The Issue Whether Respondent committed any of the acts alleged in Petitioner’s Amended Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Background on Mr. Alden Mr. Alden began working as an educator in 2004 when he was hired to work at the Clark County Alternative School in Athens, Georgia. When that school closed in 2009, Mr. Alden relocated to Clark Central High School. After taking a year off to care for his terminally ill mother, Mr. Alden relocated to Florida and took a position with Gateway High School in Osceola County in 2011.3 In 2017, Mr. Alden took a teaching position with Lecanto High School (“Lecanto High”) in Citrus County, Florida. During the 2018-19 school year, Mr. Alden was an economics and government instructor at Lecanto High. He also taught one section of world history. Allegations by students regarding Mr. Alden’s conduct led to the initiation of an investigation in September of 2018 and the issuance of a written reprimand on September 25, 2018. A second investigation began on May 2, 2019, but was closed on May 9, 2019, due to Mr. Alden’s resignation from Lecanto High. Mr. Alden worked as a sixth-grade world history teacher at Liberty Middle School in Marion County, Florida, during the 2019-20 school year. As explained in more detail below, two incidents during the 2019-20 school year led to Mr. Alden not being recommended for reappointment. 3 Mr. Alden holds Florida Educator’s Certificate 1186313, covering the areas of Educational Leadership, Elementary Education, Gifted, and Social Science, which is valid through June 30, 2022. Findings as to Whether Mr. Alden Referred to Students as “Dumb,” “Stupid,” or Words to that Effect S.H. was a senior at Lecanto High during the 2018-19 school year and was in Mr. Alden’s economics class. S.H. has a learning disability and reported in September of 2018 to her case manager, Karen Harper, a math teacher at Lecanto High, that Mr. Alden would become angry with her for asking questions. Mr. Alden supposedly displayed that anger by sighing heavily and telling S.H. that she didn’t know what she was talking about.4 S.H. offered the following testimony during the final hearing: Q: Tell us about what your concerns were in Mr. Alden’s class. A: Well, I was – not repeatedly, but I have heard him putting down students. On top of that I was making a statement about something he said and he said that I didn’t know what I was talking about and that I was stupid. Q: Okay. Now, did that bother you what Mr. Alden said to you? * * * A: Yes, sir. Q: When he called you stupid, did he say this in front of other students? A: Yes, sir. Q: What you just told us here today, was that some of what you told Mr. Harper? 4 Ms. Harper also acted as a case manager for a student named A.M., who stated to her that Mr. Alden referred to him as stupid and a failure when he sought assistance from Mr. Alden. Because A.M. did not testify during the final hearing, the portion of Ms. Harper’s testimony concerning A.M.’s allegations is uncorroborated hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). A: Yes, sir, * * * Q: Okay. You say he has put you down when asked questions. What do you mean by that? What did he do? What was going on? * * * A: Like anything I would say – and, honestly, it sounded pretty dumb in my mind as well, my questions, but I could understand why he put me down, but it’s still unacceptable. But I was just saying things that provoked it. So. He put me down, like, you know, called me, you know, stupid, tell me I wasn’t – I didn’t know what I was talking about. Like that. Q: Okay. So even if you felt like you asked a dumb question, you didn’t expect him to call you stupid in front of your peers? * * * A: Yes. Because my other teachers don’t do that. Q: Okay. How did that make you feel for him to call you stupid? A: Not good. It just made me feel kind of depressed, like I wasn’t good enough for his class. Just did not feel good about it. Other former students of Mr. Alden’s from the 2018-19 school year did not corroborate S.H.’s testimony. For example, J.S. testified that Mr. Alden implied that particular students were dumb or stupid but never directly said so. However, J.S. did not explain how that implication was expressed. K.S. did not remember Mr. Alden using the words “dumb” or “stupid.” M.M. could not recall any instances in which Mr. Alden demeaned a student. C.S. denied ever observing Mr. Alden disparage a student or call a student “stupid” or “dumb.” B.S. never heard Mr. Alden call a student “dumb” or “stupid” and did not recall Mr. Alden disparaging or embarrassing any students. S.C. never witnessed Mr. Alden disparage or belittle any students and never heard Mr. Alden call any students “stupid” or “ignorant.” M.J. never observed Mr. Alden disparaging any students or call a student “dumb” or “stupid.” R.C. denied ever observing Mr. Alden disparage a student. When asked if he remembered Mr. Alden explaining the difference between “stupid” and “ignorant,” R.C. gave the following testimony: A: I remember the comment. If I believe. I mean, it’s been two years, but to my best knowledge I believe that the comment was made on the note that, as long as you’re – as long as you’re trying and you’re asking questions and you’re trying to be engaged and learn, that you can’t be stupid. But if you’re choosing not to learn and you’re choosing not to try and give no effort, then you’re just ignorant. But you can’t be stupid as long as you try. Q: Okay. And did you ever observe Mr. Alden, you know, directly, call a student stupid or dumb? A: No, sir. Mr. Alden vehemently denied Petitioner’s allegation that he referred to students as “dumb” or “stupid”: A: I spent 15 years in the classroom working with kids that have been disparaged by their community and their families. Came to me using I am stupid as their – as their – as an excuse for not putting effort into their education. They had to – they had been convinced that there was no point in trying because they weren’t – they were going to fail. I spent 15 years, from the minute I walked into the classroom, trying to convince these kids that they were not stupid, that they were, in fact, more than capable and trying to deprogram them from the belief that there was no point in trying. I made, every year, the first day of the – the first day of class I made a point to illustrate to the kids that there was a difference between ignorant and stupid. Because a lot of them conflated those two terms. I would point out that ignorant means you have not learned and stupid means you cannot learn. And to drive the point home, especially with the age group that I worked with, I went into a little conversation about human growth and development and the formation of the prefrontal cortex and that that’s the part of your brain that allows you to make rational decisions and it doesn’t finish forming until your early-to-mid 20s. * * * I also used the secondary working definition of stupidity that ignorant means you don’t know any better and stupid means you know better, but you do it anyway. And I use that to short circuit what a lot of these kids would interpret as a disparaging remark from other adults. That when an adult might say, that was stupid, they weren’t talking about you as a person, they’re talking [about] your actions. * * * Q: How often would you have to have that sort of discussion with your students? A: Well, as I said, I would do it at the beginning of the term, just to sort of begin that deprogramming process. I would also reiterate the lesson at every available opportunity. If I heard a kid say, I’m stupid, I would stop the world and point out to them, no, you’re not, you can’t be. It’s physiologically impossible and all the rest. If I heard a kid disparage another student, say that was stupid or are you stupid or don’t be stupid, I would clarify for both the student making the comment as well as the student the comment was towards, that that’s not how you want to say that. You want to say, that was careless, that was thoughtless, that was reckless. Not that that was stupid. And stress to the student that was – that had engaged in observable behavior that could be defined as a stupid action and say, look, you’re not stupid. You knew better. Think about what you’re doing before you do it. And, you know, you don’t have to worry about people coming to the wrong conclusions. Findings as to Whether Mr. Alden Told His Students That a Class Was Divided Into “Smart” and “Dumb” Sections S.B. was a sophomore at Lecanto High during the 2018-19 school year and had Mr. Alden for world history. When asked about how Mr. Alden seated students in his classroom, S.B. gave the following testimony: A: He would separate the classroom. Smart people would be in the back of the classroom and then the dumber kids, or what he would refer [to as] the kids who failed the test or didn’t make good enough grades, he would put them in the front and refer to them as dumb. Q: How did you know Mr. Alden was putting the smart kids in the back? A: He had said it. Q: And the not so smart or dumb kids in the front? How did you know that? A: He had said it himself. A kid has asked why we were being separated and he just said that he had separated the kids because the smart kids go in the back and the dumb kids go up front, is what I had overheard in the class period. Q: Okay. Did that make you feel any particular way when he would put – separate kids like that? A: Yes. Because that’s not how a teacher should be speaking to their students. So I don’t think that was right. * * * Q: Now, even though you’re in the smart group, did you feel bad for the kids that were in the, what he described, as you say, the dumb group? A: Yes, of course. Because he would always repeat and make it known that those were the dumber kids. Q: Okay. And what did he tell you he based putting the smart kids in the smart group and the dumb kids in the dumb group? How did he – did he tell you how he made that determination as to which kids were going to go in any particular group? A: Usually it would be because of the quiz grades or the test grades that we had received [that] day. J.D. was a senior at Lecanto High during the 2018-19 school year and was one of Mr. Alden’s students. J.D. offered the following testimony about Mr. Alden’s method of seating students: Q: Okay. Let’s start talking about [allegation] 3-A. Tell us what you know about 3-A. A: All right. So 3-A, it says that in the classroom he referred to students as dumb or stupid. I never heard him actually refer to any individual student individually as dumb or stupid, but I know that he did refer to people collectively as not willing to learn. But I do not know that he actually referred to any [ ] particular student as dumb or stupid. Q: Did you hear him use those words toward any group of students as being dumb or stupid? A: Implied, yes. But not directly. Q: Okay. What do you mean when you say implied? A: So, like, in the next part, in 3-B, when he divided the section into smart and dumb students. And smart students were in the back and dumb students were in the front. That did happen and that does imply that he thought that those kids were not as smart as the kids in the back. Q: Okay. So, by the way, were you in either one of those groups? A: Yes, I was. I was in the back. Q: Okay. So, you were in the smart kids’ group; is that right? A: Exactly. Q: Okay. Now, how did you – did you – did that make you feel in any way? How did you know that the smart kids were in the back and the dumb kids were in the front? I mean, how did you know that? A: Because it’s what the other kids were saying. The other kids in the class. It made them feel that the kids in the back were better than they were. And those were – those are words from the students. Like, when I was – so, in the class, I was in the back and me and another student in the back would – we would, you know, bicker and argue. So I asked Mr. Alden to move me to a different setting so that we just wouldn’t bicker and argue anymore. And when I was sitting with those students, they would always refer to me as the smart kid in the group. And it made a distinction. It actually, in a way, segregated the class based on the level of intelligence. * * * Q: Okay. Did Mr. Alden tell you that [was] why he was separating [students] into different groups? The kids who scored well on the exams were put in the back and the kids who didn’t score well, they were put in the front. A: Exactly. That is how he explained it in the beginning of the school year. Q: Okay. And you were talking about the interaction between the kids. Based on the way he had told you all he was segregating you with the kids that scored well in the back and kids that didn’t score well in the front, did that cause some tension or problems between the students in the classroom? A: I wouldn’t say tensions, but it did ostracize people who sat in the front, people who sat in the back. And then when you, like, try to talk to people from a different area, it was, like, you were either below them or above them. Q: Okay. And that was discussions among the students based on where they were placed; is that correct? A: Right. And that is my experience from sitting in a different group. K.S. was aware that Mr. Alden based students’ seat assignments on their class performance. However, he testified that Mr. Alden “never said that we were either stupid or smart in one place or another.” R.C. gave the following testimony about the seating arrangement: Q: How was the seating arrangement in Mr. Alden’s classroom, if you recall? A: It varied. Normally we could sit kind of wherever we want[ed] when we came in. But then, after test days, we would be split into groups where the first row back, if I recall, the highest test grades would be in one area and the lowest test grades in the other. We’d talk and go over the test and then we would be split into groups based on lowest test grades with the highest test grades put together and all mixed out so that everybody could help each other and help each other learn. Q: Okay. And did you find this effective? A: I believe so. Because some days I had a bad test and someone else did better and they could help me. Then if I had a better test and someone else didn’t, I could help them. You got to know everybody in the class better and I feel, again, it was just very productive overall. Q: Did the seating arrangement ever cause you any embarrassment? A: No, sir. C.S. testified that the seating arrangement helped “students that weren’t really doing well on their tests by putting students that had lower grades on tests up in front. That way [Mr. Alden] could do one-on-one with them, if needed.” When asked if the seating arrangement ever caused him embarrassment, C.S. testified that, “I actually really enjoyed it since there would be certain lessons I didn’t understand that well and so being up closer to him, it allowed me to, like, get his attention and be, like, can you help me understand this.” When asked about the seating arrangement in Mr. Alden’s class, B.S. testified that “he just put it to where he thought would be the best for people that needed to learn a little bit better. But it wasn’t like anything like embarrassing or anything like that. Like it was what he thought was the best seating arrangement to do.” S.C. seemed to agree when asked if Mr. Alden ever announced that he was dividing a class “between dumb students and smart students.” However, S.C. testified that no one took any offense and that the seating arrangement never caused him any embarrassment. M.J. did not recall students being seated based on test scores, but she did remember that students who needed more help were placed closer to the front of the classroom so that they could get Mr. Alden’s attention. She denied ever hearing Mr. Alden state that he was dividing a class into smart and dumb sections. Mr. Alden readily acknowledged that he placed students in different sections of his classroom based on test scores during the time in question and had used this method during seven school years: After the first unit test, they were grouped by their test score. So the highest performing students were in the back of the room. They were – my independent learners were in the back of the class. And the lowest scoring kids in the group were my dependent learners and they needed more support from me and I put them in – not necessarily in the first group because the very first group was closer to the door to the classroom. The second and third – the second, third – no, wait. One, two, three. The second, fifth and fourth groups were the ones closest to my desk. And that’s where I arranged the students that needed more help with the content. And sometimes it was a bad test taker or sometimes they were having trouble with the read – with reading comprehension. Sometimes it was an issue with communication with their peers. And having them closer to me allowed me to observe their interactions and, where necessary, step in and provide one-on-one support and determine if I had to address a learning deficiency or if it was a struggle – they were struggling with a particular piece of content. Mr. Adlen denied referring to students as being in “a dumb section or stupid section”: Whenever the students would make comments to that – to that end, I was vehement and immediate in my correction of it. I made – on numerous occasions I would say that the kids in the back of the room might have gotten a hundred percent on the test and the kids in the front of the room might have gotten a 90. That I only have limited amount of space and I can’t put every A in the back of the room. I don’t have enough room to put everybody in the back of the room. So everybody’s got to go somewhere and it -- ending up in the front of the room does not mean you’re low performing. It doesn’t mean you have a poor performance. There’s no such thing as good enough grades. * * * The folks in the front are the folks that need support. The folks in the back are – I’m able to leave to their own devices. Findings as to Whether Mr. Alden Used Profanity in the Classroom S.H. testified that Mr. Alden uses the words “bitch” and “shit” in class. S.C. read from a prior written statement in which he stated that Mr. Alden is “very blunt, uses uncalled for words. He speaks about other students, but doesn’t use specific names, like mistakes they have done. He cusses, such as words as damn, shit and hell. He’s used the n-word before. Does not think before he speaks.” S.B. testified that Mr. Alden “would curse a lot” and used the words “bitch,” “shit,” and “ass.” That made S.B. uncomfortable because she thinks that teachers should not be using such language around students. J.S. testified that Mr. Alden used the words “bitch,” “shit,” and “hell” in class. J.S. added that Ms. Alden expressed his preference for Milton Friedman’s economic theories by stating that John Maynard Keynes “didn’t know shit.” O.L. was a senior at Lecanto High during the 2018-19 school year and was in Mr. Alden’s economics class. She testified that Mr. Alden told a joke5 to a student in which the set-up was “what is the difference between a bitch and a ho?”6 K.S. remembered Mr. Alden using the term “shit” at least a couple of times. He also remembered the joke described by O.L. R.C. testified that Mr. Alden occasionally used profanity in the classroom. However, according to R.C., Mr. Alden did not use profanity in a derogatory manner and did not direct any profanity toward any students. C.S. denied hearing Mr. Alden ever say anything inappropriate. Mr. Alden7 conceded during his testimony that he had a relaxed attitude toward profanity: Q: The Amended Administrative Complaint in 3-C states, specifically, Respondent used profanity in the classroom, including the words bitch, shit and hell. Could you respond to that accusation? A: Incidental profanity was not a thing that I made a big deal about. It was more that the students engaged in it than that I participated in it. I did participate in it, but very infrequently. 5 The Amended Administrative Complaint did not mention the joke at issue, but Mr. Alden did not assert that he was not on notice that testimony regarding the joke would be used to substantiate the allegation that he used profanity in the presence of students. 6 I.G. did not testify at the final hearing but a written statement from her was accepted into evidence as part of Petitioner’s Exhibit 6. I.G. wrote that “Alden said ‘this is a joke’ and asked the class not to tell, because I believe some other students were making jokes about being called a whore, then he said ‘What’s the difference between a whore and a bitch? A whore gets with everyone and a bitch gets with everyone but you.’” Even if I.G.’s statement was offered to prove that Mr. Alden made the statement at issue, I.G.’s statement supplements and corroborates O.L.’s testimony. Accordingly, I.G.’s statement is admissible. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). 7 As noted in the Preliminary Statement, Mr. Alden is deemed to have admitted using profanity in the classroom. It originated with students in the class using that language without sign of disquiet. They – I remember distinctly one student saying to me, Mr. Alden, I really like your class because you talk to us about real shit. And I was, like, whoa. But he showed no signs that he was aware that he had said something inappropriate and nobody in the class showed signs that it was an inappropriate thing to say. At that point I noticed that it was – it was not an infrequent thing among the students. So rather than make it – I mean, I worked at an alternative school where I dealt with juvenile felons. I worked in a school where we – our number one problem was kids getting into gang fights. So in my career there had just been bigger fish to fry and more important issues to address. So, at Lecanto, when the students informed me, through their behavior, that incidental profanity was not a thing that they were going to get bent out of shape about, I tried to manage it in what I thought was the best way possible. I made very strict rules. Nothing over – nothing more than PG-13. Nothing that you would not hear on commercial television in prime time. And the f-word – never in anger, never towards another person, never used to aggress against another student, never used to disparage or insult another student. And the f-word was forbidden. Mr. Alden denied ever using the n-word. With regard to the testimony that he told a joke with the words “bitch” and “ho,” Mr. Alden offered the following context: I had a senior girl that was in crisis. She was being accused of being a whore by the ex-girlfriend of her current boyfriend. The agitator was a junior. My girl was a senior and she was about to graduate. She was within just a few short weeks of graduating. She came into class [visibly] upset, surrounded by a group of girls who were egging her on and she kept saying she was going to beat her. I tried to intervene to calm her down, kind of talk her off the ledge. * * * So, I did the last thing I could think to do. I just said, hey, do you know what the difference is between a b_ _ and a ho? Because that was the topic that she was upset about. Being called a whore. That got her attention. * * * And I said, so what is the difference. Tell me what the difference is. And it took a little while to kind of talk her through it, but she got the point that it wasn’t about the behavior, it was about the perception of the behavior. That it wasn’t about the person who was acting, it was about the outside observer and their judgment of the person’s behavior. Karen Harper is a teacher at Lecanto High and explained why teachers using profanity in the classroom could be harmful to learning: Q: Now, in your career, do you use those kinds of words in your classroom? A: No. Q: Do you believe – is there any particular reason why you don’t use those words in your classroom? A: It’s not professional. I know that during -- whenever you’re hired, you have to go to – the beginning of school or when you get hired by a county, you have to go through an orientation and they talk about code of ethics and things that they, you know, as a teacher, this is what’s expected of you. And that was just something that was – I know that it’s a code of ethic[s] you shouldn’t be doing that. Q: Well what about just in terms of how – based on what you know about students, how using those kinds – that kind of language impacts students? A: Some students are – you never know. Just like in [the] general population. You don’t know who you’re going to offend, who you’re not going to offend. So it’s best just to avoid it and not say them. * * * Q: Okay. So, but if the teacher wants to characterize a person in a history book as a bitch or something that they did in the context of history as . . . If the teacher, then, wants to say that something that the queen or the king did was shitty, in your professional view, is that an appropriate context to use those kinds of words? A: No. Teachers and students at Lecanto High are prohibited from using profanity. Findings as to Whether Mr. Alden Embarrassed J.S. by Engaging in a Religious Debate and Stating That a Belief of J.S.’s Was “Demonstrably Fallacious” M.M. was a senior at Lecanto High School during the 2018-19 school year, and Mr. Alden was his economics teacher. On a day in early May of 2019, M.M. disclosed to classmates sitting at his table during economics class that he was transgender, and that led to his classmates asking several questions about M.M.’s family life and religious views. When M.M. expressed a favorable view about Jehovah’s Witnesses, J.S. approached the table where M.M. was seated, stood over him, and inserted himself into the conversation. M.M. described the ensuing events as follows: I can’t remember exactly what brought up J.S. joining this conversation. I do remember that I started with saying my own opinion on Jehovah’s Witnesses, stating that it was a truer religion than most that I have viewed. And I remember him walking up to my desk, standing less than a foot over me while I was seated. And I am a very, very short, small man. Very, very scared of many people, especially in high school. He stood over me and he told me right off the bat that I was wrong. And I said, it’s okay, man, no problem. Conversation over. We’re done. And I just acted as if I was going back to my assignment. He was like, no, no, no, you are wrong. And I want to tell you that you are wrong and that Jesus and God are one and the same. And I was, like, okay, that’s your belief, my belief is different. Just, that’s it. He was, like, no, no, man. And I was, like, I don’t want to – I don’t want to deal with someone pushing someone’s beliefs on me right now. You know, I’m in school, I just want to finish my assignment. And he was like, I’m not pushing my beliefs, I’m enlightening you. And as he’s talking to me he is in a way towering over me, is how I viewed it. I’m assuming that Mr. Alden saw that I was getting very uncomfortable and Mr. Alden came to the other side of me, looked at Mr. J.S. and said, you are wrong for doing this to him, you need to back off. And at that point, the conversation diverted, while it was over me, still to J.S. going after Mr. Alden with the same phrases and repeating the exact same argument that he was doing to me. Mr. Alden kindly enough diverted the argument away from my desk and got sort of to the other side of the classroom at that point. J.S. described the events in question as follows: So they were talking about that topic and they were talking – kept talking about, you know, mainstream Christianity. So I walked over there and I wanted to share my belief, since they were already on that topic, to inform them of that in case they were not aware of a different way of thinking, a different way of believing. So I walked over there and I made the comment, I said, did you know that Jesus is God. And after I said that comment, Mr. Alden walked over to me and he said, don’t say that Jesus is God. That’s demonstrably fallacious. And Jesus is God is one of the core beliefs of my faith. The fact that [he] believes that Jesus is God and that God is the Holy Ghost and that all of them are one person is one of the founding principles of what I believe. So in essence, he was saying, don’t say what you believe is true, because it’s clearly and evidently based on something that is false. * * * And after that, he engaged me in a whole debate, trying to prove what I believe to be wrong in front of all of [my] peers. Q: Okay. So his demeanor towards you while he was telling you that what you believe was demonstrably fallacious, what was his demeanor like? A: It was cocky, it was arrogant, it was – it seemed like he thought no one could ever prove him wrong. And even when you tried to use the sources that you draw your faith from, such as the Bible, I was – when we were talking, I was trying to use scriptures that I believe to be doctoral scriptures from the Bible. And he said – he told me that I could not use the Bible because it was inaccurate and false, due to the Council of Nicaea. So he not only was disparag[ing] my faith, but he disparaged the spiritual book that I draw my faith from. Q: Okay. Emotionally how did that make you feel? A: Emotionally, I was embarrassed. I was upset. I was angry. But I was just going to let it -- I was just going to let it go. I was just going to let it roll off – roll off like water on a duck’s back. The undersigned does not credit J.S.’s assertion that he was embarrassed. During his testimony, J.S. presented as a very outgoing and opinionated young man who has no inhibitions about expressing his views and engaging in debates. In fact, J.S. testified that “I am a, you know, I hate to say it, but I am an opinionated person and that tends to get me into discussions based on different topics, such as, you know, politics, opinions, the whole nine yards.” Mr. Alden’s description of this incident corroborates M.M.’s testimony, and his description of J.S. matches the opinion formed by the undersigned: [J.S.] was aggressively opinionated. And I had to remove him from two groups at the request of the members of his groups because he would not acquiesce ever. A big part of the class was they would take quizzes as a collaborative group and they would discuss and debate what was the best evidence for their answers on the quiz. And J.S. would not keep – J.S. would get his opinion on what was the best evidence and he would not hear anyone nay-saying it. So, two different groups of kids said, could you please remove him because we can’t have a debate with this guy. He was also very aggressive about his religious beliefs. And I, on more than one occasion, reminded him that belief is individualized. You cannot require anybody else to agree with your beliefs. If it’s just a matter of a difference of opinion on beliefs, on faith, then you have to agree to disagree. It’s unjust. Otherwise it’s unjust. The particular incident involving M.M. – M.M.’s characterization of the interaction is a lot more intimidating than I thought it was. I just – I just saw J.S. in the back of the room with a group that had asked him to be removed from them. And I stepped up to just sort of reestablish that boundary. That, you know, this is -- this is a group of kids that really doesn’t – they got a problem with you, there’s a personality conflict or something going on here. I had no – I didn’t know that M.M. was feeling bullied at the time. And I – when I stepped to M.M. or when I stepped to J.S., I heard him – all I – I heard him say that Jesus and God are literally the same thing. And I heard M.M. very gently disagreeing, but clearly not wanting to get into a debate – a debate with J.S. I certainly did not want to get into a debate about religious beliefs, so I employed the Socratic method and I just asked J.S., what do you base that on. And J.S. said, I base it on the Bible. And I said, okay. Let me just ask you questions based on your source material and let’s see if we can figure out if that’s an accurate claim. Like, can you make that claim using your own sources. And I just asked him a few simple questions about the biblical nature of God as defined by the Bible and the nature of Jesus as outlined in the Bible and showed the contrast between God of the Bible and the Jesus of the Bible to show him that, okay, that claim, you can’t defend. You can’t make that claim based on the source material. Findings Regarding the Allegation that Mr. Alden Grabbed a Student’s Hair Mr. Alden taught world history at Liberty Middle School in Marion County, Florida, during the 2019-20 school year. K.R.H. was a student at Liberty Middle School that year and had Mr. Alden for eighth-grade history. On approximately October 8, 2019, K.R.H. was walking into Mr. Alden’s classroom and Mr. Alden was positioned near the entrance. K.R.H. had long hair and was wearing it in a ponytail. She testified that Mr. Alden “pulled my hair pretty roughly and it made my head go back a little.” K.R.H. did not say anything to Mr. Alden. However, when she looked back at him, she testified that he was laughing and did not offer an apology. K.R.H. called her parents about the incident, and her father then called the school. Melissa Forsyth, the principal of Liberty Middle School, fielded the call and began an investigation. In addition to interviewing K.R.H., Ms. Forsyth interviewed two other students who witnessed the incident and corroborated K.R.H.’s assertion that Mr. Alden pulled K.R.H.’s hair.8 Ms. Forsyth and her assistant principal viewed security camera footage of the incident9, and Ms. Forsyth discussed the incident with Mr. Alden: And we saw Mr. Alden’s hand go around her ponytail and kind of -- it went up and then her head tilted back as she was walking into the room. Q: Okay. Did you talk to Mr. Alden about that? A: We did. Q: What did he tell you? A: So at first he said that he oftentimes greeted students at the door. High fives, fist bumps, elbows. And he never pulled anyone’s hair. I did take that opportunity and reminded him that there were security cameras in the hallway. And then he said, he swatted at K.R.H.’s ponytail jokingly to flip it and a finger got caught in a tangle. Q: So is it your testimony that when you first talked [to] Mr. Alden about it, he denied ever pulling the student’s hair? A: Yes, sir. Q: And then when you informed him that you had video and you had seen him grab the student’s hair 8 Neither of the alleged witnesses testified at the final hearing. 9 The security camera footage was not offered into evidence during the final hearing. and pull her head back, did he – that’s when he told you what he did was swat at her head? A: Right. I didn’t tell him I saw anything. I just reminded him that there were video cameras in the hallway. Q: Okay. And then that’s when he changed his story about what happened? A: He swatted at her ponytail jokingly to flip it and a finger got caught in a tangle. Q: Okay. Now, is that what you saw when you observed it yourself? A: It did not appear that way. Q: Okay. It appears as you’ve described, that he grabbed her ponytail and pulled her head back; is that correct? A: That it was – that it was around the hand – the hair and then her head tilted back after it went up. While denying that he grabbed and pulled K.R.H.’s ponytail, Mr. Alden testified that his hand accidentally got entangled in K.R.H.’s hair: I was standing at – I was standing in the doorway on the hallway side, greeting students as they came in. The doorway was inset about three feet from the wall. So, if I’m standing in the doorway observing the hallway, I couldn’t clearly see into the classroom. As K.R.H. came in I said, hi, she said hi. And as she – I put my fist out to bump her and as she walked by I – I assume she didn’t see me with my hand out or she was distracted. As she walked by, I swatted at her ponytail, just like, oh, you’re going to ignore me. Okay. Swatted at her ponytail. I wear a ring on my little finger and it got caught – my finger or the ring or some combination got caught in her hair and that’s – that’s why on the camera it appeared to flip up and then get pulled back down because that’s how gravity works. You hit a thing, it’s going to fall back down. Got my finger caught and her head came back and I got my finger out. She kind of jerked. I said, my bad. I couldn’t really say a lot to her because there was another student right in front of me that was in the moment trying to get my attention. So, just – it was just an incidental movement that got taken wildly out of proportion. Findings Regarding the Allegation that Mr. Alden Embarrassed a Student by Touching His Forehead and Saying “Think.” Kayla Palacios was an assistant principal at Liberty Middle School during the 2019-20 school year, and she was conducting a formal observation of one of Mr. Alden’s classes on February 25, 2020. She testified that Mr. Alden was standing at the front of the classroom and directing questions to specific students. When A.C. was unable to answer the question posed to him, Ms. Palacios testified that “Mr. Alden poke[d] A.C. in the forehead with two fingers and A.C.’s head went back.” Ms. Palacios discussed the incident with Mr. Alden later that afternoon and relayed that it is inappropriate for teachers to touch students. According to Ms. Palacios, Mr. Alden “acknowledged it and we moved forward from that conversation.” Because she considered the incident sufficiently significant, Ms. Palacios informed Ms. Forsyth about it the next morning. Mr. Alden described the incident as follows: On this particular day I was being observed, so I wanted to make a good impression on Ms. Palacios. So, I went to A.C. on a difficult question that I was sure he would have the right answer to. And he didn’t. He kind of flubbed the answer a little bit. And when I didn’t give him that immediate, you’re right, he got flustered. And because he was, you know, the teacher’s pet and because he was the guy that always had the right answer, his peers were starting to kind of snicker. There was a little bit of tension between him and the rest of the class that didn’t really bother him, usually. But on this day, when his friends were snickering and he felt like he had it and then realized he hadn’t, he got a little flustered. To try to focus his attention on me and ignore the rest of the class, I very delicately placed two fingers on his forehead, while he was looking up at me. He did not have his head down. He was looking me in the face, trying to figure it out. And I just – and I just – to focus him, stop, think, think about what you’re doing, you know this, you’ve got this. And he did. He came up with the correct answer. And he beamed when he got it right. A.C. did not testify at the final hearing, and there was no evidence as to whether Mr. Alden’s action embarrassed him. Ultimate Findings Regarding Petitioner’s Allegations Petitioner’s first two allegations are closely related. The first alleges that Mr. Alden referred to students as “dumb,” “stupid,” or words to that effect. The second alleges that Mr. Alden told his students that his class was divided into one section for “smart kids” and another for “dumb kids.” Petitioner presented testimony from S.H. and S.D. that clearly supported the first two allegations. Because the other witnesses who testified about these allegations contradicted the testimony given by S.H. and S.D., the undersigned is not left with a firm conviction regarding these two allegations. Thus, Petitioner did not prove the first two allegations by clear and convincing evidence. In contrast, Mr. Alden’s own admission and the witness testimony clearly and convincingly established that Mr. Alden used profanity in the classroom. Moreover, Ms. Harper, a teacher at Lecanto High, persuasively testified why teachers using profanity in the classroom is harmful to learning and would reduce a teacher’s effectiveness. However, there was no persuasive evidence that any students were seriously harmed by Petitioner’s use of profanity. Petitioner also alleged that Mr. Alden embarrassed J.S. by engaging J.S. in a religious debate and telling J.S. that one of his religious beliefs was “demonstrably fallacious.” Even if Petitioner could prove that Mr. Alden characterized one of J.S.’s religious beliefs as “demonstrably fallacious,” Petitioner has not proven that the debate between Mr. Alden and J.S. embarrassed the latter. After having the opportunity to observe J.S.’s demeanor, the undersigned does not credit J.S.’s assertion that he was embarrassed. As for the allegation that Mr. Alden grabbed K.R.H.’s hair and caused her head to be pulled backwards, there is no doubt that one of Mr. Alden’s hands made contact with K.R.H.’s ponytail and caused her head to be pulled backwards. The only question pertaining to this allegation is whether Mr. Alden grabbed K.R.H.’s ponytail or inadvertently got entangled with it. Other than Mr. Alden and K.R.H, Ms. Forsyth was the only witness to testify about the incident. However, her testimony was based on her observation of security camera footage, and Petitioner did not attempt to move that footage into evidence. As a result, there is no way to ascertain whether the footage was detailed enough for Ms. Forsyth to accurately distinguish whether Mr. Alden grabbed K.R.H.’s ponytail or inadvertently got entangled within it. In other words, the absence of that footage and the absence of testimony from other witnesses at the scene of the incident precludes the undersigned from finding that Petitioner proved this allegation by clear and convincing evidence.10 10 This finding should not be construed as the undersigned accepting Mr. Alden’s version of events. Even if Mr. Alden simply swatted at K.R.H.’s ponytail, he exhibited poor judgment by doing so. He also exhibited poor judgment by using profanity in the classroom. Petitioner also alleges that Mr. Alden embarrassed A.C. by touching A.C.’s forehead and saying “think” when A.C. was initially unable to answer a question. While the evidence clearly and convincingly established that Mr. Alden touched A.C.’s forehead, there was no evidence as to whether A.C. was embarrassed thereby because A.C. did not testify. Accordingly, this allegation was not proven by clear and convincing evidence.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and 14 Rule 6B-11.007 was last amended on December 10, 2019. None of the provisions relevant to the instant case changed. section 1012.795(1)(j) through rule 6A-10.081(2)(a)1., and that Respondent’s educator’s certificate be placed in probationary status for one year. DONE AND ENTERED this 2nd day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2021. Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is Clarence Davis, holder of teaching certificate number 137897 issued by the State of Florida. Respondent is currently employed by Petitioner as a teacher pursuant to a continuing contract which has been in effect since April 21, 1971. Respondent is presently a teacher at Azalea Middle School. In September of 1988 or early October 1988, a 12 year old female student, J.B., in Respondent's gym class complained to Respondent that another student was hitting her. Respondent refused to take any action. From his view of the class seating arrangement on the gym bleachers, Respondent felt there was no way that the student accused could have hit the complainant. Respondent told J.B. to stop crying like a baby. Respondent had been previously requested to use extra sensitivity in dealing with J.B. because she was a recent victim of a violent sex crime. J.B., through her parents, subsequently requested and received a transfer from Respondent's class by the school principal. At the beginning of the 1988-89 school term, D.W. was a student in Respondent's gym class. D.W. testified that Respondent yelled at him in a rude manner and propelled him into a fence on an out door court yard who he hit a volley ball incorrectly. D.W.'s testimony in this regard is not credited because his version of events was not corroborated by other testimony and is in conflict with testimony of Respondent that the incident did not occur and that D.W.'s class did not participate in any out door volley ball activity. D.W. admitted he "mouthed off" to Respondent on several occasions. When Respondent would give D.W. a directive, D.W.'s response was "no". Such an admission is inconsistent with D.W.'s testimony that he was afraid of Respondent; therefore that portion of D.W.'s testimony also is not credited. The principal of the school transferred D.W. from Respondent's class at the request of D.W.'s parents and because D.W. did not have respect for Respondent. Due to his absence on the day that volley ball teams were chosen, V.C. was not assigned to a team when he returned to Respondent's gym class on or about October 19, 1988. V.C. was not supposed to be seated in the gym bleachers with other students who were excused from "dressing out." Respondent yelled at V.C. and told him to get out of the class. V.C. complied and went to the school administrator's office. V.C. was not given a pass or a referral by Respondent in accordance with school policy requirements. V.C. was frightened by Respondent's action. A subsequent parental request to transfer V.C. from Respondent's class was granted by the school principal. On October 20, 1988, Respondent went to the classroom of a fellow teacher, Ms. Moore, and gestured through the glass portion of the door for her to come out and speak with him. She started her class to work on an assignment and stepped out the door to speak with Respondent. The conversation lasted four to five minutes and dealt primarily with Respondent's concern that he was being harassed by school administrative officials. Petitioner's policy no. 6Gx52-2.08 directs that class interruptions must be made at such times as will not interrupt classroom instruction. Just prior to the conversation with Ms. Moore, Respondent had spoken with the school principal in the principal's office. At the meeting with the principal, the principal deliberately left his door ajar for Respondent, not wanting to have a closed door meeting with Respondent. Respondent came into the principal's office and shut the door. Respondent was told by the principal that D.W. would be transferred to another class. Respondent argued with the principal, shook his finger in the principal's face and said "I won't be treated like a child." When the principal reached for the door handle, Respondent held the door shut and continued speaking in a voice loud enough for administrative personnel seated at desks approximately 15 feet outside the door to become concerned. The principal did not ask Respondent to open the door or to remove his hand from the door. Respondent then left the office, walked a short distance toward the exit to the administrative office section, and came back to the door of the principal's office where he again shouted that he wasn't being treated fairly, or words of similar import. Respondent then left the area. Another 13 year old male student, P.L., was transferred from Respondent's class at the request of his mother after the first grading period of the 1988-89 school year. P.L. received an "F" from Respondent for the first grading period because P.L. refused to dress out for physical education class. P.L. also witnessed Respondent yell and scream at other students. P.L. did not recall specific incidents and his testimony cannot be credited as corroborative of any particular incident alleged against Respondent. On or about October 28, 1988, Respondent grabbed D.B., a 14 year old seventh grade student, who was in the process of fighting with another student. As established by Respondent's testimony, D.B. is a "street smart" kid adept at fighting who poses a danger to other students in such a situation. As a result, Respondent held D.B.'s arm and carried him back to his office from the floor of the gym. D.B. is still in Respondent's class. Testimony of D.B. that Respondent intentionally twisted D.B.'s arm is not credited due to the demeanor of the witness while testifying; the lack of corroborative testimony of Respondent's arm twisting conduct by other witnesses; the testimony of another student, L.H., that he observed the incident and did not see D.B.'s arm twisted; and Respondent's denial of such action. On or about September 5, 1986, the principal of the school where Respondent was then employed, counselled Respondent concerning his aggressive touching of students. Respondent was reprimanded in a memorandum from the principal of Azalea Middle School dated April 18, 1989, for unprofessional conduct. The Superintendent of Schools for Pinellas County reprimanded Respondent by letter dated June 1, 1988, for failure to meet professional standards relating to personal conduct. Respondent was warned that failure to follow administrative directives and treat colleagues and staff in an appropriate and acceptable manner in the future would result in a recommendation to Petitioner that Respondent be disciplined through suspension or termination of employment. The Director of Personnel Services for Petitioner was presented at final hearing as an expert in education practices and administration. Based upon his review of Respondent's previous disciplinary record, he opined that disciplinary action was appropriate. While he had met with Respondent to advise him of the disciplinary matters pending against Respondent, the director admitted that he did not discuss with Respondent the alleged incidents involving students J.B., V.C., D.W., and P.L.; therefore he did not have the benefit of information from Respondent in formulating an opinion regarding the appropriateness of the discipline proposed in this case. The school principal never consulted Respondent with regard to learning Respondent's version of the incidents involving students J.B. or D.W. The principal heard Respondent's version during the October 20, 1988, meeting with Respondent in the principal's office. Notably, the principal did meet with D.W., his parents and another instructor in a different class to resolve behavioral problems in that class. As stipulated by the parties, Petitioner bases Respondent's suspension for three days without pay upon Respondent's alleged actions with regard to students J.B., D.W., and V.C.; his confrontation with the school principal on October 20, 1988; his discussion of the matter with fellow teacher, Ms. Moore, on October 20, 1988; and his alleged failure to comply with previous directives to correct deficiencies in his professional behavior as set forth in previous reprimands. Petitioner's second suspension of Respondent without pay for a period of five days is based upon allegations that Respondent engaged in actions after November 8, 1988, and prior to December 14, 1988, consisting of pushing and shoving students in a punitive manner; that such alleged misconduct by Respondent occurred while the previous suspension action of November 8, 1988, was still pending; and that Respondent had been previously warned in reprimands issued to him in 1986 and 1988 to refrain from such conduct. The basis of the allegation regarding Respondent's pushing and shoving of students, relied upon by Petitioner to support the second suspension, consists of the incident involving student D.B. A second incident involving student M.S., a female in the sixth grade physical education class of Respondent, occurred after the December 14, 1988 date of the charging instrument for the second suspension and is not credited with regard to present charges.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in Division of Administrative Hearings Case No. 88-5720 and Division of Administrative Hearings Case No. 89- 0344 dismissing the proposed suspensions of Respondent from his employment. DONE AND ENTERED this 21st day of April, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-5720 AND 89-0344 Rulings on Petitioner's Proposed Findings of Fact: Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact, paragraph 4. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact paragraph 5. Rejected as contrary to the weight of the evidence. However, as to material findings see paragraphs 5, 6, and 7. Accepted. Finding of Fact, paragraph 5. Accepted in material part in Finding of Fact, paragraph 6. Accepted in material part in Finding of Fact, paragraph 6. Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary. Paragraph 19 is accepted. Finding of Fact paragraph 6. Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8. Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car. Paragraph 22 is accepted. Finding of Fact paragraph 12. Rulings on Respondent's Proposed Findings of Fact: Accepted. Finding of Fact paragraph 2. Accepted in part Finding of Fact paragraph 3. Rejected as to suggestion, Respondent did not know. See subsequent findings of fact paragraph 5. Accepted. Finding of Fact paragraph 5. Accepted in material part in Finding of Fact paragraph Rejected as to conclusion Respondent was not aware of the conversations between Butler and Washington which took place in Respondent's presence. Accepted only as addressed in Finding of Fact paragraph 9 otherwise rejected as contrary to the weight of the evidence. Accepted but unnecessary since true origin of funds was known to Respondent. Accepted as it states Respondent accepted loan-see findings of fact paragraphs 6 and 7. Rejected otherwise as contrary to weight of credible evidence. Accepted but is unnecessary. See Findings of Fact paragraph 10 as to material findings. Accepted in material part in Findings of Fact paragraphs 11, 12; otherwise rejected as contrary to weight of credible evidence. Accepted in material part in Finding of Fact paragraph 13. Rejected as contrary to weight of credible evidence. Rejected as argumentative. Rejected as argumentative. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 1960 East Druid Road Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue Southwest Largo, Florida 34640
The Issue Whether Respondent committed the offenses set forth in Administrative Complaint and, if so, what penalties should be imposed?
Findings Of Fact Respondent holds Florida Education Certificate No. 670247 and has been employed in the Bay County School system for 10 years. At all times material to this proceeding, Respondent was employed as a teacher at A.D. Harris High School, an alternative school for students who have problems in main stream high schools in the Bay County School District. Respondent has received satisfactory evaluations with no areas requiring improvement during his eight-year tenure at the High School. M.M., a female student at A.D. Harris High School from eighth grade through twelfth grade, graduated from the high school in June of 1998. During her eleventh-grade year (school year 1996-1997), M.M. was in Respondent's first period media production class and also in his homeroom class. M.M. made good grades in the class and was not a disciplinary problem. Anita Goodman is the principal of A.D. Harris High School. Students frequently discuss their personal problems with teachers and Goodman has encouraged relationships of trust between students and teachers. She cautions teachers, however, to be careful in the course of such activity, particularly with regard to male teachers providing counsel to female students on a one-to-one basis since often any resulting accusations become a credibility issue of student versus teacher. Notwithstanding Goodman's advice, Respondent became the confidant of M.M. during the course of the school year. When M.M., who is white, initiated a discussion with Respondent concerning the difficulties of her relationships with the black boys she was dating, Respondent told her to try dating white boys since she was having trouble with the black male students. Some time later, allegations were made by M.M., to the effect that Respondent spoke with her on two occasions and made denigrating comments about her associations with black males. These allegations by M.M., surfaced weeks after the alleged occurrences and after referral of M.M.'s boyfriend, J.W., to the office by Respondent for fighting (a fact corroborated even by M.M.). Based upon her demeanor, M.M.'s testimony is not otherwise credited. Conversely, Respondent is the father of two adopted children of Korean lineage who socialize with black and white teenagers. Students of both races are jointly entertained in Respondent's home. Respondent has no history of using racially derogatory terms in school or at home.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 19th day of May, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2000. COPIES FURNISHED: H. B. Stivers, Esquire Law Offices of Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301 J. David Holder, Esquire Post Office Box 489 Defuniak Springs, Florida 32435 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact At all times pertinent to the issues herein, Respondent, Glover E. Jones, was licensed as a teacher in the State of Florida holding certificate number 556798, covering the area of mathematics, and was employed by the Madison County School Board as an adjunct instructor at Madison County High School, Madison, Florida. The uncontroverted facts in this case show that Pamela Ann Hale, the alleged recipient of the remarks in question here, was born on August 28, 1969. As of the date of the hearing, she was living with her mother in Live Oak, Florida, attending the 10th grade at Suwannee High School there. At the time of the alleged incident here, she was living with her father in Madison and attended Madison County High School. Her mother and father are divorced. While attending Madison County High School, Hale had the Respondent as her math teacher during the third period of the school day during the month of September 1984, at the beginning of the 1984-1985 school year. She did not have him for any other subjects nor did she know him prior to the beginning of the school year. This class was made up of students who required extra assistance and consisted of approximately 15 to 16 students in remedial math. On the day in question, Hale was selling candy during the class period to raise money for a school organization. She sold candy not only to her fellow students but also to the Respondent. At this point the stories told by Ms. Hale and by the Respondent begin to diverge. Ms. Hale contends that when she approached Jones on the date in question to buy candy he advised her to come back after class and she could sell him some. She contends, also, that she came back after the other students left even though she had another class (health) to attend, sat down at a student desk, and Respondent sat down facing her approximately three or four feet away. It is at this point that, she says, he asked her simple questions about herself and her family. When she answered, he then allegedly asked her if she had ever "fucked" a black man before. He allegedly told her she looked sexy that day. She says he asked her if she noticed that he "had a hard on" and touched himself in the genital area, asking her if she thought she could handle that. At no time, however, did Respondent ever touch the witness. She says he asked her if she had ever "fucked" anyone while someone else was in the room. She replied that she had not. He allegedly asked her if she had a boyfriend and when she said she did, he is alleged to have responded, "I'll bet you fuck him because he's not black." This conversation went on until about 10 or 15 minutes before the fourth period was over. As was stated previously, the witness had health the fourth period and cut the class because, as she tells it, Respondent asked her to stay. While she was in the room with Jones alone, a Mr. Alexander, also a math teacher, entered, along with two other students. While in the room, Alexander asked Respondent if the witness was having any trouble with her work to which Respondent replied that she was, but indicated he would take care of it. Alexander verifies this with the exception that according to his testimony, when he came into the room, Respondent was seated at his desk writing a note and Hale was standing in front of him. This is not a significant difference. After Alexander left, Respondent asked the witness several questions about her siblings including her sister who formerly went to Madison High, but who quit when she had difficulty with some black students the previous year. He asked her if she was going to go to the ball game the following Thursday and, when she replied that she was, she says he suggested that perhaps they could get together that night. Ms. Hale contends she was amazed that Respondent talked to her in this fashion but she also contends she did not leave because she was afraid of him, though he made no threats, either verbal or physical, toward her and made no effort to prevent her from leaving. She also made no comment to Alexander when he and the other students came into the room even though these suggestive statements had already been made. She finally terminated the conversation toward the end of the fourth period by stating she had to go to her next class. Before she left, she asked Respondent for a note, which he gave her and asked her not to repeat the conversation they had had. During fifth period, Hale had lunch scheduled and during lunch with Loretta Sealy, she related in general terms, to Sealy, what had happened. After lunch, she went to the remainder of her classes and went home but even that night, she failed to tell her father of the incident because she was afraid he might do something as a result of his hot temper. Sealy indicates that when she first saw Hale after the incident, when Hale came into the ladies' room, she appeared nervous, upset, and near tears. She said that Respondent had said things which upset her--in essence propositioning her. At first, Hale did not want to report the incident because she felt nobody would believe her. However, Sealy finally convinced her to do so and the two girls went to see the assistant principal, Ms. Miller, two days after the incident took place. Hale told Ms. Miller what had happened and signed the first of several written statements which was prepared for her signature by Miller based on the report given. Later on, she agreed to take a polygraph examination regarding her story. No evidence was presented as to whether the exam was given or not. Ms. Hale attended class with the Respondent during the several days between the time of the alleged incident and the report to Ms. Miller, but once the story came into the open, she was removed from his class. She talked with Miller rather than the principal because she had known Ms. Miller from her prior school. The fact that she did not talk with the principal had nothing to do with the fact that he is black. Respondent's version of the story differs from that of Hale in that he contends that at the end of the class period on the day in question, Hale asked him if she could stay after class. He contends that her remaining had nothing to do with buying candy because he bought candy from her when she came to class. He also claims that she did her homework during this fourth period when she and he were the only people in the room. While she was working, he was behind his desk and she was sitting at a student desk off to his left. Respondent contends that it was Hale who made the first non-business statement by asking him if she could go smoke. He told her that she could not since smoking was not allowed on campus. She responded that another teacher, Mr. Hendrix, had allowed her to smoke in the school building and then went on to indicate that she had "messed" with guys in their twenties when she was twelve. This statement, which came immediately after the comments about Mr. Hendrix and smoking, shocked him. The only reason he did not ask her to leave was because she appeared to have a problem and he thought he might be able to help her. During the course of the conversation she indicated that some blacks had attacked her sister the previous year on campus which had caused her sister to leave school and that, in general, all black students at Madison High were wild. Though Ms. Hale, in her testimony, indicated that when asked by Respondent if she had ever fucked a black man, she responded by asking him if he'd ever fucked a white woman, Respondent denies that Hale ever asked him this question nor did she mention drugs to him in any fashion. He denies making any of the comments attributed to him by Hale or any of the suggestive movements she claimed he made, though in the letter he submitted to the principal the morning after being confronted by the accusations against him, denials were not so strong or so widespread. In fact, in that written statement, he commented, "I'm not saying that the statement made is totally wrong, but there are two things that trouble me most about it." He then goes on to list these two troublesome areas as the statement makes it appear as though he is the culprit and that some things in it are either false or turned around. He then goes on to list the several things Hale is supposed to have said to him that were not included in her statement, such as her sexual activity and her obvious antipathy toward black men. When Hale finally went to see Miller, she appeared to be quite upset though she was not crying. She was somewhat reluctant to talk to Ms. Miller until finally Miller released Sealy to go back to class and after Sealy left, Hale told Miller her entire story. Once Hale had completed her version of the story, Miller asked her to wait and went to talk with the principal who returned to the office with her to talk with Hale. After discussing with the resource officer how to take a statement, Miller returned to the office and took a detailed statement from Hale a second time in the form suggested to her and had it signed by Hale and notarized. Later that morning, Ms. Miller, the principal, Mr. Yanessy, the resource officer, and Mr. Buchanan called Respondent into the principal's office and showed him a copy of Hale's signed statement. Respondent read it, handed it back, and said that the statement was not "exactly" true--that Hale had twisted a lot of things around. He contended that in reality it was Hale who asked a lot of the questions, not him, and that he would do anything to clear his name. Respondent contended he had no interest in either Hale or any other young girl. At this point the investigating group advised him that they would talk with him later and take a statement from him. About two hours later they did meet again and at this time, Respondent repeated his comments made earlier in the day to the extent that while a conversation took place, it did not happen as Hale said it did. At this point, though the school officials wanted to take Respondent's statement, Respondent did not want to speak on the record then. The following morning he gave the principal the letter which was referred to above. Based on an evaluation of the testimony of Ms. Hale, Ms. Sealy, the Respondent, and Ms. Miller, all of which bears on the credibility of the Respondent vis-a-vis his accuser, it becomes clear, and it is so found, that a conversation did take place in the classroom during the fourth period on September 10, 1984, between Respondent and Ms. Hale when the two of them were the only persons in the room. It most likely will never be determined exactly as to who said what to whom. There is no doubt, however, that the Respondent permitted a student who he knew had a class to attend, to remain in his classroom with him at the expense of her absence from that succeeding class. Though Respondent advised Mr. Alexander that he was helping Hale with her school work, there is no other evidence that he did so. Ms. Hale contends he did not and he admits he did not stating only that she did her homework while in the room with him. Whatever the conversation was, it is clear that it was sexually oriented and Respondent used extremely poor judgment in allowing the situation to develop as far as it did. The evidence establishes that Ms. Hale's background is not without cloud. At the age of sixteen she is admittedly sexually experienced and has experimented with various controlled substances such as marijuana and cocaine. Ms. Miller indicated that her academic background was marginal--that while she can do her work and can be an average student, she has, nonetheless, failed. The nature of her testimony on the stand was not so clear as to give a certain picture as to what happened. It is most likely that Ms. Hale herself does not recall the incident with certainty. What is clear is that aside from her discussion with Ms. Sealy over lunch, she failed to make any complaint to anyone with authority to do something about it until several days after the incident took place and then only upon the urging of her friend. In substance then, it is obvious that the truth no doubt lies somewhere between the two stories. When Respondent found out that Ms. Hale had no legitimate reason to be in his classroom, he allowed her to remain and engaged in a conversation with her that should not have taken place. While the exact words are in question, the subject matter is not. It was sexually oriented and the parties were a twenty-five-year-old male teacher and a fifteen- year-old female student. His judgment in allowing that to happen is abysmal and his professionalism in that instance was nonexistent especially in light of the fact that he was warned twice at the beginning of his employment with the school system by his principal, to be very careful of his conduct in dealing with female students. Mr. Ray, the principal, indicates that if the allegations against the Respondent are true, it would seriously reduce his effectiveness as a classroom teacher because of the need for a teacher to observe the strictest propriety in his relationships with students. Such conduct as alleged here would undoubtedly be harmful to the learning process and would create an embarrassment to the student. If the allegations are true he would not want Respondent back working for him. In his opinion, for a situation such as this, if established, there are no less drastic remedies than termination. He believes that there is no place in Madison County for a teacher guilty of these allegations and in addition to termination, revocation of the teaching certificate would be appropriate. On the other hand, if it were to be established that the allegation was not true, then Respondent's effectiveness would not be diminished and the credibility of the student would be damaged. However, in his experience it is very unusual for female students to make sexual advances toward teachers. While it could occur, in his opinion it is not likely and over the 19 years he has been in education, it has never happened to him. Mr. Buchanan, who has been in place as Superintendent of Schools in Madison County for over 8 years, is familiar with the allegations in this case and Respondent's denial. His analysis of the case resulted in his recommendation that the School Board suspend the Respondent from his teaching position and in addition, he reported Respondent to the Education Practices Commission. He took this step because he felt an obligation to report substandard conduct of an educator. Assuming that the allegations are true, in his view, the effectiveness of the Respondent is reduced because in a case like this the teacher loses credibility with his students. He feels that if true, Respondent's conduct would be harmful to the learning process and embarrassing to the student and would have an adverse impact on the relationship between the parents and the school system. Viewing the evidence in its totality and weighing the credibility of all witnesses, as alluded to before, it becomes clear that a one on one conversation took place between the Respondent and Ms. Hale. It is most likely that Respondent did not prompt the conversation and did not request that Ms. Hale remain after class. To the contrary, it would appear that she requested to remain after class. No doubt improper comments were made by both Ms. Hale and the Respondent and it makes no difference whether Ms. Hale or the Respondent initiated the colloquy. It is quite clear that subject matter improper for a conversation between a student and a teacher of opposite sexes, involving sexually suggestive comments took place and that both Respondent and Ms. Hale used language of this nature.
Findings Of Fact At all times pertinent to the issues herein, the School Board of Pinellas County was the agency of county government responsible for the provision of public primary and secondary education in Pinellas County, operating Gibbs High School in the City of St. Petersburg. Respondent, Paul McDermond, was employed as a teacher by the Pinellas County School District since 1974. During the 1993 - 1994 school year, he was serving as an industrial arts teacher at Gibbs High School under a continuing contract. On October 11, 1993, Frankie McDermond, Respondent's son and an 11th grade student at Gibbs High School, was involved in a fight with another student, Aaron Simmons, and sustained some injury to his eye, including a fracture of the orbital bone. Respondent, who was in his classroom at the time, was summoned by some of the students to the quadrangle on campus where the fight had taken place and where the two participants were still located. Upon notification, Respondent left his classroom and went to the fight scene where he saw his son. After pushing his way through the crowd of students who had gathered as the scene, he approached his son and asked him. "Who did this?" Frankie indicated Simmons had done it and pointed in the direction of a nearby wall where Simmons was standing. Several other students also pointed in that direction. Respondent left his son and began moving toward Simmons. He appeared angry. Approaching to within three to four feet of Simmons, Respondent was grabbed by some students and restrained. The evidence indicates that Respondent was swinging his arms around at the time, but is not clear whether this was an attempt to break free of those holding him or a real attempt to get at Simmons and strike him. No contact was made with Simmons by the Respondent who said nothing all during this time. Some students and faculty called to the scene indicate Respondent was trying to get at Simmons to strike him. Ms. Shorter, the Principal, who spoke by phone with Respondent late in the afternoon of the incident, claims Respondent told her he wanted to strike Simmons but was restrained from doing so. On the other hand, Respondent claims he was trying to get to the crowd to which some of the students had pointed when asked who had assaulted his son, but denied even knowing that Simmons was the one who inured his son until, at Ms. Deleanis' direction, he went inside and then returned outside to get Frankie. It was only then, when he and Frankie had gone back inside, he claims, that he found that Simmons was the perpetrator. Clearly, this does not track with the other evidence of record. It is found, therefore, that Respondent knew after first speaking with his son that Simmons had injured him, and he was trying to get to Simmons who had been identified to him by other students, to apprehend him. Respondent admits to being very upset at the condition in which he found his son and wanted to take action against the individual responsible for that. It is possible that at some time, during the course of his movement from his son toward Simmons, Respondent intended to strike Simmons if he could. This is a perfectly natural reaction and it is so found. However, whether his anger cooled of its own accord, or whether, being restrained by students and intercepted by members of the administration he changed his mind, it is clear that by the time he reached the group in which Simmons was located, Respondent's desire to strike Simmons had abated, and his struggles as described by the students restraining him were more an effort to release himself from the hands of the students than an attempt to assault Simmons. It is impossible to know exactly what was in Respondent's mind at the time, but the fact remains that no contact was made between Respondent and the student. Respondent has been the subject of two previous disciplinary actions during his teaching and coaching career. In September, 1976, some seventeen years prior to the instant situation, Respondent assaulted and committed a battery upon a student who had stolen his car. Later that same month, he also threw to the ground a student who was disrespectful and defiant to him, as coach, during a football practice. For both these offenses Respondent received one combined letter of reprimand for exercising poor judgement. In February, 1985, nine years later, he subjected a female student to unnecessary disparagement and embarrassment in class, for which he was given a 30 day suspension without pay. Nothing untoward has been made a matter of record since that time. Petitioner claims it is School Board policy to take graduated action in matters of staff discipline. The documentation of other actions taken by the Board regarding other faculty members, however, does not show this policy to have been regularly or evenly applied. The incident with Simmons was made a matter of public knowledge when the Board's suspension action was reported in the local newspaper. All the faculty personnel who testified for the Board unanimously concluded that Respondent's actions severely compromised his effectiveness as a teacher. Teachers cannot, ideally, allow their students to learn what actions will cause the teacher to lose control - to identify their buttons, so to speak. All of the administrators and the Board staff who testified at hearing believe that by reacting as he did, Respondent's effectiveness as a teacher was destroyed. It is clear this is too quick a judgement to make. Numerous students testified at the hearing on Respondent's behalf, and there is evidence that a wave of support for Respondent manifested itself in the circulation of a student petition to save Respondent's employment with the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the School Board of Pinellas county enter a Final Order finding the Respondent, Paul McDermond, guilty of misconduct in office based on a lack of judgement in his aggressive approach to a student, Aaron Simmons, and suspending him from duty without pay for a period of 15 days. RECOMMENDED this 25th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 25th day of May, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6425 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. & 15. Accepted. Rejected as not supported by evidence of record. Accepted and incorporated herein. 18. & 19. Accepted. 20. Accepted. 21. Accepted. 22. & 23. Accepted and incorporated herein. 24. Accepted and incorporated herein. FOR THE RESPONDENT: Respondent's Proposed Findings of Fact are not numbered. Therefore, they will be referred to as the appear in the Proposal. Accepted and incorporated herein except for the last sentence of the paragraph which is merely a restatement of testimony. Conclusions are accepted and incorporated herein. However, the comments on the state of the evidence are disregarded. Not a Finding of Fact but a comment on the evidence. Not a Finding of Fact but a comment on the evidence, except for the finding that Simmons was not struck by Respondent. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942
The Issue Whether Respondent violated Lake County School Board Policy 2.71 as described in letters from the Lake County Superintendent of Schools dated January 2, 2007, and January 7, 2007, and if so, what penalty should be imposed.
Findings Of Fact The School Board of Lake County is the corporate body politic responsible for the administration of schools within the Lake County School District. At all times material to this proceeding, Paul Ogles was employed as an English/speech teacher at the Curtright Center of Eustis High School in the Lake County School District. Mr. Ogles, a Caucasian male, has been employed as a teacher for the District for nine years. At all times material to this proceeding, Ms. Bernetta McNealy, an African-American woman, was employed as a teacher at the Curtright Center of Eustis High School. Ms. McNealy's classroom is adjacent to Mr. Ogles' classroom. During the 2005-2006 school year, Ms. Tess Rogers was an assistant principal at Eustis High School and one of Mr. Ogles' supervisors. Mr. Michael Elchenko was Principal at Eustis High School during this time, and Ms. Rebecca Nelsen was the Director of Compensation and Employee Relations for Lake County School District. Mr. Ogles' first teaching position was as a teaching assistant with Project Outward Bound at Morris Brown College, a historically black college in Atlanta, where he prepared high school students for college. Mr. Ogles returned to teaching twenty years later after running his own textbook company. Mr. Ogles has received excellent evaluations during his employment by the Lake County School District. Once a teacher receives a rating or twelve (the highest rating possible) for two consecutive years, the educator may choose to participate in a PG-13 Appraisal of Professional Growth/Career Development instead of receiving the normal educator evaluation. Mr. Ogles qualified for this type of evaluation and successfully participated in the PG-13 appraisal process for several years. Mr. Ogles has sponsored or assisted with many school organizations such as the Beta Club; the Chess Club; the Key Club; the High Q Club; and the Speech and Debate Club. He used personal funds to support the students' activities, including paying $300.00 to rent a bus so students could attend a competition. Mr. Ogles was one of two Team Leaders on campus and in that capacity worked with the assistant principal to try to upgrade the quality of the school and to increase interaction between students and teachers. He also volunteered for bus duty before and after school. While performing bus duty, it was often Mr. Ogles' responsibility to enforce the school's dress code as students arrived on campus. Eustis High School has a policy of prohibiting students from wearing clothing with symbols or messages that may be considered disruptive to the learning environment. Students are not necessarily disciplined for wearing such clothing, but are requested to remove the offensive clothing, turn it inside out so as to hide the offensive message, put other clothing on over it or call home to have alternate clothing provided. The Confederate flag is one such symbol that is not allowed to be displayed on clothing worn to school. Dixie Outfitters is a line of clothing that sometimes bears the Confederate flag. Mr. Ogles was aware that the school policy forbade the wearing of the Confederate flag and he often was involved in enforcing the policy against students wearing the symbol. On or about May 19, 2006, Mr. Ogles was using his computer to search for project ideas for the following year while his students were taking a test. He was looking at a website called www.cagle.com, a political website from which he has gotten cartoons in the past. Several cartoons from this website are posted in his classroom, and there was no evidence presented to indicate that anyone had ever complained about their display. While viewing the website, he saw a cartoon that depicted a Confederate flag. However, instead of the traditional "stars and bars," the cartoon showed black arms crossed, with stars imprinted on them. The hands were extended beyond the flag, with the wrists shackled. The cartoon was originally published in approximately 2000, as a means of protesting the consideration by several southern states to display the Confederate flag at state buildings. When Mr. Ogles first saw the cartoon, he thought that it was "strong art" depicting the Confederate flag as a symbol of racism. In between classes, he showed the cartoon to Ms. McNealy. He asked her if she was familiar with students wearing Dixie Outfitters clothing. She indicated she was not. He stated that perhaps this cartoon could be placed on a new line of clothing for black students to wear in response to the "heritage" argument white students used to defend the wearing of the Confederate flag. The conversation was very short, as the bell was ringing for the next class to begin. Ms. McNealy did not respond to Mr. Ogles or give him any indication that she was offended or bothered in any way. There is also no evidence that she ever discussed her feelings about the cartoon with Mr. Ogles at any later time. Mr. Ogles testified, and his testimony is credited, that he believed that because the cartoon advocated a position against the display of the Confederate flag, that it would support what he believed to be Ms. McNealy's position on this issue. It is his view that African-Americans have as much ownership of the Confederate flag as anyone else, and should be able to use the image to express their views. While Ms. McNealy did not tell Mr. Ogles that she was offended by the cartoon, she did make her feelings known to Ms. Rogers, the assistant principal and Michael Rivers, a guidance counselor at the Curtwright Center, almost immediately. Ms. Rogers is Caucasian and Mr. Rivers is African-American. Both found the cartoon to be offensive. After speaking with Ms. Rogers and Mr. Rivers, Ms. McNealy left campus for the day. About an hour after he showed Ms. McNealy the cartoon, he was asked to come to the office and was informed by Ms. Rogers and Mr. Jones, another administrator, that Ms. McNealy was upset about the cartoon and had left campus. Mr. Ogles did not realize that Ms. McNealy would be offended by the cartoon and had he realized she would be offended, he would not have shown it to her. On May 22, 2006, Mr. Elchenko, the Principal of Eustis High School received a written complaint from Ms. McNealy about Mr. Ogles' showing her the cartoon.1/ Mr. Elchenko determined Mr. Ogles' conduct to be unprofessional and issued a Professional/Personal Action Report Relating to Work Experience (Appraisal II form) and Prescription/Assistance Form to Mr. Ogles. Both documents directed him to stop giving materials to co-workers that could be considered offensive. Mr. Ogles has complied with these directives. After Mr. Elchenko completed his investigation, Mr. Elchenko reported the allegations to the School Board's District office because he believed the allegations in Ms. McNealy's complaint rose to the level of racial harassment. Rebecca Nelsen conducted an investigation on behalf of the School District. Mr. Ogles was reassigned from his teaching position at Eustis High School to the County Copy Center by letter dated July 17, 2006, and remains in that placement today. Ms. Nelsen determined that Mr. Ogles' conduct created an intimidating, hostile or offensive work environment on the basis of race, which is prohibited by School Board policy. Ms. Nelsen recommended to the Superintendent that Mr. Ogles' employment be terminated. A separate investigation was conducted for the School Board by a private entity called the Robert Lewis Group. The findings and recommendations of that investigation are not part of this record. By letter from the Superintendent dated January 2, 2007, Mr. Ogles was suspended without pay for the period from January 8, 2007 through January 12, 2007, and was directed to receive cultural sensitivity training for violating School Policy 2.71. There is no evidence submitted to indicate that the Superintendent's decision was approved or ratified by the Lake County School Board. Mr. Ogles served his period of suspension and successfully completed cultural diversity training. Before this incident, Mr. Ogles had never been accused of making any appropriate racial remarks and was not considered to be a racist individual. He had expressed the view that racism should hold no place in education. His principal did not question his competence as an educator.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the charges against Respondent, and rescinding all discipline previously imposed. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2007.
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
