27); 11(28); 12(30); 13(31); 14(32); 15(21,22,23,24). Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Each of the following proposed findings of fact and adopted in substance as modified in the Recommended Order. The member in parenthesis is the Finding(s) of Fact which so adopts that proposed finding of fact: 1(2); 2(3); 3(4); 4(5); 5(5); 6(7); 7(8); 8(8); 9(9); 10(10); 11(16,17,34); 13(11); 14(12); 15(13); 16(13); 17(14); 18(15); 19(16); 20(17); 21(17); 22(20); 23(20); 24(21); 25(22); 26(23); 27(24); 28(18,19); 29(18); 30(34); 31(25,27,28); 32(30); 33(30); 34(25, 27); 35(33,9); 36(29). Proposed findings of fact 12 and 37 are unnecessary or subordinate. Copies furnished to: Donald H. Wilson, Esquire P.O. Box 1578 Bartow, FL 33830 Ronald G. Meyer, Esquire P.O. Box 1547 Tallahassee, FL 32302 Ruth E. Handley, Superintendent Highlands County School Board 426 School Street Sebring, FL 33870 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
