The Issue Whether Petitioner, Duval County School Board, had just cause to suspend Respondent without pay for seven days for the reasons specified in the agency action letter.
Findings Of Fact Jurisdiction Petitioner, Duval County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Duval County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Sawdy was employed as a teacher at Lake Shore in Duval County, Florida, from 2011 through June 2018. During the 2016-2017 school year, Mr. Sawdy taught civics to seventh grade students. During the time he was a teacher at Lake Shore, Mr. Sawdy received an effective or highly effective rating on his performance evaluations. Mr. Sawdy has never received discipline during his tenure as a teacher. Specifically, during the time that he had worked at Lake Shore, he was never disciplined for failure to adequately supervise students. After the 2017-2018 school year, Mr. Sawdy relocated to North Carolina and is serving as a teacher there. Background The incident that served as the basis for this proceeding occurred on May 2, 2017. Mr. Sawdy’s classroom was located in a portable unit with windows at Lake Shore. Generally, Mr. Sawdy would have a structured lesson for the class period. However, on this day the students in the class returned from a field trip in the middle of the third period at approximately 1:30 p.m. The students were instructed to go to their designated class and remain there until the fourth class period. The field trip was to the Diamond D Ranch, a farm in Jacksonville, Florida. There were approximately 20 students who went to Mr. Sawdy’s classroom after the field trip. As was the typical case when students returned from a field trip, the students were described as rowdy. As a result, Mr. Sawdy permitted the students to work on note cards and listen to music. The music was from Hamilton, the musical, which was used to teach the students about the historical figure, Alexander Hamilton. Although music was playing, the students could hear each other. The lights were off, but you could see in the room because the windows allowed sufficient ambient light. The School Board alleged that Mr. Sawdy allowed a group of students in his class to participate in an inappropriate game. One of the students from the group included R.G. The group was located at the back of the classroom. The testimony from various witnesses about what happened in the classroom on May 2, 2017, varied in several areas. Student Testimony Student C.A. C.A. testified that when the class returned to the classroom, Mr. Sawdy did not have a specific lesson. He played music and allowed students to move freely. According to the diagram of the room, C.A. was sitting near R.G., with one chair between them, in the group. C.A. testified that he witnessed R.G. lift her shirt, exposing her breasts. C.A. described the event as “flashing” that happened quickly. C.A. testified that Mr. Sawdy was sitting at his desk at the front of the room when R.G. lifted her shirt, which was farther away from R.G. than was C.A. C.A. credibly testified that Mr. Sawdy was strict regarding discipline for inappropriate behavior. If Mr. Sawdy had seen R.G.’s conduct, he would have called her parents or referred her to the principal. C.A. testified that he did not see anyone kissing or touching private parts. At some point during the class, C.A. slapped D.B. on the back of her thigh. C.A. testified that Mr. Sawdy took him outside the classroom to discipline him for hitting D.B., which redirected his behavior. Student D.B. D.B. testified that Mr. Sawdy’s class is usually laid back and there is even less structure after a field trip. After the field trip, Mr. Sawdy instructed students to work on note cards. While music was playing, they could hear each other. While the lights were off, they could see each other because of the lights from the windows. Turning off the lights was a common practice of other teachers at Lake Shore as well. D.B. was sitting at a desk on the opposite side of the group from R.G. D.B. recalled that Mr. Sawdy was at his desk working on his computer. There were students sitting between R.G. and Mr. Sawdy. D.B. testified that she saw K.2/ lick R.G.’s breast, which happened within two seconds. D.B. credibly testified that she did not see anyone else expose their breasts or kiss anyone. Student H.P. H.P. was sitting near the group. She testified that although music was playing, it was not so loud that she could not hear. She testified that she was aware that a game was taking place. However, she did not see anyone kiss anyone, or engage in any inappropriate activity. H.P. testified that Mr. Sawdy was doing paperwork, and she did not see him walk around during class. However, H.P. credibly testified that Respondent would discipline students if he aware that they misbehaved. Student K.M. K.M. was sitting at the same table as H.P., near the group. In fact, she was sitting closer to R.G. than H.P. K.M. testified that Mr. Sawdy was sitting at his desk working on his laptop. However, she saw him walk around the classroom “one or two times.” K.M. testified that Mr. Sawdy instructed students that it would be a free day because they had returned from the field trip. During the class, Mr. Sawdy turned on music from Hamilton. K.M. stated that she witnessed C.A. slap D.B.’s thigh and saw Mr. Sawdy remove C.A. from the classroom to discipline him for his actions. Despite her close proximity to the group, K.M. did not see anyone kiss anyone, lift their shirt, or lick anyone. K.M. traveled to Europe for a field trip chaperoned by Mr. Sawdy in June 2018. She testified that he did well as a chaperone. Student C.W. C.W. testified that Mr. Sawdy permitted students to listen to music and hang out after the field trip. C.W. was sitting near the windows, near the corner of the class, but closer to the group than Mr. Sawdy. She characterized the group as “troublemakers.” She stated that Mr. Sawdy warned the group to settle down several times. Despite her criticism of the group, C.W. did not see anyone kiss or lick anyone, or otherwise engage in inappropriate activity. Student J.B. J.B. testified that after the field trip, Mr. Sawdy turned on a video of Bill Nye, “the science guy,” on the television. Since students were not watching the video, Mr. Sawdy turned on music. At some point, Mr. Sawdy told the group of students to quiet down because they were being loud. J.B. testified that Mr. Sawdy would discipline students who misbehaved by talking to them or issuing a referral to the principal’s office. J.B. stated that he was not aware of a game of truth or dare being played at the time. He also credibly testified that he did not see anyone kiss anyone, lift up his or her shirt, or see anyone do anything inappropriate. Student F.G. When F.G. and the other students returned to class, Mr. Sawdy instructed them to watch the Bill Nye video and work on note cards. Music from the musical Hamilton was playing toward the end of class, but it was not too loud. F.G. testified that Mr. Sawdy was sitting at his desk during class, but he walked around a few times. Although F.G. was sitting close to the group, she did not know that any inappropriate activity occurred until a few weeks later. F.G. credibly testified that she did not see anyone dancing, kissing, or engaging in inappropriate touching. F.G. also confirmed the testimony of C.A. and D.B. that Mr. Sawdy would discipline students who misbehaved, beginning with a warning outside the classroom, followed by a phone call to their parents and then, a referral to the principal. None of the students who testified stated that they had concerns for their safety or the safety of other students in the class. Although subpoenaed, the complaining student, K.A.M. did not appear at the final hearing.3/ Mr. Sawdy’s Testimony Mr. Sawdy also testified at the final hearing. He stated that he chaperoned a group of students on a field trip to Diamond D Ranch. When the students returned from the trip, they were instructed to go to his classroom. No other teachers or teaching professionals were in the classroom at that time. Mr. Sawdy testified that students are usually more relaxed after field trips and would benefit from a less restrictive teaching class period. As a result, Mr. Sawdy played music from Hamilton and instructed the students to work on note cards. The lights were off, but you could see because of ambient light. Mr. Sawdy credibly testified that he had no knowledge of any inappropriate conduct in his classroom on May 2, 2017, until Mr. Gottberg told him about the complaint regarding inappropriate activity in his classroom. If he had seen anything inappropriate, he would have addressed the actors accordingly. He described the instance where he counseled C.A. Mr. Sawdy’s testimony was consistent with that of C.A. and D.B., when he testified that he heard a slap, turned in the direction that he heard it and saw C.A. looking strange. He took C.A. outside the classroom and counseled him for hitting D.B. Subsequent to May 2, 2017, Mr. Sawdy planned and chaperoned a field trip to Europe with 10 middle school students, which took place in June 2018. The principal of each student’s school approved the trip to Europe without objection. Furthermore, there were no parents that objected to Mr. Sawdy chaperoning the students on the trip. Specifically, students M.W. (who did not testify at hearing) and K.M. were in the class on the date in question and still attended the trip to Europe without objection from their parents. There is no reason to believe or evidence to support that Mr. Sawdy would not have disciplined the students engaging in the activity alleged if he had knowledge of their conduct. Moreover, based on his experience with the class, there was no indication to Mr. Sawdy that the students would have the propensity to engage in the alleged conduct. The evidence demonstrates that the incident was, at most, a matter of two students surreptitiously engaging in unexpected inappropriate activity. There was no evidence offered to demonstrate that the alleged student conduct harmed the health or safety of the students in the class. Even if it is determined that the allegations on their face would demonstrate actual harm, rule 6A-10.081(2)(a)1. requires a showing that Respondent failed to make reasonable efforts to protect students from such harm. Gerald Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2102; EPC Dec. 19, 2012). Investigation Mr. Gottberg was the principal at Lake Shore during the 2016-2017 school year. He testified that there was an expectation that teachers would maintain a safe environment for students through classroom management and disciplinary action when necessary. There was also an expectation, but not a requirement, that classroom instruction would take place from beginning of class until the end of class (bell-to-bell instruction). On May 3, 2017, Mr. Gottberg’s assistant informed him that there was a parent and student that had a complaint about inappropriate student activity in Mr. Sawdy’s classroom that had occurred on May 2, 2017. Mr. Gottberg briefly interviewed the student and ultimately, referred the complaint to the Office of Professional Standards. The student resource officer, Mary Alice Knouse, interviewed three of the 22 students who were in the class on May 2, 2017. Based on her interview of the students, she determined that other than K.A.M. and K.M., no students witnessed any inappropriate conduct. The investigator assigned to investigate the complaint, James Gregory, also interviewed students. He interviewed students involved in the alleged conduct events and randomly selected other students. He did not interview all the students in the classroom on May 2, 2017. Mr. Gottberg was instructed to prepare a report regarding the complaint, and he complied. At the direction of the Office or Professional Standards, but before the student interviews were completed, he recommended that Mr. Sawdy receive Step III or Step IV progressive disciplinary action. Mr. Gottberg described Mr. Sawdy as one of the best teachers at Lake Shore. While Mr. Gottberg was principal, he even approved the 10-day field trip to Europe, which was scheduled to take place after the incident on May 2, 2017. Allegations Not Pled in Notice The School Board made much of the lights being turned off in the room and the music playing. These allegations were not pled in the charges and, thus, may not be relied upon as a basis for the School Board’s action. Even if the School Board had pled allegations regarding the lights and music, the School Board failed to prove that these factors proved that Mr. Sawdy inadequately supervised the students in his classroom. At least five witnesses testified that although the lights were off, there was sufficient light from the windows to see in the classroom. Mr. Gottberg sent an email to the Lake Shore teachers the day following the incident directing them to keep the lights on in the classrooms. However, no witness testified that there was a rule or policy regarding keeping the lights on during classroom instruction prior to the incident. In addition, teachers and students testified that it was a common practice for the lights to be off in the classrooms because sufficient light was available by window. Several witnesses also testified that the music was not so loud that you could not hear. Mr. Sawdy’s Reputation Respondent has a good reputation with other educators and is known to be an effective teacher. Several of those teachers testified at hearing about their experience working with Mr. Sawdy. Zandra Bryant worked on the same team with Mr. Sawdy at Lake Shore for approximately four years. She testified that she had worked at Lake Shore for eight years. She described Mr. Sawdy as “wonderful teacher” who was very organized and attentive. She was also a chaperone for the field trip to Diamond D Ranch and characterized the students as being rowdy when they returned from the field trip. She confirmed Mr. Sawdy’s testimony that it would not be a good time to begin a structured lesson. Mallory Layton also worked with Mr. Sawdy. She described him as role model, attentive to students, including administering discipline when necessary. Similar to Ms. Bryant, she also testified that after a field trip, it is good practice to engage the students in a relaxed activity. Melissa Cash and Kasey Winter testified that Mr. Sawdy was a good teacher who had a respectful relationship with students. Ultimate Findings of Fact There is no question that the allegations were of a sensitive nature. The testimony varied in material aspects, and was not of such weight (preponderance of evidence) that it produced a firm belief that Mr. Sawdy failed to reasonably protect the safety of the students in his classroom. The allegations that students engaged in exposure and licking of private body parts was supported by a preponderance of evidence. However, even though the evidence supports a finding, by a slim margin, that students engaged in inappropriate conduct, it must also be determined whether Respondent failed to make reasonable efforts to protect students from harm. The testimony varied regarding where Mr. Sawdy was located when the student conduct occurred. The testimony was clear and consistent that Mr. Sawdy was in the classroom. D.B., J.B., and H.P. testified that Mr. Sawdy was sitting at his desk doing work. F.G. testified that Mr. Sawdy was at his desk during the class, but walked around a few times. K.M. testified that Mr. Sawdy walked around the room one to two times. The totality of the evidence supports a finding that Mr. Sawdy was at his desk at the front of the room during the class period, but he left his desk and walked around a few times. At the final hearing, six witnesses credibly testified that they never saw anyone kiss, lick, or otherwise engage in inappropriate conduct in Mr. Sawdy’s classroom on May 2, 2017. The evidence also supports that these students were sitting closer to the group and arguably, were in a better position to see the group’s activity. There is no dispute that Mr. Sawdy was not aware that a group of students had engaged in inappropriate conduct in his classroom on May 2, 2017. Based on the evidence presented at hearing, Petitioner did not prove by a preponderance of evidence that Mr. Sawdy inadequately supervised students in his classroom on May 2, 2017. Mr. Sawdy walked around the classroom and interacted with students. He had control of students to the extent that he even disciplined a student for playfully hitting another student. The evidence reflects that the alleged student conduct was an isolated event that happened, at most, within one to two seconds. The conduct was quite unusual and could not be reasonably anticipated. Petitioner failed to prove by a preponderance of evidence that Mr. Sawdy failed to make reasonable efforts to protect the students from harm. There was no evidence offered to support a finding by a preponderance of evidence that the student conduct was harmful to any student’s learning, or that the events adversely affected any student’s mental or physical health, or safety. Petitioner did not prove by a preponderance of evidence that there is just cause to suspend Mr. Sawdy without pay for seven days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board: dismiss the charges against Respondent; dismiss the notice of recommendation of issuing a reprimand and suspension without pay for seven days; and to the extent there is a statute, rule, employment contract, or the Collective Bargaining Agreement authorize back pay as a remedy for Respondent’s wrongful suspension without pay; Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 9th day of January, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 9th day of January, 2019.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue The issue in this case is whether Respondent had good cause to reject the then Lake County Schools’ Superintendent’s nomination of Petitioner, Dennis Teasley, to be Assistant Principal I of Eustis High School for the 2008-2009 School year.
Findings Of Fact From 1987 until 2006, Dennis Teasley was employed by the Broward County School System. During those years, he served the school system in a number of capacities, including: dropout prevention teacher from 1987-1988; middle school science teacher from 1988-1999; Assistant Principal of Pines Lakes Elementary from 1999-2004; Intern Principal from 2002-2004; and Principal of Pines Lakes Elementary from 2004-2006. The Intern Principal title was used by Broward County School System to designate an assistant principal as a “principle-in-training.” The designation provided an assistant principal with additional opportunities to become involved on a larger scale with the administrative responsibilities of the school. Mr. Teasley’s performance appraisals from Broward County consistently rated him as “Effective” or “Highly Effective” in all the criteria assessed. Additionally, Mr. Teasley received or was nominated for numerous awards based on his performance or the performance of the schools under his charge. For the school year 2003-2004, when Mr. Teasley served as assistant and intern principal, Pines Lakes Elementary earned an “A” rating. For the school years 2004-2005 and 2005-2006, when Mr. Teasley was principal of Pines Lakes Elementary in Broward County, the school earned grades of “B” and “A,” respectively, and achieved AYP each year. “AYP” refers to Adequate Yearly Progress under the No Child Left Behind Act. To achieve AYP, a certain percentage of students from each population demographic represented at the school must achieve a Level 3 or higher in reading and mathematics, as measured by Florida’s “A-Plus” program. Sometime during the summer of 2006, Mr. Teasley either relocated or intended to relocate to the Lake County area. He applied for a position with the Lake County school system. Eventually, he was hired as a principal by Lake County Schools sometime in July, 2006, just prior to the beginning of the 2006- 2007 school year. Mr. Teasley was assigned to Beverly Shores Elementary School. Beverly Shores has a large population of students from lower socioeconomic backgrounds, as well as a large population of students requiring Exceptional Student Education (ESE). The ESE population includes students designated as Emotionally Handicapped (EH), and Educable Mentally Handicapped (EMH). Indeed, 68 percent of the students at Beverly Shores in 2006- 2007 came from economically disadvantaged homes and 11 percent of the students were classified as ESE. The environment of the school was described by most of the witnesses as being a tough environment with a variety of discipline problems. Prior to Mr. Teasley’s appointment as principal, 447 students were suspended from Beverly Shores during the 2005-2006 school year, with 422 students suspended out-of-school (OSS) and 25 students given in-school suspensions (ISS). Eighty of the students given OSS were kindergartners. The principal for that year was described by the Superintendent as being burned-out and needing a respite from such a tough environment. Mr. Teasley entered this environment with insufficient time to familiarize himself with staff and/or review procedures and policies that were in place. He had one Assistant Principal (AP) to support him. Mr. Teasley’s two goals for the 2006-2007 school year were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Mr. Teasley wanted to redraft the prior year’s disciplinary policy. There was some lack of communication on the status of the redrafted policy between teachers and Mr. Teasley and lack of activity by the committee responsible for the redraft. Eventually, some teachers felt that Mr. Teasley did not support them when it came to disciplinary matters and that Mr. Teasley allowed the students to get out of control. In September or October of 2006, a first-grade student brought a cellophane baggie containing a white powder to school. The police were called to confirm that the substance was cocaine. After confirmation, the child was removed from the custody of his mother, and immediately suspended from school. There was no evidence to suggest that the discipline imposed for this incident was inappropriate. In early September, Mr. Teasley placed an ESE/EH student in a non-ESE class. The student in question had been “retained” (or “held-back”) twice. As a consequence, the student was a seventh-grade-age student in a classroom of third- grade-age children. Mr. Teasley thought that the student’s development would be better met in middle school with similarly aged peers. He, therefore, hoped to have the student reassigned to middle school. While waiting to hear if the reassignment would happen, Mr. Teasley placed him/her in a non-ESE fifth- grade class under the supervision of a teacher with whom he had a good rapport. The decision to place the student in the non- ESE classroom was predicated on a number of factors, including Mr. Teasley’s desire to put the child in an environment where he/she could be successful, as well as, safety concerns regarding significantly younger ESE students being in the same class as the ESE student. Unfortunately, the student was not reassigned to the middle school and Mr. Teasley transferred him back to his original class. After the ESE/EH student was returned to his/her original class, the student “jumped” another student after school was dismissed, breaking the other student’s wrist. The ESE student was immediately given an out-of-school suspension (OSS). However, because the child was an EH student, he/she could only be suspended for a cumulative maximum of ten days, without convening a special ESE disciplinary staffing. Since the student had already been suspended for five days earlier in the year, his/her suspension was limited to five days. After this incident, the student’s parent consented to placement in an alternative school and the student was transferred to the Lifestream school. Again, there was no evidence that Mr. Teasley’s method of handling this student’s behavior problems was inappropriate given the fact that this student was a special education student and special disciplinary procedures applied to such students. Additionally, during the first semester, there was an on-going concern with a second-grade EH student who was “stalking” a female student. Mr. Teasley attempted to have the EH student assigned to the alternative school. However, the student’s mother was “dead-set” against the assignment and the student remained at Beverly Shores. At the same time, Mr. Teasley immediately informed the mother of the child being stalked of what was going on, as well as the steps that were being taken for the girl’s safety. Mr. Teasley assigned an adult to escort the EH student everywhere he/she went on campus. He also rearranged the lunch schedule for the student’s entire class to ensure that the student was not in the cafeteria at the same time as the girl. Again, there was no evidence that demonstrated the steps taken by Mr. Teasley in regard to this EH student were inappropriate given the fact that the student’s mother refused alternative placement and the student was an EH student. Ms. Jule Hand, a kindergarten teacher at Beverly Shores, provided the only direct testimony regarding Mr. Teasley’s perceived lack of support for the faculty. Specifically, she recounted incidents in which she personally sent referrals to the administration and was disappointed when a referral was not addressed on the same day it was written, or when the consequences were not, in her opinion, suitable for the incident. Ms. Hand testified regarding one incident where a student, with a history of significant disciplinary problems and multiple suspensions, pushed two students in her classroom and then threw down all the chairs around the classroom. In the process of throwing chairs, the child hit her and was physically and verbally abusive to her senior volunteer. Ms. Hand called the office for assistance in removing the child from the classroom. The child was removed and received a verbal reprimand with a warning to discontinue the behavior or harsher consequences would follow. To Ms. Hand’s dismay, the student was returned to the classroom. Ms. Hand went on to detail further incidents of misbehavior by this particular child, such as hitting the physical education teacher, spitting in another child’s face, throwing food, grabbing a child from behind, verbal defiance, swinging a metal pipe, and hitting another student with his/her shoulder hard enough to almost knock her over. During this time, the student’s parent was contacted on numerous occasions by both faculty and administrative personnel. Additionally, the student had been suspended twice during the course of these incidents. However, even with these suspensions, the student continued to have disciplinary problems. Mr. Teasley did not want to expel the student and recommended that Ms. Hand contact a social worker and counselor so that the student could be referred to ITOS, a behavioral- intervention study. Eventually, the student left Beverly Shores to attend the study. However, the year following Mr. Teasley’s term as principal, the student returned to Beverly Shores and continued to have behavioral problems. Again, the evidence did not demonstrate that Mr. Teasley’s handling of this matter was inappropriate, given Mr. Teasley’s desire not to expel the student. Ms. Karen Seltzer also testified at hearing about her impressions of the discipline problems at Beverly Shores under Mr. Teasley. Some of her testimony involved the EH student referenced above who again began stalking during the second half of the school year. Ms. Seltzer’s testimony was quite confusing and based on hearsay she had gathered from discussions with other teachers who did not testify at hearing. Furthermore, she also testified that she was unaware of the actions taken by Mr. Teasley in response to the incidents she related. The Assistant Superintendent, Mr. Cunningham, observed the students and environment of Beverly Shores during his visits in the first semester of the school year. The visits were prompted by complaints he or the Superintendent had received about the lack of discipline at Beverly Shores. During his visits to Beverly Shores, Mr. Cunningham observed behaviors that he reported to Mr. Teasley as situations that should be addressed from a discipline and control standpoint. He witnessed students traveling about the campus unsupervised by adults, as well as various unsafe behaviors such as running and jumping. There was some testimony from staff that indicated Mr. Cunningham’s observations regarding unsupervised students were not isolated incidents. Mr. Cunningham also saw classrooms that were cut-off from casual observation (e.g., the blinds were drawn). He also testified that at the beginning and the end of the day, when the entire student body was on the move, he observed that teachers were not “on duty” supervising the movement of students. He instructed Mr. Teasley that during those times it was especially important that teachers be in “supervisory mode.” Mr. Cunningham did not return to Beverly Shores until just before the end of the school year. At some point around March 2007, a parent named Ms. Burry contacted Mr. Teasley about obtaining a Sheriff’s Resource Officer (SRO) for Beverly Shores. Ms. Burry thought a uniformed officer on campus would help with student discipline. Even though a SRO is not involved with student discipline, Mr. Teasley felt that a uniformed officer on campus would serve as a positive role model at Beverly Shores. In support of Ms. Burry, Mr. Teasley attended a March 12, 2007, Leesburg City Commission meeting in which parents and teachers sought funding for an SRO at Beverly Shores. He spoke in favor of the idea. The City Commission referred the request back to the Board. At that point, Mr. Teasley felt that the SRO issue was “out of his hands.” Ms. Burry began to contact the Board and Superintendent about her desire for an SRO on campus and the need for greater discipline in the school. Around March or April 2007, Mr. Cunningham was again contacted by parents who were concerned about safety at Beverly Shores. At about the same time, a representative from the teacher’s union had come to him with concerns about the administration at Beverly Shores and “suggested pretty strongly that they might file a grievance” regarding Mr. Teasley’s performance. Mr. Cunningham did not identify which or how many parents voiced concerns to him. Likewise, he did not identify which or how many teacher complaints created the impetus for the union to consider filing a grievance. None of the parents testified at the hearing. On April 30, 2007, Mr. Teasley sent a letter to Assistant Superintendent Cunningham requesting that an additional assistant principal be assigned to Beverly Shores. As indicated earlier, Beverly Shores operated with one AP in 2006-2007. The letter, in part recognized there was a significant disciplinary problem at Beverly Shores and that the school did not have adequate administrative staff to handle the number of disciplinary referrals. Mr. Teasley made the request based on the approximately 1,200 disciplinary referrals the administration had processed through April 19th of the school year and the amount of time spent on processing those referrals. Mr. Teasley stated that the time spent processing those referrals reduced the time administrators were able to spend in classrooms or on campus. The number of disciplinary referrals was due, in part, to Mr. Teasley’s philosophy of using OSS as a disciplinary tool of last resort. In his view, a child cannot be educated if they are not in school. At some point, the Superintendent became aware of the complaints and problems at Beverly Shores and decided to meet with the staff and faculty to assess the situation at the school. In May of 2007, the Superintendent held two meetings with some teachers and staff of Beverly Shores. Ms. Rhonda Lynn attended those meetings. Her interpretation of the tone of the first meeting was that some members of the faculty and staff were frustrated and searching for leadership and that such leadership should have been provided by the principal and his administration. Some teachers and staff in attendance voiced complaints about Mr. Teasley’s lack of discipline and control of the student population. The Superintendent indicated such complaints would remain confidential. At the second meeting with the Superintendent, Mr. Teasley was present and either various complaints were mentioned by the Superintendent in Mr. Teasley’s presence or he was clearly aware of the complaints that had been made in the first meeting. Ms. Lynn’s interpretation of the tone of the second meeting was that the Superintendent had breached the confidentiality promised the staff in the first meeting regarding complaints about Mr. Teasley and that the staff was very upset over that breach. Ms. Lynn admitted that she could not speak for how every teacher at Beverly Shores felt about Mr. Teasley. Ms. Lynn stated that she never had any discussions with Mr. Teasley regarding an explicit philosophy for dealing with students who had received multiple referrals. She also testified that she had no responsibilities for the processing of disciplinary referrals. Throughout the time period outlined above, Mr. Teasley was formally evaluated by the School District. Originally, Mr. Cunningham would have been assigned to perform Mr. Teasley’s evaluation. However, at the time he would have performed the evaluation, Mr. Cunningham was assigned other duties within the District. Therefore, Ms. Pat Nave, Assistant Superintendent for Curriculum and Instruction, K-12, completed Mr. Teasley’s evaluation. In the course of performing her evaluation of Mr. Teasley, Ms. Nave made four separate visits to the Beverly Shores’ campus. During those visits, Ms. Nave and Mr. Teasley would discuss a number of different topics regarding the operation of the school. Specifically, Ms. Nave and Mr. Teasley discussed his policies for monitoring faculty and student conduct. One such tool for monitoring the campus was a structured system for scheduling the weekly classroom walk-through assignments by members of the school’s leadership team. Based on the reports Mr. Teasley would receive as a result of these walkthroughs, Mr. Teasley would follow up with individual teachers regarding their performance. Additionally, during the evaluation visits, Ms. Nave and Mr. Teasley would discuss the goals that Mr. Teasley had established at the beginning of the year to gauge the school’s progress in the areas he had identified as needing improvement. As noted earlier, those goals were: 1) improving the academic standing of the school, by raising FCAT scores in mathematics and in the lowest performing quartile of students, all without a reduction in the scores for reading and writing; and 2) reducing the rate of serious discipline incidents by 50 percent. Ms. Nave concluded that all of the strategies that had been outlined for reaching those two goals had been, or were being, implemented. With regards to discipline, she specifically noted that referrals had decreased. Indeed, the evidence demonstrated that out-of-school suspensions decreased from 422 the previous year to 221 for the current year and that on-going concerns were being addressed through the safety and discipline committee Mr. Teasley had established, even though the evidence at the hearing showed that this committee was not very active. Additionally, there was some suggestion at the hearing that disciplinary referrals may have been down because Mr. Teasley was not processing such referrals. There was no competent evidence to support such a conclusion. Evidence did demonstrate that Mr. Teasley preferred ISS to OSS. Toward that end, the ISS procedure was altered from the way it had been operated in the years prior to his tenure at Beverly Shores. During the course of the 2006-2007 school year, Mr. Teasley hired a teacher to monitor the ISS room and provide instruction when necessary, eliminated the practice of sending children to the ISS room as a “time-out” by requiring administrator approval, and required teachers to supply the child’s lessons for the periods that the child was in ISS so that the student could keep up with his or her classes. Finally, Ms. Nave discussed the School Advisory Council’s (SAC) performance rating of Mr. Teasley. SAC had given Mr. Teasley a mixed satisfaction rating at one of its meetings. At that meeting, eight members of SAC were present. Four of those members voted that Mr. Teasley was doing a satisfactory job. Four voted that Mr. Teasley was doing an unsatisfactory job. Ms. Nave and Mr. Teasley, nonetheless, discussed the issue of the need to foster a productive working relationship with SAC. After the discussion, Ms. Nave was satisfied that Mr. Teasley was taking appropriate actions to continue working with SAC members to implement changes at Beverly Shores. As a result of this performance review, Mr. Teasley received the maximum amount of points on his evaluation and met the performance criteria of that evaluation. After the evaluation and three weeks before the end of the school year, a fifth-grade student at Beverly Shores wrapped the leather portion of his belt around his hand and began to swing the belt, striking students and adults with the metal buckle. Mr. Teasley and AP Jeff Williams were called to the classroom to assist with restraining and removing the student. Once they got the student to the office, Mr. Teasley immediately notified the police that a battery had occurred, suspended the student for the ten-day maximum suspension period, and began the expulsion process. The student did not return to school that year. No suggestion was made that Mr. Teasley’s response to this event was inappropriate. The belt incident garnered media attention. Shortly after the incident, the Superintendent went to the Beverly Shores campus, but could not locate Mr. Teasley in his office or on campus. She, therefore, sent Mr. Cunningham to the school. Eventually, she assigned Mr. Cunningham, along with Messrs. Mitchell and Habring, to Beverly Shores for the remainder of the school year. The Board also authorized the placement of an SRO at Beverly Shores. Mr. Cunningham testified that within a few days of the assignment of the extra personnel, the discipline situation began to improve and the school began to operate in an orderly way. Mr. Cunningham stated that he started to do the things that he had told Mr. Teasley needed to be done earlier in the year. The actions of Mr. Cunningham included administrative staff becoming more visible on campus while students were in transit from one place to another and dealing with each and every referral on the day in which it was written. Importantly, these actions were accomplished with a significant increase in administrative personnel. From an academic standpoint, there can be no question that Beverly Shores made significant improvements under Mr. Teasley’s direction. Evidence admitted at hearing showed that the school grades from the Department of Education (DOE) based on the students’ FCAT performance for Beverly Shores for the six school years prior to Mr. Teasley’s tenure (i.e., 2000- 2001 through 2005-2006) were “C”, “B”, “B”, “B”, “C” and “C”, respectively. During Mr. Teasley’s time as principal, Beverly Shores earned a grade of “A.” Beverly Shores also achieved AYP. Additionally, Beverly Shores had increases in the percentage of students meeting high standards in mathematics, as well as an increase in the percentage of students in the lower-quartile who made learning gains. The school’s grades did not decrease in the areas of reading and writing. These improvements show that the school was successful in achieving the academic goals that Mr. Teasley had identified at the beginning of the year. It should also be noted that such improvements were also due to the efforts of teachers and other staff at the school. Due to this achievement, Mr. Teasley was one of only 92 principals in the state to receive recognition as a “Turn- Around” Principal in 2006-2007. The “Turn-Around” award recognizes the principal of a school which improves by at least two letter-grades in one academic year. In 2007-2008, the year after Mr. Teasley’s tenure, Beverly Shores’ grade fell back to a “C” and the school failed to make AYP. The evidence did not demonstrate that Mr. Teasley had more discipline problems at his school than in prior years. There was some evidence to demonstrate that there may have been some student control problems related to monitoring the passageways of the school. Those problems were in part due to a lack of sufficient administrative staff to patrol the school. There was also some evidence to demonstrate that Mr. Teasley had lost the support of some of the faculty because he would return students to the teacher’s classroom or not assess a harsher penalty for misbehavior. However, there was only one teacher who testified to support that conclusion. Other staff testimony regarding lack of support and lack of discipline was based on hearsay. Just as Beverly Shore’s grade was not dependent on one person, Beverly Shores alleged discipline and student control problems cannot be attributed to one person. One teacher’s testimony coupled with hearsay and vague testimony is insufficient evidence to conclude that Mr. Teasley was no longer professionally qualified to perform in some capacity within the School District. At a May 21, 2007 Board meeting, Mr. Cunningham gave a report of the actions that had been taken at Beverly Shores to deal with discipline during the time he was assigned there. He also made suggestions for improving the discipline situation at the school going forward. Some of the suggestions involved actions previously sought by Mr. Teasley. At about the same time, the 2006-2007 school year came to a close. The Superintendent began to finalize the academic teams she would recommend to the Board for the 2007-2008 school year. In fact, for the next year, 2007-2008, the Superintendent and the Board recognized the need for additional supervisory staff at Beverly Shores and appointed two APs and a behavioral specialist to the school. The Superintendent was mindful of the events at Beverly Shores and the fact that some of the faculty and staff had lost confidence in Mr. Teasley’s ability to lead the school as principal. She decided not to recommend Mr. Teasley for principal at Beverly Shores. However, she did not want to lose Mr. Teasley’s skills as an administrator and recommended him for a district level administrative position for the 2007-2008 school year. The Superintendent’s recommendation was accepted by the Board and Mr. Teasley fulfilled the duties of that position during the 2007-2008 school year. At the close of the 2007-2008 school year, the Superintendent again created staffing recommendations for the 2008-2009 school year. Toward that end, the Superintendent created staffing recommendations to the Board that considered many factors. The most important factor was the creation of administrative teams for each school that would serve as that school’s “instructional leaders.” Similarly, it was very important that at least one member of an administrative team be well-versed in making learning-gains, raising student achievement and school grades. Mr. Teasley was clearly well- versed and well-qualified in such areas. The Superintendent recognized that since the 1998-1999 school year, Eustis High School had earned a grade of “C”, except for the year 2006-2007, when the school’s grade was “D.” Because of the high school’s performance, the Superintendent intended to make changes at Eustis High School to attempt to address the academic problems and raise the school’s academic performance. Additionally, the school was not known for having any extraordinary disciplinary issues. Mr. Larry was the principal of Eustis High School. He had been appointed the principal of the school because of his success in implementing advanced programs as a principal at the middle-school level. Mr. Larry was also very strong on discipline, had 4 other APs and did not require additional help in the area of discipline. Therefore, the Superintendent was not worried about discipline-related issues at Eustis High School. In putting together an educational team for the school, the Superintendent wanted to place a person who had demonstrated their ability to raise a school’s academic achievement and performance. As indicated, the Superintendent did not want to place Mr. Teasley back at Beverly Shores because that educational team had not been successful. However, Mr. Teasley had skills in school improvement that were very useful to the District. She recommended Mr. Teasley for appointment as one of Eustis High School’s five APs. Her recommendation was based on Mr. Teasley’s proven ability in achieving AYP, his ability to analyze the raw performance data for AYP and to work with teachers to raise the test scores which form the basis of a school’s grade. Indeed, the Superintendent felt that Mr. Teasley was one of the strongest individuals she could recommend to Eustis High School to work with the current administration and to help improve the school’s academic performance. Mr. Larry indicated to the Superintendent that he could work with Mr. Teasley. There was no direct testimony given at the hearing of how Mr. Larry wanted to use Mr. Teasley at Eustis High School, although there was some hearsay testimony that Mr. Teasley would be placed at the Curtright Center, a separate ninth grade center that is approximately 1.5 miles from the main high school campus. The Superintendent recommended Mr. Teasley for the position of AP-1 at Eustis High School. Ultimately, the Board rejected the Superintendent’s recommendation. The testimony at hearing and the evidence admitted shows that the primary reason that the Board rejected the Superintendent’s nomination was because of the Board’s lack of confidence in Mr. Teasley’s ability to maintain discipline and control at Eustis High School. Mr. Cunningham, Assistant Superintendent for Administration and Safety, testified that he did not believe that Mr. Teasley was qualified to serve as an AP-1 at Eustis High School. He based that opinion on his observations at Beverly Shores during the 2006-2007 school year and his opinion that if one loses his administrative authority at an elementary school, that person has “no business” as an administrator of a high school. Mr. Cunningham did not offer an opinion on the academic-improvement functions the Superintendent intended Mr. Teasley perform in the academic team to which she assigned him. In addition, the individual members of the Board testified regarding their reasons for rejecting the Superintendent’s recommendation. Mr. Strong testified that his basis for rejecting the Superintendent’s recommendation related to the situation at Beverly Shores during the 2006-2007 school year; particularly, the perceived lack of administrative discipline that created a disorderly educational environment, and the Board’s decision in May of 2007 to place an SRO at the school. He also stated that his vote was influenced by the public input of Ms. Pam Burtnett, president of the Lake County Education Association (“LCEA”), received by the Board at the June 23, 2008 meeting, and by his conversations in the spring of 2007 with one parent and one teacher from Beverly Shores, Ms. Denise Burry and Ms. Bordenkircher, respectively. Ms. Burtnett was not a teacher at Beverly Shores. Neither Ms. Burry nor Ms. Bordenkircher testified at hearing. However, Mr. Strong also testified that prior to the School Board meeting on May 7, 2007, no one had previously raised the issue of discipline at Beverly Shores at any previous Board meeting, and that he never personally witnessed any discipline problems at Beverly Shores. Ms. Kyleen Fischer testified that she had visited the Beverly Shores campus while it was under the direction of Mr. Teasley. Specifically, she testified that she observed that Beverly Shores’ students were not under control and that they were disrespectful. Based on her observations, she felt that the appointment of Mr. Teasley to Eustis High School would create a safety issue. Ms. Cindy Barrow testified that she did not believe Mr. Teasley possessed the necessary knowledge, skills and abilities to serve as a high school AP-1. She based her belief on information gathered from many different sources, including reports such as the 2006-2007 climate survey, conversations with Mr. Cunningham and Ms. Burry, reports given orally to the Board at the May 21, 2007 and June 23, 2008, Board meetings, and the fact that 22 teachers and one guidance counselor left the school during or after the 2006-2007 school year. However, she did not speak to any of the departing personnel regarding their reasons for leaving, nor did she testify as to any of the specifics regarding the above. Ms. Barrow’s belief was that Mr. Teasley had not been able to maintain order or deal with behavioral problems at Beverly Shores and, therefore, he would not be successful at dealing with behavioral problems at Eustis High School. However, Ms. Barrow admitted that she had never been to Beverly Shores. She believes that a primary duty of any high school AP-1 is to handle disciplinary issues. However, she also testified that she had no specific conversations with Mr. Larry or the Superintendent about how either planned to use Mr. Teasley as AP-1 at Eustis High School. Mr. Metz, who testified that he had never visited Beverly Shores during its hours of operation prior to May of 2007, stated that his decision to vote against the Superintendent’s recommendation was based on the situation at Beverly Shores in the Spring of 2007, his written and verbal communications with concerned parties, and Ms. Burtnett’s presentation to the Board in June of 2008. The Board re-reviewed the issues the Superintendent had already considered in creating her educational teams at the various schools and in making her recommendations to the Board. The Board concluded that Mr. Teasley was not qualified to serve as an AP-1 at Eustis High School based on very broad generalizations about appropriate discipline. The Board’s action was not based on any knowledge regarding the role Mr. Teasley would play in the Eustis administration. As indicated, the Superintendent, as is her authority, considered all of the issues surrounding Mr. Teasley’s tenure at Beverly Shores. She also recognized the successes in academic improvement achieved during Mr. Teasley’s tenure and that those skills were needed at Eustis High School. The Superintendent assembled an administrative team after discussing the team members with the principal of the High School and assuring as much as possible that Mr. Teasley could function within that team. The evidence did not demonstrate that the Board’s assessment should trump the Superintendent’s recommendation regarding Mr. Teasley, especially given the fact that Mr. Teasley had many years of good performance evaluations as an AP in Broward County and a good performance evaluation in Lake County. As a consequence, the Board has failed to carry its burden of showing “good cause” to reject the Superintendent’s recommendation and the Superintendent’s recommendation should be accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Board enter a Final Order reversing its earlier decision and accepting the nomination of the Superintendent. DONE AND ENTERED this 6th day of March, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2009. COPIES FURNISHED: Susan E. Moxley, Ed.D. Superintendent School District of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent holds Florida teaching certificate 195597 covering the area of industrial arts. During the school years of 1973-1974 to 1983-1984, Respondent had no persistent pattern involving professional incompetency or unprofessional conduct. The Respondent was employed as a teacher of industrial arts at Vero Beach Junior High School in the Indian River County School District during the 1983-1984, 1984-1985, and the first three weeks of the 1985-1986 school years, until his suspension effective September 16, 1985. During 1983-1984, he also apparently taught mathematics. At various times, the classes Respondent taught at Vero Beach Junior High School included some classes directed to regular students and others directed to exceptional students, including the educable mentally handicapped (EMH). EMH students have intelligence quotients (IQs) of less than 70. At all times, all of the industrial arts classes taught by Respondent were elective. THE 1983-1984 SCHOOL YEAR Mr. Marion Bass was the Respondent's supervising principal at all times material to the administrative complaint. As the Respondent's supervising principal, Mr. Bass observed and evaluated the Respondent's teaching performance. Prior to evaluating the Respondent's teaching performance, Principal Bass received formal training in the evaluation of teachers and had 12 to 13 years of practical experience in conducting teacher evaluations. Principal Bass observed the Respondent's teaching performance informally on two or three occasions during the 1983- 1984 school year and twice formally at the end of that school year. In his observations and evaluation of Respondent, Bass found the Respondent's performance to be unsatisfactory. Specifically, Bass observed that the Respondent did not satisfactorily control students in his classroom, his planning was not as complete as it should be, implementation of his lesson plans was not acceptable, and Respondent's "voice procedures" (i.e., diction and volume) were unsatisfactory. Bass opined that the Respondent did not have a specific structure to his industrial arts class. Even if students were knowledgeable of their assigned task on a given day, the students were not always on-task. Instead, they would be out of their seats, moving around the room and discussing topics unrelated to class work. In Bass' view, Respondent failed to provide proper supervision of the students, and as a result, the students did not appear to respect the Respondent's instructions. Bass observed that students ignored Respondent's instructions to sit down and be quiet. On other occasions, he observed that the Respondent ignored some students' off-task behavior while he was involved with others. However, none of Bass' observations in the 1983- 1984 school year were reduced to writing nor formally discussed with Respondent, and the formal year-end evaluation of Respondent of March 16, 1984, by Laurent Smith, Assistant Principal, rated Respondent as overall satisfactory and his contract was subsequently renewed for the 1984-1985 school year. On or about May 15, 1984, Bass inadvertently discovered that the Respondent was not knowledgeable of his mathematics students' progress in their skills continuum. This was particularly disturbing to Bass in that each student is required by the Indian River County School Board to accomplish at least 70 percent proficiency in state-mandated skills in order to be promoted to the next higher grade. Thereafter, Bass made an attempt to ascertain the level of skills accomplishment by the students in Respondent's classes. While doing so, Bass questioned Respondent about the matter. The Respondent indicated that certain students were in the Compensatory Education Program. Bass subsequently learned that those students were not compensatory education students but were Level Two students. It alarmed Bass to discover that the Respondent did not even know what level of students he had been teaching for seven months. THE 1984-1985 SCHOOL YEAR On September 17, 1984, Bass prepared a memorandum to Dr. Douglas King, Director of Personnel for the School Board. In that memorandum, Bass outlined his concerns regarding Respondent's teaching performance. The memorandum addressed seven general areas of deficiency: failure to control students' behavior; failure to provide meaningful structure and direction and failure to support an enthusiasm for learning; failure to demonstrate the ability to plan a course of study with overall goals and objectives providing direction and continuity in the subject matter; difficulty in implementing what lesson plans the Respondent did develop; addressing only a small percentage of the students in his class when presenting a lesson; difficulty with proper grammar and diction; and a demonstrated lack of understanding for the basic academic and social skill needs of his students. Following preparation of his September 17, 1984 memorandum, Bass continued to make observations of the Respondent's teaching performance. Bass observed the Respondent's teaching performance on October 15, 1984 and completed a Classroom Observation Instrument containing his notes of that observation which rated the Respondent's performance in the classroom as "extremely poor, one of great concern." The notations on the Classroom Observation Instrument itself indicate that the Respondent gave directions to a limited number of students, assisted only a small number of students, engaged in very little class communication, did not enunciate well, used poor diction, utilized "very poor" classroom management, and failed to keep the students on task. Following Bass' observation of the Respondent on October 15, 1984, he prepared a written memorandum of his concerns and his suggestions for improvement. He met with the Respondent and discussed both his concerns and suggestions for improvement. The Respondent received a copy of the memorandum. During this conference, Bass told the Respondent that he was there to help him in any way that he knew how to help. Bass expressed similar sentiments in other conferences with Respondent regarding Respondent's teaching performance and offered to allow Respondent to visit other schools and other teachers both in and out of the school district in an effort to help Respondent remediate his observed deficiencies. On September 13, 1984, Theresa Wagner, chairperson of the vocational department of Vero Beach Junior High School, sent all teachers within that department a memorandum establishing dates for computer usage. One of the components of the Respondent's industrial arts curriculum was demonstration of computer literacy. Respondent received a copy of the memorandum. On October 15, 1984, the first day of the Respondent's assigned time block for use of the computers, the Respondent advised Ms. Wagner that his class was not ready to use the computers and would probably not be ready the following week. However, until that date, Respondent had expressed no problem with the time block assigned to him and had requested no assistance in preparing for this new function of the curriculum. When Ms. Wagner reminded him that computer skills were a part of his required curriculum at that time, Respondent replied that he could not understand why he had to teach something he did not know anything about. Further, he stated that he could not learn it. Respondent apparently made two attempts to learn the computer and gave up. Respondent's failure to adapt himself to the new computer programming time blocks inconvenienced Ms. Wagner and others who were required to share the single computer during the finite time available in a school day/school year. At hearing, Respondent advanced the theory that because his major was in TIE (Trade Industrial Education), he ought not to be required to adapt to teaching manufacturing, woodworking, and computer literacy, which are outside of his expressed field of interest, but which apparently are very much contemplated within the general field of industrial arts. Additionally, he felt he certainly should not be required to adapt to teaching all these "new" areas at one time. However, it appears he had been teaching woodworking for some period of time anyway. Overall, Respondent made it clear he did not want to teach the curriculum assigned to him. As a part of her assigned responsibilities as department chairperson, Ms. Wagner was required to observe each of the teachers within the vocational department. On October 10, 1984, she observed the Respondent. Her memorandum to the Respondent dated October 10, 1984, outlined her observations as well as her suggestions for his improvement. Ms. Wagner had difficulty understanding the Respondent when he was teaching. She suggested that he talk louder and make a special effort to enunciate clearly. She observed that the Respondent failed to provide a handout for one girl in the class. The girl raised her hand and had it up for five minutes before the Respondent noticed the student and gave her the handout. Ms. Wagner observed a lot of non-essential, non-productive movement of students in the classroom. Finally, she noted among other things that the last lesson plans which the Respondent turned in were for the week of September 17, 1984, although he was on notice that he was supposed to turn in lesson plans weekly. Ms. Wagner observed little, if any, instruction being provided by the Respondent. The students failed to respond to the Respondent's directions and did not pay attention to him or obey his directions. In fact, the majority of the students ignored the Respondent during this observation by Ms. Wagner. Lesson plans were an on-going problem between Ms. Wagner and Respondent. Only when Ms. Wagner specifically asked the Respondent for lesson plans did she receive them. Those which she did receive from the Respondent were not satisfactory. In her opinion, any substitute teacher would have had a very difficult time teaching effectively based upon the plans which Respondent did submit to her. Although other departmental personnel sometimes missed turning in lesson plans timely, everyone except the Respondent eventually "caught up" with their lesson plans. Ms. Wagner later observed Respondent on several other occasions. Those observations of the Respondent's teaching performance were consistent with her observations on October 10, 1984. On September 14, 1984, Richard Thomas, Vero Beach Junior High School Dean and Assistant Principal, observed the Respondent's classroom performance. Mr. Thomas is trained for such evaluations. Using the teacher evaluation form containing 39 observable "behaviors," Thomas rated the Respondent as "needs improvement" in 14 of the 39 categories based upon his observations on September 14, 1984. Thomas categorized the Respondent's performance on that date as incompetent. On September 20, 1984, Thomas became aware that the Respondent was sending a large number of student referrals to the Guidance Department for the purpose of having the students seek reassignments from his classes to other classes. Respondent's action was creating problems for the Guidance Department, the students, and the Respondent himself because by that point in the school year, a change of classes under the circumstances was impossible. Thomas prepared a letter dated September 20, 1984 to Respondent requesting that he refrain from such conduct. In the letter, Thomas offered to discuss the matter with the Respondent. Respondent's reasons for his acceleration of referrals was never made entirely clear. However, one explanation offered by the Respondent at formal hearing was that when he had behavioral problems with students in his classes and was not permitted to lock them out of the class (see findings of fact 21, 32, and 33 infra.) and was not otherwise "backed up" by Principal Bass and Assistant Principal Thomas, Respondent felt justified, as a strict disciplinarian, in referring those students whom he viewed as troublemakers to the Guidance Department either to be dealt with by Thomas or for reassignment elsewhere. Under the circumstances, this explanation by Respondent of strict discipline is flawed and unreasonable and evidences lack of classroom control. At hearing, Respondent expressed his objection to having exceptional and special education students in his classes due to their low IQs, even though he admittedly had taken courses in this area. Although all school and School Board personnel assumed Respondent was certified for EMH students, Respondent was not specifically so-certified. He maintained that because of their low IQs, EMH students created special discipline problems, which fact was confirmed by Mr. LaPointe and Mr. Bass. However, Mr. LaPointe, a specialist in the field, also opined that an industrial arts certificate should qualify Respondent to teach industrial arts to EMH students. Respondent attributed much of his professional troubles to the inability of the exceptional education students to learn as opposed to his own inability to teach. At first, Respondent further suggested Bass and Thomas had also assigned students with disciplinary problems to both his regular and exceptional classes. However, he could not substantiate this premise in light of the elective nature of all industrial arts classes. Overall, Respondent only made it clear that he did not want to teach the students assigned to him. On October 17, 1984, as a follow-up to his September 14, 1984 visit, Thomas observed Respondent teaching and prepared a Classroom Observation Instrument. He concluded that the Respondent's "with-it-ness" was poor because Respondent was oblivious to a fight which was about to break out between students in the back of his classroom and because a student had to approach the Respondent and almost physically pull on the Respondent's arm to get his attention. Thomas observed that the Respondent was not in control of his class and that he failed to maintain the attention of all students. Thomas observed no improvement in Respondent's performance on his October 17, 1984 return, except that on that particular date, the Respondent did attempt to implement some organizational structure through the use of an overhead projection covering four items. On November 9, 1984, Thomas wrote the Respondent a letter in regard to the manufacture of weapons by students in the Respondent's manufacturing class. Prior to that date, Thomas had verbally cautioned the Respondent about the manufacture of weapons by students in his class. No direct competent substantial evidence nor any corroborated hearsay supports a finding of fact that "weapons" per se were in fact created in Respondent's class with his knowledge. It was, however, demonstrated that various lathe-produced wooden objects, possibly intended by Respondent for use as chair legs, were smuggled out of his class by students. Although Respondent denied certain items described as "swords" and "paddles" were weapons and even that some of the "chair legs" were made in his class, the fact that he admitted that a paddle and certain "chair legs" could have been smuggled out by students indicates an appalling nonchalance for his duties of supervision of young people. It was further demonstrated that a sign bearing the expression "I LOVE SEX" and that a paddle bearing the expression "DUCK BUT!" [sic] were manufactured in Respondent's class without his disapproval. On October 16, 1984, Jean Carter, the Director of Vocational Adult and Community Education for the Indian River County School District, observed the Respondent's second period class. Ms. Carter is a qualified observer with the Florida Performance Measurement System. During her observation on October 16, 1984, Ms. Carter noted that the Respondent did not begin his class promptly. Students talked in loud voices and milled around the room. The Respondent had difficulty communicating with his students. Most of his comments were inaudible. The Respondent turned his back on some students when he spoke to other students. Few students attempted to write the notes shown on the overhead projector as the Respondent ordered. Other students never faced the projector, and the Respondent seemed to be unaware that they were not taking notes. Ms. Carter observed several students off task. Four or five students were throwing paper and spitballs around the room. The word "important" was misspelled on the transparency. Respondent exhibited no enthusiasm for the subject matter, never praised the students, spoke positively, or smiled. He did not appear to enjoy teaching. In November 1984, a request was made to the Florida Department of Education to provide an assistance review of the Respondent's teaching performance. The purpose of the assistance review was to provide the Respondent with assistance in becoming a more proficient teacher. Following the assistance review, a very lengthy, detailed report was prepared by the reviewer and submitted to the Indian River County School District. On February 7, 1985, a conference was held involving Superintendent Burns; Principal Bass; Dr. Eddie Hudson, Personnel Coordinator; Mrs. Shirley Hanawait, Assistant Superintendent; Ms. Carolyn Sheppard, CEA President; Jean Carter, Director of Vocational Education; Dr. Douglas King, Director of Personnel; and the Respondent. The purpose of the conference was to review the report prepared by the Department of Education assistance reviewer and to make arrangements to provide Respondent with additional help and assistance as needed. In that conference, Respondent's supervisors made arrangements to correct, repair, or adjust equipment in Respondent's classroom; to have another industrial arts teacher assist Respondent; to provide Respondent with relief time to observe other professional teachers in the same vocational area; to send the Respondent to two professional conferences; to provide Respondent with professional journals; to provide Respondent with assistance through the department head; and to provide assistance from Mr. Bass in the areas of grading, lesson plans, supervision, management, and organization. Mr. Bass, Superintendent Burns, and Dr. King emphasized to Respondent that he must begin to show improvement in his performance immediately. Respondent was advised that if no improvement were demonstrated immediately, Respondent could be removed from continuing contract status or dismissed altogether. The Respondent received a copy of the conference summary prepared by Dr. King as a reminder of the action Respondent was expected to take to improve his classroom performance. Ms. Carter participated in the conference held with the Respondent on February 7, 1985, to review the assistance review report and to provide the Respondent with help. Her purpose in attending the conference was to provide the Respondent with assistance in any way possible to improve his performance. Ms. Carter later made sure that all of the Respondent's equipment was in proper working order, that he had copies of the performance standards mandated for the courses he taught, that he received professional journals, and that he was authorized to attend two conferences relating to his subject matter area. Respondent did not, however, attend either conference. Subsequent to the February 7, 1985 conference, Bass conducted five classroom observations of the Respondent's teaching performance. On each occasion, Bass completed a Classroom Observation Instrument. On March 8, 1985, Bass observed the Respondent's class and found that no valid learning activity was going on in the classroom. On March 12, 1985 at 7:35 a.m., Bass observed the Respondent's industrial arts class for exceptional education students. There were seven or eight students in the class. Bass observed that the Respondent gave the students approximately 15 vocabulary words to look up while the Respondent straightened up the classroom. In Bass' opinion, such an assignment for exceptional education students was inappropriate due to their limited intelligence, attention span, and the purpose for which such students were enrolled in the course. Mr. Bass characterized Respondent's performance on that date as poor. Subsequently, on the same date, Bass observed the Respondent teaching manufacturing to a regular class of about 17 students. Although Bass characterized Respondent's performance in this class as better, he still gave it an overall score of poor because Respondent's presentation lacked continuity and his discourse was "disjointed." Bass continued to note that the Respondent had difficulty with grammar, enunciation, and projection of an enthusiasm for the subject matter. On March 18, 1985, Bass again observed Respondent's manufacturing class for exceptional students. Although Bass also termed this observation better than those he had made of Respondent in the past, he still considered it a below average observation. On the observation instrument itself, Bass noted that the Respondent was late to class, wasted time by marching the students to a film which was set up in a classroom in a separate building, provided no orientation or preview prior to showing the film, and conducted no discussion of the film after it had been shown. He further noted that the Respondent performed much of the project work himself, thereby limiting the hands-on experience that the students were in the class to receive. That same day, Bass observed the Respondent's manufacturing class for regular students, which viewed the same film as had been shown to the exceptional education students. The content of the film would have been acceptably pitched for both types of classes if Respondent had appropriately introduced the film and had led post-film discussions appropriate to each level, which he did not. Bass felt that once again a lot of time was wasted, there was scant review of the film's content, and there existed the same problems with diction and discourse by the Respondent. Bass concluded that the Respondent's teaching performance remained virtually unchanged from what it had been prior to the assistance review. Bass' March 27, 1985 Annual Teacher Evaluation for Respondent's 1984- 1985 school year resulted in a rating of "needs improvement" in 23 of the 39 "behaviors" evaluated on the form. Bass met with Respondent on March 28, 1985 to review the evaluation and discuss it with him. Before Bass could begin discussion of the evaluation, Respondent stated, "Let me make a long story short, Mr. Bass, I am not going to sign my evaluation even if we talk all week. You're 100 percent right on what you wrote, but I'm still not signing it." On more than six occasions, Thomas found the Respondent's students out of class when they were supposed to be in his room. On certain occasions Respondent locked them out. When the Respondent locked students out of his classroom, those students were free to roam the halls with the excuse that they had been locked out of their classroom. On one occasion, school staff members caught one of the Respondent's students committing a theft at a time when he was supposed to be in Respondent's class. Although the theft incident was not conclusively tied to a date Respondent locked students out of his classroom, Respondent was still responsible for indicating to the administration that the student was "cutting" and had not done so. On June 4, 1985, Bass learned that the Respondent was locking his students out of his classroom. Final examinations were being conducted at the time. The Respondent told Bass that he could not make the students stay in class without this procedure, which he had designed to catch students when a student still in the classroom tried to let those who had left the classroom back into the classroom from the outside. Respondent also told Bass he could not give an examination and control the students if the door were not locked. Respondent repeated this explanation from the stand at formal hearing as if his plan were designed to catch those who "cut" class, but Respondent also maintained it was a method of timing the number of minutes students remained out of class so that Respondent could tell their parents why he would not permit them ever to leave the room again, apparently even for reasons as mundane and urgent as using the bathroom. Such reasoning process is flawed and unreasonable, if not downright silly. The Respondent refused to sign the incident report resulting from this incident and further refused to discuss the incident report with Mr. Bass. As a vocational education teacher, Respondent was required to submit end of the year reports to Ms. Carter as a part of state and federal funding requirements. Ms. Carter had informed Respondent of the requirement that he prepare and submit the reports prior to leaving school. Respondent testified he submitted the required reports at the end of the 1984-1985 school year by placing them in the school office mail box of Ms. Wagner. Ms. Carter testified that she did not receive them. The problem with transmittal of the reports appears to be one that could have been resolved by Ms. Wagner or someone notifying the Respondent immediately by telephone that they had not been received. This was not done, although Ms. Carter and Dr. King followed up with written reproofs. Such an infraction under these circumstances will not support discipline of Respondent. Respondent's annual evaluation for the 1984-1985 school year, dated March 27, 1985 and referenced above, was not satisfactory, but Respondent's contract was subsequently renewed for the 1985-1986 year. THE 1985-1986 SCHOOL YEAR On September 3, 1985, Howard LaPointe, then a staff associate in the Exceptional Education Program of the Indian River County School District, observed Respondent teaching exceptional students in his manufacturing class. Although school had begun on August 17, 1985, Respondent took his class on a tour of the other building on September 3, 1985. Mr. LaPointe observed numerous deficiencies during his observation and noted that the Respondent needed assistance in the areas of classroom management, instructional materials, orientation to class work, utilization of student notebooks, and competency based upon the curriculum guide. On September 13, 1985, the Respondent met in Principal Bass' office with Bass, LaPointe, Carolyn Sheppard (president of the teachers' union) and Dr. King to review LaPointe's observation conducted on September 3, 1985 and to discuss suggestions for Respondent's professional improvement. As Mr. LaPointe began to present his plan for providing assistance to the Respondent, Respondent became angry and upset. After a sharp exchange between LaPointe and Respondent, wherein LaPointe asked Respondent "What the hell do you expect the children to do?" or some similarly-phrased question, Respondent left the meeting and did not return. Bass and Dr. King walked down to the Respondent's office, a glass- enclosed room. They could see Respondent was in a highly emotional, agitated state. The Respondent had knocked his personal television set onto the floor. It was not demonstrated that Respondent damaged a projector or any other school property or that two obscenities uttered by Respondent were heard by anyone other than a fellow teacher, Mr. Humphrey, who had entered the enclosed room as a friend to calm down the Respondent. Had Bass and King not followed Respondent to his own office they would not have even observed his agitated state. Respondent was excused for the remainder of the school day after Mr. Humphrey calmed him down. Later that day, Superintendent Burns suspended the Respondent without pay. Respondent was subsequently terminated by the School Board for incompetence, misconduct, and gross insubordination. On December 12, 1985, Dr. King notified the Florida Department of Education that the Respondent had been dismissed from his position of employment. Dr. King recommended that the Respondent's teaching certificate be permanently revoked. Based upon Bass' observations and evaluations of the Respondent's teaching performance over a period of more than two years, Bass holds the professional opinion that the Respondent is an incompetent teacher. Bass would not recommend the Respondent for employment in Indian River County or any other school district. In Bass' professional opinion, students in the Respondent's regular classroom did not receive even a minimal educational experience and the exceptional students received only a minimal educational experience. No evidence whatsoever supporting the allegations of unprofessional conduct at Clemans Elementary School was offered and no such unprofessional conduct is found. No direct competent substantial evidence nor any corroborated hearsay supports the allegation that Respondent used profanity in the presence of students and no such conduct is found. Respondent's pre-1983-1984 school year evaluations are technically irrelevant to the charges at bar but were admitted to give Respondent every opportunity to "prove up" his allegations that his current problems arose from personal or personality conflicts with Bass and Thomas. Unfortunately for Respondent, these exhibits show some of his deficiencies are long-standing but were sporadic as opposed to forming a consistent pattern early on. Otherwise, these exhibits are too remote in time to have great weight. Respondent also defended, pursuant to Rule 6B-4.08(2), Florida Administrative Code, upon the premise that after a bombardment of evaluations and conferences he felt he was being harassed rather than given corrective assistance and that he was given too little time in which to make the adjustments required. Rule 613-4.08(2) requires Respondent's immediate supervisor to make all efforts possible to aid Respondent to correct the matter which caused his dismissal. Although this is a questionable defense when, as here, Petitioner and the School Board are not one and the same entity, some of Respondent's allegations have a mitigating effect. There is some merit to his allegations with regard to the timeframe and limited assistance provided but none as to the allegation of harassment. Respondent did unsuccessfully apply for transfer and volunteer to accept a custodial job at the same pay in order to avoid his problems with Bass and Thomas, but he could not demonstrate at formal hearing any reason other than his own attitude and teaching performance for Bass' and Thomas' poor evaluations and refusal to transfer him. Moreover, the consistency of the other observers' analyses belies any conspiracy or vendetta against Respondent on the part of Bass and Thomas. There is some evidence that Respondent made some minimal improvements in technique after assistance was provided by the professional reviewer, which assistance Mr. Bass characterized as the only significant remediation provided the Respondent. Upon his superiors' advice, Respondent also conferred with at least one other teacher in his field who came to his school. Ms. Carter testified that Respondent was authorized to attend two professional conferences and he did not, in fact, attend, but it is unclear from her testimony and the supporting documentary evidence whether federal grant monies were ever authorized for Respondent's attendance at either of these conferences. Mr. LaPointe's evidence that special assistance with regard to exceptional students was offered by him but rebuffed by Respondent is indicative of Respondent's poor attitude. There is evidence that equipment was repaired for Respondent and although not stated by any one witness in so many words, it may be inferred from the collective testimony of several witnesses that Respondent could have requested time off to observe other industrial arts classes and confer with other industrial arts teachers outside his own school but failed to do so. In light of Respondent's satisfactory rating in the 1983-1984 school year, the fact that significant efforts to assist Respondent did not commence until November 1984 (reviewer visit) and that internal assistance did not begin in earnest until the February 7, 1985 conference, I find Respondent had really only from February to March 1985 to avoid an initial unfavorable annual evaluation. From March 1985 to school's closing in June and part of August and September in the 1985-1986 school year was all the time permitted Respondent for remediation because he was dismissed in mid-September 1985. Even so, he showed some minimal improvement which has been considered.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Florida teaching certificate be suspended for three years with provision for reinstatement as provided by statute. DONE AND ORDERED this 22nd day of June, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4101 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF). Petitioner's Proposed FOF: Covered in FOF 1. Covered in FOF 3. Covered in FOF 5. 4-5 Covered in FOF 6. 6-8 Covered in FOF 7 but amplified to conform to the record as a whole. Covered in FOF 8. Covered in FOF 9. Accepted that there were such reports but rejected as set forth in FOF 41. Covered in FOF 10. Covered in FOF 11 except as to the subordinate and unnecessary. 14-15. Covered in FOF 12 except as to the subordinate and unnecessary. Covered in FOF 25. Covered in FOF 26. 18-19. Covered in FOF 27. 20. Covered in FOF 29. 21-23. Covered and amplified in FOF 30 to conform to the record, but eliminating the legal argument from proposal 23. 24. Covered in FOF 31. The commentary about the presence of a secretary and Respondent's mood are rejected as immaterial in light of no charges of insubordination. Further, mild anger in the presence of the Principal's secretary is hardly likely to impair Respondent's effectiveness. 25-26. Covered, modified and amplified as necessary in FOF 33 to convey the full scope of the material facts of record. That which is cumulative, subordinate and unnecessary has been rejected. 27. Covered in FOF 36; what is rejected is subordinate and unnecessary. 28-29. Covered in FOF 39; what is rejected is cumulative. 30-31. Covered in FOF 13-14 and amplified to more accurately convey the evidence of record as a whole. Covered in FOF 16 but modified for clarity. Covered in FOF 18. Except for elimination of the cumulative, covered in FOF 17. Except as cumulative, subordinate and unnecessary, covered in FOF 19. Covered in FOF 19. 37-38. Covered and amplified in FOF 20 to more accurately reflect the evidence of record as a whole. 39-42. Except as cumulative, subordinate or unnecessary, covered in FOF 22. 43-46, and 49 Rejected as not supported by the direct, credible competent substantial evidence of record as a whole. 47-48. Accepted that reports were written but rejected on the basis of uncorroborated hearsay, unsupported by direct credible competent substantial evidence in the record as a whole as covered in FOF 41. 50. Covered and amplified to more accurately reflect the record evidence as a whole in FOF 32. See also FOF 33. 51-53. Except for the cumulative, subordinate and unnecessary, covered in FOF 24. Covered in FOF 28 and 42. Rejected as not supported by the record as a whole. All witnesses are entirely credible on this point and Respondent's testimony is not truly contrary to other testimony. The benefit of the doubt must be resolved in his favor in this penal procedure. 56-58. Rejected as stated as not supported by the credible competent substantial evidence of record as a whole which is set out in FOF 37. 59. Covered in FOF 38. 60-61. Rejected as subordinate and unnecessary except as covered in FOF 38. 62. Covered in FOF 38. 63-65. Rejected as irrelevant except as covered in FOF 42. Rejected as cumulative. See FOF 20, 21, 32 and 33. Accepted but covered as set forth in FOF 23 since the proposal does not constitute an ultimate, material fact. Rejected as legal argument except to the extent it is peripherally covered in FOF 42. Respondent's Proposed FOF: 1-3. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. 4. Rejected as stated in that it constitutes argument but the topic is covered in FOF 7, 21 and 42, as supported by the record as a whole. 5-8. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. This proposal is not a sentence and is therefore rejected. Accepted that Respondent had the feelings and made the statement but rejected as stated as misleading of the record as a whole. See FOF 37. Except as covered in FOF 4, rejected as irrelevant, although true. Accepted but this goes to Respondent's overall incompetency and is not an ultimate material fact and therefore not adopted. See FOF 21. Rejected as some of these were not admitted in evidence and those in evidence do not support the proposal, neither does the record evidence as a whole. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Charles L. Hendley, Esquire 1500 Delaware Avenue Fort Pierce, Florida 33450 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 =================================================================
The Issue Whether just cause exists to suspend Respondent, a teacher, for ten days without pay for putting hand sanitizer in a student’s mouth.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District in 2007. In October 2019, she was teaching at PPMS as a science teacher. Prior to the incident involved in this case, Respondent received no discipline from the Board. Respondent is an experienced teacher who has been trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent received training concerning ethics relative to her position with the District as a teacher. Respondent has been through the orientation process for new employees of the District three times. The Incident Giving Rise to Discipline On October 14, 2019, Respondent was teaching a science class of approximately 30 sixth and seventh grade students. In this class was sixth grade student X.S., who was being verbally disruptive. Although X.S. was not cussing, Respondent told him that he needed to have his “mouth washed out with soap.” Respondent reached behind herself to grab a bottle on her desk which was either hand soap or hand sanitizer. X.S. and Respondent walked towards each other. X.S. challenged Respondent to “Do it!” Respondent raised the bottle to X.S.’s mouth and pumped in a substance from the bottle. X.S. bent over and spit on the floor. Respondent asked X.S. what he was doing, and he stated that he got hand sanitizer in his mouth. As X.S. stood up, X.S. was observed wiping his mouth and Respondent told him not to spit on the floor. X.S. left the classroom to go to the bathroom and rinse his mouth. His fellow students immediately began talking about the incident while Respondent returned to her desk. The Investigation X.S. did not immediately report the incident because he did not want to anger his foster mother. However, on the day after the incident, October 15, 2019, three students approached PPMS Principal Aronson and Officer Michaels and reported that Respondent had squirted hand sanitizer into X.S.’s mouth. Officer Michaels spoke to the students and X.S. individually and asked them to provide written statements regarding what they observed.1 Principal Aronson and Officer Michaels questioned Respondent regarding the incident. When approached by Officer Michaels, Respondent asked, “What is this about?” He responded that, “this is about squirting hand sanitizer into a student’s mouth.” Respondent said, “It wasn’t hand sanitizer. It was soap.” Respondent did not deny squirting something into X.S.’s mouth to either Principal Aronson or Officer Michaels. Principal Aronson asked Respondent to leave campus. He accompanied her to her classroom and observed a bottle of hand sanitizer on her desk. Principal Aronson also contacted Human Resources to report the incident and spoke to Human Resources Manager Jose Fred who handled overseeing the investigation from that point forward. 1 These written statements, Exhibits 11 through 16, were admitted over Respondent’s objection that they contain impermissible hearsay and are unduly prejudicial because these students refused to attend their scheduled depositions or appear for final hearing. However, their general descriptions of the incident were corroborated by the deposition of student J.C., as well as in part by Respondent. As discussed in Florida Administrative Code Rule 28-106.213(3), hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in sections 90.801-.805, Florida Statutes. On October 15, 2019, Respondent was issued the one-day stay at home letter from Mr. Aronson titled “Assignment to Your Residence with Pay for October 15, 2019.” On October 15, 2019, Respondent was also issued a letter advising her that she was assigned to her residence for October 16 and October 17, 2019. Mr. Fred, under the supervision of Vicki Evans-Paré, Director of Employee and Labor Relations, compiled written statement of six students, took a written statement of Respondent on October 17, 2019, and drafted an Investigative Report dated October 18, 2019, which substantiated violations of applicable rules and Board policies. In her statement to Mr. Perez, Respondent claims it was X.S. who put his hand on hers and pulled the bottle to his own mouth and that she did not squirt anything. However, the remainder of her statement is consistent with the students’ reports of the incident.2 Post-Investigation Due Process On October 30, 2019, Respondent was provided with a Notice of Pre- Determination Meeting, which provided her with the allegations of misconduct. Respondent was provided with a copy of the entire investigative file and time to review it with the representative of her choice. Respondent attended a Pre-Determination Meeting on November 9, 2019, to give her the opportunity to provide any additional information, dispute, and explain or elaborate on any information contained in the Investigative Report. The Employee and Labor Relations (“ELR”) Department enlists the Employee Investigatory Committee (“EIC”) which reviews all of ELR’s case 2 At final hearing, Respondent testified that the bottle was never near the student’s mouth. This is wholly inconsistent with her prior written statement to Mr. Perez, her deposition testimony, and the statements of the students. This conflict negatively impacted Respondent’s credibility. files, inclusive of all documents maintained by ELR, of anything that might lead to suspension or termination, to make a suggestion to the Superintendent, if the allegations are substantiated. Once the EIC decides that the allegations are substantiated and recommends discipline, Ms. Evans-Paré takes the entire employee investigative file, inclusive of the EIC’s recommendations, to the Superintendent who then makes the ultimate recommendation for employee discipline. On November 22, 2019, Respondent was provided with supplemental information to the investigative file and provided an opportunity to respond to the documents by December 6, 2019. On December 9, 2019, Respondent requested that her response be placed in her file. She wrote “in response to the copies of the information from the District that is being used as evidence against me …” after reviewing the case file, complained that only six of 22 students were interviewed or provided statements and it was not an ethical, random sample of the class. Respondent also alleged that the documents had been altered; however, she did not provide any evidence of such during the final hearing or within the response. On December 6, 2019, Respondent again provided a response to the student witness statements to ELR wherein she stated “I have 22 students in my class, only 6 students filled out statements? You have 3 black children submitted in reporting, of which one is not accurate. Yet, they are the minority in this class, of which, 2 out of the 6 statements were from Hispanic students. It is surprising that not a single white student in my class noticed the incident.” On January 24, 2020, Respondent was notified that the Superintendent would recommend her a ten-day suspension without pay to the Board at its February 19, 2020, meeting. On February 19, 2020, the School Board adopted the Superintendent’s recommendations to suspend Respondent without pay for ten days. Respondent’s Post-Suspension Status Respondent’s suspension by the Board was picked up by the Associated Press and reported across social media and traditional media platforms locally and nationwide. Ms. Evans-Paré testified that typically, when a teacher is alleged to have done something inappropriate with students, the District cannot have the teacher in a classroom around students, so the teacher is reassigned to another location. Respondent was reassigned to adult and community education, so she was in a no-student contact position. Respondent was then moved into Human Resources Funding 9920 status due to the press and comments from the parents received by Principal Aronson and her inability to be returned to PPMS. This allowed Principal Aronson to hire another teacher to take her place. Respondent has not been back in the classroom as a teacher for the District since October 15, 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the ten-day suspension without pay and return Respondent to the classroom. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 867 West Bloomingdale Avenue, Suite 6325 Brandon, Florida 33508 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of July, 2013.
The Issue Whether the Respondent, an elementary school teacher, should be disciplined under sections 1012.795 and 1012.796, Florida Statutes (2016),1/ for inappropriately disciplining a student in violation of Florida Administrative Code Rules 6A-10.081(2)(a)1. and 5.2/; and, if so, the appropriate discipline.
Findings Of Fact The Respondent holds Florida Educator Certificate 1197418, covering Elementary Education, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. The certificate is valid through June 30, 2022. The Respondent began the 2016/2017 school year teaching second grade at Shingle Creek in Orlando, which is in the Orange County Public Schools (OCPS) school district. It was her fourth year of teaching there. Her teacher evaluations were satisfactory. She did not use corporal punishment, and did not yell or scream at her students. She had no disciplinary history. (She had one non-disciplinary directive for blurting out an expletive in pain when she fell in class and hurt her knee.) Shortly after the start of the 2016/2017 school year, the Respondent realized she had a student, B.K., who took things that did not belong to her. B.K. was bright and popular among the children in class, but she could not be relied on to tell the truth. From the beginning of the school year, the Respondent had to take steps to discipline B.K.’s misbehavior and try to correct it. Soon after the start of the school year, B.K. put a laptop computer in her back pack, instead of returning it to the charging cart in the classroom as all the other children did when they finished using it. At the end of the day, B.K. told the Respondent that another student put the laptop in her back pack. The other student denied it, and the Respondent was obliged to refer the matter to the school administration. An assistant principal investigated and interviewed B.K., who admitted to taking it. The Respondent also found her own personal books in B.K.’s back pack. B.K. falsely accused a classmate of putting them there. On another occasion, another teacher caught B.K. with the Respondent’s “Hello Kitty” flash drive. B.K. told the teacher that a friend had given it to her, which was false, and the teacher wrote a referral to administration. As a result of these incidents, the Respondent had a conference with B.K.’s parents. B.K.’s father reported that he had found books at home that did not belong to his daughter. B.K. admitted that she had taken them from the classroom. The Respondent was obliged to make a classroom referral. The Respondent continued to learn of other similar incidents. Once B.K. took two bags of candy the Respondent used to reward good behavior and achievement by her students. Another teacher saw B.K. distributing the candy to classroom friends outside the classroom and reported it to the Respondent, who realized it was her candy that had gone missing. After the candy incident, the Respondent again met with B.K.’s parents and decided to impose consequences in addition to the classroom referral to discipline B.K. for the theft of the candy—namely, she decided to withhold the prize she planned to give students on Thursday, October 13, for good behavior during the preceding month. (Friday, October 14, was a day off school.) She told B.K.’s parents about the consequences she planned to impose. As October 13 approached, B.K. continued to misbehave by taking things that did not belong to her, including a Post-It note dispenser and a bag of erasers. The Respondent reported to the school guidance counselor and assistant principal that B.K.’s misbehavior seemed to be escalating. During the last class period of the day on October 13, while the class was working on a science project, the Respondent called each student up to her desk individually to reward good behavior with points, prizes, candy, and to identify misbehavior to be corrected. Under the “class dojo” behavior system the Respondent was using, class participation was rewarded with points and corresponding “karate” belts. Good behavior was rewarded with candy. When it was B.K.’s turn, the Respondent explained that she was getting points and a belt for class participation but was not getting candy because of her taking things that did not belong to her, and not telling the truth. The Respondent told B.K. that she would have a “clean slate” going forward and would get points and both prizes and candy if she earned them with good behavior in the next month. Not long after the Respondent’s talk with B.K., another student said out loud that B.K. had candy that did not belong to her. The Respondent asked B.K. if she had candy, and B.K. denied it. The Respondent then asked her students to check to see if they had the candy they had just been given. One student, who sat next to B.K. and had put her candy in her desk, said hers was missing. The Respondent then asked B.K., who still denied taking the candy, to show her what was in her desk. B.K. just froze and did not comply. The Respondent repeated herself. B.K. again refused and began to get emotional. Because the desk was a “jumbled mess” of tissues, papers, food, a milk carton, pencils and other things, and because bending down low was difficult for the Respondent, the Respondent tipped the desk over enough for some of items in it to begin falling out on the floor. The missing candy was among the first several items that fell out on the floor. At this point, B.K. claimed that the student whose candy was missing had given it to her, which the other student denied. The Respondent then told B.K. that the Respondent was going to have to write B.K.’s parents a note about the incident. She also told B.K. to pick her things up off the floor and put them back in her desk. During these proceedings, B.K. became emotional and started crying. At one point, she kicked at her desk or chair. The Respondent had her sit up near the chalkboard until she calmed down. The Respondent sat down at her desk facing B.K. and told her she was very disappointed with her because of the talk they just had. Although most of the students had resumed working on their science projects, one child asked out loud if B.K. had stolen the candy. The Respondent did not directly answer the question. Instead, she said something like, “I’m not sure what you just saw and heard, but one thing we don’t do in this class is, we don’t steal, right? What don’t we do?” Some of the students who were listening repeated, “we don’t steal.” When things settled back down, the Respondent wrote a note to B.K.’s parents notifying them about the candy incident and telling them that B.K.’s behavior that day had been “in the red” (i.e., bad). B.K. went back to sitting at her desk, and the rest of the class period was uneventful. In fact, the school principal came to the Respondent’s classroom before the class period ended to deliver notices for the students to take home to their parents. Although she was not in the classroom long, she noticed nothing unusual. At home after school on October 13, B.K.’s mother asked her about the Respondent’s note. B.K. denied stealing candy. She told her parents that the Respondent gave all the other children in the class candy except her and accused her of taking a piece of candy, which she denied. B.K. then told them that the Respondent then kicked her chair, dumped her desk on the floor, made her clean it up and put her desk back in order, and made the other students line up and take turns hitting her hand hard in punishment. Her parents decided to talk to the Shingle Creek principal about it on the next school day, which was Monday. When B.K. and her parents arrived at school on Monday morning, they encountered and talked to several of B.K.’s classmates outside the school. At least two of the classmates were approached by B.K., who brought them to her parents. The evidence was unclear as to how many other classmates were involved, or how the conversations went. The language skills of the students in general were those of second-graders, and several of the children were speakers of English as a second language. B.K.’s parents speak English with a strong Haitian accent. For example, the words “hit” and “hate” sound very similar, and it is not easy to understand their spoken English. It is unclear exactly what was said, but B.K.’s parents came away from the conversations convinced that B.K. was telling the truth about what happened in class on October 13. It is also possible that the children’s memories and recollections were influenced by these conversations. B.K.’s parents then went to speak to the school’s principal. B.K. did not go to class but stayed with her parents in the principal’s office. After talking to the family, the principal telephoned OCPS’s senior manager of employee relations, who advised her to gather witness statements. The principal and several assistants began taking statements, starting with B.K. and her parents. After them, the Respondent was called to the principal’s office. Following the instructions given to all teachers by the teacher union, the Respondent declined to give a written statement without a lawyer or union representative present. She did have a conversation with her principal. The principal asked her to explain the situation with B.K. on Thursday. The Respondent told her about the candy incident, including tipping the desk to find the candy; about being very disappointed with B.K.; and about writing a note to B.K.’s parents. The Respondent recalls the principal asking if anything else happened, and she answered, no. The principal recalled the conversation a bit differently. She thought the Respondent admitted to dumping B.K.’s desk over, raising her voice, and being angry with B.K. She also remembered asking the Respondent if any of the other students hit B.K. and the Respondent answering that she did not see anyone hit her. The principal then began interviewing the Respondent’s students one by one. The interviews continued the rest of the morning and into lunch recess. Some statements were taken the next day. It is unclear to what extent the student witnesses discussed their statements among themselves during the day. The interviews were not video or audio-recorded. The interviewers thought they were asking proper, open-ended questions that did not suggest answers, but studies have shown that interviews usually are not as proper or open-ended as interviewers think they are, especially when the interviewers do not have extensive training. The training of the principal and her assistants in interview techniques was limited. Proper interview techniques help ensure that witness memories and statements are authentic, accurate, and reliable. They are especially important for child witnesses. The statements were not verbatim, or close to verbatim. Two of the statements were written with difficulty by the second- graders themselves and were not very articulate. The rest were written by the adult interviewers and signed by the second- graders so the process would go faster. These statements were written in a summary or conclusory fashion, without much detail, and were similar to one another, suggesting that they were recording the answers to questions of particular interest to the adult interviewers. The statement forms themselves had spaces designated for the “Date of Infraction” and “Location of Infraction,” and had signature blocks that said: “I swear/affirm the above and/or attached statements are true and correct. I understand that providing false information is punishable under the Student Code of Conduct.” It is doubtful that the second- graders would have understood what that meant. Fourteen (all but one) of the statements said that the Respondent told the students to hit or slap B.K.’s hand or hands. Some added that B.K. was crying; some added that the Respondent told them to hit hard, or harder. One statement said they did it because B.K. took candy, one said it was because B.K. was a thief, and one said it was because B.K. steals too much. Some of the statements were surprising because of the capabilities of the child supposedly giving it: one of the students was non-verbal and would not have been comfortable speaking to a stranger; another was autistic and unable to sequence information such as the days of the week; and another had behavioral and emotional issues that made him incapable of giving a statement. Some of the second-graders added remarkable features in their statements that were not mentioned by anyone else, or by just a few: one said the Respondent threw B.K. down to the ground; three, including one attributed to the child with behavioral and emotional issues, said that the Respondent threatened to call the police; one said that the Respondent told B.K. to put her desk by the wall; and one said the Respondent told the class to avoid B.K. During the morning on October 17, several of the Respondent’s students told her that B.K.’s parents had talked to them before school about the Respondent making them hit or slap their child on the hand, and told her that B.K. no longer was in the Respondent’s class. After the second-graders’ statements were gathered, the school principal presented them to the OCPS senior manager of employee relations, who scheduled a pre-determination meeting on October 21. His investigative report stated: 16 student statements were obtained; 15 confirmed being directed by the teacher to hit B.K. on the hand; 3 confirmed the teacher telling the students to repeat “don’t steal”; 8 confirmed the teacher yelling; 5 confirmed the teacher telling them to hit B.K. hard; 3 confirmed the teacher calling B.K. a thief; and 3 confirmed the teacher saying she was going to call the police. The investigative report also stated that the Respondent: admitted getting angry and raising her voice; admitted pouring out the contents of the student’s desk; admitted saying and having the students repeat, “what is it we don’t do in class? We don’t steal”; stated she did not recall directing the students to hit B.K.; did not know if B.K. was hit “on October 17,” but did know that B.K. lies; and did not report the incident to the school administration on October 17. Based on the investigative report, OCPS terminated the Respondent’s employment. The Respondent filed a grievance which was arbitrated under the terms of the teacher union contract. When the matter was referred to the Petitioner, another investigation was conducted. On February 17, 2017, the second- graders were interviewed again by the Petitioner’s investigator. The investigator asked the questions and wrote the answers. The second-graders were asked to confirm that the answers were written down correctly and signed their statements. Like the principal and her assistants, the Petitioner’s investigator believed she asked non-suggestive, open-ended questions. Like the principal and her assistants, the Petitioner’s investigator did not have extensive training in the proper techniques for manner of interviewing children. Like the interviews conducted by the principal and her assistants, the Petitioner’s investigator did not video or audio-record her interviews. Each student interviewed by the Petitioner’s investigator stated that the Respondent told the students to “slap” B.K.’s on the hand as hard as they could and that slapping B.K. made the student feel “sad.” One said that B.K. cried. One said the Respondent made the class stand in a circle and take turns slapping B.K. on the hand. Unlike the school principal and her assistants, the Petitioner’s investigator had the students describe how hard they were supposed to hit B.K. on a scale of 1 to 5. This question elicited several responses that they were told to hit “hard,” one that they were told to hit “as hard as we could,” and one that gave a rating of 5. In the statements gathered by the Petitioner’s investigator, several of the students mentioned that the Respondent told them to pretend B.K. was a ghost, and several said the Respondent told them not to tell anyone about what happened. Oddly, neither of these remarkable details was mentioned in any of the statements taken by the principal and her assistants. The Respondent’s grievance was arbitrated in May 2017. After a three-day hearing, the termination was upheld, despite testimony from another teacher that she overheard B.K. admit to stealing candy and to lying to get the Respondent in trouble because she was tired of getting caught stealing by the Respondent. Several of the students who gave statements testified at both the arbitration hearing and the hearing in this case. Several were deposed before testifying. The Petitioner in her Proposed Recommended Order suggested that credibility issues arising from the prior events should be ignored because they were cured by the live testimony. That is not true. Issues remain as to whether the students’ live testimony was influenced by what preceded. In addition, their testimony at the hearing was confusing and inconsistent in many respects. Two of the students testified that the students formed a circle around B.K., while three said they formed a line. One said the line was in the shape of a C or J. One specified that they hit B.K.’s hand while she was either in a corner or by a desk where the sink was located. One said B.K. was standing in front of another student’s desk. Two said B.K. was standing in the middle of the classroom. One said B.K.’s hand was held out palm down. Another said it was palm up. One said the Respondent held B.K.’s hand out. The evidence, taken as a whole, is not clear and convincing that the Respondent had her students hit or slap B.K. as punishment for taking the candy. While several children made statements that included some version of this alleged incident, they all started with B.K., who was overheard saying she was lying, and the other children’s statements are fraught with questions that make them unreliable and insufficient to prove those facts clearly and convincingly. Meanwhile, the Respondent’s version of what happened, while self-serving, is more persuasive. Her refusal to give a written statement, and her manner of answering questions, may have raised suspicions on the part of the school principal, and may have contributed to a number of misunderstandings by the principal and B.K.’s parents, but they do not prove that the Respondent was lying. The Respondent’s conduct that was proven by the evidence did not rise to the level of a disciplinable failure to make reasonable effort to protect B.K. from conditions harmful to learning and/or to her mental and/or physical health and/or safety, and did not intentionally expose B.K. to unnecessary embarrassment or disparagement. What the Respondent actually did was within the realm of making reasonable efforts to correct B.K.’s problem behaviors and to teach her and her classmates how to behave properly and acceptably, while at the same time trying to keep order in the classroom and continue delivering academic instruction.
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 the Respondent not guilty and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 1st day of May, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 1st day of May, 2018.
