The Issue Whether Respondent shall be dismissed from employment with the Dade County School Board upon grounds of incompetency and gross insubordination pursuant to Section 321.36, Florida Statutes, and Rules 6B-4.09(1) and 6B-4.09(4), Florida Administrative Code.
Findings Of Fact Respondent was, at all times relevant, an employee of the School Board of Dade County, Florida on an continuing contract as a teacher. Respondent is a 49 year old native of Bolivia, South America. She was educated in Bolivia, Paris, and the United States, receiving a Bachelor's degree from the University of Miami in approximately 1969 and a Master's degree from Northwestern University. Respondent's positions with the Dade County School Board may be summarized as follows: In early 1970 she was a teacher of English as a Second Language (ESOL). From 1971 to 1973, she served as a media specialist (librarian) at Blue Lakes Elementary School. From 1973 to 1978 she was a media specialist (librarian) at Seminole Elementary School. From 1978 to 1981 she was a third grade teacher of normal students at Douglas Elementary School and from 1981 until her suspension between the 1983-1984 and 1984- 1985 school terms, she was a first grade teacher at Kinloch Park Elementary School. Respondent started employment with the Dade County School Board in 1970. While employed, she received annual evaluations; her evaluations and performance from 1971 to November 1, 1983 were all favorable, except for an evaluation in the 1979-1980 school year. Approximately June 3, 1980, Respondent was given an annual evaluation for her performance as a third grade teacher at Douglas Elementary School for the 1979-1980 school year. Therein, then-principal Eugene Turano found her unacceptable in six of the eight observable evaluation criteria. This annual evaluation resulted from two formal observations. In February 1980, Respondent was observed and evidenced disciplinary and teaching difficulties related to the reading program. This was Respondent's first experience teaching third grade and her first assignment to that school. Mr. Turano assigned Ms. Whipple, his assistant principal, to work with Respondents concentrating on lesson planning. The subsequent observation did not indicate much improvement. At each of these observations, Respondent had the entire third grade in one reading group, which grouping was felt by Mr. Turano not to respond to individual needs. Also bulletin board use by Respondent was not conducive to encouraging student interest or providing assessment feedback. Respondent stayed at her desk instead of giving children individual attention. Because Respondent was thereafter absent on sick leave from March until May 1980, there was no time for diagnostic prescription. As a results Mr. Turano gave Respondent the benefit of the doubt and did not formally recommend her termination or return to annual contract as he normally would have done. He did formally recommend her for employment and did personally suggest to Respondent that she take some summer school courses. In March, 1981, the Respondent received an official letter of reprimand for failure to implement her authorization for a period of leave of absence from the school system. Although this constitutes official disciplinary action by Petitioner, Dr. Gray's explanation of the reasoning behind it is not persuasive that anything occurred here beyond an absenteeism problem eventually fully- authorized by Petitioner. Respondent came to Kinloch Park Elementary in the 1981- 1982 school term to teach first grade. Respondent's 1981-1982 annual evaluation by then- principal Dr. James McKenna was overall acceptable. Then-Assistant Principal Lucy Williams observed Respondent in the 1982- 1983 term and, finding her teaching deficient, put Respondent on prescription. Her class of two groups of non-readers and one group which had just begun to read at the first grade level was kept small. Mrs. Williams taught all lessons herself for a while and gradually released the class to Respondent's full control again. Because Respondent complied by keeping adequate grades and lesson plans, by dividing her reading students into three groups, and by decorating with visual aids on the bulletin boards, Mrs. Williams removed Respondent from reading class prescription in the spring of 1983 before Mrs. Williams' transferred to another elementary school. Mrs. Williams removed Respondent from the prescription without observing her in reading. At that time, however, Respondent continued to have assistance in the area of math instruction. Starting in the 1983-1984 term, Respondent taught a Chapter One first grade class of 15 both English-speaking and non-English-speaking students. Kinloch Park Elementary had become an all Chapter One school in February, 1983. "Chapter One" is a classification that comprises students in a federally funded program designed to teach only basic skills for the entire day. The Chapter One first grade class of Respondent was in the lower twentieth percentile of learning ability. On November 1, 1983, Respondent was formally observed by Kinloch's new principal, Dr. Cecelia Hack, for evaluation purposes. New, more detailed observation forms were being used by Dade County at this time. Respondent was found to be unacceptable in six of the eight standard evaluation criteria. Most noticeably, Respondent was failing to use the directed reading approach all teachers had been instructed by Dr. Hack to use. This system, contemplated by the teacher's manual, provides for assembling three reading groups based on individual student assessments, which groups rotate through activities made up of teacher direction and two varieties of follow-up activities. Based upon Dr. Hack's observations and testimony, it is found that on this occasion, Respondent concentrated too much time on the workbooks did not provide the group working independently with sufficient and correct materials, did not have her evaluation folders up to date and had only one grade per child and that grade was for report card purposes. She also had not returned adequate amounts of graded materials to the students so as to provide acceptable feedback and encouragement to them. Dr. Hack further observed lack of courteous interchange between Respondent and her class. Respondent's comments to her students were terse, intimidating, and not encouraging to small children. The Room was cold and sterile without lively bulletin boards to spark student interest, encourage desire to learn, or to provide pride of accomplishment and additional feedback to the students. Respondent conferenced with Dr. Hack and the assistant principal, Norma Aguilar, on November 3, 1983 and was put on prescription. Among other actions for remediation, Dr. Hack suggested that Respondent provide classroom activities reflecting the assigned instruction policy. She further suggested that Respondent sit and plan on a regular basis with two other teachers of Chapter One first graders. She arranged for Respondent to visit other classrooms and asked Dr. Charles Sherwood, Petitioner's Director of Basic Education, to send members of his staff to work with Respondent. A Mrs. Gonzalez, Chapter One Specialist, came several times to assist Respondent in implementing the Chapter One program. Mrs. Ellen Williams came to update the student assessments for Respondent. A time- line was established for December 1, 1983. Assistant Principal Aguilar's assistance was part of the prescriptive measures assigned for Respondent. She visited Respondent on at least a weekly basis to check on Respondent's lesson plans and to talk about what Respondent was supposed to be doing. Respondent was instructed that she must duplicate her own materials for class as that was part of each teacher's duties, but she was provided reading materials she needed on her prescription and tapes with recorded lessons so that the children could do more independent work. Respondent expressed resentment of the prescribed activities. She turned in no lesson plans. Mrs. Hack also expected Respondent to attend an in- service course on the primary education program (PREP) and that she use "RSVP," a diagnostic prescriptive reading program. Although Respondent completed the in-service workshop ending in late February or early March, she did not complete her material to be turned in until June 25, 1985. On December 6, 1983, Respondent was formally observed by Assistant Principal Norma Aguilar, for evaluation purposes and was found unacceptable in three categories of the standard evaluation criteria. Mrs. Aguilar had been part of Respondent's previous prescription. Because of hers and Ellen Williams' involvement, the requirement for assessment techniques had been met and the grade book was up-to-date. Respondent had improved her teacher-student relationships somewhat in that Respondent had learned to give some positive reinforcement to her students. At that time, although some deficiencies had been corrected pursuant to the previous prescription, Respondent remained unsatisfactory in preparation and planning knowledge of the subject matter, and in techniques of instruction. Instructional activities, and follow-up thereto and reading progress were inappropriate for the students. Various groups now were set up but all groups were set at the same activity at the same time instead of each group rotating through three activities within each instructional hour. Respondent continued to use terms considerably above the children's understanding; her directions were unclear to small children; and she persisted in using only the workbooks for directed teaching. Prescriptive measures were again set out for the improvement of Respondent's teaching performance. On February 15, 1984, Respondent was again formally observed for evaluation purposes by Dr. Hack and was found unacceptable in five categories of the standard evaluation criteria. One category was not rated. The deficiencies were much the same as in November 1983. Particular problems were again noted in preparation and planning knowledge of the subject matter, classroom management, and techniques of instruction. Arrangements had not been made by Respondent for materials and the supplemental activities were not appropriate for the children doing the lesson plans. The children exhibited little respect for the material and did not seem to understand what was expected of them. Respondent constantly found fault with the children but contrariwise accepted sloppy written work. Respondent answered this criticism by saying she did not concern herself with neatness and manuscript form on math papers. Mrs. Hack felt Respondent was confused about what she was doing and although Respondent was grading more papers, Respondent was not returning graded papers regularly to meet the constant need of the children for feedback. Mrs. Hack felt Respondent's class should have moved much faster by so late in the school year and that the reading aspect was very weak. As remediation, Dr. Hack prescribed that Respondent use the teacher's manual and the "RSVP" decoding kits and books and that Respondent emphasize independent student activities that would keep all the students constructively occupied throughout each class hour. Further prescriptive measures were assigned. On March 22, 1984, Respondent was formally observed by Dr. Charles Sherwood, Petitioner's Director of Basis Education, for evaluation purposes and was rated unacceptable in four of the standard evaluation criteria. One category was not rated. At that time, Respondent's lesson plan was unacceptable because it provided insufficient student work. She was not using the required "9-block plan," rotating three groups of readers three times during the class session in twenty minute intervals per rotation. Her lesson plan showed an absence of anything but page numbers, which was directly contrary to county policy requiring minimally that objectives, independent activities, and evaluation methods be set out in the formal lesson plan. Appropriate classroom management was lacking in that many students were off- tasks although Dr. Sherwood noted that there was no genuine misbehavior. Respondent's only technique of instruction remained the directive approach. Her assessment technique was deficient in that only the first few weeks' assessment scores were evident. The children were about five months behind others comparably situated. In Dr. Sherwood's opinion, Respondent's excessive verbal instruction was not good for young students struggling with English who needed demonstrations rather than lectures. He felt Respondent's students were making less progress than normal for a Chapter One class. Further prescriptive measures were assigned Respondent after a conference with Dr. Hack. On April 18, 1984 Respondent was observed and evaluated again by Dr. Sherwood as unacceptable in four criteria. Two criteria were not rated. This left Respondent unacceptable in four out of six categories. Because of the short timeframe for prescribed remediation, Dr. Sherwood had assigned Ellen Williams' Director of the South Central Reading Center, to help Respondent. Mrs. Williams had worked with Respondent on methods of directing a reading lesson, maintaining close access to a chalkboard for introducing new vocabulary in context without the teacher having to leave the reading group, and had helped Respondent arrange the classroom furniture for group reading (instead of using rigid rows of desks). Thereafter, Respondent had returned the room to its original state. Dr. Hack and Mrs. Aguilar confirmed that a mobile chalkboard had been provided Respondent. Respondent explained her removal of the mobile chalkboard from her room as being done due to safety considerations occasioned by its sharp edges in near proximity to the faces of small children, but this does not explain why Respondent could not accomplish physical rotation of three groups of children so that each reading group would be near Respondent at the wall chalkboard during one of the required three teaching activities. The problems and unacceptable teaching activities observed by Dr. Sherwood on his second visit were very similar to those he observed on his first visit: absence of evaluation procedures and all students doing the same lesson regardless of their level of achievement. However, with Mrs. Williams' help, Respondent's records for evaluating student levels remained relevantly current. Dorothy Adside, an administrator at the level between area supervisor and school principal observed Respondent teaching on May 30, 1984. Prior to this observation, Mrs. Adside dispatched a primary educational specialist Mrs. Fulton, who conferred with Respondent and gave Respondent in-the-classroom assistance on two occasions. At the May 30 observation, however, Mrs. Adside found Respondent not acceptable in the categories of preparation and planning classroom management, techniques of instruction, and teacher-student relationships. She noted that there were no motivations for the children, not sufficient vocabulary development and not sufficient questioning from Respondent or use by her of visual study aids. Respondent's use of the "Round Robin" method of oral reading prevented the children from following her in their books as she read and otherwise thwarted the idea of rotating three activities for each group within a single class period. As a result of all the previous observations, evaluations, and unfulfilled prescriptions, Respondent's annual evaluation for the 1983-1984 school year was found to be unacceptable in four categories and unacceptable overall on June 1, 1984. There is a significant discrepancy between the testimony of the Petitioner's witnesses and that of Respondent with regard to the in-service courses assigned as prescriptive measures. On the basis of the documentary evidence as well as the candor, demeanor, and credibility of all witnesses as well as the detail provided by Dr. Hack and Mrs. Aguilar concerning these prescriptive measures and their personal observation of Respondent's participation and non-participation in all or part of these courses, Respondent's testimony that no course assignment was ever made is not persuasive. It is found that Respondent was orally requested to enroll in certain in-service training programs offered for February 25 to March 3, 1984, April 10 to May 15, 1984, May 5 to May 12, 1984, and June 2 to June 9, 1984, but these requests were not always reduced to a written prescription and Respondent may, indeed, have understood that she was only required to attend in-service training when the instruction was reduced to writing. None the less, Respondent enrolled in one course February 25 to March 3, 1984, but did not complete her work until ordered to do so by Mrs. Aguilar in June 1984. At the conference-for-the-record on April 30, 1984, Dr. Hack observed Respondent changed facial expression and made sounds expressing resentment of various remedial prescriptions required of her. Respondent attributed most of her difficulties to a personality clash with Dr. Hack and to Dr. Hack's calling Respondent to her office on twelve occasions during the 1983-1984 school year to discuss Respondent's problems. In light of so many unacceptable evaluations from so many observers, Respondent's analysis is rejected. While testifying concerning her reading groups, Respondent demonstrated a lack of understanding of the threefold rotating group concept based on individual student assessments by stating that she had created a fourth group for four new Nicaraguan students who spoke no English merely because they entered her class in the middle of the year and that she had created the fourth group on the theory that the new students would have to start with the first work book in the first grade series. Respondent has had admitted in evidence her grade book for the 1983- 1984 term. It does not in every instance corroborate Petitioner's witnesses' testimony. It evidences at least one weekly grade in each subject but each subject is on a different page. This finding does not, however, significantly diminish or impugn the credibility of a number of Petitioner's witnesses who observed that Respondent kept insufficient grades. In making this determination considerable weight is attached to Respondent's own testimony that she chose to record only one weekly grade instead of recording all test and progress scores by date of the item graded. Her voluntary election to use one weekly grade per subject over grades on all items falls short of the prescription assigned to her. Respondent maintained that evaluations of her performance are clouded by the evaluators' failure to take into account the many problems inherent in anyone educating the Chapter One child. This premise is not accepted. Six of other Kinloch Park Elementary teachers of larger Chapter One first grade classes managed adequately in the 1983-1984 term. Mrs. Lucy Williams, Respondent's witness, testified that it should be easier to teach Chapter One students because there are less subjects and fewer students in classes under such a program. Dr. Gray, Petitioner's Executive Director of its Division of Standards, testified by way of expert opinion that he had considered transferring Respondent to a non-Chapter One school but decided against it because the nature of the assessment system used by Dade County is a measurement of basic teaching skills and is not a measurement of only specialized skills for Chapter One classes. Petitioner did not offer Respondent the opportunity to transfer to a different (Non- Chapter One) type of class. Dr. Patrick Gray further testified that in his opinion, Respondent's first grade class in 1983-1984 was deprived of a minimal educational experience. This opinion is accepted over Respondent's assertion that a promotion of the majority of her class to second grade demonstrates her competency as a teacher. Respondent's premise is rejected in part upon Dr. Hack's testimony that even the students' Stanford Achievement Test scores would not give an accurate picture of what Respondent had successfully taught because these scores measure only all accumulated knowledge from all sources throughout broad fields of knowledge up to a specific time in each child's life. The witnesses who testified for Petitioner established the Respondent was unable to properly teach the Chapter One students.
Recommendation Upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED that a Final Order be entered ratifying Respondent's dismissal without pay and denying any claims for back-pay and benefits. DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1985.
The Issue The issues in this case are whether Respondent, Neil A. Merica, committed the offenses alleged to have begun in 1994 through 1999 as stated in the Amended Administrative Complaint dated May 7, 2003, and, if so, what penalty should be imposed.
Findings Of Fact Based upon observation of the demeanor and candor of the witnesses while testifying; the documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); stipulations and arguments of the parties; and the entire record compiled herein, the following relevant, material, and ultimate facts, arrived at impartially, based solely upon the extensive evidence adduced at the final hearing, are determined: Respondent's Qualification and Teaching Experiences Mr. Merica holds a degree in speech communication from the University of South Florida. He is also certified in specific learning disabilities (SLD) by that institution. Early in his 13-year tenure as a teacher at Foster Elementary School (Foster), he acquired a degree in computer science from Florida Metropolitan University. Mr. Merica holds Florida Educator's Certificate No. 532934, covering areas of English Speakers of Other Languages (ESOL), SLD,2 and Speech. His Florida Educator's Certificate expired June 30, 2003. As of the date of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. Mr. Merica also holds a teaching certificate from New Hampshire. Mr. Merica has a very demonstrative and expressive personality. His voice, when speaking at his normal conversational tone, resounds from the back of his throat in a louder than average volume. During his testimony, the pitch of his voice and his rapid speech pattern was accompanied by an unexpected and sudden outburst of spastic energy. Hillsborough County School Board's "Pull-out" Classroom Policy In 1987, the Hillsborough County School Board (Board) operated a Pull-out Classroom Policy (Pull-out Policy) for SLD and Physically Impaired (PI) students. Pursuant to the Board's Pull-out Policy, SLD and PI students were pulled out of their regular classes, divided into various numbered groups, and sent to a designated "resource" class teacher during the school day. Respondent's Initial Teaching Assignment Under the Pull-out Policy in 1987-1988 Mr. Merica began teaching at Foster as a SLD resource class teacher in October 1987 when the Board's Pull-out Policy was in effect. A resource teacher is the teacher whose class consisted of SLD students who were "pulled out" of regular classes of non-SLD students and sent to a resource class consisting of all SLD students for teaching and instruction. In 1989, the Board changed its Pull-out Policy to a "Self- contained" Classroom Policy (Self-contained Policy). The Self- contained Policy was designed to keep all SLD students together in one identified class throughout the school year. Mr. Merica taught SLD students under the Self-contained Policy at Foster until the 1992-1993 school year. Beginning at the start of the 1992-1993 school year, Foster's administration assigned Mr. Merica to teach a resource class consisting of PI and Learning Disabled Resource (LDR) students. PI classes consisted of students with a variety of physical impairments, including students who required various assistance devices such as wheelchairs, walkers, braces and "talkers," a machine device that assists the student with speaking difficulties to communicate. Mr. Merica continued as a PI and LDR teacher from the 1992-1993 school year through the 1998-1999 school year. Foster Elementary Exceptional Student Education Student Population from 1998 to 2000 During the two-year period of the 1998-1999 and 1999- 2000 school years, Foster had a large exceptional student education (ESE) population among its general student population. Foster's ESE community population consisted of 22 units, composed of full-time ESE students. There were six units of mentally handicapped students, with mental handicaps ranging from severe and profound mentally handicapped to mild emotionally mentally handicapped. There were four units of autistic students and four units of PI students. Foster had approximately five units of early exceptional learning programs, and three units of SLD students. Policy Change to Self-Contained Classes in 1998-1999 During the fall of the 1998-1999 school year, the Board changed their Pull-out Policy for SLD and PI students to a Self- contained Policy. The Self-contained Policy was instituted because of the severity of the students' learning disabilities, their struggles with academics, and the administration's conviction that the daily routine of shifting the SLD and PI students from "regular class to resource class" did not sufficiently address the students' individual learning disabilities and individual educational needs. Foster's administration identified students whom they believed did not handle transition well and recommended them as candidates for self-contained classes. The primary objective of the administration was to provide more "direct teaching time" and "direct teaching services" to each SLD or PI student. In the self-contained classes, SLD and PI students were assigned to one class and one teacher with a teacher's aide and/or a Department of Education for Exceptional Students (DEES) attendant throughout the day. The teacher's aides were those persons who were permitted to assist, under the oversight of the teacher, the classroom teacher with all facets of teaching, instruction, and classroom control. The DEES attendants were those persons whose duties consisted primarily of assisting the teacher by attending to individual and personal needs of SLD and PI students, i.e. changing their clothing, providing restroom assistance, etc. Respondent's 1999-2000 Reassignment to Teach Self-contained SLD Class In mid 1998, Brenda Griffin (Principal Griffin) was appointed principal of Foster replacing Janice Payne, f/k/a Pils (Principal Payne). At the start of the 1999-2000 school year, Principal Griffin changed Mr. Merica from his PI and LDR class and assigned him to teach a self-contained class of SLD students. A self-contained SLD class is a class composed of SLD students, each of whom has an individual educational plan (IEP) designed as the teacher's guide to assist in teaching each student to achieve specific, individual, and predetermined educational goals. Each IEP is developed by joint agreement of the SLD student's parent, his/her teacher and the assigned therapist (teacher). The IEP also identifies special educational services and supports that may be necessary to achieve desired outcomes and short-term objectives, and it establishes student educational benchmarks. An IEP may or may not contain daily, weekly or monthly checklists to evaluate a student's progress in achieving the benchmarks contained in his or her IEP. To make an objective determination of whether a student with an IEP has made progress (advanced from or to an ascertainable educational position), knowledge of the educational benchmarks contained in the student's IEP are essential. During the earlier years as a teacher at Foster, Mr. Merica served as the school's Classroom Teacher's Association (CTA) representative. In this capacity, he would address and argue those issues he believed to have had direct impact upon teachers who were members of the CTA. Mr. Merica attributed many of the comments made during staff meetings to addressing issues he believed had an impact upon teacher members of the CTA. During the 1997-1998 school year and after lengthy discussions with Principal Payne, but before Principal Griffin was appointed principal, Mr. Merica resigned as CTA representative. In September of 2000 and after 13 years of annual employment contract renewals, the Board terminated Mr. Merica's employment. At the time of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. In this proceeding, the Commissioner seeks to permanently revoke Mr. Merica's right to renew his Florida Educator's Certificate. The Amended Administrative Complaint The Amended Administrative Complaint alleged specific instances of specific conduct, specific acts, and specific speech to have occurred at unspecified dates and at unspecified times during a five-year span of time from 1994 through 1999. Accordingly, only incidents specifically alleged and proven by evidence of record to have occurred on or after January 1, 1994, through December 31, 1999, are considered in determining whether the Commissioner proved each allegation charged in the Amended Administrative Complaint. STATUTE VIOLATIONS Count 1: The Respondent is in violation of Section 1012.795(1)(b), Florida Statutes, in that Respondent has proved to be incompetent to teach or perform duties as an employee of the public school system or to teach in or to operate a private school. Count 2: The Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving mortal turpitude. Count 3: The Respondent is in violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 4: The Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession Prescribed by State Board of Education rules. RULE VIOLATIONS Count 5: The allegations of misconduct set forth herein are in violation of Rules 6B-1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 6: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(5)(d), Florida Administrative Code, in that Respondent has engaged in harassment or discriminatory conduct which unreasonably interfered with an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment; and further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination. WHEREFORE, Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 1012.795(1) and 1012.796(7), Florida Statutes, which penalty may include a reprimand, probation, restriction of the authorized scope of practice, administrative fine, suspension of the teaching certificate not to exceed three years, permanent revocation of the teaching certificate, or combination thereof, for the reasons set forth herein, and in accordance with the Explanation and Election of Rights forms. Amendment to Amended Administrative Complaint to Correct Scrivener's Error. On December 24, 2003, Petitioner filed a Motion for Leave to Amend Complaint to Correct Scrivener's Error, which was granted and provided the following: On November 6, 2003, Petitioner Amended the Administrative Complaint in this matter. Paragraph 5 of the Amended Administrative Complaint should be further amended to correct the scrivener's error. Paragraph 5 of the Amended Administrative Complaint currently states: "During the 1998-99 school year, Respondent sexually harassed several different co- workers." That portion of Paragraph 5 should be amended to state: "Between 1994 and 1999, Respondent sexually harassed several different co-workers," to conform the time period for the allegations of Paragraph 5 with the time period for the allegations of all other paragraphs of the Amended Administrative Complaint. Janice Payne, Principal at Foster from 1987-1998 Principal Payne was principal at Foster from May 1987 to May 1998. An illness forced her to retire midyear in the 1997-1998 school year. After Principal Payne’s retirement, the Board appointed Principal Griffin as principal of Foster. Principal Griffin held that position during the time of this hearing. During Principal Payne's 1987 to 1998 tenure as principal at Foster and as required by statute, she performed yearly evaluations of Mr. Merica's professional performance as a teacher of SLD and PI students. Consideration was given to annual performance evaluations for the 1994-1995 and 1998-1999 school years. During the 1994-1995 through 1997-1998 school years, Principal Payne identified, in her annual evaluations of Mr. Merica's overall professional teaching performance, specific areas in which she independently determined Mr. Merica was in need of professional growth and improvement. At the end of each of those four evaluation periods, she met with Mr. Merica and discussed and identified for him those specific areas in which he was in need of professional growth and improvement. She provided him with specific, constructive advice and assistance to facilitate his professional growth and improvement as a professional teacher in the areas she identified. Undisputed evidence established that Mr. Merica accepted Principal Payne's constructive advice and assistance; he complied and implemented her suggestions in each area identified as in need of growth and improvement, and he grew and improved his performance in each identified area. It is noted, however, that Mr. Merica would sometimes suffer relapses and revert into his old pattern of voicing his personal opinions on a variety of subjects, described by Principal Payne as just: "talking up and rumoring everybody." Even with his propensity to occasionally "talk up and rumor everybody," Principal Payne concluded that he was a very good teacher and that he could be better. Principal Payne's methodology of assisting her young professional teachers' growth was to identify areas in need of improvement followed by personal conferences with each teacher explaining areas in need of improvement, making individualized suggestions tailored to the need(s) of the teacher, and, after an appropriate time interval, completing a follow-up assessment to evaluate the teacher's growth, improvement, and compliance with her suggestions. The record evidence demonstrated the existence of a professional and respectful relationship between Principal Payne and Mr. Merica, spanning the eight or more years they worked together, including the few occasions when there were disagreements. 1998-1999 Performance Evaluation of Mr. Merica In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE co-worker. Nevertheless, when Principal Payne evaluated his overall professional teaching performance for the 1998-1999 school year, including his personal conduct, she gave him a "satisfactory" rating in every area, without comments. Principal Payne made her independent written evaluation of Mr. Merica without assistance of any criteria or standards, other than as indicated on the evaluation form.3 In reaching her independent assessment of Mr. Merica's proficiency and effectiveness, scoring them on the characteristics and numerical scale indicated, she relied upon his teachings, his problems, and his improvements experienced. Her professional judgment of Mr. Merica was based upon her personal observation and day-to-day association with her teachers. Mr. Merica's 1998-1999 Performance Evaluation is the most accurate, reliable, and undisputed evidence of his competence and overall professional performance as a teacher during the 1998-1999 school year. There is no credible evidence of record that Mr. Merica engaged in unprofessional conduct evidencing either a past, an onset or a continuation of professional incompetence as a teacher in the school system during the 1998-1999 period covered by Principal Payne's annual evaluation. In response to the general inquiry of “whether or not her previous discussions and her prior improvement expectations of Mr. Merica as a teacher over the [unidentified] years were successful,” Principal Payne, convincingly, testified: Yes, temporarily, absolutely. My philosophy about Mr. Merica--first of all, he could be a good teacher if he wanted to be because I have observed him. I know that. He could behave if he wanted to. He could be a strong staff member. But, you know, he could do that probably for maybe four months or five months and all of a sudden it was just--he was just doing the same old thing, just going around, talking to everyone, rumoring people or getting rumors to people. It's just like this school was his life. Continuing, Ms. Payne testified: Mr. Merica would frequently apologize and realize what he had done was wrong, because at one time he's like a lamb and help to do whatever he can do and other times he just be so angry and upset to the point of where I said his behavior would frighten me. As the professional supervisor who worked with Mr. Merica for more than a ten-year period, Principal Payne was the most experienced and most knowledgeable person from years of hands-on experiences to have observed "the beginning of professional teaching incompetence that was not responsive to assistance provided by other professionals and continued unabated throughout her tenure." The Commissioner failed to prove, through the testimony and documentation of Principal Payne, "a beginning of demonstrated professional incompetence in 1994" or even as late as the school year of 1996-1997, as alleged in the Amended Administrative Complaint. Based on the testimony of Principal Payne, it is a reasonable inference, and I infer, that the "behavior of anger" sometimes demonstrated by Mr. Merica in Principal Payne's presence was directed toward the subject matter of "what he had done was wrong" and not directed toward the person of Principal Payne. Through the above testimony, the Commissioner failed to prove that between 1994 and 1998-1999, Respondent was insubordinate and confrontational towards Principal Payne during her tenure as principal. The Commissioner failed to prove the allegation that Mr. Merica's personal conduct began to demonstrate "incompetence" as a professional teacher during the period of the 1994-1995 through mid-year of the 1997-1998 school years while Principal Payne was principal of Foster. A review of the record demonstrated, and the undersigned so finds, that no other witness called by the Commissioner provided credible, material and substantive evidence, based on personal knowledge contradicting the testimony of Principal Payne, that related to Mr. Merica's professional "teaching skills" during the period of the 1994-1995 through mid-year 1997-1998 school years. Brenda Griffin Principal at Foster Elementary beginning in 1998 After the 1997-1998 midyear resignation of Principal Payne, the Board appointed Principal Griffin as principal of Foster. The professional relationship between Principal Griffin and Mr. Merica became tense, and, based upon the collective testimonies of teachers and administrative staff members hereinafter, the tension was known by both the professional staff and administrative employees at Foster Elementary. Principal Griffin recalled that during her first year as principal at Foster (approximately the latter half of the 1997-1998 school year), she made an unannounced visit to Mr. Merica's self-contained classroom of PI students. Recalling her visit, she testified: [T] hey [students], all had IEPs that have specific goals for each student and what I observed was group instruction, but I felt like the PI students were not being stimulated. (Emphasis added) There is no record evidence of the particular teaching materials being used by Mr. Merica during this single visit. There is no record evidence establishing ascertainable professional expectations or teaching standards below which Mr. Merica was performing during Principal Griffin's initial visit. There is no record evidence of specific educational benchmarks or educational goals contained in the PI students' IEPs. Within the situational circumstances of this one visit as testified to, Principal Griffin's conclusiory opinion that Mr. Merica's "PI students were not being stimulated" lacks an objective benchmark for evaluation, as well as any reasonable degree of reliability to produce a firm belief as to the truth of the matter sought to be established. Continuing, Principal Griffin testified: Mr. Merica would go to the board, where there may or may not have been written some vocabulary words, and he would start some kind of instruction and I felt that was because I was in the room--sometimes the aides would get up to work with the kids and sometimes not, and I was sure they were waiting on the direction from their teacher at that time. (Emphasis added) Principal Griffin recalled another separate incident, but omitted providing the month or year, when she "observed Mr. Merica sitting at his computer--she "did not know what he was doing at his computer"--but she had been in his classroom on a previous (unidentified time) occasion when a golf game was on the computer and she--"knows that he was not tending to the students." Principal Griffin's conclusions, her feelings, and her opinions in findings 24 and 26 herein above, minus evidence of the situational circumstances surrounding each incident, lack reasonable reliability to produce a firm belief of the truth of the allegations sought to be established. Principal Griffin also recalled (unspecified) occasion(s) on which she observed Mr. Merica outside his classroom. She characterized those observations as having seen Mr. Merica: verywhere- in the hallways, in the lunchroom, at the PE field, in the back of the school--in the ESE wing building, where the buses are for the kids, in the clinic, in the office, everywhere-at any period of time during the day. There is no record evidence of personal knowledge by the witness or evidence of the situation and/or circumstances that caused Mr. Merica to be outside his classroom on those occasions when he was observed by this witness. The witness' summary characterization, "everywhere-at any period of time during the day," lacks certainty, reasonableness, and a degree of believable reliability to produce a firm belief as to the accuracy of the matters to which she testified. Viewed most favorably, Principal Griffin's testimony failed to establish that on each of those occasions she observed Mr. Merica outside his classroom; his presence outside his classroom was not within the scope of his professional responsibilities and duties as a professional staff member at Foster. The credibility of this witness is further diminished by her exaggerated testimony of facts at issue. This testimony and the intended inference that his absence from his classroom caused a direct and negative impairment on his students' learning, lack essential details to provide a reasonable degree of reliability and cast insurmountable doubt as to the truth of the allegations sought to be established. Principal Griffin testified she talked with Mr. Merica about not being in his classroom and he told her: [H]e needed a break or that it was his break time and that his aides were in the classroom and they were capable of instructing his students. Mr. Merica disputed and denied making the particular statement, i.e. "that his aides were capable of instructing his students." His version of the reason(s) for absences from his classroom were reasonable explanations(s) corroborated by other witnesses as found infra. Even if Mr. Merica's denial of the inferred accusation is unbelievable, it does not prove the accusation by the Commissioner to the contrary. The acceptable and unacceptable reasons or situations a teacher may or may not be out of his or her classroom, and personal knowledge of those unacceptable occasions that Mr. Merica was not in his classroom, were not established through the testimony of Principal Griffin. The evidence does not support the frequency or extent of her assertions but, instead, casts doubt on the accuracy of the witness' testimony. The Commissioner failed to prove through the testimony of this witness that on each occasion Mr. Merica was observed outside his classroom, his presence was unreasonable, unprofessional, and caused a direct and negative impairment on his students' learning. Principal Griffin testified, unconvincingly, regarding another incident (again with no record evidence of the month, school year or the situational circumstances) that "a mother" called her to bring to her attention "that the teacher was not using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The witness did not provide the mother's identity. The witness did not provide the child's identity. The witness did not provide the teacher's identity though those three persons were allegedly involved in this undocumented incident. The presumed inference(s) that Mr. Merica was "the teacher" referred to by the unidentified mother, who (inappropriately) disciplined "a child" by taking away the unidentified child's touch-talker, is unreasonable. The vague, non-specific testimony of this witness, and her inability and/or her refusal to identify the mother, the child, and the teacher, create an unacceptable level of credibility due to the absence of three significant points of identity. The credibility of this witness' testimony was further diminished by the lack of corroborating testimony by other witnesses, and the witness' credibility disappeared because no recording was made of such an important call from a parent to the principal of a school. The testimony by this witness does not establish or corroborate other testimony regarding the issue of "some teacher using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The Commissioner, through the testimony of this witness, failed to demonstrate that Mr. Merica "inappropriately disciplined a student," as alleged in the Amended Administrative Complaint. The testimony of this witness, based solely on debatable expressions as her personal "feelings" and personal "opinions" regarding alleged conduct in the past reflected in findings 24 through 32 herein above, viewed most favorably, lacked reasonable reliability and substantial weight to produce a firm belief as to the truth of the allegations sought to be established. Respondent's 1998-1999 Personnel Performance Evaluation At the end of the 1998-1999 school year and notwithstanding her testimony in findings numbered 24 through 32 above, Principal Griffin, independently, determined that Mr. Merica's overall professional teaching performance, to include his personal conduct and, by reasonable and objective implication, his teaching competence, was satisfactory in every category for the 1998-1999 school year. The overall "satisfactory" performance evaluation given Mr. Merica by Principal Griffin for his professional teaching competence and personal conduct in the 1998-1999 school year is significant when juxtaposed to her testimony at the final hearing. As late as May 1999, this witness' independent evaluation of Mr. Merica's professional teaching competence and his personal conduct was reflected on his 1998-1999 performance evaluation as "all satisfactory." However, the testimony contained in Findings of Fact 24 through 32 in this 2004 proceeding is a direct contradiction. This aspect of the witness' 2004 testimony and written 1999 evaluation raised substantial issues of the witness' intent and cast insurmountable doubt on the witness' credibility. The lack of consistency in opinion and the ambiguity created by the 2004 testimony of conduct having occurred from pre-termination to post-termination are resolved in favor of Mr. Merica. Mr. Merica's competence as a teacher, his teaching skills, classroom management, and student discipline, as evaluated and determined by Principal Griffin, for the 1998-1999 school year, ending May to June 1999, is the more substantial, reliable, and persuasive indicator of his past performance and competence as a professional teacher during the preceding 1998-1999 school year. Debora Bragdon, Secretary to Principals Payne and Griffin Debora Bragdon testified that during the 1999-2000 school year (ending May to June 2000), Mr. Merica came into the administrative office a minimum of once and "sometimes" twice a day, depending upon the day. According to Secretary Bragdon: Mr. Merica and Principal Griffin had discussions in the principal's office a minimum of once and sometimes twice a day throughout the entire school year. Secretary Bragdon could not recall the subject matter discussed nor did she recall hearing Principal Griffin's voice at any time during the alleged daily office discussions. Mr. Merica's voice, however, she heard stating that "Mr. Merica would be screaming so loud that I could hear him clearly." However, she could not recall a word or phrase spoken by Mr. Merica. Secretary Bragdon did not enter the principal's office when Mr. Merica and Principal Griffin were having their daily conferences. Secretary Bragdon surmised, from the tone of Mr. Merica's voice only, that Principal Griffin was in danger. Secretary Bragdon further testified that during those daily conferences she would buzz Principal Griffin on the intercom asking if she needed assistance, and Principal Griffin repeatedly assured her that "she did not need assistance." Principal Griffin did not corroborate or confirm Secretary Bragdon’s testimony on the issue "once and sometimes twice a day throughout the entire school year she had discussions with Mr. Merica in her office." Any reasonable consideration of Secretary Bragdon's above recollection requires acceptance of the fact that a minimum of 180 (once a day) to a maximum of 360 (sometimes twice a day) conferences occurred in Principal Griffin's office during the 1999-2000 school year between Principal Griffin and Mr. Merica. The intended inference that during each daily office conference, whether 180 times or more, Mr. Merica was always screaming at Principal Griffin while she sat silently in her office is rejected. Secretary Bragdon's exaggerated testimony lacks any appreciable degree of reasonableness, reliability or credibility. Her entire testimony failed to produce a firm or a precise belief as to the truth of the allegations sought to be established, and the Commissioner failed to prove through this witness that Mr. Merica was confrontational and argumentative with Principal Griffin during unspecified conferences while in her office. Negative Statements Continuing, Secretary Bragdon testified, unconvincingly, regarding unidentified sounds she overheard on the intercom system: rom the sounds I overheard on the intercom system when Mr. Merica called the administrative office for help with control of his students,-not all the time but sometimes you could hear disorder, confusion, kids maybe not under control. (Emphasis added) From unidentified sounds she allegedly overheard on the intercom, Secretary Bragdon concluded that the sounds she heard were "disorder," and, from that, she inferred that the "kids were maybe not under control" in Mr. Merica's class. The intended inference that Mr. Merica's "student behavior management and student control" was not effective at unspecified times, alluded to by this testimony, is rejected for want of reasonable credibility. Secretary Bragdon's testimony in findings 33, 34, and 35 consisted of exaggerated and speculative conjectures. As such, her testimony was not substantial in specifics nor competent in knowledge to establish as fact the allegations testified to in findings 33, 34, and 35 hereinabove. Secretary Bragdon was secretary to both Principal Payne and Principal Griffin, but there is no record evidence of the school year the alleged intercom activities she purported to have overheard, and of which she testified, occurred. The Amended Administrative Complaint alleged misconduct during the period 1994 through 1999 (1999 ending December 31, 1999), not throughout 1999-2000. The ambiguity regarding the time period the alleged conduct occurred is resolved in favor of Mr. Merica. Subversive Statements Secretary Bragdon also testified about a personal conversation between her and Mr. Merica "shortly after the Oklahoma City bombing."4 Although she could not remember the day, month or year, she specifically recalled: I was in the cafeteria getting coffee and Neil was also in the cafeteria. He brought his children in there to have breakfast. And he was up at the same table that I was and he basically just said that, you know, - - everybody was basically talking about it and I don't know word for word, but basically what he said was it would be good if we could do something like that here, but we just have to make sure the administration are in the building. This statement, if true, demonstrated, at its worst, bad taste on behalf of Mr. Merica. When considered within the context (everybody was talking-about it), circumstances (just after the news report of the occurrence), and the location (at a table in the cafeteria) with everyone talking, the alleged statement does not evidence a manifested "subversive" intent of Mr. Merica, as alleged in the Amended Administrative Complaint. Sectary Bragdon's demeanor, attitude, and manner of responding to questions seemed calculated to provide little light on the substantive facts of the situation, but rather an exaggerated version of the nature and circumstances of the incidents. I find the testimony of Secretary Bragdon unworthy of reliance upon as a true foundation to support findings of fact as to the matters testified to hereinabove. Negative Attitude Toward Administration Statements Cynthia Blake, a DEES attendant at Foster from 1985 to 2002, testified regarding "statements" allegedly made by Mr. Merica that demonstrated his negative attitude (state of mind) toward the school administration. When asked the following question: "[W]hat comments were made or what comments have you overheard that would support your belief that Mr. Merica had a negative attitude about the administration," Ms. Blake gave the following answer: Well, there was a lot and sometimes he would just walk away. He did not want to hear it. He would walk behind me, say it again, and would say, you know, be careful or whatever and it never changed. At this one given time, we was just outside and I was watching some kids, I think, and he came up and they was painting the school and he just said that ought to get all the kids out of the school and blow the school up and leave the administration in the school. During her earlier deposition, Ms. Blake was asked: "[W]hat comments were made or what comments have you overheard that would support your belief that Mr. Merica had a negative attitude about the administration?" As seen below, her response then differed from her present testimony. Q. Do you remember a situation where Mr. Merica said something about blowing up the school? A. Yes. Q. Can you tell me about that? A. Well, we at some point always told Neil, you know, to you know, you'd better calm down because you never, you know, people -- the teachers and -- I mean the administration -- you have to just watch yourself. There are certain things you just can't say and probably in a joking way, but it was a lot of stuff going on at the time. The schools had been with firearms and up in Columbine and different situations, so probably it was in a -- I don't know what to say -- but he just spoke of we need to get all the kids about and leave the administration in and blow up the school. Q. Do you remember saying that it was probably in a joking manner back when your deposition was taken? A. Well, basically when Neil spoke about things, he laughed about it, so at the time, like I said, there was so much going on between the news and that, I would never know anymore. Q. All right. So he might have though it was funny, but you didn't think it was funny; is that fair? A. No, sir. The testimony of Ms. Blake, mirroring the testimony of Secretary Bragdon, demonstrated bad taste on behalf of Mr. Merica. When subject to cross-examination about the statement or other aspects of her prior testimony, Ms. Blake became vague and uncertain about her prior versions and was inconsistent on matters that seriously undermined her credibility. Consideration of the situation and circumstances when Mr. Merica made the alleged statement supports a reasonable inference that Mr. Merica's statement was a crude and boorish attempt at making a joke, not in good taste, but nonetheless a joke. The Commissioner did not prove by the above testimony that Mr. Merica was hostile and subversive or intended his comment as derogatory and disrespectful toward his principal as alleged in the Amended Administrative Complaint. Physical Restraint and Classroom Management Allegations Pat Drennan, assistant principal at Foster, by her admission was primarily responsible for the school's educational curriculum. In her "educational curriculum" capacity, Ms. Drennan assisted teachers, students, and parents in curriculum matters and assisted teachers in discipline in the classroom, student testing, and student grades. She was unable to recall the year and date, but she recalled she had been in her position as assistant principal for four years, approximately 1998 through January 2004. When asked about the Board's policy regarding an educator's physical restraint of students, Ms. Drennan responded that her "understanding" of the Board's policy was: [B]asically teachers are not to restrain students unless they have been trained-- unless they have ACT training they can not bring a child down on the ground or anything. She did not know whether Mr. Merica was ACT trained or not at all times pertinent and at the time of her testimony. No writing in the record speaks to this issue, and no predicate was laid to show that the witness was in a position to know the Board's policy. This witness stated her "understanding" of the applicable rule. A finding of fact that a violation of a penal statute or rule occurred cannot be based upon loose interpretations and problematic evidence, but on evidence as substantial as the penalty for violation of such statue or rule. The testimonial evidence given by this witness failed to establish the "rule." Thus, her opinion regarding violation of a rule she does not know, lacks a foundation upon which a reasonable degree of reliability will support. Ms. Drennan recalled one occasion on which (no evidence of the month and year) on which she instructed Mr. Merica "not to restrain a student she 'thought' he had restrained." She recalled making one general suggestion (not explained) to Mr. Merica regarding classroom behavior management, adding, but "he did not have to do it." Ms. Drennan did not know whether during his last year at Foster (1999-2000) Mr. Merica taught the entire year. When asked if she knew why Mr. Merica left Foster she answered: [I]n my mind, the situation was that he no longer was able to control himself and the class--the management of the class. No evidence of record speaks to the issue of a standard of classroom management from which to evaluate Mr. Merica's conduct. To demonstrate this issue the Commissioner's reliance on witnesses who could but state their "understanding" from various and dubious vantage points, failed to prove what was required of Mr. Merica and the specific conduct that fell below the required standards. The intended inference to be drawn from the above testimony of Foster's assistant principal, that Mr. Merica was "unable to control himself" and "unable to manage his class" and thus incompetent, is rejected for a lack of personal knowledge on behalf of the witness and evidence of an objective standard from which to evaluate "control" and class "management" by a teacher. The Commissioner failed to establish, by the testimony of Ms. Drennan, that Mr. Merica was unable to control himself and unable to manage his class and, thus, demonstrated incompetence, during the (unspecified) period inferred by Ms. Drennan's testimony, as alleged in the Amended Administrative Complaint. Ms. Drennan testified, unconvincingly, about hearsay from another teacher, Ms. Parson, who told her, "for information only." According to Ms. Drennan: Ms. Paula Parson, a teacher who did not want anything done about it but for information only, told her she was apprehensive about Mr. Merica bringing her lunch and giving her unwanted attention. Paula Parson was not called to testify. The intended inference of unwanted attention is not accepted by the undersigned. The Commissioner failed to prove by the uncorroborated hearsay testimony of Ms. Drennan that Mr. Merica sexually harassed several different co-workers, as alleged in the Amended Administrative Complaint. Code of Conduct and Rules of Professional Responsibility When asked if she was familiar with the Code of Conduct and the Rules of Professional Responsibility, Ms. Drennan again, unconvincingly, testified: I think yes, basically, the rule that deals with personal conduct that seriously reduces an educator's effectiveness in the school district,--when someone coming into the district-I would want to look at previous-- what had happened previously with the person and I would think they would be ineffective; I would find them ineffective in the fact if they were not open to interaction with faculty and staff in an appropriate, professional way; They are ineffective if they don't know how to deal with children in the proper way. If they couldn't tell me that they could do a management plan--have one before they walked in. I would find them ineffective if they were not--didn't have the right tools for teaching, basically, and those tools are many. Besides a degree, it would be how you get along with people, how open you are to learning new things, and that type of thing. There were no incidents of Mr. Merica being insubordinate or confrontational with Principal Payne witnessed by Ms. Drennan. This witness presented no evidence that she had personal knowledge of Mr. Merica's classroom management skills or the lack thereof. Her "opinions" about what conduct would be inappropriate and what conduct that would seriously reduce an educator's effectiveness (and competence) in the school district are her "opinions" and nothing more. The "right tools for teaching, basically, and those tools are many," standard coming from an assistant principal does not establish an objective and acceptable standard by which to evaluate a teacher's competence as a professional teacher. Viewed most favorably, the "opinions" of Ms. Drennan are not appropriate, objective standards by which to determine whether the professional conduct of a fellow teacher fell below the Code of Conduct and/or violated the Rules of Professional Responsibility. The Commissioner failed to prove, by the testimony of Ms. Drennan, that during the period starting approximately in 1998 and continuing through December 1999 Mr. Merica engaged in conduct that fell below the Code of Conduct and/or violated the Rules of Professional Responsibility as alleged in the Amended Administrative Complaint. Confrontations with Principal Griffin Ms. Drennan testified that at some point in time (of which she was not sure and unable to identify) her office was located next door to Principal Griffin's office, and she would "intentionally" leave her door open. According to Ms. Drennan, by leaving her door ajar she "could overhear and 'tell from the tone of the voice'--when someone was loud and confrontational like that [sic] you just never know and I just worried that there could be something else happening." Asked what she meant by "loud and confrontational," Ms. Drennan responded: Well, anger. Obviously, the man was angry when he was in there sometimes. I'm not saying every time, but the times that we're talking about like that, he was angry and anger sometimes can lead to other things, so . . . Ms. Drennan purportedly could overhear Mr. Merica speaking with her door open, but she gave no testimony of what, if anything, she overheard Mr. Merica say. Ms. Drennan's testimony, regarding loud talking by Mr. Merica toward Principal Griffin, inferring his state of mind as being emotionally out of control while conferencing with his principal, is speculative conjecture. There is no record evidence that this witness observed nor personally confirmed with Principal Griffin that Mr. Merica was, in fact, angry with Principal Griffin on each of those "sometimes" occasions she heard "someone was loud." This witness did not observe nor subsequently confirm with Principal Griffin that Mr. Merica pointed his finger her face, during those unspecified occasions when she sometimes left her office door ajar and sometimes heard someone was loud, as alleged in the Amended Administrative complaint. Secretary Bragdon recalled Mr. Merica yelling “everyday all the time,” and Ms. Drennan contradicts that testimony recalling he was loud and angry, but, qualifying that statement, she added she was “not saying every time [he was in the office].” The testimony of both witnesses, considered separately and together, failed to produced a firm belief, without hesitancy, as to the truth of the allegations sought to be established. Refusal of Failure to Comply with Requests and Instructions When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of any failure or the refusal by Mr. Merica to comply with an identified request or instruction given by either Principal Payne or Principal Griffin. When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of Mr. Merica having made derogatory and/or disrespectful remarks about Principals Payne or Griffin in her presence. Ms. Drennan's opinion that Mr. Merica deviated from her "understanding" of the principles contained in the Code of Conduct and Rules of Professional Responsibility standards were speculative and insufficient to establish as fact that Mr. Merica deviated from or violated the Code of Conduct and the Rules of Professional Responsibility. The Commissioner failed through this witness to establish any violation or any deviation from standards found in the Code of Conduct and the Rules of Professional Responsibility by Mr. Merica. Ms. Drennan failed to establish an objective, ascertainable standard of professional level of effective teacher behavior and teacher classroom management for SLD and IP students. Her testimony and the intended inferences regarding Mr. Merica's alleged ineffective and unprofessional student behavior, teaching, classroom control, and student management is incompetent to establish as fact that Mr. Merica deviated from clearly, established professional standards as alleged in the Amended Administrative Complaint. Ms. Drennan testified as did other co-workers who were present that Mr. Merica's had occasional disruptive verbal conduct in faculty and staff meetings and that during collegiate discussions he often demonstrated an argumentative attitude. The Commissioner proved, through the testimony of Ms. Drennan and other witnesses who were present and testified, that at one or more (unspecified) faculty and/or staff meetings that Mr. Merica occasionally engaged in disruptive verbal conduct accompanied by an argumentative attitude. Derogatory and/or Disrespectful Remarks About Principal Shelley Opila worked as a PI and ESE teacher at Foster from August 1996 to July 2001. When asked to give an example of "bashing the principal," Ms. Opila testified that during (unspecified) faculty meetings, Mr. Merica would often state: "Oh, that will never work," in response to unspecified matters under discussion. There is no record evidence of the situation or circumstances of the particular subject matter under discussions when this witness overheard the statement. Viewed most favorably, the isolated statement, "Oh, that will never work," is a personal opinion and, as such, does not evidence a manifest intent by Mr. Merica to make derogatory statements about the Foster administration as alleged in the Amended Administrative Complaint. Ms. Opila testified that she overheard Mr. Merica several times voice his personal opinions "[t]hat you have to be blonde or a female," and "It's who you know to be a principal." Without evidence of the situational circumstances when the statement was made, Ms. Opila assumed that Mr. Merica was referring to one or both, Principal Payne and/or Principal Griffin. There was no corroboration from either Principal Payne or Principal Griffin that Ms. Opila conveyed her concerns to either of them regarding Mr. Merica's alleged derogatory and/or disrespectful remarks. Viewed most favorably, the general statement "You have to be blond or a female," could have been a true statement if the record evidence established the color of Principal Payne and Principal Griffin's hair during their respective tenure as principal. The record evidence, however, does not. As reflected in the record, the testimony of this witness does not evidence a specific intent of Mr. Merica to make derogatory comments about Principal Griffin or Principal Payne. The record evidence reflects that approximately 120 educational personnel worked at Foster during the time in question and among that number only five or six were males. The reference to "blond and female to be principal" applied equally to approximately 100 females at Foster who, if they were not at the time the opinion statement was made, were capable of being blond and also capable of being a principal. Neither Principal Payne nor Principal Griffin testified regarding their respective hair colors during times pertinent to when the alleged statements were made by Mr. Merica, and the undersigned did not notice and can not recall with any certainty, the hair color of each of the twenty-plus female witnesses who testified in the proceeding. With the presence of more than 100 other females at Foster, and no evidence of the hair color of the principals at any time, an inexplicable ambiguity of "intent" is here presented. The ambiguity is resolved in favor of Mr. Merica. The Commissioner failed to prove, clearly and convincingly, through the testimony of Ms. Opila, that Mr. Merica intended to, and did specifically, make the derogatory comments about Principal Payne and/or Principal Griffin by the "blond [hair color] to be principal" statement as alleged in the Amended Administrative Complaint. Mr. Merica's Students Performance Ellen Lipari was a teacher of third and fourth grade PI students with various physical ailments and/or traumatic brain impairments from the 1992-1993 school year to approximately the 1997-1998 school year. She taught forth grade PI students during the same five-year period Mr. Merica taught first grade PI students. According to Ms. Lipari: [U]nder the pull-out school board policy in effect during that time, Mr. Merica would pull out and send his kindergarten and first grade level PI students to her third and fourth grade level classes. At some unspecified period during the five-year time period, she and Mr. Merica switched grade levels, Ms. Lipari moved down and taught the kindergarten and first grade level PI students, and Mr. Merica moved up and taught the third and fourth grade level PI students. After the switch, she would send her kindergarten and first grade level PI students to his third and fourth grade level classes. According to Ms. Lipari, during the 1997-1998 school year she had many opportunities to observe students Mr. Merica taught when they were thereafter assigned to her class. During that year, she personally observed Mr. Merica's teaching methodologies, his classroom management methods, and his in- class teaching conduct and style. Ms. Lipari described her impressions, gained from close, extended, daily and weekly contact, of his classroom control and management skills and his teaching skills of PI students with various physical ailments and traumatic brain impairments as: Well, you know, he was a very technically-he was technically doing his job, but there was a lot of humanized things that you do with younger children to try to get them to learn to read and those kinds of things that primarily he did not do. He was mostly teaching out of the textbook and trying to teach very specific things and not doing the kinds of things and that's why we decided it would be better if I moved down so that I could do more mothering and maternal type activities and maybe the older children would respond better to having a man teacher. Alleged Complaint from an Unidentified Mother Ms. Lipari moved down to teach the kindergarten and first grade level PI students, and to provide what she described as "mothering and maternal type activities," in keeping with the stated policy and goal of Principle Griffin as chief of the Foster administration. As a male teacher, Mr. Merica could not provide "mothering and maternal type activities to first grade level PI students," and it was not established that "mothering and maternal type activities" were requirements of all teachers, male and female, by this policy. During an unspecified period after she moved down to teach the kindergarten and first grade level PI students, unidentified parents of her former kindergarten and first grade student(s) called her complaining to her about the differences in the curriculum used to teach their children who were then in third or fourth grade levels under Mr. Merica. According to Ms. Lipari, some unidentified parents of PI students complained to her that "their former kindergarten and first grade children had been allowed to do certain things, like watch TV programs to which they had become accustomed." Based upon complaints from parent(s) she could not identify, Ms. Lipari reached conclusions and, based upon those conclusions, offered her opinion: I personally did not see any educational benefit to students watching TV because our kids [PI] are at least developmentally delayed, if not mentally handicapped, as well as being physically impaired because those children are primarily mentally impaired. Most of our children's IQs go maybe up to 70-75, so the kind of math that you would do in The Price is Right [TV program] would not be valid for those age level of children. During her years of working with Mr. Merica and observing Mr. Merica's teaching methodologies, his classroom management, and his in class teaching conduct, she never once personally observed Mr. Merica's students watching TV programs. Ms. Lipari's recollection of one phone call and her failure to identify the parent(s), who were so concerned about their children that they personally called Ms. Lipari, fairly detracted from the weight and believability of her testimony rendering it unreliable to establish facts alleged therein. Her testimony was further diminished by the lack of corroborating testimony from other witnesses. Ms. Lipari's testimony failed to produce a firm belief, without hesitancy, as to the truth of the allegation sought to be established. Ms. Lipari's opinion regarding educational benefits derived from watching a TV program, based upon the hearsay of unnamed parent(s), failed to prove, such activity actually occurred, or if it did occur, failed to prove that Mr. Merica’s use of such methods and skills were ineffective teaching methods and deviated from the Code of Ethics or Standards of Competent Professional Performance standards as alleged in the Amended Administrative Compliant. IPE Preparation and Assistance Ms. Lipari testified that she assisted Mr. Merica, on unspecified occasions, by "explaining the particulars of an IEP and the mechanics of writing an IEP." According to Ms. Lipari: [F]or every student with an IEP, the teacher, parent and therapist [another teacher] agree on goals and objectives that in their collective determination can be achieved by the child during the forthcoming school year. The IEP is a joint collaborative endeavor requiring discussions, disagreements, compromises and finally an acceptable document; subject to subsequent modifications. Ms. Lipari gave her personal belief that: [T]he teacher(s) has to find different ways of handling their PI students' problems because each child is different, according to their disability, according to their ability to write or not be able to write. Some PI children cannot write at all. Some PI children cannot speak at all. Therefore, the teacher has to find some ways to show that the child can read. Because he can't read out loud to the teacher, the teacher would find different methods that can used to show the student is making progress. IEPs are personalized crafted documents designed to address the perceived needs and method of instructions to address the need(s) of each handicapped student. The evidence of record does not speak to the issue of accepted standard(s) for writing an IEP nor is there evidence that Mr. Merica did not comply with accepted standards for writing an IEP. The Commissioner's reliance on Ms. Lipari's "belief" that Mr. Merica needed her assistance in writing one IEP, without more, failed to establish that Mr. Merica was incompetent in his professional teaching skills and/or in IEP writing and/or implementation skills. Viewed most favorably, Mr. Merica had five to six years of writing IEPs with other teachers and counselors before Ms. Lipari's offered assistance which she characterized as "explaining the particulars of an IEP and the mechanics of writing an IEP." The intended inference of this testimony requires first a belief that other teachers and counselors who had worked with Mr. Merica on IEPs during the preceding five years (1987-1992) either did not know "the particulars of an IEP and the mechanics of writing an IEP" or were unable or unwilling to recognize a need for "the mechanics of writing an IEP" and to offer and suggest methods of improvement to Mr. Merica, to include Principal Payne who worked with Mr. Merica for almost 10 years. The testimony of this witness was not corroborated. The testimony of Ms. Lipari failed to include essential details that are central to the facts sought to be established and, thus, failed to produce any belief of conviction as to the truth of allegations sought to be established. The testimony of Ms. Lipari also failed to demonstrate a single refusal by Mr. Merica to accept and implement one positive necessary suggestion that was, in fact, made by Ms. Lipari to Mr. Merica relating to teaching students with IEPs. This testimony failed to establish the existence of, the beginning of, or the continuation of, a demonstration of professional teaching incompetence as alleged in the Amended Administrative Complaint. Physical Restraint and Control of Unruly Male Students Ms. Lipari recalled one occasion an unidentified male student in her class was unruly in the hall. During the time her male student was being unruly, Mr. Merica came along with his class. He asked her if he could be of help with her unruly student and according to her, without waiting for her to reply, physically restrained her unruly male student. No evidence of record establishes an injury to any unruly male student that resulted from the physical restraint by Mr. Merica. This testimony demonstrated that on one occasion Mr. Merica restrained one unruly male student in the hallway who was in Ms. Lipari's class. This evidence also demonstrated that PI and SLD students were routinely unruly in the hallways and elsewhere in the school, when Ms. Lipari was the teacher in control and in charge as well as when Mr. Merica was the teacher in control and in charge of a class. This evidence also demonstrated the propensity of young male students to react to female teachers and to male teachers in a different manner. Ms. Lipari's testimony regarding unruly conduct of students, in the hallways when Mr. Merica was the teacher in charge, does not evidence his lack of ability to control and manage his unruly students, as alleged in the Amend Administrative Complaint. This testimony does establish as fact that Mr. Merica restrained an unruly male student during a period when his ATC certification was expired. This technical violation of ATC certification by Mr. Merica is accompanied by the fact that the unruly student was unhurt; other PI students were not harmed; and Ms. Lipari, a female, who provided "mothering and maternal type activities," was rendered assistance by a male co-worker, in keeping with the school's policy, according to Ms. Lipari, of having a male teacher in charge of the older and larger male PI students. Ms. Lipari further testified that on one unspecified occasion when she was present in the school hall, Mr. Merica's class was "very loud and unruly." This is the same witness whose class had an unruly male student in the hall when Mr. Merica restrained him. According to Ms. Lipari, during Mr. Merica's loud and unruly class in the hall incident, her class was under her supervision and her volunteer, an unnamed "grandmother," who was assisting her with her class on that unspecified date. According to Ms. Lipari, she and the grandmother observed Mr. Merica: [M]oving from the front of his class line to the back of his class line, swinging his arms back and forth for his unruly students to get in line and stay in line; but, he was not swinging his arms at his students or in their faces. "Grandmother(s)" are community volunteers who come in to assist teachers with PI and SLD students. According to the witness, the objective of grandmother assistants is to provide a soothing and calming presence in the classrooms. Assuming the intended inference to be drawn from this vague, non-explicit, testimony was to demonstrate Mr. Merica's inability to control his class and his unprofessional conduct in the presence of an unidentified member of the community, it failed. The testimony in finding 70 above was not corroborated by other witnesses and was sufficiently vague so as to cause doubt and raise substantial issues of credibility. Viewed most favorably, the above testimony failed to produce a firm belief of the truth of the allegations sought to be established. The Commissioner failed to prove, through the testimony of this witness, that Mr. Merica's conduct was inappropriate or unprofessional in any manner toward his students in the hall at some unspecified period or in the presence of a member of the public/community as alleged in the Amended Administrative Complaint. Negative Feelings About School Administration Ms. Lipari acknowledged that Mr. Merica was a very outspoken person on all issues he addressed. From that observation she went on to testify about an incident in the teacher's lounge when she overheard him make the statement: "[n]o woman was going to tell him what to do." From overhearing that part of a single statement at some unidentified time and without providing the circumstances and context in which the alleged statement was made, Ms. Lipari assumed she knew how Mr. Merica felt about Principal Payne, Principal Griffin and, in general "all females." Based on her assumptions, Ms. Lipari concluded Mr. Merica's statement was specifically intended to be derogatory about a particular unnamed principal. She further assumed the statement "no woman was going to tell him what to do" included her. Based upon those assumptions, she inferred Mr. Merica was speaking first, in a negative fashion; second, he was speaking about all women in general; and third, he was speaking about Principal Griffin in particular. Ms. Lipari's testimony regarding Mr. Merica's general opinion statement "no woman was going to tell him what to do," without establishing the context, situation, and/or circumstances at the time the statement was made failed to establish anything other than the statement was made. To this non-specific and ambiguous testimony, any number of meanings can reasonably be attributed, including his private and personal relationships with women in his past. Testimony of this isolated statement is not competent to establish a manifested intent on behalf of Mr. Merica to be disrespectful toward Principal Griffin or Principal Payne or women in general. The testimony in finding 72 was not placed in a situational circumstance that would have enabled the undersigned to render an objective evaluation. The alleged out-of-context statement is not competent to establish as fact allegations that Mr. Merica intentionally made derogatory and disrespectful statements about Principal Griffin and other female co-workers as alleged in the Amended Administrative Complaint. IEP Preparation and Principal Griffin/Mr. Merica Relationship Linda Thomas was an ESE specialist at Foster from 1997 through 2002. Her duties included giving suggestions for curriculum or classroom management, assisting teachers with paperwork, and assisting resource teachers as needed. The usual method of contact would originate from a principal who would call Ms. Thomas and request her to lend assistance to a specific teacher. Answering the open-ended question, "what caused her concern about the Principal Griffin-Teacher Merica relationship," Ms. Thomas, without providing the year or month, answered: In my opinion, I don't believe that Mr. Merica had much respect for Ms. Griffin- -that he demonstrated that in the school setting. A number of times I overheard him say things such as that he would be around longer than she would. He was frequently making comments in faculty meetings just in general about the leadership and the administration in the school and his dissatisfaction with it. Ms. Thomas' testimony confirmed testimony of others that Mr. Merica often spoke out in faculty and staff meetings. Her opinion regarding what she "believed" to be Mr. Merica's opinion about the administrative leadership, even if true, was based on the alleged "frequency of unspecified comments," and her opinion that "I don't believe that Mr. Merica had much respect for Ms. Griffin--that he demonstrated that in the school setting," failed to establish as fact any allegation contained in the Amended Administrative Complaint. Answering the question regarding Mr. Merica's preparation for IEP meetings, and without identifying the number of IEP meetings she attended with Mr. Merica during the 1994 through 1999 period in question, Ms. Thomas stated: I believed preparation was very minimal. There was not -- he was not always ready. Most of his IEPs were all the same. Yet, it's -- an IEP is an individual education plan which is written specifically for each child, so every child in your class should not have the same thing written for them. Regarding his preparation of IEPs during the five-year period from 1994 to 1999, and without evidence of the number of IEP prepared by Mr. Merica and/or the number of occasions she personally inspected one or more of those IEPs, Ms. Thomas concluded that "[f]requently he wasn't prepared." This witness’ "belief" was not a "belief" based upon personal knowledge or facts. Though she believed "most of his IEPs--frequently not prepared," there is no evidence of record that she had personal knowledge or had occasion to review the content of an IEP prepared by Mr. Merica upon which to base her "belief," and, without more, her belief is speculative. Ms. Thomas was not qualified as an expert on IEPs and her personal "beliefs" and opinions regarding unidentified IEPs that she may or may not have reviewed, is lacking in preciseness to produce a firm belief as to the truth of the allegations sought to be established. As such, Ms. Thomas' testimony is not competent to corroborate and does not corroborate or support Ms. Lipari's testimony purporting to support the allegation that Mr. Merica's preparation of IEPs "in the school year of 1994- 1995 evidenced his ineffective teaching performance and demonstrated the beginning of his alleged incompetence that allegedly continued undiminished until not later than the end of the 1999 calendar year," as alleged in the Amended Administrative Complaint. The Commissioner failed through the testimony of Ms. Thomas to establish as fact or to prove that Mr. Merica initially or began to demonstrate an inability, refusal, improper, or any other negative aspect of his professional teaching responsibilities at any time during the 1994-1995 school year. Ms. Thomas testified of overhearing statements made by Mr. Merica of which she shortly thereafter made the following written notation dated August 12, 1999: This morning at bus arrival time Mr. Merica left his students unsupervised to go into the clinic to talk with the nurse. His conversation consisted of suggestions that the clinic should have cell phones that could be used at home. He also commented that he should talk to the television reporters who were outside to let them know how the county runs things. He came in and out of the clinic at least 3 times in a 10 minute time span and made these comments in the presence of staff and at least one student. Ms. Thomas' testimony and her subsequent written notation regarding a conversation consisting of "suggestions" that the clinic should have cell phones and that Mr. Merica "should talk to the television reporters who were outside," if true, were suggestions and nothing more. The witness did not know why or for what reason Mr. Merica entered the clinic. The identification of the staff member (other than herself) or identification of the unnamed student alleged to have been present and presumably overheard Mr. Merica's suggestions are not in the record. The witness' testimony demonstrated a distinct lack of a specific memory of the facts at issue to which she testified. The testimony in findings 77 through 80 failed to establish a firm belief without hesitancy as to the truth of the allegations sought to be established. Classroom Visits and Observations Ms. Thomas testified that over an unidentified three- year period she visited and observed Mr. Merica teaching his PI class approximately ten times with each visit lasting ten to 30 minutes. Ms. Thomas' visits and observations were neither made at the request of the principal nor were they made after notice was given to Mr. Merica. She did, however, make note of a single incident outside the school cafeteria, apparently for future reference and not to help a fellow teacher; but of the ten visits she made to observe and presumably help a fellow teacher, she made no written notations evidencing the dates of her visits and observations, at or near the time of each visit. Her alleged visits to Mr. Merica's class, without specifying the reasons for her visits, were more or less one co-worker visiting another co-worker; if, in fact, those ten, undocumented visits actually occurred. Documents Prepared Critical of Mr. Merica's Performance Ms. Thomas did, however, within a 45-day period, prepare seven documents, each critical of either Mr. Merica's conduct or professional teaching methods, and purportedly gave a copy of each document to Principal Griffin. The seven documents prepared by Ms. Thomas were all dated over a three-month period (August 11, 1999 to October 27, 1999), when from evidence of record, Foster administration was preparing to recommend to the Board termination of Mr. Merica's contract employment with the county. Ms. Thomas dated her first document August 11, 1999. She dated her six additional documents Augusts 12, October 19, 20, 21, 25, and 27, 1999. The seven documents prepared by Ms. Thomas did not include any of the alleged ten visits she made over the three-year (from 1997 through August 11, 1999) observation period of Mr. Merica to which she testified from long past memory in Finding of Fact 81 hereinabove. No other witness, including Mr. Merica, corroborated Ms. Thomas' alleged ten visits to Mr. Merica's class. I find the lack of documentation and the witness' lack of recall ability regarding specifics that occurred more than four years past an insurmountable barrier in accepting the witness' testimony as creditable on those significant points sought to be established. When asked on cross-examination whether Principal Griffin requested her to prepare the two August 1999 documents and the five October 1999 documents, Ms. Thomas suffered a sudden lapse of memory. When asked about each document individually, Ms. Thomas gave answers of either "I don't remember," "I couldn't say for sure" or "I couldn't guarantee." The seven documents prepared by Ms. Thomas in August and October 1999 contained alleged statements made by Mr. Merica, some personal observations, a prepared historical statement beginning with her first meeting with Mr. Merica in 1996 throughout 1997 and 1999, and hearsay statements from several students that were not recorded at or near the time they were made. The witness' failed memory, coupled with her inability to recall if she was asked by her principal to prepare those seven documents within such a short time span, rendered suspect and unreliable both the author and the content of her seven documents. The witness was defensive, evasive, and reluctant on significant points, evidenced by her lack of memory and confusion regarding who made the request and for what purpose she wrote seven different documents in a short time period. Her answers were not forthright and this aspect of her testimony raised insurmountable issues regarding her credibility. The testimony of Ms. Thomas lacked sufficient reliability, due to her uncertainty, to produce a firm belief in the mind of the undersigned as to the truth of the allegations sought to be established. Classroom Management by Mr. Merica Compared to Classroom Management by Other Teachers When asked about problems regarding classroom management Mr. Merica had with his PI classes as "compared with class room management problems of other teachers," Ms. Thomas answered "[t]here are children in most classes who present behavior problems." Her memory was better on this issue and she recalled observing a few instances with two or three students creating problems in Mr. Merica's class. However, she did not identify the "other teachers" to whom she compared Mr. Merica nor did the witness establish "the other teachers" class room management standards. I find the witness' testimony was intentionally slanted to exaggerate the nature of Mr. Merica's classroom management without providing specific incidents from which an objective evaluation could have been made. The Commissioner failed, through the testimony of Ms. Thomas, to prove allegations that Mr. Merica demonstrated incompetence as alleged in the Amended Administrative Complaint, by evidence that he had "more" behavior problems in his ESE and PI classes than other unidentified ESE and PI teachers similarly situated. Classroom Management by Mr. Merica as Compared to Classroom Management by New Teachers with Less Teaching Experience Ms. Thomas testified, unconvincingly, that after Mr. Merica left Foster in 2000, new unidentified teachers came in and taught self-contained SLD classes with acceptable classroom management style. With improved memory on this issue, Ms. Thomas recalled that she observed the new teachers' classroom management style but could not remember if she documented classroom management problems observed with the new teachers, as she had with Mr. Merica. Assuming the intended purpose of this particular testimony was to demonstrate an appreciable difference between Mr. Merica's classroom management skills and teaching methods, after years of experience, to the classroom management skills and teaching methods of new teachers with much less experience, it failed. The testimony of Ms. Thomas regarding the issue of her comparison of class management and teaching skills of Mr. Merica to those of new unidentified teachers, including documents she prepared, those referred to, and the alleged acts therein, whether used for comparison or not, occurred beyond the 1994 through 1999 time period alleged in the Amended Administrative Complaint or some comparable pleading. On that basis, this testimony of Ms. Thomas must be, and is, rejected in toto. It is a basic tenet of common law pleading that "the allegata and probata must correspond and agree." See Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987). The documents Ms. Thomas prepared and the testimony she presented herein above in findings 78 through 85 failed to establish as fact that on those occasions Ms. Thomas observed Mr. Merica, he failed to perform to professional expectations as a competent teacher as alleged in the Amended Administrative Complaint. Statements Made to Principal Griffin's Daughter Tamiko Council believed, but was not certain, that she was a DEEDS attendant at Foster the 1997 to the 1999 or the 2000 school year. She testified that during a (unspecified) summer school session, Principal Griffin's daughter had been introduced to her earlier in the day but she was unable to give the date of the incident. As she recalled, she and Principal Griffin's daughter were coming from the bus ramp in route to the cafeteria when Mr. Merica noticed Principal Griffin's daughter and, in her presence, said to the child: You need to tell your mom to quit worrying about teachers around the school. She needs to focus more on what the children are doing. Later that day Principal Griffin called Ms. Council into her office and made inquiry regarding the incident, as told her by her daughter, and Ms. Council confirmed the incident had occurred. Mr. Merica acknowledged making a statement to Principal Griffin's daughter. The Commissioner proved that Mr. Merica made a statement to the daughter of Principal Griffin. The appropriateness of a teacher stating his opinion to a young person who was a student attending a Hillsborough County school was inappropriate. However, the statement alone, under the above circumstances, does not demonstrate a "failure to protect student[s] attending for educational purposes from harmful conditions." There is no evidence of record offered to demonstrate that Principal Griffin's daughter, after the comments by Mr. Merica, "experienced harmful conditions to her educational purposes," during the summer she was at the school of which her mother was principal. Pamela Wilkins was a teacher of educable mentally handicapped students at Foster for a five-year period from 1993 to 1998. During the three-year period of approximately 1995 through 1998, Ms. Wilkins was an ESE specialist. Harassment and Unreasonable Interference with Co-workers Ms. Wilkins testified regarding an incident that allegedly occurred when she asked Mr. Merica into her office for an unspecified discussion. Ms. Wilkins did not remember the school year or the month the incident of which she testified occurred nor did she remember the situational circumstances, the context or the issue over which she and Mr. Merica had their alleged discussion and subsequent disagreement. With no memory of any specifics as to why she would ask him into her room, Ms. Wilkins only recalled Mr. Merica’s discussion with her that she characterized as "his getting upset and her saying nothing." Ms. Wilkins did not know why she invited him into her office, but emphasized her "only reason" for inviting "him into her office would have been to discuss an ESE issue." There is no record evidence regarding the ESE issue of such importance that this witness called Mr. Merica into her office for a discussion of an issue she does not recall, when her "only" time calling him into her office was so memorable. Having established her ability to ”call Mr. Merica into her office" for reasons unknown to her, this witness then testified about some purported disagreement between she and Mr. Merica. Even assuming the alleged disagreement occurred and was, in fact, over an ESE issue between she and Mr. Merica during their single discussion the witness testified: I really don't recall the entire situation. The main thing 'is just his response.' We were talking about--obviously it was ESE issues and he ended up getting upset, and I was on one side of the desk and he was on the other side. He ended up leaning over the desk and was in my face. His veins in his neck were bulging and kind of trembling and just was yelling at me and I was completely stunned and shocked the way he had responded and so I really did not say anything else at that time. The testimony of Ms. Wilkins evidenced her characterization of one party's reaction to an alleged disagreement over an alleged and unidentified ESE issue. Absence evidence of the context, circumstances, and the ESE issue that precipitated the purported disagreement between co- workers, the record contains no basis upon which to determine with reasonable certainty the appropriateness of one party's alleged reaction to the other party's input during a collegiate disagreement. The referenced reaction, even if accepted as factually true, absent evidence of the issue, context and circumstances, failed to clearly and convincingly establish an unprofessional, hostile behavior on behalf of Mr. Merica toward a co-worker, Mr. Wilkins, as alleged in the Amended Administrative Complaint. The witness' apparent stunned and shocked reaction to a co-workers' disagreement with her over an unidentified ESE issue was not so unprofessional and shocking, at the time of occurrence, to compel Ms. Wilkins to report such shocking disagreement to the school administration. It was not of such importance, at that time, to prompt Ms. Wilkins to document her shocking outrage for future reference and possible investigation by proper school authorities. Ms. Thomas' lack of recall of the circumstances to an incident to which she was a major participant, and the record evidence of scant circumstances surrounding the alleged one-party reaction to a two-party discussion and alleged violent disagreement, created an insurmountable credibility gap in her testimony. Based on the foregone, it is found that the testimony of this witness lacks credibility. This testimony is rejected because it is wholly unreliable regarding the truth of the allegations sought to be established. The testimony of Ms. Wilkins in findings 90, 91, 92 and 93, hereinabove, absent record evidence of the issue which caused the alleged disagreement between colleagues, is sufficiently vague and imprecise that it failed to establish a firm belief, without hesitation, of the truth of the allegations sought to be established. The alleged conduct by one party over an unidentified issue during a mutual disagreement between colleagues does not establish unprofessional conduct or a violation of established standard of professional protocol. The Commissioner failed, through the testimony of Ms. Wilkins, to prove that Mr. Merica, while in Ms. Wilkins' office engaged in conduct that was unprofessional, belligerent, hostile, confrontational, and subversive in the workplace toward his co- worker as alleged in the Amended Administration Complaint. Sexual Harassing Statements Made in Presence of Child Evelyn Tait, at all times material, was the administrative data processor at Foster. Before her promotion to administrative data processor, she was a teacher's aide for a few years. Ms. Tait is the sister of Secretary Bragdon. Ms. Tait first qualified her testimony stating that she "believed but was not certain," that the Investigation Manager for the Board (Michael Saia) came to her and asked her if she would write a statement about Mr. Merica. In her effort to comply with the request of the Board's investigator, and on October 2, 2001, Ms. Tait wrote the following document purporting to detail a "forgotten and previously unreported incident" that allegedly occurred, some three years earlier, in 1999. Ms. Tait's efforts to comply with the request of the Board Investigator resulted in Ms. Tait writing the following October 2, 2001, addendum to her 1999 written statement: On August 27, 1999, I wrote a statement regarding Mr. Neil Merica. The statement that I wrote was true and accurate [sic] as I recall. However, I would like to add a time that I was out in the pickup area picking up my son from school. I was in my care [sic] and Mr. MERICA came over to my window and made a commet [sic] regarding to what was under my shirt. I was made to feel very uncomfortable, and was inappropriately addressed [sic] from a teacher to a pa [sic] and also to a parent of a child in this school. Back in August 27, 1999, Ms. Tait wrote: To Whom It May Concern: I am writing this letter to you regarding the actions of Mr. Neil Merica that I have observed. I am a paraprofessional at Foster Elementary School and have only been employed as a permanent employee since the beginning of this school year.[1999] On several occasions, I have seen Mr. Merica screaming at a student with his face being very close to theirs. The child on each occasion looked very scared. Since I am such a new employee at the school, I am not familiar with the discipline procedures of the instructors, but being a parent of an eight year old, I know that the behavior that I have seen him display with the students is very uncalled for. As a parent, I would be very upset if I thought for once that a teacher was yelling at my child in such a manner. I have also witnessed Mr. Merica when he was upset for one reason or another with the administration. He sometimes appears to be out of control, saying things that are unnecessary. I am writing this letter for documentation of what I have observed and for the welfare of the children involved. I am requesting that my name not be revealed to Mr. Merica because being "a smoker", I am in contact with him daily. I am afraid of retaliation from him if he were to find out. Sincerely, Signed by Evelyn B. Tait /s/ The two documents signed by Ms. Tait, and her explanations when questioned, evidenced not truth, but rather confusion caused by this witness' attempt to comply with the request by Mr. Saia, in preparation for her testimony at this hearing. The truth and accuracy of the documents as well as Ms. Tait's understanding, explanation, and lack of credibility regarding these two documents are best demonstrated by her cross-examination: Q. Would you look back at number exhibit 23 again? You wrote that statement on October 2, 2001; is that correct? A. Um-hum. Q. And the first sentence says: "On August 27, 1999 I wrote a statement regarding Mr. Merica." (as read) Were you referring the Exhibit 22? A. I think I was --- Q. All right. You were referring to the other statement when you write that? A. I think I was. Q. I want you to take your time and made sure. That one is dated August 27th, 1999; correct? A. Yes. This happened on two separate occasions. Q. That's what we're going to get to in a minute if you'll let me walk you through this. A. Yeah, it did. Q. You go on to state that you gave a statement back in August '99 and everything you said in that was true, but you want to add something. And what you want to add is this incident that happened at the pickup circle: correct? A. Yes, sir. Q. How long ago had that incident happened at the pickup circle? A. What do you mean, how long ago? Q. How long prior to the time when you wrote this statement? A. I would say probably close to the date that it was signed. Q. Okay. So the incident at the circle would have been close to October 2001? A. I don't remember the dates sir. I don't remember the dates that I wrote the statements. I don't remember the dated. Q. Al right. The incident at the circle -- did you complain about it when it happened? A. Yes, I did. Q. Who did you complain to? A. I went and obviously told the principal's secretary again. I don’t' know who I would complain to. I'm just not going to -- you know, I wasn't out to get Mr. Merica in trouble. Q. I'm not suggesting that -- A. I was just --- Q. I'm not suggesting that you were. [Witnesses instructed by the undersign to answer the question asked by counsel without editorializing] Q. All right. Let's walk back through it. An incident happened at the pickup circle; correct? A. Um-hum. Q. And at some point after that incident, you reported the incident to someone; is that correct? A. It was immediately. Q. Immediately? That day? A. Yes. Q. All right. You got out of your car when you picked up your child? A. No. It wasn't immediately that day. It was -- like I said, the principal's secretary is my sister, so I probably reported it that afternoon. Q. After you picked up your child? A. Um--hum. Q. Is that a "yes"? A. Yes, sir. Q. All right. You took your child home? A. Yes. Q. And then went back to the school to report it? A. No. I probably called her on the telephone. Q. All right. You've said "probably a number of times. Do you -- A. I called her on the -- I don't remember. I'm sorry. I don't remember. You know, I don't remember when it was placed, to be honest with you. I don't remember exactly when it was reported, how it was reported. I don't remember. Q. All right. Did anyone ask you to write a statement about the incident that occurred at the pickup area? A. I don't remember that, either. I guess someone must have asked me to write a statement or I wouldn't have written one. Q. And when you say you wrote one, you're talking about Exhibit 23; correct? A. I wrote this statement as well. Q. Is there another statement besides Exhibit 23 that addresses the incident that allegedly occurred at the pickup circle at the school? A. No. It's this one. Q. So to your knowledge that is the only statement that you made; correct? You made that statement a couple of years after the incident occurred; correct? A. That would be 10-02 -- I mean, 01. Q. All right. A. August 27th is the first statement. Q. Of '99; correct? A. Right. Q. So here we are a couple of years later in 2001 and you're making a statement for the first time about the traffic circle incident; correct? A. Right. Q. That's the only statement that you're written about that? A. Yes. I am very sorry. This is very confusing to me. I wrote statement when they were reported -- you know, when I reported them. I don't remember dates. We're taking how many years ago and I apologize you know. Q. Could it be, ma'am that the first time that you reported the incident that occurred at the traffic circle was around October 2001 when you wrote this statement? A. Yes. When subjected to cross-examination about her two written statements, her confusions, and her lack of personal knowledge of specific details of the alleged curb-side incident, Ms. Tait contradicted her entire testimony as reflected in findings 96, 97, and 98 above, to include the two documents she authored. It is apparent that Ms. Tait's preparation for this hearing, at a minimum included writing a statement three years after the alleged occurrence. It is also reasonable to infer that Ms. Tait's testimony and her 1999 and 2001 documents were an attempt to exaggerate "negative personal conduct on behalf of Mr. Merica" in a decided attempt to appease her employer. Ms. Tait's entire testimony hereinabove, lacks credibility and failed to produce a belief to the undersigned as to the truth of the allegations sought to be established therein. Sexual Harassment of Co-workers Allegations Kelley Kolinsky (f/k/a Toms), a self-employed Occupational Therapist (OT) since 1998, worked at Foster for two and one-half years, doing evaluations and arranging treatment protocol for ESE children. As an OT, she recalled one pre-K evaluation she covered for Kathy Prado, Ph.D., another occupational therapist. Though she tried to recall the persons present at the meeting, she was unable to do so. She recalled an unnamed parent and a unnamed male who were also present. Ms. Kolinsky testified that she was not going to cover any more meetings at Foster. When asked why? Ms. Kolinsky answered: I don't know exactly. It's been like -- I don’t' even know how long, but I just remember being uncomfortable with -- I don't even remember if it was comments or notes, looks, whatever, but something like with the male teacher that was present at the meeting. But it's been so long that I really can't give any more specifics. When asked if during the meeting there was anything of a sexual nature, Ms. Kolinsky replied: I can't say. I mean, I remember I was uncomfortable, but I don't remember specifically now. The Commissioner, by the uncertainty of Ms. Kolinsky's testimony, failed to establish as fact that during the 1994-1999 school years, Mr. Merica sexually harassed a co-worker by making inappropriate comments to Ms. Kolinsky, an occupational therapist, in the presence of other colleagues and/or in the presence of a parent as alleged in the Amended Administrative Complaint. Kara Twohy was an ESE teacher at Foster from December 1996 through 2000. Ms. Twohy first met Mr. Merica when she was a teacher-intern in an EMH class at Foster during the 1995-1996 school year. Ms. Twohy testified that Mr. Merica made her "feel uncomfortable" giving as an example the following incident: He would do things like put his arms around me. One thing I can remember is he said I had an ink spot on the back of my shirt and he was attempting to rub it off. He would come -- and this is afterwards when I became a teacher -- he would come to the classroom and he brought a rose at one time, and he was constantly -- whether I was at art or I was in the classroom, he was constantly visiting the classroom. I can remember an incident where I was really ill and he came to an assembly and brought me some tissues. All in all, it just made me very uncomfortable. When she was "really ill," Mr. Merica brought her tissues and once gave her a rose. Bringing tissues to one's colleague when the colleague was "really ill" may have been either an appropriate or an inappropriate gesture. However, the act itself does not prove it was sexual harassment. According to Ms. Twohy, she initially expressed her uncomfortable feelings to other unnamed co-workers and Principal Griffin, but not to Mr. Merica. When she told Principal Griffin about her uncomfortable feelings around Mr. Merica, she testified that Principal Griffin said to her: "there's nothing really that anyone could do, but to start writing everything down. So I began writing them down." There is no evidence of record that Principal Griffin initiated an administrative investigation into the "uncomfortable incidents" related to her by the young teacher, Ms. Twohy. It is, thus, reasonable to infer, and I so infer that at the time and under the circumstances, Principal Griffin did not consider that Ms. Twohy's "uncomfortable" feelings resulting from Mr. Merica's attention to have been "sexual harassment" as that term is generally understood when placed in the above situational context. According to Ms. Twohy, after she told Mr. Merica that his presence, his attention, and his conduct made her feel uncomfortable, she recalled he apologized: There was in incident that occurred between him and my aide at the time who was Adele Morris, and basically she told him to leave me alone and he said well, I'm a big girl so I should be able to tell him myself. And he approached me the following day, I believe, after the confrontation and asked me if he made me feel uncomfortable, and I told him yes, he did. I felt very uncomfortable around him and he did apologize and say that he was sorry for making me feel uncomfortable. As a employee of the Board, Ms. Twohy knew the Board’s sexual harassment policy requirement of reporting harassment to the school's administration. She followed the policy by reporting her uncomfortable feelings and concerns to Principal Griffin. When Ms. Twohy informed Mr. Merica that his attention and conduct made her uncomfortable, he immediately discontinued all contact and apologized to her. If, as the Commissioner argued, Mr. Merica sexually harassed Ms. Twohy during the time above-stated, she followed protocol and reported the matter to her principal. There is no evidence of record that the principal of Foster initiated or requested an investigation by the School Board and a determination of whether or not Mr. Merica committed the alleged sexual harassment. If the matter was not properly investigated and determined by the Board to have been sexual harassment when it occurred, it will not be determined to be sexual harassment now by the undersigned based solely upon the unconvincing testimony of Ms. Twohy. The Commissioner failed to establish as fact, by findings 96 through 103 hereinabove, that Mr. Merica sexually harassed Ms. Twohy, a co-worker and sexually harassed Ms. Kolinsky, as alleged in the Amended Administrative Compliant. Kim Kimpton, via her video-taped testimony, was convincing and unequivocal in her response to the question, "[D]o you consider Mr. Merica's action(s) towards you to be sexual harassment? "No, not specifically." The "actions toward you" referred to what was described by the Commissioner as unwanted attention, several instances of on school-property encounters and off school-property encounters, to include buying lunch for her on one or more occasion, giving her presents, and thereafter writing a letter of apology. The Commissioner failed to prove by the evidence of record that during the 1998-1999 school year, Mr. Merica sexually harassed Ms. Kimpton, as alleged in the Amended Administrative Complaint. I find that the Commissioner failed to prove by clear and convincing evidence that Mr. Merica sexually harassed any present or past female member of Foster's administration as alleged in the Amended Administrative Complaint. SLD Student's Version of Classroom Management and Student Control Patricia Rumlin, mother of Jarmaal Rumlin, a 15-year- old SLD student witness who, at the time of the hearing, was in ninth grade, accompanied him at the hearing. When asked, Jarmaal remembered he had been a student in Mr. Merica's class for his fourth and fifth grade school years (1997-1999 school years), but he did not remember the specific school years. During the period Jarmaal was a Foster student, the Board was operating under the self-contained class policy, and Jarmaal was in Mr. Merica's self-contained class throughout the school day. When asked the open-ended question, "[W]hat about the incident when the kids were kicking a ball in the classroom?" Jarmaal gave the following, incomplete, confused, response: We was [sic] playing in the class. Takela kicked the ball to the back of the room and she went to go get it and he trapped us in the back of the room and we bust out and we ran down to the PE field. When asked "[D]id Mr. Merica ever come into any contact or anything with Takela?" Jarmaal, again confused, answered: No. He just holding in the back of the room. [sic] Holding her and she was trying to run and trying to grab her. She was going to fight back, until she got loose and ran. When asked, "[W]hy did you not mention or report this incident to other teachers, the principal [1997-1998/Payne and 1998-1999/Griffin] or the Board’s investigator?" (1999 to 2003) Jarmaal answered: "They didn't talk to me." Jarmaal's above testimony, did not corroborate the testimony of another witness who stated: "Ms. Teresa Joslyn entered a room and found Mr. Merica seated on a couch holding Jarmaal by the arm and yelling in his face and that Ms. Joslyn took him by the hand and stood him up and Principal Griffin came into the room and observed those actions," as argued by the Commissioner in its post-hearing submittal. Jarmaal admitted that "kids in his class misbehaved in class, played kickball and got up and walked around when they were not suppose to." When asked if he liked Mr. Merica, Jarmaal answered "[N]o." When asked if he learned anything in Mr. Merica's class Jarmaal answered, "I didn't learn nothing [sic]." When asked if he wanted Mr. Merica as his teacher again, Jarmaal, answered, "[N]o I don't Mr. Merica as my teacher again." Testimony from other teachers at Foster established that SLD students were, if not daily, most certainly, routinely unruly in their classes and in hallways. Jarmaal's testimony seemed rehearsed, but he was confused about the facts critical to the situation of which he testified. The witness' inability to recall and his manner of testifying raised substantial issues of the witness' credibility primarily because of his seemingly rehearsed responses and confused factual response, often mixing several parts of separate incidents. Through the testimony of Jarmaal, a SLD student, the Commissioner failed to demonstrate and prove by example that: (1) Mr. Merica engaged in inappropriate discipline, (2) he failed to engage in meaningful teaching methods, (3) he lacked professional classroom control and management of his SLD class, and (4) he was incompetent as a teacher, as alleged in the Amended Administrative Complaint. I find the SLD students' reply he did not "like" Mr. Merica an insufficient foundation from which to infer that the SLD student did not "respect" Mr. Merica as a teacher. Tawnya Clark, mother of Demetrie White, another 15- year-old SLD student, accompanied him in the hearing. Demetrie only remembered attending Foster. He did not remember the years he attended Foster (1997-1998/Principal Payne and 1998- 1999/Principal Griffin). He did not remember the grades he was in when he was attending Foster. He did not remember the class (fourth and fifth grades) he was in when Mr. Merica was his teacher. When asked "[I]n what ways Mr. Merica would get upset?" Demetrie, hesitantly, gave the following response: When like students get like up out of they seat and walk around the classroom and talk to other students, he'd get mad then and then after that he'd like -- Jonathan he would be like getting up out of his seat and talk to me, Eldrid and another friend who go to my school and he would like grab Jonathan, try to twist his wrist and then slam him on the ground and then Jonathan would be like, Get up off me. And then that's when like he would like flip. He would try to get up off the ground, Jonathan. That is when he tried to grab Mr. Merica's neck. That's it. Demetrie admitted that the kids would get up and walk around in class when they were not supposed to do so. He admitted that Jonathan tried to grab Mr. Merica's neck. He remembered a female teacher's aide but he did not remember her name or whether she was black or white. As with Jarmaal, Demetrie remembered Mr. Merica yelling at students when they were acting up. He remembered Mr. Merica yelling in the faces of students. Demetrie, like Jarmaal, said he did not like Mr. Merica, "he didn't learn nothing" and he "didn't want Mr. Merica as his teacher again." Utter confusion permeated Demetrie’s understanding of the questions asked of him and his seemingly rehearsed answers to those questions. I find the SLD student's reply that he did not "like" Mr. Merica an insufficient foundation from which to infer the SLD student did not "respect" Mr. Merica as a teacher. Viewed most favorably, the testimonies of these two very large young boys consisted of a confused misunderstanding of questions asked of them and their rehearsed answers. The testimony of these two young boys established that at times, Mr. Merica yelled at them and, on occasion, restrained them for his personal defense and/or to regain classroom control when they were acting out of control, being disobedient, playing kickball in the class room, and yelling at each other and at him. The situational circumstances of the separate incidents to which the witnesses testified occurred four or five years earlier. These two SLD students were confused, and their testimony consisted of a mixture and intermingling of critical factual portions of two separate incidents into one continuous dialogue. From their individual and collective testimony, the appropriateness or inappropriateness of Mr. Merica's conduct, in an attempt to control and manage his SLD class, cannot be determined with a reasonable degree of certainty to produce a firm belief as to the allegations in the Amended Administrative Complaint. The ambiguity created by the testimony of Jarmaal and Demetrie relating to a specific portion of their testimony related to a specific incident is decided in favor of Mr. Merica. The Commissioner proved that Mr. Merica "restrained" Takela, a student in his SLD class, by holding her arm. The Commissioner proved that Mr. Merica "restrained” Jonathan, a student in his class, by holding the wrist and arm of Jonathan. Based upon the testimony of these two young SLD students, assuming accuracy and truth, Mr. Merica’s physical restraining actions were, given the circumstances and situation at the time of physical restraints, appropriate for the defense of his person and for the protection of other students in the class. Disagreement Over IEP Content and Student Control In 1995 Ms. Teresa Joslyn began teaching at Foster Elementary as an EMH teacher. She affirmed other witnesses' testimonies that Mr. Merica was loud and argumentatively disruptive during staff and faculty meetings. Ms. Joslyn, however, gave unconvincing testimony regarding one IEP meeting she attended with Mr. Merica, but she could not provide the month or school year the IEP meeting occurred. According to Ms. Joslyn, during this IEP meeting an unnamed parent wanted unspecified items included in her unnamed child’s IEP, and Mr. Merica, the teacher, was apparently of the opinion that those items desired by this parent were not necessary. The IEP in question was not entered into evidence. When asked whose opinion determined the make up of the IEP, Ms. Joslyn replied, "[t]he case manager, who is generally the teacher [Mr. Merica in this instance]-- the person that serves the child the most.” During this particular IEP meeting, and with no evidence, or personal knowledge of the specific IEP items under discussion, Ms. Joslyn never the less concluded an unspecified position maintained by Mr. Merica was unreasonable and, by implication, unprofessional, and the position taken by the unidentified parent was reasonable. Ms. Joslyn's testimony is not credible, competent or of substantial weight to support a firm belief of the truth of the allegations sought to be established. Ms. Joslyn, without giving the year or month, remembered occasions when she would visit Mr. Merica’s classroom. According to Ms. Joslyn: On the occasion(s) when I would enter Mr. Merica's room, oftentimes I did not find him engaged in active teaching. There were times when I would walk in and he was--there was a game on the computer that he was playing or he'd be reading the newspaper or magazine at his desk. The aides -- the children would --have may or may not have worksheets on their desks and the aides seemed to be the ones that were more engaged with the children. Ms. Joslyn testified again, unconvincingly, about one incident she remembered, but she was unable to provide the month or year, when she heard a "kind of ruckus and loud voices." She remembered hearing an unnamed child's voice and Mr. Merica's voice, but she did not hear the words being spoken by either person. She supposedly entered the room and saw Mr. Merica seated on a couch holding Jarmaal (Rumlin) by the arm and Jarmaal trying to resist and get up. Continuing, she also remembered that Mr. Merica was agitated, upset, and yelling, and the child was also yelling. Ms. Joslyn specifically recalled that while she was "taking Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office." According to Ms. Joslyn, both "the Principal" (Griffin) and Jarmaal were actively involved in this arm holding incident. Principal Griffin did not corroborate Ms. Joslyn's vague and non-specific memory of an undated arm holding incident. Jarmaal was not asked about this specific incident nor did he corroborate Ms. Joslyn's testimony. No other witness called by the Commissioner gave corroborating testimony in support of Ms. Joslyn’s testimony. This is critical to the credibility determination in this proceeding since allegations of inappropriate conduct in his professional relations with children are specifically alleged in the Amended Administrative Complaint and form the bases, in part, to support the allegation of professional incompetence. I find that Ms. Joslyn's vague, non-specific testimony, without corroboration of the other alleged participants to establish the context, circumstances, and time, raised substantial issues of her credibility. Her testimony and credibility was further diminished by the lack of corroborating evidence from other witnesses who were allegedly involved. The testimony contained in findings 128 and 129 hereinabove is rejected for its lack of credibility. I find that the Commissioner failed to prove, through the testimony of Ms. Joslyn, that between 1994 and 1999 Mr. Merica was not engaged in active teaching and that on unidentified occasions he was playing computer games or reading a newspaper or magazine while some unidentified staff taught his class and failed to prove that Mr. Merica engaged in inappropriate conduct by "holding Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office." The Commissioner has failed to prove that Mr. Merica was incompetent, as alleged in the Amended Administrative Complaint. Debbie Maronic, physical education teacher at Foster, gave repetitive testimony affirming the fact that Mr. Merica was loud, often disruptive, and sometimes argumentative with colleagues at staff and faculty meetings. Ms. Maronic also testified of having heard "numerous stories about how Mr. Merica behaved inappropriately to other female staff members at meetings or in the hallway or other places," without recalling any one of those numerous stories. Ms. Maronic admitted that she heard her information, not from Kelly and Kim Rivenburg, the females alleged to have been recipients of inappropriate conduct, but from second-hand people. The hearsay upon hearsay summary testimony of "stories" Ms. Maronic heard regarding inappropriate conduct toward females is not competent to establish a finding of fact. The testimony of Ms. Maronic is rejected in toto by the undersigned. When the testimony of Ms. Kolinsky, Ms. Twohy, and Ms. Kimpton, that they were not sexually harassed by Mr. Merica, is juxtaposed to the hearsay upon hearsay testimony of Ms. Maronic that Mr. Merica "behaved inappropriately to other female staff members," a pattern of gossip, moving from witness to witness presented by the Commissioner, emerges for which there is no defense and very little, if any, truth to be objectively determined. The uncorroborated testimony of this witness lack credibility and is rejected. The Commissioner failed to prove, through the testimony of Ms. Maronic, that between 1994 and 1999 Mr. Merica engaged in unprofessional conduct, inappropriate conduct, and/or sexually harassed female co-workers as alleged in the Administrative Complaint. Ms. Maronic testified, again unconvincingly, concerning a throwing incident in the school cafeteria in 1999, she did not observe and therefore could not provide situational circumstances surrounding this incident. According to Ms. Maronic, as she walked by she could see Mr. Merica out in the hallway very upset and yelling very loudly at very close proximity to the unidentified students. Ms. Maronic testified that she was not "comfortable" witnessing that situation and would not leave the area until an administrator came. Nothing in her testimony identified the administrator who allegedly came so she could leave; she knew nothing, who, what, where, when or why, about the incident, though so "uncomfortable," she believed her presence was required. She neither attempted to record this "uncomfortable" incident for future reference nor did she report the matter directly to the school administration. This testimony was not internally consistent and the character of this witness' testimony, as well as the witness' demeanor, did exaggerate the nature or circumstances of the incident. The testimony of this witness lacks precise explicitness to produce a belief as to the truth of the allegations sought to be established. The Commissioner failed to establish as fact through the testimony of Ms. Maronic that, at some unspecified time in 1999, Mr. Merica's student behavior management was inappropriate or that Mr. Merica demonstrated professional incompetence as alleged in the Amended Administrative Compliant. Professional Assistance Offered by Resource Teachers Virginia King, with over 21 years of teaching experience, held the position of Hillsborough County, Area IV, administrative resource teacher (ART) since 1981. Ms. King's primary duty was to provide support and training for teachers of ESE. Her three-part support and training program consisted of: (1) teacher evaluation followed by (2) teacher assistance and concluded with (3) specific training for the teacher. Ms. King was not qualified as an expert. Based solely upon her experience, Ms. King opined that--"dealing with student behavior issues are [sic] challenging to teachers and most difficult for teachers in emotionally handicapped full time programs,” as was Mr. Merica. She further opined that "both SLD and ESE classes have behavior issues; but, in full-time ESE classes, student behavior control is most difficult for teachers regarding overall classroom control and classroom management, as compared to full-time programs where teachers of PI classes classroom control and management is least difficult." Ms. King testified that in her 21 years of teaching experience, many ESE teachers have difficulty with classroom behavior and management issues, and the training of teachers of those students is ongoing training in the Hillsborough County school system that never ceases. She is of the opinion that yelling in students' faces is unreasonable and physically restraining a student is "never" justified. Ms. King's opinion regarding physical restraint of a student is "never" justified conflicts with the statutory authority of teacher(s) to remove disrespectful, violent, uncontrollable or disruptive students from classes when appropriate, to include physical restraint, as provided in Subsection 1003.32(1)(j), Florida Statutes (2003). The Commissioner did not introduce evidence of physical restraints standards adopted by the Board of Education. The opinion of Ms. King is contrary to the statute and disregarded for all purposes in this proceeding. Proffered Evaluation and Assistance Offered to Respondent During the 1999-2000 school year, Principal Griffin requested that Ms. King visit Foster to evaluate, assist, train, and help Mr. Merica with his SLD class. According to Ms. King (without giving the year and month), she made two visits to Mr. Merica's class. She testified only about her initial visit that took place during the morning class session. When she returned for a second visit, the school administration had removed Mr. Merica from his teaching position. This one visit by Ms. King was the first step of her three-part support and training program, i.e. teacher evaluation. There was no teacher assistance and specific training offered to Mr. Merica by Ms. King. When asked to give her "general impression" of Mr. Merica's professional ability and competence to teach SLD students after just one visit, Ms. King replied: Well, in our interview I was a little surprised because I didn't really -- he has a background in SLD so he had a lot of knowledge of SLD and how to teach children with learning disabilities, addressing their different learning styles and I was actually able to observe that in class. It was a math class and I thought that he did a very nice job of addressing the student's individual needs, and that's a difficult thing to do because they're all so different and they were all at different math levels and I did see that he was able to use different teaching techniques all in one lesson. He did mention to me that -- well, I knew that there were behavior problems and I did see behavior problems and that did happen after the lesson in the transition period. The children were unruly and not really doing, you know -- you could tell that there was a lack of control was obvious. But at this particular time, the children had been really fairly well-behaved and he had mentioned to me that I should come back in the afternoon -- because this was a morning visit -- that I should come back in the afternoon so that I could see their true behavior which he said was truly out of control. Through the testimony of Ms. King, the Commissioner, clearly and convincingly, proved to the undersigned that during the 1999-2000 school year, Mr. Merica's competence as a professional teacher of children with learning disabilities ("the children had been really fairly well-behaved") was the same as and/or equal to competence as a professional teacher in the classroom of other teachers of children with learning disabilities whom the witness had observed. Conversely, the Commissioner failed to prove, clearly and convincingly, through the testimony of this witness that Mr. Merica demonstrated "incompetence" in his classroom teaching skills or that his classroom student behavior management was ineffective. The Commissioner failed to prove that Mr. Merica utilized ineffective lesson plans and ineffective classroom behavioral management plans. The Commissioner failed to prove that Mr. Merica failed to keep students academically engaged in class and that he failed to control his students and/or gain their respect as the manager of the class, as alleged in the Amended Administrative Complaint. The Commissioner failed to establish as fact, through Ms. King's testimony regarding her single classroom visit, that Foster administration, by and through Principal Griffin, offered Mr. Merica meaningful, professional, constructive help and assistance program plan that he intentionally disregarded and that he failed and refused to accept and implement the suggested offering of assistance as alleged in the Amended Administrative Complaint. The record evidence does not specify whether Ms. King's one visit occurred during the school year of 1998- 1999 or the school year of 1999-2000. This omission creates an ambiguity between the year 1999 (alleged in the complaint) and the year 2000 (the year beyond the time alleged in the complaint). The ambiguity is resolved in favor of Mr. Merica. The testimony in findings of fact 139 and 140 is incompetent and irrelevant to establish as fact allegations contained in the Amended Administrative Complaint. The Commissioner presented testimony of Sue Hindman. Ms. Hindman, with over 27 years of teaching experience and at all times material, was an ART and an ESE supervisor for Area II, in Hillsborough County. Model Classroom Observation Prior to and in Preparation for Termination by the Hillsborough County School Board Near the end of the 1999-2000 school year, Principal Griffin called Ms. Hindman and requested her to do a model classroom observation of Mr. Merica's class. A "model classroom observation" consisted of Ms. Hindman's selecting another classroom and SLD teacher (the model) in the same or similar position of the teacher (Mr. Merica) to be observed. The teacher (Mr. Merica) being observed, along with Ms. Hindman, would then visit the "model" SLD class to observe how the classroom itself was arranged and how the lessons were presented to SLD students. Based on the teacher's personal observation, and with the help and assistance of Ms. Hindman, the teacher (Mr. Merica) would then modify and model his/her classroom arrangement, classroom behavior management, SLD students' lesson planning and presentation, and other educational matters involved with teaching SLD students to that observed in the model classroom. After a reasonable period of adjustment, the ART would return to evaluate the "results of implemented changes" made after the model classroom. On October 8, 1999, after observing Mr. Merica's classroom, his teaching, his student control and classroom management, and after observation of the model SLD teacher and classroom, Ms. Hindman made unspecified suggestions for improvement to Mr. Merica. After she made her suggestions for improvement, Ms. Hindman returned to observe whether her unspecified, suggested improvements had been accepted and put into effect by Mr. Merica, and, if so, to document what results were observed. Ms. Hindman documented improvements she noted in Mr. Merica's class on her return visit as follows: The new behavior rules were typed clearly and colorfully. The post-it-notes [tickets] were being used to reward positive [student] behavior. Instructions was hampered by inappropriate student behaviors. On October 18, 1999, Ms. Hindman made a second follow-up visit to observe the progress of her earlier unspecified suggestions. During this second return visit, Ms. Hindman made additional unspecified suggestions for improvement. Ms. Hindman returned to observe whether her second suggested improvement had been put into place and if so, the effect and impact of her second suggestions. Ms. Hindman documented improvements observed in Mr. Merica's classroom management and student control and professional teaching competency on her second return visit as follows: Student behavior was better. Students responded to the LLP redirections. They also responded to the additional tickets given for good behavior. More positive comments were made when students were on task. Student behavior will improve as teacher consistency improves. The more aggressive students are getting, all the attention (and tickets) while the good students tend to be neglected. Curriculum must now become a priority. Your students really settle down while working on assignments and seem eager to accomplish tasks. Capitalize on that momentum! On October 26, 1999, Ms. Hindman made a third return visit to observe Mr. Merica's implementation of her earlier suggestions. During this visit, Ms. Hindman made additional suggestions for improvement and documented improvements she observed in Mr. Merica's classroom teaching and classroom management and student control as follows: Reading groups began today using a sequential program. Math groups began learning higher skills plus using manipulative. Individual work folders were used for seatwork. Through the testimony and corroborating documentation of Ms. Hindman, the Commissioner proved, clearly and convincingly, that as late as October 26, 1999, Mr. Merica accepted and implemented constructive criticism and assistance from those administrators whose positions required giving such constructive criticism and assistance. The Commissioner failed to prove, through the testimony of Ms. Hindman, as it did through the testimony of Ms. King, allegations that Mr. Merica intentionally disregarded and failed and refused to accept and implement the suggested offering of assistance. The undisputed testimony of Ms. Hindman clearly demonstrated that when given constructive professional assistance, a reasonable opportunity to implement the constructive assistance, and an objective evaluation thereafter, Mr. Merica was amenable and put into practice professional assistance and suggestions that proved to be helpful. He responded positively by implementing suggestions made by Ms. Hindman and to those made by Ms. King. During each return visit by Ms. Hindman, Mr. Merica demonstrated continued improvement in his professional ability as a SLD teacher. I find that through the testimony and resulting documentation of three separate occasions of Ms. Hindman rendering professional help and assistance and Mr. Merica's positive response thereto established as fact that the competence of Mr. Merica was not diminished so as to impair his effectiveness as a teacher in the Hillsborough County school system as of October 26, 1999.5 Petitioner's Presence Outside His Classroom, His Teaching, and Classroom Management Mr. Merica presented the undisputed testimony of Mary Evans-Bauman, a DEEDS Attendant who worked with over 15 teachers during her employment at Foster. From January through July of the 1997-1998 school year, Ms. Evans-Bauman was assigned and did work with Mr. Merica in his self-contained PI class. She did not work with Mr. Merica during any period he was teaching a SLD class. According to Ms. Evans-Bauman, Mr. Merica did not leave his classroom more often than any of the other 15 teachers with whom she worked during her employment at Foster. Based upon her daily observations, Ms. Evans-Bauman opined that Mr. Merica's PI students respected him, and she did not observe any problems with his classroom management. She denied observing Mr. Merica playing video games or reading newspapers when he should have been teaching. She testified that she never observed Mr. Merica exhibiting out-of-control behavior or imposing inappropriate discipline on students in his PI class. She acknowledged that PI students, because of their restricted physical mobility, were less likely to become disruptive and unruly because of their physical limitations. Mr. Merica presented the testimony of Carolyn Mobley. Ms. Mobley worked 21 years at Foster as a teacher's aide and as a DEES attendant. During her extended tenure at Foster, she worked with approximately ten different teachers, including Mr. Merica. Ms. Mobley began working with Mr. Merica during the 1998-1999 school year, the first year he taught a PI class with Ms. Payne as principal. She continued working with Mr. Merica when Principal Griffin moved him to an SLD class during the 1999-2000 school year. According to Ms. Mobley, she worked with Mr. Merica continuously, five days per week for seven and one- half hours per day, for two consecutive years. Based upon her continuous presence in Mr. Merica's classrooms, she had abundant opportunities to observe Mr. Merica's interactions with students in both his PI and SLD classes; she answered the question of how she would characterize his relationship with his students as follows: I would say he didn't have no problems that I would consider problems because I have kids and I wouldn't want nobody to mistreat mine, and I'm a fair person. On the mistreating kids in any way question, Ms. Mobley answered: No. He always seemed to be generosity [sic]. He would always treat them with respect and do the things most teachers wouldn't do, I would say. On what kind of things he would do that other teacher wouldn't do, Ms. Mobley answered: Well, you know, sometimes if they didn't have their lunch and they wanted something, then he would treat them to it, you know. On Fridays when they had free time, he would give it to them out of the cafeteria. Answering the question whether she observed Mr. Merica being off task--off his teaching duties during the time that you were the aide in the PI class, i.e. reading a newspaper during the time when he should have been teaching or playing computer games during the time he should have been teaching, Ms. Mobley answered: "No." Answering the question whether Mr. Merica would leave the classroom and leave the aides to take care of the kids, Mr. Mobley answered: No, because if he left the classroom, he would say, "I'm going to the office," run some papers or basically we knew where each other was. We always knew. Answering the questions whether Mr. Merica leaving the class occurred more often than other teachers, acting in an unprofessional way, being belligerent, and being confrontational with students, Ms. Mobley answered each question "No." Answering the question whether there were more behavioral problems in the SLD class than in the PI class, Ms. Mobley answered: SLD kids do have a behavior, [sic] where PI kind is not as verbal word-wise--. Answering the compound question of Mr. Merica's interactions with students in the SLD class, acting in an unprofessional way to any of the kids, being belligerent with the children, being hostile with the children, and being confrontational with any of the children, Ms. Mobley answered: "No" to each question within the compound question. Answering the compound questions of whether Mr. Merica raised his voice toward the students; talked loud when he was close to a student, screamed, or yelled, Ms Mobley answered: I wouldn't say raise his voice, but he talked loud, like scream or yell- No. Well he always talked loud, so to me it was always a loud voice. He don't have a soft voice. He had a loud voice. Through the undisputed testimony of Ms. Mobley, Mr. Merica demonstrated that from the school year beginning in 1998 and ending in 1999 his teaching and student behavior management, as observed by Ms. Mobley, was not ineffective; that he did not frequently leave his own class with his aides; that he did not walk around campus, socialize, and/or monitor other teachers and their students; and, when in class, that he did not play video games on his computer, read newspapers, or review architectural designs, as alleged in the Administrative Complaint. Human Resources Manager's Testimony Based upon her Summary Reports of Letters and Reports Received From Staff The Commissioner presented, as a summary witness, the testimony of Janice Velez.6 Ms. Velez had over 30 years in the school system during which time she has occupied the positions of classroom teacher, teacher trainer, school-based administrator, and director of personnel services. For four years (1999-2003), she occupied the position of General Manager of Human Resources (HR) for the School Board. The Commissioner did not qualify Ms. Velez as an expert. As director of personnel services for the School Board, Ms. Velez receives information, via written reports from Foster administration, from individual teachers, from medical personnel, and from other sources regarding school personnel. Ms. Velez rarely, if ever, has personal knowledge of instructional personnel activities at the many schools in the county, before such activities are reported to her in written form through the chain of administrative protocol. It is noted that her reports in evidence are not sworn to or notarized by the person(s) with personal knowledge nor are they "tested" for accuracy by independent investigation by Ms. Velez. She accepts each report as factually accurate. It was against this background and based upon many such unspecified reports that Ms. Velez summarized and posted a letter to Mr. Merica reflecting her summarized version of those hearsay reports that the Commissioner asked Ms. Velez to "explain" the first sentence of her July 1, 1994, letter to Mr. Merica. The sentence counsel for the Commissioner asked for as an explanation read: "Some information has come to my attention that you and I need to discuss." To the question "explain what did you mean by that sentence," Ms. Velez answered with the following editorial: What he acknowledged, and I don't have the report in front of me, but I remember the student was a difficult child and he had -- what upset me and the reason I asked him about the ACT [Aggression Control Techniques] certified was that in the course of taking care of this child, had dragged her across the carpet or something and then other adults were present that assisted him in the process. That's when I asked him if had had been trained and he said no, he had never been scheduled. There is no evidence that tends to corroborate the hearsay evidence contained in Ms. Velez's July 1, 1994, letter to Mr. Merica. Ms. Velez did not possess personal knowledge of the information reflected in her letter. Consequently, her testimony regarding Mr. Merica's alleged response merely amounts to hearsay upon hearsay upon hearsay. There is no record evidence identifying the context and circumstances of "[w]hat he acknowledged” as testified to by Ms. Velez. The intended inference that Mr. Merica acknowledged-—“that in the course of taking care of this child, he dragged her across the carpet or something," was not corroborated by any "other adult present that assisted him." Mr. Merica's denial "that he dragged her across the carpet or something," even if unbelievable, does not prove the Commissioner's accusation contained in the Amended Administrative Complaint. Ms. Velez’s recollection explanation is an assumption and not fact (that he dragged a child and other students and adults were present). Based upon her assumption, Ms. Velez concluded that Mr. Merica acknowledged her assumption as fact. The assumption and conclusion of “acknowledgement” by Mr. Merica of that assumption is incompetent, not credible and insufficient to establish the incident as fact or to establish that Mr. Merica admitted and acknowledged her assumptions and her conclusions “that in the course of taking care of this child, he dragged her [a child] across the carpet or something and then other adults were present that assisted him in the process." Ms. Velez testified that she met with Mr. Merica on four separate occasions, the first meeting occurred on or about the first week in July 1994, during the period Ms. Payne was principal. At the time of her first meeting with Mr. Merica in July of 1994, Ms. Velez was not general manager of HR for the Board. The evidence of record does not establish Ms. Velez’s position in the school system in July 1994, other than she was a teacher assigned to personnel services. Continuing, Ms. Velez testified that during the first week in July 1994, she was “initially concerned” because Mr. Merica was not ACT certified. The Board's policy required each teacher to be ACT certified before engaging in physical restraint of students. In 1993 to 1994, Ms. Velez was a teacher assigned to personnel services, and the record evidence does not provide any authority for her to “meet with Mr. Merica” as a part of her duties in personnel services. There is no evidence of record that Principal Payne, who was principal and who did not corroborate this story, requested Ms. Velez’s involvement with her teachers, including Mr. Merica. Assuming Ms. Velez had authority to read Mr. Merica’s personnel file, why in 1994 did she only recall his restraint certification status? Principal Payne testified that she, and she alone, identified Mr. Merica's needs for improvement and provided him with useful suggestions that he incorporated and showed improvement. Principal Payne buttressed her testimony by giving Mr. Merica all "satisfactory" annual performance evaluations. Ms. Velez's testimony regarding any facet of Mr. Merica professional competence in the school year of 1994 to the contrary is not accepted by the undersigned as credible evidence. The Commissioner, through the testimonies of 21 witnesses, failed to produce clear and convincing evidence that Mr. Merica exhibited any indicia of professional incompetence in July of 1994. Through the testimony of Ms. Velez the Commissioner again affirmed other witnesses' testimony that Mr. Merica was not ACT certified at certain periods. However, the undisputed evidence demonstrated that Mr. Merica’s last year of ACT certification was the year of 1995 and not, as Ms. Velez mistakenly assumed in her testimony, 1994. The Commissioner failed in its attempt to establish 1994 as the beginning year of Mr. Merica's alleged incompetence through the above testimony by Ms. Velez. In 1999, Ms. Velez was appointed to the HR position. Six years before, in 1993, she was in personnel services. It was during the 1993-1994 period that the Commissioner sought through her testimony to prove Mr. Merica knowingly admitted and acknowledged that in July 1994 "he used excessive force or restrained a [unidentified] child inappropriately as reported by a parent [unidentified] to the police department and the school internal investigators." The bare hearsay "admission against interest" hearsay statements of unproven acts from unidentified hearsay sources is not corroborated and is rejected by the undersigned. Ms. Velez gave her explanation of meeting with Mr. Merica for a second time on August 12, 1999, which she later reduced to a letter dated September 24, 1999. In that letter Ms. Velez recited the purpose of the August 12, 1999, meeting-- "for discussion of an investigative report into coworker's allegation that during the summer he made threatening remarks against the school administration and comments made about Principal Griffin, i.e. "She dyed her hair blond to get her job, "I got rid of one principal; I'll get rid of her too," and "If she wants to go head-to-head, then I'll win." In her 1999 letter, Ms. Velez stated that Mr. Merica admitted making the alleged statements, explaining the statements were "hearsay" and because, as he viewed the situation, "others wanted to bring [him] down to their own misery levels." Her third meeting with Mr. Merica occurred in September of 1999. This meeting, she explained, was convened "for discussion of a letter of reprimand written by Principal Payne." (In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE coworker.) Later during that school year when she evaluated his overall professional teaching performance, Principal Payne gave Mr. Merica a "satisfactory" rating in every area, without comments, for the 1998-1999 school year. This meeting and the letter of reprimand concerned Mr. Merica's professional conduct on two separate incidents. Those two incidents were a faculty meeting disruption and a school improvement team and parent meeting. No testimony was elicited or given by Ms. Velez regarding the situational circumstances attendant to those two incidents. When asked her opinion of Mr. Merica's "attitude" toward her during this third meeting, Ms. Velez replied: I would say it ranged in the typical realm of employees. When they meet with me sometimes they're angry. He was in denial that the letter was warranted. He said he didn't perceive himself to have lost his temperament. He did not recall -- in one of the two incidents, someone said he banged his hand or fist on the table. I don't recall doing that. There were several letters that the principal also forwarded to me from colleagues and they said that he was out of control. He said, I'm not out of control. I have a loud voice. And basically he was in denial that the incident was as significant as the principal had alleged in her letter or reprimand. The fourth meeting between Ms. Velez and Mr. Merica occurred on October 1, 1999. Also present at the meeting were Carl Crosson, CTA representative, and Dr. David Binnie, assistant superintendent for HR. The purpose of this fourth meeting was to discuss a specific classroom incident that had occurred on or about September 23, 1999, where it was alleged that Mr. Merica retained five students in the classroom due to their misbehavior while the other students went to lunch with the paraprofessional. In her 1999 letter, in the first paragraph, Ms. Velez wrote her version of an incident she did not personally observe: During the timeout period, you asked these students to sit quietly in their desks, while you placed your own lunch in the microwave. When they began to dance about the room and to toss and roll a kickball among themselves, you summoned several times for assistance on the intercom. During this period, you stated you remained at your desk, although once you tried to kick the ball away and once you moved your elbows in an effort to keep a student from retrieving the ball that had rolled behind your chair. Another student subsequently hit you on the head with a folder, and you chased him briefly until he, at your direction put the folder down. You summoned additional times for assistance. Continuing with the second paragraph, Ms. Velez stated: As a result of your poor performance this year, and its negative impact on the quality and continuity of instruction for students assigned to you, your principal recommended that you be either administratively transferred or dismissed as a teacher. Actions on these recommendations was placed in abeyance since you asked for, and Dr. Binnie granted, additional time and assistance from school and district personnel for you to develop and implement a plan to appropriately regain control of and develop respect from your students. He provided you with three days of paid duty time and a month of implementation to accomplish this end. In her last paragraph, Ms. Velez stated: Dr. Binnie will review the effectiveness of your plan, your professional conduct at work, and your future employment status during a meeting scheduled for Monday, November 1, 1999, at 3:45 pm in the Human Resources conference room, 2nd floor of the School Administration Center, 901 East Kennedy Boulevard. Ms. Brenda Griffin, your principal, has also been invited to attend. Ms. Velez testified that the November 1, 1999, meeting never occurred, "due to an error where [sic] his address was not in the system correctly, he was not in attendance at the meeting. So, we rescheduled it for November 3rd." Considering Mr. Merica was an employee with 13 years of service and had met four times with administration within a six-month period (July through October 1999), the loss of his address--"his address was not in the system correctly"--by the Board becomes suspect. Continuing, Ms. Velez testified that: [O]n November 2nd her office received a call from Foster Elementary School regarding an incident in the hallway that teacher could hear Mr. Merica scream at a child and described that he was in their face and we removed Mr. Merica from teaching at that time for a continuing pattern of being unable to control his students and control his temperament, creating a dangerous situation for children. (emphasis added) No witness presented by the Commissioner testified to having observed the incident above described by Ms. Velez. When subjected to cross-examination, Ms. Velez reluctantly admitted that her intentional use of the term “creating a dangerous situation for children" was not an accurate statement. During all times (1999-2000) pertinent to matters herein above, the goal of Principal Griffin, via Ms. Velez and through the Board, was to terminate Mr. Merica's employment with the Board. Thus, the HR manager's intentional selection and use of the statutory phrase, “creating a dangerous situation for children," that she knew at the time to be an inaccurate statement, revealed her intent and thus seriously undermined her credibility. The witness' credibility and testimony were further diminished by the fact that at the time she knowingly made her "inaccurate statement," she was an active participant in, and thus fully aware of, the Board's engagement in the procedural protocol process of terminating Mr. Merica's contractual employment. Ms. Velez's knowing misrepresentation, that Mr. Merica's continuing pattern of being unable to control his students and control his temperament was "creating a dangerous situation for children," was biased and inaccurate. Ms. Velez's unconvincing explanation of her understanding of the factual basis for the School Board's removal of Mr. Merica from teaching at Foster was vague: [B]ased on a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children. When asked to clarify her inaccurate misrepresentation of whether or not Mr. Merica's conduct resulted in an unacceptable environment or created a dangerous situation for children, Ms. Velez stated: "[D]uring the five years Mr. Merica taught the PI student class [from 1992-1993 to 1998-1999], Mr. Merica’s conduct and teaching did not create an environment that was dangerous to the students in those classes." Ms. Velez further testified that "[T]the [Hillsborough County School] Board determined that it was during the 1999-20007 school year a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children, that Mr. Merica was creating an environment that was dangerous to the students in his classes." Ms. Velez did not identify incidents that occurred August 12, 1999, through December 31, 1999, separate and apart from incidents that occurred between January 1, through May 24, 2000; thus, there is no basis to determine whether alleged incidents occurred in 1999 or 2000. Her testimony included "essential and substantial facts in support of the allegation" having occurred in a timeframe (1999- 2000) not embraced in the 1994-1999 period (ending December 31, 1999) alleged in the Statement of Charges of the Amended Administrative Complaint. "[T]the allegata and probata must correspond and agree." This ambiguity is resolved in favor of Mr. Merica. On that basis the testimony of Ms. Velez in findings 183 through 186, hereinabove is rejected. The Commissioner did not prove, by clear and convincing evidence, that during the period between 1994 and 1999 Mr. Merica "created a pattern of similar incidents thus creating an environment that was dangerous to the students in his classes." Conversely, through the testimony of Ms. Velez, the Commissioner proved, clearly and convincingly, that "during the 1992-1993 through the 1998-1999," including the 1994 through 1999 period alleged in the complaint, Mr. Merica did not engage in a pattern of similar incidents that created a dangerous situation for children." Regarding the school year when allegedly Mr. Merica initially became or his teaching methods demonstrated incompetence, Ms. Velez demonstrated a lack of knowledge and lack of expertise by her following qualified answer: It was my feeling--my personal and professional feeling when I reviewed the file--that he had indicators of incompetence for quite some time, especially in his personal conduct. I am not an expert in curriculum. It's been a long time since I taught in the classroom. [emphasis added] But Mr. Merica's statement to me was he's the best teacher that was at Foster Elementary, and I had an opportunity to look at his lesson plans one afternoon when I went to meet with Ms. Griffin and although I haven't written them in years, there were no lesson plans. They were subjects. Math, math, math. Nothing to distinguish between the levels of his children. When I reviewed the record at Foster, his conduct that created an uncomfortable working environment for employees had been there a long time. The former principal, Ms. Payne, had dealt with it from time to time. It's my professional opinion that she put him in physically impaired so he had less opportunity to be inappropriate with children, and she began then to deal with his personal conduct issues. So to answer your question, I believe -- I don't know that -- I don't know when it began, but I don't think it surfaced his last assignment at Foster, but rather sometime prior to that. [emphasis added] Ms. Velez was unable to identify the school year Mr. Merica became, as she characterized, "incompetent in his personal conduct." Ms. Velez's personal feeling of incompetence is an inadequate standard by which to measure professional competence, to include one’s personal conduct. Ms. Velez did not know when, if at all, Mr. Merica's alleged professional incompetence, to include his alleged personal conduct, began. The evidence of record established that the Board, as of January 13, 2000, had concluded its investigation and made a final determination that Mr. Merica was incompetent. Therefore, the Commissioner failed to prove, by clear and convincing evidence, through the summary testimony of Ms. Velez that Mr. Merica was or to began to become incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 19997 period as alleged in the Amended Administrative Complaint. Violation of a penal statute or rule is not found on loose interpretations of the Human Resource Director with 31 total years of education experience and a Master's Degree in Education Administration, or based on problematic evidence. Evidence more objective and substantial of critical matters in issue should be as substantial as the consequences. Clear and convincing evidence is not present in this record nor established by testimony presented by this witness that Mr. Merica was incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 1999 period as alleged in the Amended Administrative Complaint. Ms. Velez testified that teachers hired by contract (as was Mr. Merica), a veteran teacher, or a tenured teacher are required to be evaluated once annually by their principal, and the purpose of the principal's annual evaluation is for performance improvement. The testimony and documents prepared by Ms. Velez regarding a report from an unidentified mother about her unidentified child is unconfirmed, uncorroborated, incompetent, and thus insufficient to establish any purported facts of actual occurrence. Following protocol and to effectuate his contractual termination with the Board, on November 18, 1999, Ms. Velez submitted four of her letters, dated July 1, September 14 and 24, and October 20, 1999, to James A. Edgar, M.D., P.A., as the basis for her referral of Mr. Merica to Dr. Edgar for a psychiatric evaluation that was conducted by Dr. Edgar on November 18 and 23, 1999. Accepting as accurate and true the content of Ms. Velez's four letters and using those letters as the foundation of his examination, Dr. Edgar evaluated Mr. Merica. At the conclusion of his examination, Dr. Edgar opined that Mr. Merica did not have a diagnosable psychiatric disorder, either Axis I or Axis II, Diagnostic and Statistical Manual of Mental Disorders (4th Ed.). According to Dr. Edgar, "None of the problems, as reflected in Ms. Velez's summary taken from non-notarized reports from unnamed third parties, makes him in and of themselves incapable of functioning as a teacher." He then goes on to qualify his opinion with a "[H]owever, taken together they 'could' make him very difficult to work with as part of a team effort.” Dr. Edgar's evaluation resulted in a qualified conclusion that Mr. Merica is aware of his actions but minimizes or denies the effect of those actions on others and thus rationalizes his verbal aggressive behavior as his "constitutional right" to express his opinion. From that position, Dr. Edgar reaches what appears to be the desired conclusion that: "Mr. Merica's current behavior does not appear to be an escalation of previous behavior just more of the same. I can not say whether he might become more aggressive or violent but I do believe his behavior will not improve." The attempt to lay a factual foundation that Mr. Merica's alleged incompetence was present in 1994 through the conclusiory testimony of Dr. Edgar failed for want of competence. The one line in Dr. Edgar's 1999 opinion that Mr. Merica's "behavior does not appear to be an escalation of previous behavior just more of the same," is insufficient in weight and substance to establish as fact and/or establish the basis from which to infer, and I do not infer, that in 1994, Mr. Merica demonstrated an "aggressive behavior," which demonstrated emotional "incompetence," and that behavior continued through 1999 as alleged in the Amended Administrative Complaint. Respondent's Response to Allegations Mr. Merica presented the testimony of Janice Wilson who worked as a DEES attendant at Foster from 1992 through 1998. Ms. Wilson was Mr. Merica's DEES attendant during the 1997-1998 school year and worked all day, five days a week, with Mr. Merica in his classroom when he taught PI students. She was not his DEES attendant when Mr. Merica taught SLD students. For the six-year period, 1992-1998, Ms. Wilson was in Mr. Merica’s classroom daily. She had occasion to observe his teaching as she worked with Mr. Merica. Based on her six-year association, Ms. Wilson testified as follows: When asked how would she characterize his rapport with his students, she answered: "wonderful, wonderful." When asked did she have problems or concerns working with Mr. Merica, she answered: "none, none, whatsoever." When asked had she ever observed Mr. Merica mistreating, in any way, students, she answered: "No." When asked did she ever see him getting in the faces of any of his students, she answered: "None whatsoever." When asked if she had observed Mr. Merica screaming at his students, she answered: "No." When asked if she would have any problems working with Mr. Merica in the future, she answered: "I would work with him any day." Regarding Mr. Merica leaving his classroom, Ms. Wilson testified that: When Mr. Merica would leave the classroom, he has been called from the front office or any other classroom for computer. If the computer goes down, he was the man that they will find to fix the problem with the computer. That's the only time he would leave the classroom, when they request they need it. To the question other than his lunch time and his planning period, did you know of Mr. Merica just to get up from the classroom and go walk around, she answered: "Not at all." When asked did Mr. Merica socialize, she answer: "Not at all." When asked did she ever know of Mr. Merica to be unprofessional, belligerent, hostile or confrontational, she answered: "No." When asked did she ever observe Mr. Merica trying to subvert the administration, she answered: "No." When asked how his students reacted to Mr. Merica, Ms. Wilson replied: Oh, they were glad to see him every day. I mean, a lot of times they would be hungry before lunch, and Mr. Merica would go to Sam's that night before and have snacks in the classroom to make sure they have snacks to eat before they went to lunch. I mean, he was a wonderful teacher. Nobody could never ask of --and I mean, he was outnumbered as male teachers at the school. There was only two, you know, and I think he was a wonderful teacher. Presence Outside His Classroom When asked if she personally received calls for Mr. Merica to assist someone with their computers, Ms. Wilson answered: Yes. It comes over the intercom and he always asked, will you be okay for five or ten minutes? Let me see what's wrong with the computer and that's the only time he would leave the classroom. When asked if she knew "specifically" where Mr. Merica went on computer calls, Ms. Wilson answered: The school has changed a lot with teachers. A lot of the teachers has left. A lot of times he would go to like an autistic class which is down the hallway from us. He would go to the room next door to us to help with the computer. Now, with names I'm not familiar with the teachers because like I said, the school has changed a lot since I've been there and maybe those teachers are not even working there. He used to help Rita Airwood (ph.) a lot with the computer because she wasn't--she didn't know where the power button was. Most of the teachers there didn't know where the power was. A lot of us would, after school, when all the kids were gone, we would have him to teach how to work the computer and be on task when the next day come. So, therefore, a lot of the teachers would come to our classroom to let Neil show them were the computer--what screen you start on and all before the next day because a lot of times we would get worksheets. We didn't have workbooks. A lot of times we would get worksheets off the computer. So when I say names, it's a whole bunch of names I would have to go through. When asked, "[h]ow do you personally know, from viewing him going to that room--witness him go to where he said he was going?" Ms. Wilson answered: Because we have windows. The aisles run from east to west. We have -- and I'm looking out the door to make sure he gets to that classroom. A lot of times when he gets to that classroom, he'll either do this here, a thumbs up, and he's on his way back. According to Ms. Wilson, she always knew where Mr. Merica went when he left his class because he would tell her before leaving; i.e. "They want me in the front office." "I need to be here." He would not just walk out of the class. Though she did not follow him out the classroom, she testified: A lot of times I would be doing bathroom and he would say, "Hey, I'll be right back." He may go and get a cup of tea and he's right back there helping me in the bathroom, because normally I think we had -- at the time I worked with him, we maybe four to five wheelchairs, and a lot of times he would give me help with the boys, you know, and then I would do the young ladies. I would take the girls first and he would stand right outside the bathroom and wait with them if I said I needed him, he'll come inside and help me. Through the undisputed testimony of Ms. Wilson, Mr. Merica established those purposes for his frequent departures from his classroom; to assist other teachers with computer problems in their classrooms. Whether or not one agrees with the stated purposes Mr. Merica gave for being out of his classroom, that fact does not affirm the Commissioner’s allegation of unprofessional conduct by his frequent presence outside his classroom. When asked if he was called upon by the Administration to provide technical computer assistance to the teachers Mr. Merica replied: Very often. I would not fix a computer unless it was on my planning time, unless it was instructed by the administration office, by Ms. Pils or Mr. Drennan--Ms. Payne, I'm sorry--or Ms. Drennan--that they needed me and it was a real emergency and I would also make sure with my class that there was the kind of instruction that wasn't going to hurt me to be pulled out for a few minutes. Regarding ACT training and physical restraint of students, Mr. Merica admitted that he received ACT training and was certified only for the 1995 school year. He was aware of the policy requirement of annual ACT re-certification, but he elected not to be re-certified. Mr. Merica admitted physically restraining students on approximately three to five separate occasions during the period of 1995 to 1999. When questioned as to his understanding of physically restraining students when his ACT certification had expired, Mr. Merica responded: That is not my understanding. I think another ESE teacher touched upon it that if a person is about to harm themselves or others or harm you, where you really feel that they're going to physically harm themselves, another student or yourself, then you can restrain them because what you are trying to do is keep a dangerous situation from becoming more dangerous. Mr. Merica denied having classroom behavior problems during his tenure as a SLD resource teacher (1987-1988 through 1992-1993 school years) as well as during his tenure as a PI resource teacher. Mr. Merica admitted engaging in disruptive conduct when attending faculty and staff meetings. He characterized his disruptive actions as "tapping a pencil on the table or tapping his fingers on the table," but denied "pounding his shoe on the table." He matter-of-factly acknowledged making arguably argumentative comments when he agreed or disagreed with some things presented by the speaker with callous disregard that the speaker was speaking. I find that such callous disregard of rendering reasonable respect to the person speaking and those of his colleagues in attendance under the circumstances demonstrated unprofessional conduct by Mr. Merica. I further find Mr. Merica's ". . . constitutional right" justification for unprofessional conduct unconvincing. Mr. Merica acknowledged he has a loud voice and a strong personality, and he is sometimes loud, but not "always" loud as testified by co-workers. Mr. Merica testified that he got along and related very well to the PI and the SLD students in his classes, and he believed they related very well to him and none of his children came to him personally with a complaint. According to Mr. Merica, during his tenure at Foster, he never received a written document from a parent that said "we have a complaint." Mr. Merica opined that other than academic concerns-- normal academic concerns--when he asked for a conference with parents of his children, a few parents would come on conference nights because most of the parents of his kids knew him because he had been there for a while. Regarding Principal Griffin's decision to move him from his PI resource class to a regular SLD class, Mr. Merica recalled that before summer school of the 1998-1999 school year, Principal Griffin and he discussed the matter. His recollection of their discussion follows: She basically said --she looked at my record and said, "As far as discipline goes -- I know we have some other issues, but as far as discipline goes, you look like somebody who could handle that class because it's very difficult class with mostly boys and we'd like to see a man in there,"--and to be perfectly honest, I told her I just went through a divorce. I needed stability. I would prefer to stay in PI or I would like a transfer, and unfortunately at that time, the transfer period was over or they had a freeze. It was one or the other. I think they might have had budget problems and had a freeze at the time. It was one of the two reasons.--It's just that I needed that stability and I hadn't done -- I had done resource before, and I've done PI, which I felt really comfortable in, but hadn't done a full time SLD unit. Even though I was qualified to do it, I just didn't really feel comfortable going into another area after the domestic problems I was having at home. I went through a divorce, which was not an easy thing, during that summer. (emphasis supplied) Mr. Merica's recall of Principal Griffin's comment, "[w]e'd like to see a man in there," was corroborated by Ms. Lipari testimony that during the 1997-1998 school year she was moved down to teach kindergarten and first grade level PI students to provide "mothering and maternal type activities," and Mr. Merica was moved to third/fourth grade to teach older, larger male students. Mr. Merica gave the following reason for resigning as CTA representative in the spring of school year 1998-1999: I resigned because there was undue pressure from the principal [Principal Griffin] and they actually were putting some pressure on my child that was going to that school. Concerning his role as a resource teacher, Mr. Merica stated: As a resource teacher, I had to implement the IEP that was generated by either me or a teacher before me, describing the amount of pullout time, and pullout means that they were in a "regular education class" and they were pulled out for special services. What special services I generally gave them was either math or reading, but it could be social studies or science. Those were rare occasions. Most of them were math or reading. You pull them out for the amounted time specified by the IEP at the level that the IEP indicates, and when that period of time during the day is over, you send them back or you walk them back. In Hillsborough County they had some problems at that time with kids running off campus, so they recommended that we pick up our students and take them back to class. Administrative Leave and Observation of Model Class According to Mr. Merica, on or about August 12, 1999, he was assigned to the SLD class and his last day in that class was November 2, 1999, a total of 83 days before he was placed on administrative leave for five work days plus the weekend. Mr. Merica's assignment by Foster administration to Lake Magdalene was for him to observe a class at Lake Magdalene similar to his SLD class at Foster. After he sat in the Lake Magdalene class for approximately two hours, he spent the next few days sitting next to the principal's office trying to compile materials that would work for his SLD class. Mr. Merica concluded that the Lake Magdalene (SLD) class was not similar (as a model) to his Foster (SLD) class based on following reasons: I was working in an inner city school, this was a very rich, affluent area with totally different set of behavior problems. The makeup of the class was totally different. There were more girls. They were more [sic] white. It was just a totally different makeup. They were younger. And I sat in the classroom for about two hours and then I spent the next few days sitting next to the principal's office supposedly trying to compile materials that would work for my class. Lock Down Drill and Student Running Out of Classroom Responding to questions raised about the "lockdown drill" situation when students were observed running from the classroom onto the PE field, Mr. Merica testified he was given a walkie-talkie because the school intercom system was down. He did not receive notification of the lockdown drill via the walkie-talkie, and so he was not made aware of the scheduled lockdown drill. The evidence is undisputed that students that were seen by his co-workers running "about" the facility during the lockdown drill were not under the supervision of Mr. Merica at that time. The evidence demonstrated those kids were in their scheduled PE class under the supervision of the PE teacher, who put them in "time-outs" and sent them to Mr. Merica for their "time-outs" periods. Undisputed evidence demonstrated and it is found as fact that during this "time-out" period that the incident of students kicking the ball and playing in the classroom and being generally unruly and disobedient that Mr. Merica had justifiable cause to defend himself when a student put his/her hands around his neck and attempted to choke him. His testimony regarding the conduct of students in his class was corroborated, in part, by the testimony of two students, Jarmaal Rumlin and Demetrie White. Mr. Merica denied yelling at either Principal Payne or Principal Griffin. In defense of his voice volume, he characterized his discussions as "forceful," "assertive," and sometimes with a "loud voice." He described pointing of his finger as [u]nder normal conversation when some people use their hands, they might consider that pointing, were I was just, you know, just using my normal gestures of speaking, as far as I was concerned, and if I was pointing, it was only --again, it was not to be pointing at anybody. It might be, that's point number 1; that's point number 2; that's point number 3. Continuing, Mr. Merica said he never lost his temper at school with either principal, was never "out of control" with any students under his supervision, and never injured a student under his supervision. Mr. Merica's explanations for his finger-pointing and verbal barrages during conversations with authority figures evidenced a defensive attitude that did not lend itself to the appearance of a professional team player. Principal Payne did not testify that Mr. Merica pointed his finger in her face during their many meetings over the years. Principal Griffin's testimony of "pointing his finger in her face by Mr. Merica" was not accompanied by specific circumstances and situational context of the incidents. Accordingly, the appropriateness of such conduct, without evidence of each party's participation in the conversation and the specific circumstances and situational context at the time of occurrence, was not shown by the evidence of record to be, clearly and convincingly, inappropriate. Answering allegations of making derogatory or disrespectful remarks about Principal Payne or Principal Griffin, Mr. Merica replied: That's the eye of the beholder, but as far as I was concerned, I was just trying to make them a better person and there were some things that they were criticizing me about. I criticize people for things that I feel they have weaknesses too. So, you know, it's the eye of the beholder. Responding to Offered Assistance and Suggestions When asked if he had received assistance to help improve his classroom management techniques with regard to his regular SLD class, Mr. Merica replied: Yes. I always took suggestions and implemented every suggestion. Some things did work and some things did not work. You know, sometimes certain personalities -- certain things won't work and certain things will, but I certainly implemented every plan. Now, hey, I can even say this: some plans that I wasn't that good at and probably somebody else could have made it work -- maybe. But I know that some things I did that they implemented -- some things worked and some things didn't and I can even go further without trying to be editorializing that we learn from others. Some of the other teachers have suggestions --not just the ones from administration. There were some teachers that came up with some plans that worked for me. Mr. Merica's above recollection of receptivity and implementation of constructive assistance was confirmed through the undisputed testimony of Ms. Hindman, who on three separate occasions documented specific improvements she observed in Mr. Merica's classroom on each of her return visits. Use of Computer, Games, and Newspaper as Teaching Aids Answering those allegations regarding his use of video and computer games as teaching tools, Mr. Merica's undisputed response was: I said I never played them [video games] during instructional time. Students played them sometimes and it was part of the IEP. There were various video games. There was many of them and one they talked about a lot was the golf. But, you see, these kids have kinesthetic problems and we're trying to teach them how to manipulate the mouse, keyboards and other things. There was a racecar game that they used to use, plus it was good for their eye-hand coordination because they were kinesthetically challenged kids. They were in IEP. It was in the IEP that they were supposed to be kinesthetically challenged to whatever level they were to try to take them another year's worth. They didn't even call it grade level, but another year's worth of progress. They were approved, by the way. As far as I know, every game that I brought was approved by the school board or if it was not, nobody told me it was not. There was a list of computer software that you could use for kinesthetic(s), but the list was not always complete. There was also ones for learning and some of the software I even created myself and I made sure it was approved by the office before I even used it because I created it. I wrote it and I wanted to make sure that it was okay with them. But they were very, very, academic. Mine dealt more with reading and -- it never had any kinesthetic(s) in it at all. So mine was easy to approve. ---I knew the list, but again the list -- it even says it does not include all the new software. It does not include all the new software. There are ones that we know about. And the same thing with video list. They had a video list. They have a video list, but it also said under these circumstances, these are -- generally a "G" movie is approved, but you know -- the list was always being compiled. It was always new it always had a little thing in there like, we may be incomplete, check with your principal. Answering the question, "[w]hat is kinesthetic?" Mr. Merica stated: Kinesthetic is using hand-eye coordination. They are physically impaired kids. Some of them were trying -- they might even some kind of physical deformity or nerve damage or cerebral palsy and they were trying to get them to manipulate their hands. Mr. Merica's selections of newspapers, computer games, and specific TV programs as associative resource educational tools for his students were undeniably appropriate resource materials and activities related to learning goals for his students with various learning and physical disabilities. No witness for the Commissioner, including Principal Griffin, the ART, and the ESE specialists, testified to the contrary. Mr. Merica denied that he had sexually harassed his co-workers, and his denials were confirmed by the testimonies of the alleged victims who were called to testify by the Commissioner. He denied "being off task when in the classroom." He denied playing video games in class during teaching and instruction time. Mr. Merica's denials of essential elements in the Amended Administrative complaint, even if unbelievable, does not prove the accusations. The burden remains with the Commissioner. Answering the allegation of "reading the newspaper in class," Mr. Merica stated: If there was a current event and we were talking about current events or -- the kids even had papers at that time, so we have used the paper in an educational way in the school before. Answering the allegation of allowing his class to watch the television program, The Price is Right, Mr. Merica stated: That's a possibility, because at one time in PI, our kids were not going to the lunchroom. They were served lunch in the room. Well, that was a time where I was not present. It was the aides on attendance. It was their duty. That was my time. I have a duty-free lunch is what they call it. It's part of the contract. I didn't always take that time. They knew if they needed help, I would help. If there was some special function going on or something like that, I would not necessarily go to lunch. But as a general rule I did do lunch, and those kids were in the room and sometimes the TV was on and the news during lunch period. It was lunch period for the children, too. Mr. Merica added that he was not aware of any prohibition against putting the TV on during the children's lunch period. Answering his attorney's question why he placed a "Do you need a Sub?" note (the Board's Exhibit 62) in some but not all his co-workers mailboxes, Mr. Merica stated: That's self-explanatory. It says: "Do you need a sub? If so please call Mr. Merica at 985-0203. Do not call before 6:00 a.m., or, you will have to deal with me personally. Can you spell DEAD?" I put it in a few teachers' mailboxes--friends mainly--I'm not a sub. People know that. The people that I gave this to know that I was not a sub. It's obviously a joke. The joke means that I don't think its appropriate to call anybody before 6:00 a.m. in the morning, you know, to disturb their family.--- As far as I know, they wanted to have a new policy because the secretaries didn't want to have to deal with sub calls anymore. So they said to start calling the subs before 6:00 o'clock in the morning to make sure they get there, and by the way, it doesn't say--can you spell dead? That's a little inside pedagogy, whatever you want to call it. It's a little inside teaching joke. "I hope you can spell." Based on the situations and circumstances at the time he engaged in activities and conduct in findings 206 through 211 and findings 229 through 234, I find Mr. Merica's explanations were plausible, reasonable, and within a teacher's authority and obligation to be creative and innovative by providing one or more methods of training to attain specific individual educational goals, based upon the physical and/or mental limitations of students and in concert with the educational goals as stated in their respective IEPs. Realizing that Foster administration and the Board were in the process of terminating his employment contract at the next Board meeting, Mr. Merica wrote a November 2, 1999, memorandum to Dr. Binnie and Principal Griffin, suggesting that he be transferred (to another school) as an alternative solution. The request of transfer was denied. By letter of January 13, 2000, Dr. Earl Lennard, Superintendent, the Board, suspended Mr. Merica with pay until the Board meeting on January 18, 2000, at which point his contractual employment with the School Board was terminated. The School Board's annual renewal of Mr. Merica's yearly contract of employment during Principal Payne's tenure as principal of Foster provides a reasonable inference, and I so infer, that the 2000 termination of Mr. Merica's annual contractual employment was based primarily upon issues that were identified and raised by Principal Griffin during the mid-1998 through 2000 period when she, and not Ms. Payne, was principal at Foster. There is no evidence of record that Foster brought to the attention of the Board or that the Board considered allegations of or findings of professional misconduct that had occurred during the 1994 through 1998 time period when Ms. Payne was principal at Foster Elementary. Amended Administrative Complaint Material Allegations Paragraph 3(a) The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica, at unspecified times, demonstrated heightened anger while conferencing with Principal Payne. The evidence proved clearly and convincingly that between 1998 and 1999,8 Mr. Merica yelled at Principal Griffin while conferencing with her as alleged in Paragraph 3(a) of the Amended Administrative Complaint. I do not find that Mr. Merica "pointed his finger in his principal's face and being emotionally out of control while conferencing with Principal Griffin." The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica failed or refused to comply with specific requests or specific instructions given by Principal Payne during her tenure as principal at Foster during the period of 1994 through mid 1998 or that Mr. Merica refused to comply with specific requests or specific instructions given by Principal Griffin during her tenure from mid-1998 through 1999, as alleged in paragraph 3(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica made derogatory and/or disrespectful remarks specifically about Principal Payne or specifically about Principal Griffin to and in the presence of his co-workers as alleged in paragraph 3(c) of the Amended Administrative Complaint. Paragraph 4 The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica rejected constructive criticism and assistance from those whose positions required giving such constructive criticism and assistance as alleged in paragraph 4(a) of the Amended Administrative Complaint. To the contrary, the reliable evidence proved that between 1994 and 1999, specifically in the mid and latter part of the 1999 calendar year, Mr. Merica accepted and responded positively to constructive criticism and offers of assistance from those whose position required giving such constructive criticism and assistance. The material and relevant evidence proved, clearly and convincingly, that on unspecified dates between 1994 and 1999, Mr. Merica was disruptive at faculty meetings by speaking aloud; speaking to co-workers, sometimes argumentatively; and interrupting speakers when they were speaking during faculty meetings as alleged in paragraph 4(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica was disruptive at faculty meetings by banging on tables and by making subversive and derogatory statements about the administration, in the presence of students and parent and faculty as alleged in paragraph 4(b) of the Amended Administrative Complaint. Paragraph 5 The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, during February 1999 as alleged in paragraph 5(a) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, an intern and teacher at Foster as alleged in paragraph 5(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica sexually harassed co-worker, K.R., a teacher at Foster Elementary as alleged in paragraph 5(c) of the Amended Administrative Complaint. Paragraph 6 The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica frequently left his class with his aides so that he could walk around campus, socialize, and/or monitor other teachers and their students as alleged in paragraph 6(a) of the Amended Administrative Complaint. The material evidence proved on those occasions, recalled by Mr. Merica and his DEES attendant who was an on-scene observer, that his absences from his classroom were for legitimate purposes within his obligations as a professional teacher in the Hillsborough County school system. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica's use of alternative methods such as video games, newspapers, and other tools and equipment to teach his students were "ineffective teaching tools and student management" as alleged in paragraph 6(b) of the Amended Administrative Complaint. To the contrary, the undisputed evidence proved that Mr. Merica's use of other supportive, available, and permissible means and methods such as video games, newspapers, and other tools and equipment for stimulating his PI students' interest were effective teaching tools. The material and relevant evidence failed to prove, clearly and convincingly, the factual basis to support allegations that between 1994 and 1999 Mr. Merica (1) utilized ineffective lesson plans, (2) utilized ineffective behavioral management plans, (3) failed to keep students academically engaged, and (4) failed to control his students and/or gain their respect as the manager of the class as alleged in paragraph 6(c) of the Amended Administrative Complaint. Paragraph 7 The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica restrained students without the required ACT certification as alleged in paragraph 7(a) of the Amended Administrative Complaint. The evidence proved that Mr. Merica restrained "unruly" students and restrained "a student" in defense of his personal safety and that of other students in the time-out class incident herein found. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica yelled in the faces of students as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. Through the testimony of two students, Demetrie White and Jarmaal Rumlin, it is clear when Mr. Merica was yelling in their face(s) it was, in part, to be heard over their yelling at him and/or each other when they were kicking the ball and playing during time-out. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record, Mr. Merica exhibited out-of-control or emotional forms of discipline as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. The material and relevant evidence proved that between 1994 and 1999, Mr. Merica restrained one unruly large male ESE student that was not enrolled in his class without a request from the teacher who was responsible for the class, as alleged, in part, in paragraph 7(c) of the Amended Administrative Complaint. Paragraph 7(d) was withdrawn by the Commissioner. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica's teaching and student behavior management was ineffective, including: frequently leaving his class with aides so that he could walk around campus, socialize, and/or monitor other teachers and their students. when in his class, frequently playing video games on his computer, reading a newspaper, or reviewing architectural designs. utilizing ineffective lesson plans and behavioral management plans, failing to keep students academically engaged, and failing to control his students and/or gain their respect as the manager of the class. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record, Mr. Merica restrained unruly students without the required ACT certification. The evidence demonstrated that in each proven encounter of unruly student restraint, Mr. Merica acted to protect the unruly student, other classmates, and, on two occasions, protect himself and another colleague. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica restrained an unruly male student who was not enrolled in his class without waiting for the female teacher to ask for such assistance as alleged in paragraph 7(c) of the Amended Administrative Complaint. The evidence demonstrated and it is found that by restraining the unruly male student, Mr. Merica prevented possible potential injury to the unruly student, to the female teacher, to the grandmother volunteer, and to other students of both classes who were present in the hallway at the time of the incident. Paragraph 7(d), alleging inappropriate discipline of several students on or about September 23, 1999, was withdrawn by Petitioner. Paragraph 8 The Commissioner failed to prove, by clear and convincing evidence, allegations in paragraph 8 of the Amended Administrative Complaint that Respondent met with his principal and county employees to discuss and received letters of reprimand for each act alleged in paragraphs 1 through 7 of the Amended Administrative Compliant. Paragraph 9 The Commissioner proved, by clear and convincing evidence, that the Board terminated Respondent's contractual employment as a teacher with Hillsborough County in 2000. The burden of proof required to terminate a contract of employment is not the clear and convincing evidence burden of proof standard required to revoke a license. The Commissioner offered no documented proof, however, proving the Board's decision was based specifically on the allegations found in paragraph 9 of the Amended Administrative Complaint. There is no documented evidence of record that identifies the specific basis upon which the ultimate determination to terminate Mr. Merica's 2000 school year employment contract was made by the Board. The Commissioner did not prove, clearly and convincingly, by material and relevant evidence of record, the allegations that "[E]ffective September 22, 2000, the school board terminated Respondent's employment on charges on [sic] insubordination, persistent violation or willful refusal to obey laws or policies relating to the public schools, and failure to demonstrate competency relating to the instruction, evaluation and management of students in accordance with accepted standards," as alleged in paragraph 9 of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Finding of Fact and Conclusions of Law, it is: RECOMMENDED that the Commissioner of Education enter a final order finding Respondent, Neil Merica, in violation of Subsection 1012.795(1)(i), Florida Statutes (2003), and imposing the following penalties: Suspend Respondent's right of renewal of his teacher certificate and place Respondent on probation for a period of three years, to require successful completion of an anger management course and other such conditions as the Commissioner may specify upon re-application under existing requirements for certification by the State Board at the time the suspension expires. Impose a fine on Respondent in the amount of $1,000.00 for violation of Section 1012.795(1)(i), Florida Statutes (2003), to be paid prior to or at the time of re-application for certification, and other such conditions as the Commissioner may specify. DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 31st day of March, 2005.
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent is the holder of a teacher's certificate, number 617425, for the area of social studies. Such certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed by the Orange County School District as a teacher at Union Park Middle School (Union Park). All allegations material to the case against Respondent occurred during his employment at Union Park and involved female students who were either enrolled in his class or members of the social studies club Respondent sponsored. During 1990-91 school year, Respondent placed telephone calls to female students. The purpose of such calls was to convey school-related or social studies club information to the student; however, Respondent frequently allowed the subject matter of the telephone conversations to extend to private, non- school topics. These private topics included discussions regarding who liked who for boyfriends and girlfriends as well as the personal appearance and conduct of various students. Additionally, the length of time involved in such conversations varied from a matter of minutes to almost an hour in length. Also during the school year, Respondent participated in the completion of a "slam book." A "slam book" is an unauthorized school activity in which students are not to participate. In general, a "slam book" is a book wherein students make comments about others. In many instances such comments may be unflattering or uncomplimentary. If discovered, teachers generally confiscate such books and admonish students regarding them. In Respondent's case, when he was asked to sign a "slam book" belonging to Karen McCue, Respondent completed many of the headings with personal comments about others known to the students completing the book. The completion of the book by a student, much less a teacher, was against school policy. On one occasion, Respondent wrote on a student's hand by drawing an eyeball, a heart, followed by the letter U. The student interpreted, and Respondent intended, the message to mean "I love you." As a result, the student became self-conscious and went to the restroom to wash the message off. While Respondent did not intend the message to embarrass the student, such action, nevertheless, made her uncomfortable. On several occasions, Respondent made female students uncomfortable by touching them. None of the touches were intended or interpreted by the students as sexual in nature. None of the touches involved inappropriate parts of the body. All such touches occurred in full view of the class or others. None of the touches made the students uncomfortable at the time they were made; only later, in retrospect, did the students feel uncomfortable. Such touches included playing with a female student's hair, holding a female student's hand, or a side-to-side hug. After Respondent confiscated a Gloria Estefan concert program book from one of the female student leaders, the allegations of impropriety at issue in these proceedings were raised. Prior to that incident, Respondent had enjoyed considerable popularity with the students in his classes and the social studies club. Rumors of improper touchings, not substantiated or alleged in this case, were rampant. Understandably, parent concern and administrator involvement as a result of the complaints followed. On March 28, 1991, the Orange County School District issued a letter of reprimand to the Respondent based upon the alleged inappropriate verbal and written comments to students. Additionally, at the conclusion of the school year, Respondent's teaching contract was not renewed for the 1991-92 school year. Because he engaged in behaviors that interfered with the student/teacher relationship, Respondent's effectiveness as a teacher was substantially reduced. Respondent failed to maintain a proper, professional distance between himself, as the teacher, and the female students. By engaging in personal telephone conversations and the "slam book," Respondent failed to establish his role as the disciplinarian and authority figure inherent in being their teacher. Respondent enjoyed a good teaching reputation among his fellow teachers and received favorable recommendations and evaluations from his principal. Respondent did not commit any act reflecting gross immorality or an act involving moral turpitude. Respondent did not commit any act that resulted in a failure to make reasonable effort to protect students from conditions harmful to learning or to health or safety. Respondent did not intentionally expose students to unnecessary embarrassment or disparagement. Respondent did not intentionally exploit his professional relationship with students for personal gain or advantage.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission enter a final order reprimanding the Respondent for the conduct set forth above. DONE and ENTERED this 20th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992. APPENDIX TO CASE NO. 92-0175 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, the last sentence is accepted; otherwise rejected as argumentative or contrary to the weight of credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of credible evidence or argument. The first sentence of paragraph 9 is accepted; the remainder is rejected as recitation of testimony or unnecessary. It is accepted that a slam book is an inappropriate activity for students as well as teachers. Paragraph 10 is accepted. Paragraph 11 is rejected as recitation of testimony, irrelevant or unnecessary to the resolution of the issues of this case. Paragraph 12 is rejected as recitation of testimony and/or argument. Paragraph 13 is rejected as repetitive, irrelevant, or contrary to the weight of credible evidence (except as addressed in the foregoing findings of fact). Paragraph 14 is rejected as repetitive and irrelevant. It is accepted that Respondent's informal conversations with students did not maintain an appropriate level of professional distance; otherwise rejected as indicated. Paragraph 15 is rejected as contrary to the weight of evidence or irrelevant to the extent not addressed in the findings of fact. Paragraph 16 is rejected as repetitive and irrelevant. Paragraph 17 is rejected as recitation of testimony, irrelevant, or unnecessary. To the extent not addressed in the findings of fact, paragraphs 18 through 32 are rejected as unnecessary, irrelevant, contrary to the weight of the evidence, or recitation of testimony. For the most part, the allegations suggested by the findings proposed constitute much ado about little. Respondent clearly did not maintain an appropriate distance from students; however, his conduct did not rise to a level to reflect a lack of moral character or be grossly immoral. In essence, Respondent's error was to try to be the student's friend more than their teacher. As a result, his role as their teacher was compromised. Paragraph 33 is accepted with the deletion of the word "embarrassment." Respondent experienced a breakdown in the student/teacher relationship, he did not intend to embarrass the students. The first sentence of paragraph 34 is accepted; otherwise rejected as contrary to the weight of the evidence. The first sentence of paragraph 35 is accepted; the remainder rejected as contrary to the weight of the evidence. Paragraph 36 is rejected as irrelevant. With regard to paragraph 37 it is accepted that Respondent's behaviors seriously undermined his effectiveness at Union Park; otherwise rejected as contrary to the weight of the evidence. Further, it has not been shown that such behaviors were widely known in the community or that his effectiveness in another location would be compromised. Clearly, the incidents of this case were fairly minor, isolated, and impacted but one school. Since the Respondent has been appropriately disciplined, such prior conduct should not prohibit the Respondent from teaching in another location where his effectiveness has not been questioned. It might be concluded that Respondent has learned from the errors of his past. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent not accepted and addressed by the findings of fact above, Respondent's proposed findings of fact are rejected as irrelevant, repetitive, contrary to the weight of the evidence, argumentative, or unnecessary. Respondent was well-liked and considered a "good teacher" by many of his students. In that his principal did not know of Respondent's informal relationships with students, he considered Respondent a "good teacher." Respondent's ability to maintain an appropriate professional distance from his students is the only violation established by this record. COPIES FURNISHED: John F. Gilroy, Esquire Attorney Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph Egan, Jr. P.O. Box 2231 Orlando, Florida 32802 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
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 has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
The Issue Whether Respondent should be dismissed from her employment with the School Board of Dade County, Florida, upon grounds of incompetency, gross insubordination, willful neglect of duty, misconduct in office and/or absence without leave. POST-HEARING PROCEDURE A transcript of the formal hearing was provided the undersigned on March 21, 1985, and proposed findings of fact and conclusions of law were timely filed by both parties. A subsequently-filed revision of Respondent's initial proposal was accepted without objection and considered. When a party's proposed findings of fact were consistent with the weight of the credible evidence admitted, they were adopted and are reflected in the Recommended Order, but to the extent proposed findings of fact were not consistent with the weight of the credible evidence, they have been rejected or, where possible, modified to conform to the evidence. To the extent proposed findings of fact have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence. A ruling on each proposed finding of fact has thereby been made either directly or indirectly except where the proposed finding of fact was cumulative, immaterial, or unnecessary. Based upon observation of the witnesses and their candor and demeanor while testifying, all exhibits admitted in evidence, and the proposals and arguments of counsel, the following relevant facts are found:
Findings Of Fact Respondent was initially employed by Petitioner on November 15, 1982, at West Little River Elementary School. She suffered a non-school related accident and was absent approximately 121 days during the 1982-1983 school year. Observations of her teaching by her then-principal, John Johnson II, were unfavorable, but due to the prolonged absences, those observations did not result in any formal evaluations/recommendations. Respondent's requested leave for this period was granted and approved by Petitioner upon the basis of her severe electrical shock and back injury. Some of this period was classified as leave without pay. Petitioner also paid Respondent's insurance premiums for this period. Having thus condoned this absenteeism, Petitioner cannot now be heard to complain of it. (See allegations of Paragraph 18 of the Notice of Charges.) Principal Nicholas Rinaldi of Bay Harbor Elementary School hired Respondent as the teacher for its new "home-based" gifted program beginning there for the 1983-1984 school year. Although Principal Johnson would not have recommended Respondent for employment in the second year, he was not consulted by Principal Rinaldi. Principal Rinaldi told Respondent that she was limited to a $1,000.00 budget for purchasing materials for the program she was to develop. Principal Rinaldi understood that Respondent knew she was both to stay within this budget which is the standard limit at all home-based gifted programs and that she was required to get prior approval of her purchases from him. Apparently, Respondent grasped, the concept of a $1,000.00 "cap" but did not initially understand that she was to obtain prior written permission. After two orders were cancelled, she still had overspent by $60.00. She was then told specifically not to make any further purchases without the principal's permission. Thereafter, another order placed by Respondent was received at the school but Petitioner did not establish that Respondent placed the order after the cancellation of two prior orders and after Rinaldi's specific instruction not to order any more goods whatsoever. (See allegations of Paragraphs 1 and 3 of the Notice of Charges.) Respondent was clearly informed that she needed prior authorization for phone calls. She did not get prior permission for five long distance phone calls made personally or by students at her direction. The total cost of these calls is 8.56, which is very minimal. All calls were related to classwork with the exception of one call for $.44 and one call for $.25, which were admittedly of a personal nature. Respondent reimbursed the $.72 after the fact when notified of investigation into the phone bill. (See allegations of Paragraph 2 of the Notice of Charges.) Twenty-five students are required for a home-based gifted program. Bay Harbor was one of three North area schools piloting a home-based program in the 1983-1984 school year. In prior school years, gifted children from Bay Harbor attended a center program physically located elsewhere. A center program places a team of teachers of subjects from various schools in one physical location. Eligible students from various schools come to the center for two days a week for the gifted program and they receive their basic skills education at their respective home schools in the remaining three days per week. In a home-based program, a school which has enough gifted students elects to keep those students physically at the home school. They usually go into that program for two hours a day, every day. Some subject or subjects are used to deliver the gifted program. Those subjects are then graded by the home- based gifted teacher, who in this case was Respondent. When he hired her, Principal Rinaldi told Respondent that mathematics would be part of the new "home-based" gifted program, but math was essentially unstructured in the beginning. Thereafter, Principal Rinaldi instructed Respondent to utilize the standard Dade County "total math program, (TMP). When the TMP program was selected by Principal Rinaldi in approximately, December 1983, his motivation was that he understood TMP provided a structure for math that allows students to enter at the level that they are individually and moves each at a pace commensurate with his individual ability. Unfortunately, because a home-based program does not select its students on their specific giftedness in content area, some students in Bay- Harbor's 1983-1984 pilot program were lower than others in math. Some were even below their grade level. Those above the grade level were becoming bored with the program and those below the grade level were in a constant state of frustration struggling to keep up. A failure on Respondent's part to communicate surfaced, and misunderstandings arose between Respondent and parents and students as to the nature of projects, when projects were due and the reasonableness of homework. Problems concerning teacher absences also arose. The more academic and less "time-out-of-school" atmosphere of a home-based versus a center-based program also caused problems between the Respondent teacher and students/parents and between the Respondent and her principal. Upsets among the students and their parents resulted in many students being permanently removed from the gifted program. Over a period of time, the decrease in enrollment threatened to destroy the Bay Harbor gifted program, the survival of which required 25 students. On January 4, 1984, Principal Rinaldi observed Respondent's class for an hour for teacher evaluation purposes. This resulted in a basically good evaluation with some areas targeted for improvement (instructional planning and maintenance of student records [P-7]). The crux of this targeting was the principal's perception that Respondent did not record sufficient grades and her student files were not arranged alphabetically with papers arranged chronologically within each file. This standard of record-keeping is personal to Mr. Rinaldi and not uniform among other Dade County principals. At the standard post-observation conference, the two argued over the evaluation and the exactitude required by the principal, and Respondent refused to sign the evaluation to acknowledge that she had seen and received a copy of the document. As will be related infra, this refusal to sign or initial merely for acknowledgment of receipt of documents became a constant and continuing refusal on Respondent's part whenever the issue came up. Six days later she refused again; on January 17, 1984, Respondent responded in four written pages defending her methods. As events unfolded chronologically thereafter what started basically as a personality clash of the principal's "irresistible force" authoritarianism and the teacher's "immovable object" obstructionism mushroomed to affect students, parents, teachers, and administrators. In early January, Respondent complained concerning the inclusion of math in the gifted program to a higher outside administrator Dr. Agerwald. Mr. Rinaldi objected to this contact. On January 11, 1984, Mrs. Vickers, Petitioner's Director of Exceptional Students Program, arrived to observe Respondent's classes. She prepared a "School Visitation Report." The report is basically positive but does comment that the gifted classes are too big and current IEPs (records) were not and should have been available in the classroom. On February 2, 1984, Vickers issued a commendation to Hay Harbor on quality of cumulative records for exceptional children. Mr. Rinaldi passed this commendation (R-19) on to Respondent with the note, "Mrs. Burton, please continue this fine record 2/6/84." On 1/23/84, he also commended her on quick responses to the Miami Module records-keeping requests (R-20). Petitioner's advisor to gifted teachers, Richard Huffman, was assigned to assist Respondent at the beginning of the 1983-1984 school year. He testified that in his opinion she was a fit teacher, but he was removed as her advisor at the end of January or early February. February 24, 1984, Assistant Principal Vince Vignola observed Respondent in the classroom for a full hour and rated her overall acceptable except that she needed more grades in math and had, lost a student "contract" which had never been signed. Principal Rinaldi called in Gary Rito, Petitioner's Director of Academic Excellence for help resolving the gifted class problems. On March 2, 1984, Mr. Rito met with Respondent, Principal Rinaldi, and Mrs. Laurence, mother of a gifted student. Respondent and Laurence, who teaches elsewhere in Dade County, exchanged sharp words. It was agreed to meet again on March 8, 1984. At that time, James Miley, Petitioner's Supervisor of Gifted Programs, was present. Respondent was given written notice of the meeting one day in advance. Respondent elected to continue in this meeting at the conclusion of the school day. At this time most of her concerns, as expressed to all others present, were with the number of subjects she was required to cover and with the content of the mathematics curriculum in particular. Mr. Rito explained that "gifted" symbolizes a "technique" not a "subject," that Respondent was to use this technique for teaching subjects of math, science (which Respondent should be teaching anyway), and social studies, and for teaching a health and safety unit which was taught for only one or two grade units. Respondent strenuously objected to the use of the TMP math program. Rinaldi and Miley concurred that it was reasonable to include math in the gifted program. Math was, in fact, successfully used in the other two home-based programs beginning in Bay Harbor's Division that year, but the programs utilized may not have been the TMP. Nonetheless, the following adjustments were agreed upon among all those present at the March 8, 1984 meeting: Principal Rinaldi agreed to relieve the academic excellence program of the TMP math program and increased their enrichment activities; Ms. Thomas, Say Harbor's 6th Grade math teacher, was assigned by Principal Rinaldi to help Respondent in math. It was later Ms. Thomas' assessment that Respondent did not understand the TMP concept; and Respondent was directed and agreed to develop four units of study in botany (2 intermediate and 2 primary) to cover the rest of the school year (9 weeks). These plans were to cover instructional objectives, classroom activities, student evaluation methods and homework assignments on a time line. A preliminary plan was to be shown by Respondent to Mr. Miley on March 20. This assignment was primarily the result of a request by Ms. Laurence and other parents requesting to see a sets of plans for purposes of deciding whether to leave their children in the Respondent's class or return those who had already been withdrawn. Rinaldi, Rito, and Miley felt the plans required by the directive would ease the primary problems of implementing the program and of parent-teacher communications and misunderstandings which had been growing, and also felt they were reasonable and necessary. Everyone was aware that withdrawal of Mrs. Laurence's child could reduce program enrollment below the 25 student minimum required. However, no one clearly expressed the belief that this directive was a prescription to improve Respondent's teaching performance, which had been found basically sound up to this point. 1/ The direction itself was for a reasonable and necessary purpose (preserving and improving the gifted program). However, despite Mr. Miley's opinion that the plans as initially directed were reasonable and necessary and despite Respondent's failure to object to the direction at this point, the initial scope of the direction was actually unreasonable under the circumstances. Mr. Miley postponed his scheduled meeting with Respondent from March 20 to March 23, 1984. On that date, Respondent had nothing to show him with regard to the required botany units she had been asked to prepare. Mr. Miley met with Respondent anyway and reduced the required units from 4 to 2 and extended the time for preparation until April 12, 1984. He also gave her a document entitled "Standards of Excellence" for use in the units she was to prepare and agreed to let Respondent continue with her present evaluation system. This adjustment, made in consultation with Respondent also rendered the scope of the direction to prepare the units reasonable. 2/ On April 12, 1984, Mr. Miley asked for the required botany units and received nothing from Respondent. He returned to the school on April 13, and Respondent produced a series of goals and objectives essentially copied from the "Standards of Excellence" wherein she had identified part of a program for the primary students but none for the intermediate students. There were no classroom activities listed, no homework mentioned, and no time lines provided. Despite the extension of time, Respondent did not fulfill the required directive even in its reduced and consequently reasonable form. 3/ The units were not further amplified by Respondent before she left on April 20 and Mrs. Laurence's child was permanently removed from the gifted program. (See allegations of Paragraphs 5 and 7 of the Notice of Charges). On March 12, 1984, Respondent called Principal Rinaldi a liar three times in the presence of two other school employees. 4/ (See allegations of Paragraph 4 of the Notice of Charges.) Respondent later informed Principal Rinaldi that she perceived the March 8 meeting as disciplinary in nature. He had not considered it so. He accordingly removed a request for her signature from a summary he had prepared of the March 8 meeting and scheduled a "conference-for-the-record" for March 16, 1984. Conferences-for-the record are disciplinary conferences. The March 16, 1984 meeting was postponed at the request of the Respondent's union representative. A second request for postponement for emergency reasons peculiar to the schedule of that particular union representative (Ms. Perez), was not granted and the conference-for-the-record went forward on March 20, 1984, with Respondent accompanied by her union steward, James Collings. At this conference, Rinaldi discussed the same matters that had been discussed at the March 8, 1984 meeting, the incident which had occurred March 12 when Respondent called him a "liar" three times, Respondent's unsatisfactory attendance record that year, and the fact that her absences were having an adverse effect on the program. Respondent was specifically instructed by her union advisers not to speak at this conference. Certainly she did not deny the March 12 "liar" incident. When she did not respond to Principal Rinaldi's accusations and inquiries, he became agitated. Respondent had received prior approval for a half-day in-service conference (8:30 a.m. to noon on March 21, 1984) with Mrs. Vickers, Director of Petitioner's Exceptional Student Education Program. When she did not report back to teach at Bay Harbor that afternoon, Mrs. Macri, secretary to Principal Rinaldi made inquiries and Respondent's continued presence with Mrs. Vickers was confirmed, but not approved. This constitutes a 1/2 day's absence without leave. No substitute was procured since Respondent had been expected to teach her afternoon class. (See allegations of Paragraph 12 of the Notice of Charges.) On March 28, 1984, during a regularly scheduled parent meeting, the parents present expressed a great deal of dissatisfaction with various aspects of the gifted program, particularly math. Principal Rinaldi publicly attributed the problems in the gifted program to Respondent and Respondent retaliated by publicly stating that she did not believe TMP math should ever have been included in the gifted program and that she had no control over the inclusion of the math. The majority of witnesses actually present at this meeting found its entire tone and nature informative prior to Principal Rinaldi's comment. Even then, Respondent's comments may have been less than tactful but were hardly untruthful, unprofessional, irresponsible, or incendiary. (See allegations of Paragraph 6 of the Notice of Charges.) Respondent was tardy to the March 29, 1984 faculty meeting. Based on the contemporaneous memoranda and letter, Respondent's estimate of 3-4 minutes tardiness is accepted over Dr. Rinaldi's later estimate of 20 minutes. The causes related contemporaneously by Respondent are entirely reasonable. (See allegations of Paragraph 11 of the Notice of Charges.) At Principal Rinaldi's April 16, 1984 classroom observation of Respondent, he rated her teaching performance as unacceptable in 3 categories: preparation and planning, assessment techniques, and professional responsibility (P-18). Rinaldi testified that his negative ratings in preparation and planning were due to what were minor concerns on the January evaluation. However, as observed above in Fact Paragraph 6, the January evaluation actually concentrated on the principal's particularly harsh requirement that Respondent's student files must be arranged alphabetically with papers neatly arranged chronologically within each file. Since his perception of the adequacy of records is so intensely personal to Mr. Rinaldi and in light of interim commendations to Respondent for record-keeping, his April analysis of inadequate records of assessment renders the final evaluation "score" highly suspect. 5/ (See allegations of Paragraph 8 of the Notice of Charges.) Respondent was tardy to work and failed to timely sign in on March 26, 27, 28, and April 20, 1984. (See allegations of Paragraph 13 of the Notice of Charges.) Respondent was absent on April 17, 18, and 19. She requested leave for April 17-18 late but it was approved and authorized in advance by Principal Rinaldi for participation in religious holidays. However, these were absences without pay and pushed Respondent over the number of personal leave days to which she was annually entitled. Respondent was absent without authorization on April 19; this was an absence without pay. (See allegations of Paragraphs 14 and 19 of the Notice of Charges.) On April 20, 1984, Respondent protested, but finally agreed to meet with Principal Rinaldi in his office for a post-observation conference. Post- observation conferences are not normally considered disciplinary in nature. By this time, he had added Respondent's late notification of the 4/17-4/18 absence and her 4/19 absence to the prescription sheet as deficiencies. Respondent declined an oral dialogue with Rinaldi wherein she was invited to respond to the rating criticisms and prescriptions and offer alternatives and also refused to initial his notation that she insisted on responding in writing. Midway in this meeting, Respondent announced she was going to leave. Again, she would not sign to acknowledge receipt of the observation and prescriptions. Rinaldi instructed her that she was obligated to discuss the rating and if she left, he would consider it insubordination. Respondent left his office and the school and did not return to work as a teacher at Bay Harbor again. A formal reprimand issued partly as a result of this incident. (See allegations of Paragraph 9 of the Notice of Charges.) On April 23 and April 24 Respondent was absent without pay. April 23 was unauthorized leave. (See allegations of Paragraphs 14 and and 19 of the Notice of Charges.) With regard to the frequent' short absences, which total led 18 as of April 22, Respondent rarely if ever complied with the "Teachers' Handbook" guidelines for advance notification. Respondent originally felt that it did not matter what type of leave (personal or sick) was listed because she had no leave left anyway. Although many of these absences were for legitimate illnesses or injury of herself or a relative, there was either an on-going absence of lesson plans or a failure on Respondent's part to inform the principal that she had created plans since he last commented on there being none. Consequently, he often could not or did not secure substitutes. This resulted in wasted class time and interfered with classroom continuity. Some of Respondent's unauthorized absences were simply gifted programs she chose to attend without notifying the principal in advance. Respondent was also absent during the 1983-1984 school year for two lengthy periods, which, with all other absences, totalled 62 1/2 days. Medical narratives, admitted without objection, corroborate Respondent's testimony that the two lengthy absences were the result respectively of unanticipated allergic complications of a CAT scan (from January 30 to February 10, 1984,) and of surgery to correct acute sinusitis and recovery time from late April until release. One doctor released her from this last treatment On May 29, 1984; the other released her on June 8, 1984. During the period of time she was absent immediately following the April 20 "walkout" incident until approximately June 8, Respondent failed to adequately inform Petitioner of her proposed date of return. Certified letters sent to her post-office box were returned because Respondent did not pick them up and Petitioner could not send these to her by regular mail or by hand- delivery via a "visiting teacher" because Respondent had never informed Petitioner of her street address. The failure of Respondent to stay in touch, her failure to indicate when she could return to work, and her failure to indicate that her absence would be lengthy resulted in an inability of Petitioner to immediately hire a permanent substitute teacher. Therefore, the gifted classes had to "make-do" with a series of short term substitutes (4 or 5) until Mr. Rinaldi finally hired Mrs. Judith Dryanoff. This process created a lack of continuity in the classroom and more student withdrawals from the gifted program. The problem with multiple substitutes was compounded by Respondent's failure on April 24 and thereafter to have available substitute lesson plans. 6/ Because of Respondent's failure to leave any form of lesson plans or grade book, substitute Judith Dryanoff had to make up her own lesson plans for science and enlist the help of Janice Thomas for math plans. (See allegations of Paragraph 10 of the Notice of Charges.) On May 24, Principal Rinaldi signed Respondent's Annual Evaluation, not recommending her for employment in the next school year (P-22). When released by her doctors, Respondent was assigned by Administration to the North Area Office for June 11-15 and was expected by her principal to be at Bay Harbor simultaneously. She obviously could not do both. She was at the North Area Office for part of June 12 and at Bay Harbor for part of June 14. She was in neither location on June 11, 13, and 15. These days constitute absences without leave. (See allegations of Paragraph 19 of the Notice of Charges.) On June 12, 1984, James Monroes, a supervisor in Petitioner's Division of Personnel Control, ordered Respondent to begin the 180 hour course, Beginning Teacher Program, to start at 10:00 a.m., June 14, 1984, at Bay Harbor Elementary School. 7/ At 7:20 a.m. that morning Respondent confronted Principal Rinaldi in his office and called him "malicious, devious, incompetent," and "a sorry excuse for a principal." She accused him of personally taking her personal items from her room and of attempting to get her fired. 8/ Although she initially refused to come back for the program, she returned at 10:00 a.m. and repeated essentially the same harangue in the presence of Mrs. Thomas, the peer teacher selected to oversee Respondent's Beginning Teacher Program. Mrs. Thomas was called in by Mr. Rinaldi who had anticipated that a scene would ensue. Thereafter, out of Mr. Rinaldi's presence, Respondent invited Mrs. Thomas to sign a petition "to get rid of Mr. Rinaldi". (See allegations of Paragraph 15 of the Notice of Charges.) Dr. Huffman testified that Respondent also frequently yelled at Mr. Rinaldi in Dr. Huffman's presence prior to Dr. Huffman's February reassignment, and Mrs. Macri, secretary to Principal Rinaldi testified that she had heard Respondent call Mr. Rinaldi a "bastard" or refer to him as a"bastard," but the date of this incident(s) was not proven. On August 29, 1984, Dr. Richard Artmeier, supervisor of Petitioner's Division of Personnel Control, directed Respondent to be psychiatrically evaluated the next day to determine if there were any mitigating circumstances for her June 14, 1984 behavior. Respondent is obligated to submit to such evaluation by terms of her employment. After vacillation, Respondent refused to sign the written directive indicating its receipt and adamantly refused to see a psychiatrist. Finally, Dr. Artmeier directed her instead to report to the North Area Office the next day. Respondent did, however, actually go the next day as originally directed for psychiatric evaluation to Dr. Gail Wainger. Dr. Wainger was on Petitioner's "approved" list. In so doing, Respondent could not immediately comply with the directive to report to the North Area Office. Respondent reported to the North Area Office later the same day after her psychiatric evaluation. Petitioner accepted Dr. Wainger's psychiatric evaluation of Respondent, paid for it, and it was admitted at hearing upon Petitioner's motion (P-38). Since Respondent could not be in two places at once, she fulfilled the alternative directives reasonably by fulfilling them sequentially even if she did initially refuse. (See allegations of Paragraphs 16 and 17 of the Notice of Charges). The psychiatrist's evaluation is admissible under Section 231.291, Florida Statutes and has been considered. Upon that evidence, together with all other credible evidence adduced at formal hearing, Respondent was accountable for her actions. Respondent has never qualified for and has never been characterized as a teacher under continuing contract.
Recommendation It is recommended that Petitioner enter a Final Order dismissing Respondent from employment with the Dade County School Board and denying any claims for back pay. DONE and ORDERED this 20th day of June, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1985.
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
Findings Of Fact Jose Valentine Bernardez was a seventh-grade student at Kinloch Park Junior High School during the 1984- 85 school year until his reassignment to the alternative school on May 30, 1985. At the time of hearing, the 1985-86 school had just begun and Jose's parents did not send him to the alternative school pending the outcome of this proceeding. However, Jose has not been withdrawn from the public schools of Dade County. While at Kinloch Park, Jose was involved in numerous incidents that resulted in disciplinary referrals. On September 25, 1984, Jose pushed another student and on September 26, 1984, Jose took a student's notebook and got into a fight. On February 6, 1985, Jose didn't have appropriate materials in class. Early in the day on February 13, 1985, Jose was referred for discipline for refusing to remain in his seat, provoking other students, throwing paper airplanes and destroying art materials. Later that same day, Jose took an earring off a teacher's desk and put it in the trash can. When the teacher asked the class about the earring, Jose did not tell where the earring was. He later admitted his involvement to a counselor, but did not know why he did it. Jose was suspended from school for his misbehavior on February 13, 1985. Jose was placed on indoor suspension on February 27, 1985, for slapping another student on the head, being constantly out of his seat and not doing his work. Jose had a day added to his indoor suspension on March 6, 1985, because he misbehaved in indoor suspension by talking, disrupting and refusing to be quiet. On March 7, 1985, Jose was disruptive and disturbing other students. On March 13, 1985, Jose was defiant, disruptive, imitating another student and making statements about that student's mother. On March 18, 1985, Jose was again suspended for a fight in class, disruptive behavior on a daily basis, constant disruptive behavior and carving on the desk with an exacto blade. On April 4, 1985, an indoor suspension was imposed because Jose was talking in class after warning and disrupting the class. Jose repeatedly disrupted class on April 24, 1985, and did not bring materials to school. On May 8, 1985, Jose was late for class for the fourth time, threw chalk and sat in the wrong seat. He was again suspended. Finally after the suspension was served, Jose returned to school, and on May 15, 1985, Jose was poking other students with a safety pin. When confronted, Jose ran from the teacher. He was again suspended and was referred to the alternative school program. Throughout the course of Jose's attendance at Kinloch Park, the school officials counseled with Jose and his parents on numerous occasions. Jose also received counseling at the school. Jose's mother asked the school for help on at least three occasions. She recognized Jose's behavioral problems and indicated that they began after the death of Jose's brother. She asked the school for assistance in getting psychological counseling for Jose. In response to that request, she was given a list of four local public and private agencies when she could seek help for Jose on her own. Mrs. Bernardez also asked the school to evaluate Jose to determine if he had psychological problems or emotional problems that resulted in his misbehavior. The school's only response was to place Jose's name on a waiting list for evaluation. While Jose's name remained on this waiting list, his behavioral problems continued. The school's response was to suspend Jose and refer him to alternative school. Additionally, during this time, Mrs. Bernardez did take Jose to all four of the agencies named by the school. At each she was told that they did not do evaluations of the type needed for Jose and instead offered to provide counseling for Jose at the parent's expense. Jose's parents attempted to get professional help regarding Jose's behavioral problems, but were unable to do so successfully before Jose was removed from the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order, and therein: Return Jose Valentine Bernardez to the regular school program. Require that an evaluation as required by Rule 6A- 6.331(1) and other applicable rules, including but not limited to Rule 6A-6.3016, Florida Administrative Code, be performed immediately. DONE and ENTERED this 17th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Mr. & Mrs. Jose Bernardez 4630 N. W. 4th Street Miami, Florida 33126 Ms. Maeva Hipps School Board Clerk Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
