Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
Findings Of Fact At all times relevant to this inquiry Respondent has held Florida Teaching Certificate No. 145121, issued by the Department of Education for the State of Florida, covering the area of Art. That certificate is valid through 1993. Respondent had been employed by the Duval County School Board for a period of twenty-seven years at the time of hearing. He had been assigned as an art teacher at Jefferson Davis Junior High School in that school system for the last twenty-six years of his teaching duties. Sherry Hoefling-Tobia was a student of the Respondent in the second semester of the 1971-72 school year and for all of the 1972-73 school year. She was also a member of the yearbook staff which the Respondent sponsored in the 1972-73 school year. The student was born on October 10, 1957. She attended the classes described in the eighth and ninth grade. At times the student Sherry Hoefling-Tobia, and other students, would stay after class in the Respondent's classroom while attending junior high school. The student Sherry Hoefling-Tobia while a student in the Duval County School System confided in the Respondent concerning her relationship with her family. During the summer of 1973 the student Sherry Hoefling-Tobia was enrolled in an art summer school where Respondent taught. Respondent did not teach her per se but did take photographs of the student, and other students who were enrolled in the program. Respondent also gave her rides to and from the camp. After the student Sherry Hoefling-Tobia finished her studies at Jefferson Davis Junior High in the ninth grade, she attended high school in Duval County and graduated following her completion of the eleventh grade in the school year 1974-75. While in high school she would visit the Respondent at Jefferson Davis Junior High. After graduating from high school and while attending Florida Community College of Jacksonville, a junior college, Sherry Hoefling-Tobia entered into a sexual relationship with the Respondent. Having considered the testimony and exhibits presented, this is the first occasion wherein the evidence is clear and convincing that the Respondent and Sherry Hoefling-Tobia had a sexual relationship.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses the administrative complaint against the Respondent. DONE and ENTERED this 29th day of May, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX CASE NO. 90-4929 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is subordinate to facts found with the exception that the date of birth is October 10, 1957. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 and 7 are subordinate to facts found. Paragraph 8 in the first sentence is not necessary to the resolution of the dispute. The remainder of Paragraph 8 through Paragraph 11 are not accepted Paragraph 12 is not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found. Paragraphs 14 through 19 are not accepted. Paragraphs 20 and 21 are subordinate to facts found. Paragraphs 22 through 25 are not accepted, with the exception of Paragraph 24 which is subordinate to facts found. Paragraph 26 is subordinate to facts found. Paragraph 27 is not accepted. Paragraph 28 is not necessary to the resolution of the dispute. Paragraph 29 is subordinate to facts found in the suggestion of sexual intercourse with the Respondent during summer 1975 and is not necessary to the resolution of the dispute as it suggests a relationship with another person beyond the time of her experience beyond graduation from high school. Paragraph 30 is not necessary to the resolution of the dispute, nor are the first two phrases in Paragraph 31. The last phrase in Paragraph 31 is not accepted. Paragraphs 32 and 33 are not necessary to the resolution of the dispute. Paragraph 34 is not accepted in its suggests Respondent abused Sherry Hoefling-Tobia while she was a student. Paragraphs 35 through 37 are not accepted. Paragraphs 38 and 39 are not necessary to the resolution of the dispute. Paragraphs 40 through 42 are not accepted. Paragraphs 43 and 44 are not relevant given the facts found. Respondents's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 and 4 are not necessary to the resolution of the dispute. Paragraphs 5 through 9 are subordinate to facts found. Paragraphs 10 through 16 are not necessary to the resolution of the dispute. Paragraphs 17 and 18 are not relevant. Paragraph 19 is subordinate to facts found. Paragraphs 20 through 21 are not relevant. Paragraph 22 is subordinate to facts found. Paragraphs 23 through 26 are not necessary to the resolution of the dispute. Paragraph 27 and 28 constitute argument. Paragraph 29 is not necessary to the resolution of the dispute. Paragraphs 30 and 31 constitute argument. Copies furnished: Lane Burnett, Esquire 331 East Union Street, Suite 2 Jacksonville, FL 32202 Stephen J. Donohoe, Esquire 437 East Monroe Street, Suite 1 Jacksonville, FL 32202 David A. Hertz, Esquire Duval Teachers Union 1601 Atlantic Boulevard Jacksonville, FL 32207 George A. Bowen, Acting Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Jerry Moore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to discipline Respondent for misconduct as alleged in the Administrative Complaint (“Complaint”) dated March 10, 2020.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At the time of the alleged incident, Respondent was employed as a testing coordinator at Dunnellon Middle, pursuant to a professional services contract with the Board. During the 2018-2019 school year, Respondent served as a dean of discipline at Dunnellon Middle. As dean, she had dealt with discipline of students possessing drugs on campus, as well as students suspected of smoking marijuana either on a school bus or at the school bus stop. Leah Grace is a guidance counselor at Dunnellon Middle. Michelle Reese is the guidance office clerk. On January 30, 2020, student L.L. came to the guidance office and told Ms. Reese he wanted to speak with Ms. Grace about enrollment in a magnet program for the following school year. However, when L.L. entered Ms. Grace’s office, he sat down and began crying. L.L. confided in Ms. Grace that he “had something he was not supposed to have at school.” L.L. stated that he did not know who to trust. L.L. was distraught and Ms. Grace was unable to calm him. She decided to contact his mother to pick him up from school. Aware that L.L.’s mother does not speak English, Ms. Grace sought help from someone at the school who spoke Spanish. Respondent speaks Spanish. Ms. Grace contacted Respondent and asked her to come to the guidance office to help her with a student. When Respondent arrived at Ms. Grace’s office, she observed L.L. visibly upset, sobbing with his face in his hands, rocking back and forth. Ms. Grace relayed to Respondent what L.L. had shared with her—that he “had something he was not supposed to have at school.” Respondent recognized L.L. and asked him three questions in quick succession: Do you have a weapon? L.L. shook his head “no” in response; Do you plan to hurt yourself or someone else? L.L. shook his head “no” in response; and Do you have weed? L.L. nodded his head in response to the third question, indicating that he did have marijuana. L.L. confided that another student, D.G., had given the marijuana to L.L. in the cafeteria that morning to “hold on to” for him. L.L. had grown anxious during the school day about having the drugs in his possession and had come to the guidance office for help. When L.L. nodded in the affirmative that he had weed on him, Respondent stated something to the effect of “that is no reason to go home.” Respondent suggested L.L. just flush the marijuana down the toilet. L.L. promptly went into a small restroom attached to Ms. Grace’s office, flushed the toilet, washed his face, and began to compose himself. Afterward, Respondent told L.L. he needed to find better friends. As Respondent was no longer needed for translation, she left the guidance office and returned to her duties in the testing lab. Ms. Grace allowed L.L. to go to his next class, a grade-recovery course for which he was already late. Julia Roof teaches the class and had been concerned that L.L. was not in class on time. L.L. arrived at the classroom toward the end of the class period, and Ms. Roof observed that L.L. was upset. L.L. initially insisted that he was “fine,” but Ms. Roof pressed him because he was visibly upset. L.L. confided in Ms. Roof about the incident. He admitted that he had marijuana in his possession at school that day, that another student had asked him to hold it, and that he had been to the guidance office where the marijuana had been “flushed.” Neither Ms. Grace nor Respondent reported the incident to the school resource officer or anyone in school administration. Nor did either of them notify L.L.’s mother. Ms. Roof reported the incident to Delbert Smallridge, principal at Dunnellon Middle, at the end of the school day. Principal Smallridge’s Investigation Mr. Smallridge has served as principal at Dunnellon Middle for nine years, and has worked in the Marion County school system in various positions for 31 years. Ms. Roof reported the incident to Mr. Smallridge after school at car pickup. Before he left the school for the day, Mr. Smallridge contacted the school resource officer to notify him that there was a situation with drugs on the school campus that day. He also notified Brent Carson, director of professional practices (i.e., human resources) for the Marion County School District (“the District”), with the limited information he had obtained. The following morning, Friday, January 31, 2020, Mr. Smallridge began an internal investigation into the incident. He first interviewed L.L., in the presence of Ms. Roof; took notes of the events L.L. related; reviewed the notes verbally with L.L.; as well as having L.L. read them to himself. Afterward, he asked L.L. to sign his name at the bottom of the page as his statement of the incident. The next person he interviewed, Ms. Reese, came to him directly. She reported to Mr. Smallridge that she had information she felt he should know. She told Mr. Smallridge that Ms. Grace had confided in her that morning that she had allowed a student to flush marijuana in plastic bags down the toilet in her office the prior day, and that she was concerned that they may come back up or otherwise cause a plumbing problem. Ms. Reese provided and signed a written statement to that effect. Mr. Smallridge also interviewed, and took a written statement from, Ms. Roof regarding the incident. Before the school day ended, he also spoke to Mr. Carson, who instructed him to complete the school-level investigation by interviewing and getting written statements from Respondent and all witnesses, and do his best to determine what had happened. Mr. Smallridge interviewed Ms. Grace the following Monday, February 3, 2020, in the presence of his confidential secretary. Mr. Smallridge took notes of his interview with Ms. Grace, and Ms. Grace provided a written statement of her own. During his interview with Ms. Grace, Mr. Smallridge noted that “both [Ms. Grace and Respondent] were aware [L.L.] had drugs.” In Ms. Grace’s written statement, she stated that she “couldn’t remember” whether it was she or Respondent who told L.L. to flush the marijuana, “but I think it was me.” She stated that L.L. went to the small bathroom attached to her office, “then came out and told me he flushed it, bag and all.” Ms. Grace’s statement also confirmed that both she and Respondent were in her office when L.L. went to the bathroom. Ms. Grace later resigned from Dunnellon Middle. On August 26, 2020, after her resignation, she gave a second written statement regarding the incident. In that statement, Ms. Grace claimed responsibility for telling L.L. to flush the marijuana and called it a “momentary lapse in judgement.” She felt sorry for L.L. and did not want him to get in trouble, either with the school or with law enforcement. Mr. Smallridge also interviewed Respondent, who stated that, when L.L. nodded his head in response to her question, “Do you have weed,” she understood L.L. to mean that he had marijuana in his system, not on his person. Further, she claimed to have left Ms. Grace’s office shortly after she asked those questions and was not aware that L.L. had drugs on his person or that he flushed drugs in Ms. Grace’s office. Respondent also gave Mr. Smallridge a written statement. In her written statement, Respondent described the events of January 31, 2020. She said that when she first observed L.L. in Ms. Grace’s office, “The kid seemed sick, rocking, sobbing and not speaking.” She continued, “I thought he might be intoxicated as to why he would want to go home and not to the nurse. I asked him if he had weed as if in smoked it, had it in his system. He nodded and continued to cry. I said, that is no reason to go home.” Mr. Smallridge gathered all the statements and notes from his investigation, scanned and sent them to Mr. Carson. Jaycee Oliver is the executive director of employee relations for the District and is responsible for disciplinary issues with District employees, including hearings, grievances, mediations, and arbitrations. Ms. Oliver reviewed the documents from Mr. Smallridge, and discussed the incident with Mr. Carson and Mr. Smallridge. Ms. Oliver determined that the incident warranted a District-level investigation. District Investigation and Discipline The District investigation was conducted by Dawana Gary, director of equities and ethics, who worked with Tyson Collins, an investigator in her department. Ms. Gary was present for the interviews of both Ms. Grace and Respondent. Mr. Collins interviewed the remaining witnesses. Their interviews were recorded. Following the investigation, Ms. Gary prepared an investigative report containing written findings and conclusions. Based on the investigation, Ms. Gary concluded that both Respondent and Ms. Grace violated Florida Administrative Code Rule 6A-10.081(2)(a)1., which provides that the educator’s obligation to the student requires that the educator “[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” She also concluded that both Respondent and Ms. Grace violated School Board Policy 6.27 I., which requires school board employees to comply with rule 6A-10.081. Ms. Gary sent her investigative report to Ms. Oliver, along with a recommendation that both Ms. Grace and Respondent receive a written reprimand, three-day suspension without pay, and mandatory training. Ms. Oliver reviewed the report and recommendation, and was surprised the recommendation was so lenient. Ms. Oliver characterized the violations as “egregious” and recommended to the superintendent that both Respondent and Ms. Grace be terminated. At the final hearing, Ms. Oliver testified that Respondent’s behavior was egregious because, not only did she fail to report the incident or take other measures to protect L.L., but also that allowing the student to dispose of the drugs prevented a proper investigation into distribution of drugs on campus. She maintained that Respondent’s behavior allowed both D.G., who was allegedly selling drugs on campus, and students who may purchase or otherwise obtain drugs from him, to remain in harm’s way. Without the drugs themselves as evidence, any potential investigation was jeopardized. Ms. Oliver discussed the recommendations for discipline at length with the superintendent. The superintendent made the final decision to impose a written reprimand and a five-day suspension, and require Respondent to take a course on “Reasonable Suspicion Drug Training” upon her return to work. L.L.’s statement that Respondent told him to flush the drugs is the only credible evidence on which to base a finding that Respondent did in fact do so.1 Respondent attempted to discredit L.L.’s testimony by introducing evidence (all of which was hearsay) that L.L. had previously been untruthful to teachers and had a penchant for drama. This evidence was neither credible nor reliable. L.L.’s testimony was clear: he acknowledged he had “weed;” he showed Respondent and Ms. Grace the weed; Respondent instructed him to 1 L.L.’s statement is an exception to the hearsay rule as an admission of a party opponent. See § 90.803(18), Fla. Stat. flush the weed; and he flushed the weed down the toilet in Ms. Grace’s private restroom. Ms. Grace’s testimony that she was the one who instructed L.L. to flush the marijuana is also not accepted as credible. Ms. Grace’s original statement to Mr. Smallridge (repeated in her first written statement) that she could not remember whether it was she or Respondent who told L.L. to flush the marijuana, was simply not credible. A middle school guidance counselor in her situation would have a clear memory of instructing a student to flush drugs down the toilet. Likewise, her memory that a teacher instructed the student to do so in her presence would likewise be significant enough to remember clearly. Further, Ms. Grace and Respondent were close colleagues, frequently having lunch together, and socializing outside of school on at least one occasion. Ms. Grace’s subsequent statement accepting responsibility for telling L.L. to flush the drugs was likely an attempt to protect Respondent. When she gave her second statement, Ms. Grace had already resigned from Dunnellon Middle; therefore, she could not be disciplined for falsely accepting responsibility for instructing L.L. to flush the marijuana. Finally, Ms. Grace’s testimony at the final hearing was too well- rehearsed to be credible. Notably, Ms. Grace had a well-rehearsed explanation for why Respondent would not have heard her tell L.L. to flush the drugs while they were sitting in her very small office, and she inserted that explanation in answer to a wholly-unrelated question. She attempted to explain Respondent’s state of mind, which she could not have known. In sum, Ms. Grace’s testimony was unreliable and was insufficient to establish that she, rather than Respondent, instructed L.L. to flush the marijuana down the toilet. Respondent’s testimony that she understood L.L. to mean he had marijuana in his system, rather than on his person, was not credible. L.L. had stated that he “had something he wasn’t supposed to have at school.” Respondent asked him if he “had weed” after asking him if he “had a weapon,” clearly seeking knowledge of what he possessed at school that he knew was off limits. Further, L.L.’s testimony that he showed Ms. Grace and Respondent the weed is accepted as true. Even if Respondent’s testimony that she understood L.L. to mean that he had marijuana in his system was accepted as true, that fact, coupled with her description of him as appearing ill, and possibly intoxicated,2 created a responsibility to take some step to protect the student’s health and well- being. If she understood L.L. to mean that he had ingested marijuana, and he appeared to her to be ill, her statement “that is no reason to go home,” was completely unprofessional. L.L.’s mother should have been contacted to pick him up from school, and administration should have been notified so that the situation could be avoided in the future to secure L.L.’s health and safety, as well as other students potentially involved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding both the charges and the discipline imposed against Respondent, Maria Acosta. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 18th day of November, 2020. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Eric J. Lindstrom, Esquire Egan, Lev, Lindstrom & Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627 (eServed) Heidi S. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
Findings Of Fact Introduction At all times relevant hereto, respondent, Lawrence J. Ferrara, was an instructional employee of petitioner, School Board of Palm Beach County, Florida (School Board or petitioner). When the relevant events herein occurred, Ferrara was a classroom teacher under a continuing contract assigned to John I. Leonard High School (JIL) in Lake Worth, Florida. He has been employed as a classroom teacher with petitioner since August 16, 1965 and received his continuing contract of employment in June, 1969. He holds teaching certificate number 150262 issued by the State Department of Education and is certified in the areas of American Government and social studies for grade levels 7 through 12. Respondent received a bachelor of education degree from the University of Miami. His first assignment with petitioner was in school year 1965-66 at Lantana Junior High School. He remained there through school year 1967-68. At the end of that year, Ferrara was placed on a fourth year annual probationary contract because he had insufficient control of his classes. He transferred to John F. Kennedy High School for school year 1968-69, and received a continuing contract of employment at the end of that school year. Respondent then transferred to Boynton Beach Junior High School for the 1969-70 school year. Ferrara desired to teach at the high school level because he preferred to teach students having greater maturity and interest in learning. He secured an assignment to JIL in September, 1970, where he remained until his suspension in 1986. Ferrara was initially assigned to the social studies department teaching American History to the eleventh grade. He remained in that position until the fall of 1981. During this period of time, Ferrara's evaluations showed steady improvement in his performance, and Ferrara characterized the 1980-81 school year as the happiest and most enjoyable year in his teaching career. In fact, he referred only two students to the dean for disciplinary reasons during the entire year, and both were referred during the final week of school. Prior to the 1981-82 school year, Ferrara had a reputation as a good teacher, and his relationship with other faculty members was favorable. JIL sits on a forty acre campus in Lake Worth, Florida. During the relevant years the school had a student enrollment ranging in size from 2,200 to 2,850 students. Most recently its faculty numbered approximately 145. The principal is the chief administrator at JIL. In dealing with employees, the principal follows guidelines set out in the collective bargaining agreement with the Classroom Teachers Association (CTA), School Board policy, administrator's directives and the JIL Teacher and Student Handbooks. There are several assistant principals, including deans, who have been given authority to counsel with and reprimand employees. Among other things they are responsible for discipline of students. There are also guidance counselors who may counsel with other staff members and students as the need arises. The principal designates department chairmen who have authority to reprimand or evaluate teachers, and to recommend course assignments within the department. In the case at bar, Ferrara was assigned to the social studies department, which had approximately sixteen teachers. Its chairman was responsible for reviewing lesson plans of all teachers to insure that curriculum objectives were being met. This action is mandated by the School Board. At JIL lesson plans were required to be prepared one week in advance. In addition, faculty were required to prepare emergency lesson plans to be used by substitute teachers if the regular teacher was absent. Finally, the department head issued textbooks to each teacher who was obligated to turn in the books (or monies from the student) at the end of the semester or school year. According to the CTA-School Board contract introduced into evidence as petitioner's exhibit 9, and which is applicable to Ferrara's employment, Subsection A1. of Article II provides that "teachers are expected to serve on school committees, self-evaluation and accreditation committees, attend meetings and workshops . . . such service (to be) on a voluntary basis . . " Subsection A2. provides that "employees shall assume reasonable responsibility for the safe return of all school property." Subsection F4. of the same Article requires employees to "assume the responsibility for taking a positive approach to discipline and to maintain constructive classroom control." Subsection B1. of Article III prescribes a duty day for faculty at JIL of seven and one-half consecutive hours per day. Subsection B2. requires that an employee obtain approval from the principal to leave the school premises for personal reasons during the defined duty hours. Subsection E4. of the same Article provides that "the teacher shall be responsible for the preparation of daily lesson plans to be made available to the substitute in the absence of the teacher. Such plans shall be made in advance at all times." The School Board has also promulgated various "local" rules which pertain to suspension and dismissal of employees, as well as the rehabilitation process to be following once a teacher is cited for deficiencies. They apply to Ferrara's employment. School Year 1981-82 In the spring of 1981, Ferrara heard rumors that he was being reassigned the following school year from exclusively teaching eleventh graders to teaching ninth grade American Government classes as well. At the same time he learned that the teacher of an advanced history class was leaving JIL at the end of the school term. Ferrara approached the social studies de- partment head, Catherine Thornton, concerning the vacancy but was told the vacant slot had been promised to a new teacher named Martin. Ferrara then met with the JIL principal, Dr. Munroe, in June, 1981 and asked that his teaching assignment not be changed. During that meeting he criticized Munroe's selection of athletic coaches to teach in the social studies department. Ferrara considered the department as a dumping ground for coaches and other unqualified teachers. Ferrara's request was turned down and he was reassigned to teach three periods of ninth grade American Government classes and two periods of eleventh grade American History the following year. Moreover, JIL was on double sessions at that time, and Ferrara was switched from the early session (6:45 a.m. to 2:15 p.m.) to what he considered to be the less desirable second session that ran from 9:45 a.m. to 5:15 p.m. He was also required to teach during the last three periods of the second session. Ferrara was extremely displeased, and felt that he was being treated as the new teacher who was typically given the lower grade assignment and the afternoon shift. In an effort to get the new assignment changed, Ferrara met with the department head and later with Dr. Munroe. After having no success, he met with the area superintendent and finally the school superintendent. Their advice was to take the assignment, be evaluated and then see what happens. Ferrara thereafter approached five of the seven members of the school board seeking their assistance in overriding the reassignment decision. This too was unsuccessful. At one of the meetings in Dr. Munroe's office on September 4, one administrator said that if Ferrara was unhappy with the new assignment then maybe he should quit. By this time Ferrara had engaged the services of an attorney, and after he and his attorney were unsuccessful in persuading the administration to change the assignment, he instructed the attorney to file a civil rights action in federal court. This was done on July 29, 1982. The lawsuit sought, among other things, the reassignment of Ferrara to his former teaching assignment in the eleventh grade. That suit has remained pending since then, and at time of final hearing, was on rehearing of an order of the Eleventh Circuit Court of Appeals which affirmed the trial court's earlier dis- missal of the action. Charles L. Thornton (no relation to the department chairman) replaced Dr. Munce as principal at JIL in October, 1981. He had previously served as dean of boys at JIL in 1970-71 and recalled that he frequently visited Ferrara's eleventh grade class that year because Ferrara was having a "hard time" with his students. Before he left JIL in September, 1971, Thornton told the then principal of JIL that they had "problems" with Ferrara because of his inability to control his students. This was borne out by Ferrara's 1970-71 evaluation which cited Ferrara for deficiencies in no less than five areas, most of which were attributable to the fact that Ferrara was then an inexperienced high school teacher. When Thornton returned to JIL in October, 1981, he learned that Ferrara had hired an attorney to challenge the school's decision to reassign Ferrara to the ninth grade classroom. Even so, when Ferrara approached Thornton about changing his assignment, Thornton told Ferrara that no teacher assignments would be made mid-stream in the semester, but he would "revisit" the matter at the end of the semester. His denial was confirmed in a written memorandum to Ferrara. He also told Ferrara the change was not to be considered a demotion and that he would keep the same title, salary and number of work hours. At the end of the first semester, Thornton did not change respondent's course assignment because it would have disrupted the master schedule and he had some concern about respondent's performance. Unquestionably, ninth grade students are less mature and more difficult to control from a disciplinary standpoint than other students, but the subject matter of their coursework is easier than the subjects taught to higher grade levels. Although Ferrara considered his new assignment as being the most undesirable of all assignments in the social studies department, other teachers stated that it made no difference to them as to which group of students they were assigned to teach. During the batter part of the first semester, Ferrara was absent due to illness on several occasions. In the second semester he took a leave of absence for the entire semester due to illness apparently brought on by job stress. According to Ferrara, teachers assigned to the first session, which he preferred, were allowed to leave the school around 2:15 p.m. each day. Ferrara's classroom faced the parking lot and he could see them through his windows departing the school while he was required to remain there teaching until 5:15 p.m. He also acknowledged having "problems" with students during the last three periods of each day, and when coupled with the aggravation of seeing his colleagues leaving early, it induced a physical ailment which led to his taking the lengthy sick leave. During his second semester absence, Ferrara prepared no regular or emergency lesson plans for his substitute, although he was responsible for doing so for the entire year. His substitute contacted him for assistance, but Ferrara declined to offer any, saying it was the substitute's responsibility to do the work. It is noteworthy that Ferrara's substitute had some disciplinary problems when she took over his class, but after receiving assistance from the deans, she had only "minor" problems the remainder of the semester. Thornton prepared an annual evaluation of Ferrara in June, 1982, and gave him an overall rating of satisfactory. However, he found Ferrara deficient in the following areas: discipline of students, attending required extracurricular activities, teaching in a manner in which all students in the class could comprehend and relating in a more positive manner with his peers. Other than Ferrara's use of "various methods and materials," Thornton made no comments concerning Ferrara's areas of strength. The first deficiency was based upon Ferrara's inability to control the classroom environment. More specifically, Ferrara referred more students to the dean than any other classroom teacher at JIL, and for what appeared to be minor infractions. These included talking out of turn, squeaking a chair, going to the pencil sharpener without permission and leaving one's desk without permission. On some occasions Ferrara would refer entire groups of students. In all, Ferrara's referrals constituted around 25 percent of all referrals made by the 145 JIL faculty members. The dean of students was asked by Ferrara on at least three occasions to visit his classroom because his class was out of control. The dean observed that Ferrara had very little control over his students, managed the class "poorly," and concluded that very little learning was taking place. The dean discussed with Ferrara how to handle minor classroom infractions and advised Ferrara to review the JIL Handbook provisions regarding discipline. However, Ferrara was not responsive to these suggestions. Ferrara was also criticized because his students had difficulty in understanding "his approach to teaching." This was apparent from the fact that Ferrara had an extremely high rate of failure for his students. Ferrara himself conceded that his teaching performance began deteriorating in the 1981-82 school year and never again reached the level of performance achieved by him prior to that year. The evaluation noted that Ferrara did "not have an effective relationship with associates." This was confirmed through testimony that after his reassignment became effective, Ferrara would not speak to most of the members of the department, and no longer socialized with staff at the department's workroom. Even Ferrara acknowledged that after September, 1981 he became "reserved," did not talk to colleagues arid appeared unhappy and upset. Thornton required mandatory attendance by faculty at only two school functions each year: open house when parents, students and faculty met at the school, and graduation. Ferrara attended neither saying graduation was "too sentimental" and that he was always ill whenever open houses were held. Ferrara was given a copy of the above evaluation by Thornton, reviewed it and signed it on June 8, 1982. However, he told Thornton he disagreed with the contents of the evaluation. At their meeting, Thornton acknowledged to Ferrara that he had sufficient knowledge of the subject matter, and found Ferrara to be well-versed in his subjects. School Year 1982-83 Because of problems with Ferrara in 1981-82, the department chairman recommended that Ferrara be assigned to teach five ninth grade American Government classes in school year 1982-82. This recommendation was approved by the assistant principal for curriculum who draws up the semester schedule, and later by Thornton. While teaching a class in November 1982, respondent caught a student, K. B., mimicking him in class, grabbed the student by his arm and escorted him to his seat. He did so with such force that it left bruise marks on the student's arm. Ferrara was counseled by Thornton following this incident. In January, 1982, respondent gave a student an F in her coursework for disciplinary reasons. This is contrary to school board policy and resulted in the issuance of a memorandum by Thornton to Ferrara on January 21, 1983. Various former students of Ferrara during the 1982-83 school year testified concerning their impression of his teaching style and manner. Their comments included statements that he "wasn't normal" and was "different" from other teachers. It was established that he would not answer questions from many students, either ignoring them or telling them the answer was in the textbook. He called them "stupid," "immature" and "jackasses" on a number of occasions, that he `hated" teaching them, and told them he should be teaching a higher grade level but was being punished by the administration. It was further established that Ferrara frequently yelled in class, and that his efforts to discipline students were unsuccessful. After awhile, some students would make deliberate efforts to provoke Ferrara by beginning coughing, spells or squeaking their chairs, knowing that his efforts at discipline were merely a "show" and that they need not obey him. Ferrara would also frequently discuss in class his lawsuit against the school board without relating it to the subject matter. His most common teaching technique was to give students a reading assignment from the textbook and have the students answer the review questions at the end of the chapter. Only occasionally did he give a lecture. Most students indicated they did not learn a great deal in his class, and found the instruction boring. It was established that cheating frequently occurred when tests were given, and answer sheets were passed around while Ferrara was in the room. Many believed he was punishing them by keeping the windows shut and the air-conditioner turned off on hot days. Indeed, on one day in late April, Thornton went to Ferrara's class and found it extremely "hot" with the air-conditioner off and the windows closed. Ferrara was teaching the class wearing a sweater. Thornton ordered that the windows be opened to avoid having a student pass out from the heat. Ferrara justified his actions by contending the air-conditioner was frequently inoperative and that the windows often times stuck. This was disputed by the building maintenance chief. He also stated that he kept the windows closed because of traffic noises emanating from a nearby street. However, he conceded that he kept the students in a hot room on at least one occasion as punishment. Because of complaints made by parents and students to Thornton during the first semester, a conference was called by Thornton with respondent on January 28, 1983. At that time he gave Ferrara written notice that his behavior was "inappropriate," and that he must regain control of his classroom. On April 20, 1983, Thornton had a conference with Ferrara concerning an allegation that he had called a student an "ass." After Ferrara admitted this was true, Thornton told him not to call students such names again, that it would not be tolerated and that he should refer to the teacher's Code of Ethics which proscribed such conduct. On May 23, 1983, Thornton found two of Ferrara's students wandering in the hallway without a hall pass. They had been told to leave Ferrara's class, and that he did not care where they went. During the school year, Ferrara continued to disregard the requirement to complete lesson plans. On occasions when Ferrara was absent, the substitutes found no regular or emergency lesson plans available. Instead, the substitutes had to write their own plans and give assignments, without having any idea when Ferrara would return. The assignments completed by the students for the substitute teacher were thrown in the waste basket when Ferrara returned because he found them ungraded. However, substitute teachers do not normally grade papers. During the school year the dean of students continued to receive numerous discipline referrals from respondent. The reasons for referral were generally minor, which indicated Ferrara did not have proper control of his classes. In contrast, his substitute teachers did not experience this type of problem when they substituted for Ferrara. Some of the referred students were those who had no other disciplinary problems with other teachers. On some occasions, entire groups were once again referred to the dean. In short, there was no improvement in respondent's classroom management from the prior year. At the same time, the guidance counselors continued to receive numerous requests from students to transfer out of his classes. At the end of school year 1982-83, the department chairman wrote Thornton a memorandum which listed by teacher the number of textbooks missing or not returned to the teacher. Ferrara had sixty-three textbooks missing, which was far in excess of other department staff. In addition, although he returned twenty-three of forty-eight new textbooks assigned to him at the beginning of the semester for one course, seventeen were so defaced with obscenities that they were unusable. Ferrara did not deny that he lost the textbooks, but stated that some books were smaller than normal classroom size, and could be easily carried out of class in a concealed fashion by a student. He feared that if he began searching students, he would suffer possible repercussions from doing so. Despite these losses, Ferrara refused assistance from the area director of secondary education in creating a system of inventory and control for textbooks. In his annual evaluation prepared on May 26, 1983, Ferrara was cited for deficiencies in the following areas: teaching techniques, classroom environment, teacher attitudes and professional standards and work habits. In addition, Thornton attached to the evaluation a typed sheet containing specific recommendations for improvement in each of the four areas. The sheet noted that Thornton was "willing to provide (Ferrara) whatever assistance necessary in each of the . . . cited areas." Thornton also noted that Ferrara has strength in the areas of knowledge and understanding of the subject matter, appearance, educational qualifications and in adherence to the defined duty day. Thornton and Ferrara held several meetings concerning the annual evaluation. Each deficiency was discussed, and Thornton made suggestions on how to improve in those areas. However, Ferrara was not receptive to these suggestions, and complained of unfair treatment in his course assignments. He also repeatedly discussed his lawsuit. He continued to maintain he was better suited to teach the eleventh grade even though he was certified to teach both the ninth and eleventh grades. Thornton advised Ferrara he was responsible to his students no matter what other problems he believed he had, and that he should work to improve his performance. School Year 1983-84 In school year 1983-84, Ferrara's teaching assignment did not change. In fact, unlike the prior two years, Ferrara did not request a change in his teaching assignment. He also did not request a transfer to another school although these were procedures for doing so. 1/ Ferrara's failure to control his classroom continued into the new school year. During the year the assistant principal (dean) in charge of discipline visited Ferrara's classroom at least ten to fifteen times after Ferrara requested his assistance in regaining control of the classroom. On his visits the dean found a "hostile" atmosphere, and verbal exchanges taking place between Ferrara and his students. He concluded that no learning could take place in this atmosphere. The dean noted that no other regular teacher or substitute had such classroom management problems. Ferrara's referrals to the dean represented a larger number than all other faculty members combined. The dean also observed Ferrara telling his students that he did not like teaching immature ninth graders. Similar observations were made by another JIL dean. Ferrara was counseled by the dean who told him that students felt Ferrara did not like them, and that his discipline techniques were unfair. Testimony by Ferrara's students confirmed that his teaching style did not change. He continued to call them names such as "stupid" and "immature" and told them he did not enjoy teaching ninth graders. His lawsuit was also a frequent subject of class discussion. The students also complained that Ferrara refused to open the windows on hot days when the air-conditioning was inoperative because of outside noise. The latter complaint was noteworthy since Thornton had previously given written instructions to Ferrara on September 16 and 26, 1983 concerning complaints about Ferrara keeping the room too hot. During the year, a parent requested that she and her daughter meet with Ferrara and a school counselor concerning a problem the daughter was having in Ferrara's class. At the conference, Ferrara dwelled primarily on his lawsuit against the school board and did not seem concerned with the real purpose of the conference. This prompted a complaint by the parent against Ferrara. Students continued to request transfers out of Ferrara's classroom at an increasing rate. Although two guidance counselors advised Ferrara of these complaints, they observed no change in his behavior. Based upon student and parent complaints about a high failure rate, Ferrara was instructed by Thornton in October, 1983 to furnish each student with a mid-marking report (progress reports) advising them they were not performing to expectations. This report would alert students and parents that a student was in danger of failing. Although such reports are required by school board policy, Ferrara frequently did not prepare these reports. In fact, he advised Thornton he felt they were unnecessary and would not prepare them unless Thornton allowed teachers to complete them during class time. There were thirty-six weeks during school year 1983-84. All teachers were required to prepare lesson plans for each of those weeks, and to turn them in prior to the beginning of each school week. The plans were then filed, and in the event a teacher was absent, the substitute teacher would use the plans and instruct the class without a break in continuity. Ferrara was absent for three weeks in the spring of 1984. However, he left no regular or emergency lesson plans for his substitute. During his absence, the substitute had no disciplinary problems. When he unexpectedly returned to class after this absence, the students booed him, and then, according to the substitute, the "entire class went out of control." Ferrara thereafter required his students to repeat the work previously done for the substitute. Ferrara continued to ignore repeated requests by the department chairman to make lesson plans available. These requests were in the form of memoranda to all department personnel on August 25, October 5, November 17 and December 7, 1983 and January 17, 1984. As of February, 1984 he had turned in only three weeks' plans for the preceding twenty-week period. The department chairman wrote him a memorandum on February 10 requesting that such plans be filed. Even so, in June, 1984 the department chairman reviewed the lesson plans filed by department staff for the prior year. She found that Ferrara had completed plans for only five of the thirty-six weeks during the just completed school year. Of those completed most were generally unsatisfactory. Ferrara did not deny this, but pointed to the fact that two or three other department teachers were also continually tardy in filing their plans. This was confirmed by the department chairman. Ferrara began to come to work late and leave early during the school year although he was warned several times to adhere to the defined duty days. He also had the second highest rate of textbook losses for the social studies department. Because of Ferrara's continuing performance problems, Thornton placed Ferrara on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure effective April 25, 1984. This procedure is designed to provide assistance to teachers having performance problems. Basically, it provides the teacher with an explanation of any deficiencies, assistance and guidance in the cited areas, and an "adequate" period of time in which to correct them. Its main purpose is to salvage an employee's career. In his letter, Thornton told Ferrara he was being placed on the NEAT procedure because of deficiencies in the following areas: inability to use acceptable teaching techniques; inability to maintain a positive classroom environment; inability to establish and maintain a professional and effective working relationship with parents, students and colleagues; and failure to submit proper records, including, but not limited to, progress reports and lesson plans, as required by the school center, the School Board and state law. Ferrara was given until October 16, 1984 to "fully correct these deficiencies." The two met in a conference May 4, 1984 to discuss the procedure and Ferrara's responsibility to correct the deficiencies by the established date. It was pointed out to Ferrara that he would be given time off to visit other personnel while seeking assistance, and that three individuals on the county staff were available for consultation on his noted deficiencies. Ferrara viewed the NEAT procedure as a "charade" and a way for the School Board to fire him. Although he admitted he resented being placed on NEAT, Ferrara stated he respected the system and did not intend to ignore it because he knew that to do so would give grounds to the Board to dismiss him. On May 30, 1984, Thornton prepared an annual evaluation reflecting the same deficiencies as were used to place Ferrara on the NEAT procedure. It also noted that Ferrara's areas of strength were his educational qualifications and his use of good oral and written language. Ferrara was given a copy of the evaluation and, although he disagreed with its contents, signed it on May 30, 1984. School Year 1984-85 On August 21, 1984, Ferrara met with Thornton and the assistant principal and discussed various types of assistance that were available to him which had not yet been provided. Ferrara told Thornton he was not interested in any assistance and walked out of Thornton's office. On October 22, 1984, Thornton advised Ferrara by letter that the following deficiencies required corrective action: continued failure to submit timely lesson plans; continued inability to establish positive rapport with staff, parents and students; continued failure to maintain a positive classroom atmosphere; and a continued deficiency in his teaching techniques. Ferrara was also told that there had been "some improvement in (his) performance," and that Thornton believed he was "making an effort to improve (his) performance, and because of this, the time for correcting his deficiencies under the NEAT procedure was being extended until the end of the school year. During the school year Ferrara's classroom management problems continued. For example, one guidance counselor observed that most of the students visiting her were students in Ferrara's classes. In fact, over half of the students she gave counseling to desired to transfer out of Ferrara's class and sought her assistance in doing so. The dean of students observed that some 35 percent to 40 percent of total disciplinary referrals by all teachers came from Ferrara, including six students at one time. This dean found most of the referrals unnecessary, and ones that could have been handled by Ferrara. In addition, she was called to Ferrara's classroom about four times each semester to calm down the class. It was established that the students deliberately "egged" Ferrara on, particularly when he made personal comments about them. Other credible testimony established that Ferrara's class was out of control on many occasions, and that this disruption affected the amount of learning that took place in the classroom. One dean suggested to Ferrara that he observe other teachers so that he might improve his classroom performance. In teacher-parent conferences, Ferrara preferred to discuss his personal problems with the school board administration rather than the problems that the student was experiencing. In other instances, Ferrara would not respond to requests by parents to contact them. On September 19, 1984, at Thornton's request, the area administrator, H. W. Berryman, visited Ferrara's classroom to observe and monitor Ferrara. This was the only teacher observation that Berryman had performed as an area administrator. On that particular day Ferrara needed some ten minutes to get the class started. Berryman noted that during Ferrara's lecture, only a few students were attentive, and that most were note-passing, carrying on conversations and creating mild disruptions which Ferrara failed to stop. However, Berryman complemented Ferrara on his knowledge of the subject matter and said his overall delivery was reasonably good. He suggested Ferrara take less time to "start-up the class, and to take steps to insure that his class was more attentive during the lecture. On October 4, 1984, Ferrara was observed by another administrator, Dr. Mona Jensen, for the purpose of assessing his teacher performance. This was also done at Thornton's request. Jensen is a consultant certified by the Florida Performance Measurement System (FPMS) and a trainer of other administrators in the use of FPMS. The FPMS utilizes a form for evaluating teacher performance by recording the types of effective and ineffective behaviors observed in four areas: management of student conduct, instructional organization, presentation of subject matter and communication skills. Dr. Jensen monitored Ferrara in these four areas and provided Thornton and Ferrara with a copy of her written report. Among other things, she observed a negative interaction between Ferrara and his students, and that there was a lack of positive reinforcement on the part of Ferrara. Some of his comments were caustic in nature, and he never smiled in class. Like Berryman, she observed students talking to one another and not participating in the activity. She recommended that improvements be made in all areas which her report addressed. On October 29, 1984, Ferrara was observed by Lois Biddix, who is also a FPMS certified state trainer. Biddix used the same type of form as did Jensen in evaluating Ferrara. On her visit, Biddix observed students talking to one another, and participating in activities unrelated to the lesson. She described the class as sedentary and lethargic, with students suffering from boredom and frustration. She attributed this to Ferrara's lack of enthusiasm and failure to introduce new content into the lesson. These observations were consistent with those made by Berryman and Jensen, and her recommendations for improvement were in the same areas as those of Jensen. Dr. Jensen returned to Ferrara's class for a second observation on January 31, 1985. While Ferrara spoke clearly and directly on that day, and had good communicative skills, Dr. Jensen found most students did not participate in the discussion. She also found a lack of positive reinforcement on the part of Ferrara. During the lecture, Ferrara demonstrated anger at a remark made by a student, and told the student that if she wanted a confrontation, he would gladly accept her challenge. Dr. Jensen's evaluation and notes were given to Ferrara after the visit. The recommendations for improvement were basically the same as those proposed by her in October, 1984. A number of Ferrara's 1984-85 students testified at final hearing. Their testimony painted a picture of continued class management problems. For example, it was confirmed that groups of students would collectively begin coughing at one time or squeaking their chairs in harmony to antagonize Ferrara or test his mettle. It was also confirmed that he continued to call freshmen "stupid" and "immature," that he told his students he hated teaching ninth graders and that the school administration was wrong in making him teach that level of students. He also discussed his pending lawsuit during class hours and referred to the school administration in a negative manner. On at least one occasion he discussed the qualifications or lack thereof of another department teacher. It was further pointed out that Ferrara refused to give credit for assignments given by his substitute teacher. There were complaints that Ferrara punished the students for talking by making them sit in a hot classroom without opening the windows or running the air-conditioning. There was also a "lot" of cheating during class even though Ferrara was present in the room. The general consensus of most students was that the class was boring, and that they did not learn a great deal in this type of environment. Ferrara was required to spend 7 1/2 hours each day on campus. 2/ During the year, he did not always arrive at school on a punctual basis or spend the required number of duty hours at school. On April 11, 1985, the department head wrote Thornton a memorandum criticizing Ferrara for his repeated tardiness, and leaving before 2:15 p.m. After Thornton notified Ferrara about this complaint, there was an improvement on his part. During the second semester of the school year, a guidance counselor, Elizabeth Konen, approached Ferrara and told him that the parents of one of his students desired a parent-teacher conference to discuss their child. Ferrara told Konen he did not have time to meet with parents. Konen found this to be the usual response of Ferrara whenever such a request was made. On another occasion, he wrote a note to Konen stating he had no time to meet with parents, but after Thornton intervened and ordered a conference, Ferrara attended. In December 1984, Thornton requested that Ferrara produce proof that he gave his students progress reports as required by Board policy. Ferrara could produce only two such reports, although he claimed four others had also been given reports. This was after Ferrara had been previously criticized on October 21, 1984 for the same deficiency. On January 8, 1985, Thornton again gave written notice to Ferrara that he give timely progress reports to all students who were failing or working below expectation. Even after this second warning, a student, S. Z., complained to Konen in February, 1985 that she had not been given a progress report by Ferrara. This was brought to Thornton's attention in a letter written by S. Z.'s mother. On March 25, 1985, Thornton wrote respondent a letter outlining his continued areas of "serious deficiencies," and his lack of improvement in those areas since being placed on the NEAT procedure. He was warned that unless there was "significant improvement," Thornton would have no choice except to recommend he be terminated. Ferrara was urged to implement the suggestions outlined in the letter, and was told that "any reasonable assistance" requested by him would be given. Despite receiving numerous criticisms for failing to turn in lesson plans, respondent did not turn in any lesson plans during the entire school year 1984-85. However, he did turn in a complete set of plans at the end of the year, but they did not indicate what part of the unified curriculum objectives had been met. On June 10, 1985, Ferrara was given his annual evaluation for the school year. It noted numerous continued deficiencies in three broad areas: classroom environment, teacher attitudes and professional standards and work habits. The only noted areas of strength were knowledge of the subject matter and use of proper grammar and written language. In his meeting with Thornton, Ferrara was told, among other things, that he should not make unprofessional remarks to his students, that he must adhere to defined duty days, that he must file lesson plans and progress reports on a timely basis, and his attitude with peers should improve. School Year 1985-86 Despite Ferrara's failure to correct all deficiencies by the end of school year 1984-85, Thornton made a decision to give Ferrara one last chance to rehabilitate himself under the NEAT procedure. On August 19, 1985 Thornton advised Ferrara by letter that the NEAT procedure was being extended until November 1, 1985 and that he must correct all deficiencies by that date. This gave, Ferrara a total of sixteen academic months under the remedial program. The letter also stated that if the deficiencies were not corrected by November 1, Thornton would make a recommendation to the Superintendent of Schools concerning Ferrara's employment status. Respondent had been criticized for giving an unusually high rate of failing grades to his students during prior years. It was established that his failure rate was substantially higher than for other teachers in school years 1981-82 and 1982-83. For example, his failure rates in 1981-82 and 1982-83 were 24 percent and 33 percent, respectively. In 1983-84, it was a little more in line (18 percent) with that of the other teachers to whom he was compared. After the first semester of school year 1985-86 had ended, Thornton reviewed Ferrara's grades and found the failure rate had been substantially reduced. Indeed, it was then slightly over 10 percent, thereby supporting Ferrara's contention that he had improved in this cited area of deficiency. On November 18, 1985, a thirty minute evaluation of Ferrara's class was conducted by Sandra Cowne, an assistant principal at JIL. Among other things, Cowne found that Ferrara still had no up-to-date lesson plan book. She noted that Ferrara was in need of improvement in four areas of performance. All other areas indicated satisfactory performance. On December 2, 1985, D:. Jensen visited Ferrara's classroom to monitor and evaluate his performance. The purpose of the visit was to determine if Ferrara had implemented the recommendations for improving instruction previously made after her earlier visits. Dr. Jensen asked to meet with Ferrara just prior to the hour of observation but he refused saying he didn't want to discuss anything. She then asked for his lesson plan and was given a plan that was too brief and had insufficient detail. During the actual observation, she found that Ferrara had not added any positive teaching behaviors to his technique although she had suggested this to him after her earlier observations. According to Dr. Jensen, Ferrara's main deficiency was that he failed to provide motivational or positive reinforcement to his students. She concluded that Ferrara was an ineffective teacher, ranking below average due to his lack of positive behaviors. A copy of her evaluation and notes was given to respondent. H. W. Berryman made a second visit to Ferrara's classroom on December 10, 1985 for a repeat evaluation. Berryman initially noted that Ferrara had heeded his prior advice from September, 1984, and had speeded up the start-up time for beginning his instruction. However, Berryman continued to be concerned with the lack of involvement by a large majority of the students in the classroom. Although he found that Ferrara had "in-depth content knowledge" of the subject matter, he concluded that Ferrara had "serious negative attitudinal problems in reacting to all of the students assigned to his classes." Several of Ferrara's students testified about their experiences in Ferrara's classroom during the first semester. They confirmed that respondent's teaching techniques had not changed from prior years. For example, it was established that the usual disruptions occurred during his class, such as students sleeping, passing notes, talking and generally being inattentive. Ferrara again called his freshmen students "immature" and "childish," and told them that he had been demoted to the freshman class because the school board could not fire him. It was pointed out that once he told the students that they were immature, Ferrara would lose control over the class. There were continuing complaints that the classroom was too hot, and that Ferrara told the students if they were unhappy about the room temperature to complain to the administration. On one occasion, he refused to move his classroom to an adjacent empty room even though a student had vomited on the floor and the stench remained after the area was cleaned. It was also established that Ferrara continued to talk in class about his pending lawsuit and the problems he was having with the school administration. During the first semester, Ferrara continued to send large numbers of students to the dean for minor infractions. He also sent as many as six at a time. Ferrara was now disciplining his students before referral by making them write repetitious sentences. However, this is considered to be an inappropriate form of discipline. This form of discipline prompted complaints from both students and parents to the administration. It was confirmed through testimony of an assistant principal that respondent's classroom control had not improved over a three- year period. This observation was concurred in by various guidance counselors who received visits from Ferrara's students. During the first semester of the school year, there was no improvement in respondent's professional relationship with his peers. He refused to speak to most colleagues, and openly expressed his disdain for the department chairman. When respondent was in the department workroom, the atmosphere was hostile and uncomfortable. Similarly, like in other years Ferrara did not attend open house. He also failed to provide adequate lesson plans as previously ordered on a number of occasions. At the end of the first semester, Thornton concluded that sixteen academic months was a sufficient time to allow Ferrara to correct his deficiencies. Finding that respondent was "damaging" his students, that no improvement in Ferrara's performance or attitude had occurred, that he was making no contribution to the school program, and that he was still besieged with student and parent complaints, Thornton concluded that disciplinary action was justified. Thornton did acknowledge that Ferrara had improved in the areas of adhering to duty hours, issuing progress reports, taking roll call and reducing the number of failures. Even so, he concluded that this was insufficient to satisfy his overall teaching performance deficiencies. Moreover, he found that Ferrara's effectiveness as a teacher had been impaired. Thornton accordingly recommended that Ferrara be terminated. Ferrara's suspension without pay became effective on February 19, 1986 and he has remained in that status since that time. Respondent's Case Ferrara traced all of his problems to what he perceived to be an uncalled for demotion to the ninth grade classroom in school year 1981-82. He felt it to be unjust, and an action which ignored the seniority he had attained over the years. He acknowledged that once the reassignment occurred he became demoralized and bitter and was never the same teacher again. Ferrara did not deny that he called students names. He also conceded that he had problems maintaining classroom discipline, but suggested he was being paid to teach, not to discipline. Ferrara further admitted he yelled at students, and sent a great many to the dean's office, but blamed much of this on a small group of students who always instigated trouble in his classroom. Ferrara asserted his classroom discipline would actually improve at times during this period, but that each time Thornton sent a note criticizing him, he became demoralized and would again lapse into his prior ways. Although Ferrara considered the NEAT procedure a means by which petitioner could fire him, he contended he attempted to correct his deficiencies. However, it was Ferrara's contention that only through reassignment to the eleventh grade could he actually improve and correct his deficiencies. He believes Thornton to be biased since Thornton is a defendant in Ferrara's lawsuit. However, independent administrators confirmed that the deficiencies cited in Thornton's memoranda were real, and that Ferrara had made no visible effort to correct most of them. Moreover, contrary to his assertions, Ferrara was accorded adequate notice, sufficient means and ample time to correct his cited deficiencies. In this regard, the School Board satisfied all regulations pertaining to the rehabilitation and dismissal of an employee. Ferrara also pointed out that Thornton prepared a special file called the "Larry Ferrara Drawer" in November, 1982 so that Ferrara's actions and performance could be documented. However, Ferrara's teaching performance was in issue by this time, and Thornton was simply conforming with various state, local and union requirements that potential disciplinary action have a well-defined paper trail. Ferrara did not deny he missed all graduations and open houses from 1981 through 1985. He justified his absence from graduation ceremonies on the ground they were too "sentimental," and stated he was always ill whenever open houses were scheduled. Ferrara denied that students were punished by keeping the room hot. He blamed the heat on an often inoperative and inadequate window air- conditioning unit in his classroom, and windows that were difficult to open. This was denied by the school maintenance chief. Various students corroborated Ferrara's claim that the air-conditioner did not always work, but it is found that Ferrara sometimes punished his students in this manner. Ferrara attempted to repudiate the testimony of former students who testified for petitioner at final hearing by offering favorable testimony of other former students. However, the latter testimony either pertained to time periods too remote to be relevant to this proceeding, or was discredited by more persuasive and credible testimony from petitioner's witnesses. Ferrara contended he prepared all required lesson plans but waited until the end of the school year to turn them in. However, even it this were true, this was contrary to school policy since such plans were required to be turned in the week before they were to be used. Ferrara suggested that most of his difficulties were caused by his creating "waves" at JIL. As noted above, he believed Thornton and the administration were biased against him because he had sued them, and because he had publicly criticized various school policies and individuals in the news media. But it was never established that such animosity existed, or if it did, that it played a role in the dismissal process. Finally, Ferrara professed a sincere desire to continue in the teaching profession, albeit at a more mature grade level. He does not wish to be terminated after a twenty-one year career. He desires to be reinstated at JIL and allowed to teach the eleventh grade as he did during the years 1970- 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of incompetency (inefficiency), misconduct in office, gross insubordination and willful neglect of duties as set forth in the Conclusions of Law, and that he be dismissed as-an employee of the Palm Beach County School Board. DONE and 0RDERED this 11th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1986.
The Issue Whether the Petitioner's application for a temporary Florida's Educator's Certificate should be granted or denied for the reasons set forth in the Amended Notice of Reasons filed March 8, 2007.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:3 The Commissioner is the state agent responsible for investigating and prosecuting complaints against teachers. See § 1012.796(6), Fla. Stat. (2007).4 The Education Practices Commission is the state agency responsible for imposing discipline on teachers, including the denial of an application for an educator's certificate. See § 1012.796(7)(a), Fla. Stat. Ms. Grant was employed as a teacher by the Miami-Dade County School Board during the 2000-2001 and 2001-2002 school years. Ms. Grant did not teach in the Miami-Dade County public school system subsequent to October 25, 2001. Ms. Grant held a temporary teaching certificate under which she taught at all times material to this proceeding. Ms. Grant is currently not employed but is taking college courses. Ms. Grant's first year as a teacher was the 2000-2001 school year, and she taught in the Miami-Dade County school system at Shenandoah Middle School. Ms. Grant has a degree in mathematics, but she did not have a degree in education and had no teaching experience when she began teaching at Shenandoah Middle School. Ms. Grant's first year as a teacher was very difficult and stressful for her. Nonetheless, she received a satisfactory evaluation for the 2000-2001 school year. Ms. Grant returned to Shenandoah Middle School for the 2001-2002 school year and taught mathematics to sixth graders. On October 24, 2001, Ms. Grant was taking her class back to her classroom from lunch when several students in the line began to misbehave and engage in "horseplay." One student was tripping, kicking, and/or stepping on the feet of another student, and Ms. Grant told the student several times to stop playing around. The student continued to trip, kick, and/or step on the feet of the other student, who was getting angry. Ms. Grant saw that the two students were about to get into an altercation and that other students in the line were becoming agitated and were pushing one another. Ms. Grant decided that she needed to intervene to calm the class down and to prevent harm to the students, and she briefly grabbed either the arm or the shirt of the student who was tripping, kicking or stepping on the feet of the other student to restrain him from engaging in disruptive behavior. Another incident involving Ms. Grant occurred at Shenandoah Middle School on the morning of October 25, 2001. There was a disturbance at the school and the principal, Lourdes Delgado, made an announcement requesting that the teachers keep all students inside their classrooms. Ms. Delgado sent the school's assistant principals to patrol the hallways and make sure all of the students were in classrooms. Mariana Gonzalez, an assistant principal at Shenandoah Middle School, was on her way to the second floor of the building when she noticed several children standing in the hallway outside Ms. Grant's classroom. Ms. Gonzalez approached the children and asked why they were in the hallway. The children responded that Ms. Grant had told them to stay outside the classroom door. The door to Ms. Grant's classroom was closed. Ms. Gonzalez knocked on the door and asked Ms. Grant to take the children inside. Ms. Grant refused because they had been a minute late to class. Ms. Gonzalez again asked Ms. Grant to take the children into the classroom, explaining that the halls had to be cleared and that she had to go upstairs and could not stay with the children. Ms. Grant again refused to allow the children inside the classroom because they had been late to class. Ms. Grant told Ms. Gonzalez that she should take the children with her. Ms. Gonzalez could not take the children, and she told them to go inside Ms. Grant's classroom and wait for her. Ms. Gonzalez observed that Ms. Grant was angry, and she told Ms. Grant that she would be back to deal with the situation. Ms. Gonzalez closed the door to Ms. Grant's classroom and left to go to the second floor. When Ms. Gonzalez returned from the second floor, she went to the office and told Ms. Delgado about the problem she had had with Ms. Grant. Ms. Gonzalez and Ms. Delgado were on their way to Ms. Grant's classroom when they saw Ms. Grant walking down the hall leading out of the building to the east parking lot of the school. Ms. Grant did not address Ms. Gonzalez or Ms. Delgado, she just stated in a loud voice that she was "tired of this" and that she was leaving. Robert Perez, a teacher at Shenandoah Middle School, encountered Ms. Grant in the school parking lot. Ms. Grant was standing in the parking lot, visibly upset. Mr. Perez noticed that a vehicle was blocking Ms. Grant's car so she could not leave the parking lot, and Ms. Grant loudly asked Mr. Perez: "Is this your fucking damn truck?" Mr. Perez responded that it was not his truck and walked away as Ms. Grant continued to speak. Ms. Grant left the parking lot and went to the main lobby of the school's attendance office. Dr. Edward Robinson, an assistant principal at Shenandoah Middle School, was conducting a parent conference in his office, which was adjacent to the main lobby of the attendance office. He heard a commotion, and, when he went out into the office lobby to investigate the source of the commotion, Ms. Grant demanded that he make an announcement over the public address system that the vehicle blocking her car in the parking lot needed to be moved. Dr. Robinson told Ms. Grant he needed Ms. Delgado's permission to make such an announcement because it was during the instructional part of the school day. Ms. Grant insisted that he immediately get permission to make the announcement. When Dr. Robinson asked Ms. Grant to be patient, she called him an "Uncle Tom," which he found extremely offensive. At this point, Dr. Robinson asked Ms. Grant to move into a private office. She refused. She remained in the main lobby of the attendance office, demanding that someone make an announcement about the vehicle blocking her car, stating that she wanted to "get out of here." Ms. Grant also stated, while standing in the main lobby of the attendance office, that she was tired of the "motherfucking" school, and she also used the word "fuck" several times during her outburst, although never directed at Dr. Robinson or any individual. Ms. Grant's use of profanity in the office area was overheard in part by at least one teacher, and several school employees came out of their offices to investigate the source of the commotion. Ms. Grant's voice was loud enough to be heard throughout the office area, in which there were parents and students.5 Dr. Robinson eventually found the person whose car was blocking Ms. Grant's, the vehicle was moved, and Ms. Grant left the school. Ms. Grant left Shenandoah Middle School on October 25, 2001, without permission, and she left her classroom unattended. It was necessary to obtain an emergency substitute teacher, and Ms. Gonzalez supervised the students in Ms. Grant's classroom until a substitute was available. If a teacher is not able to attend school on a particular day, school policy requires that he or she call in as early as possible to report their absence so that the school can obtain a substitute teacher to cover the absent teacher's classroom. Ms. Grant did not show up at school on October 26, 2001, and she did not telephone the school to report that she would not be coming in. Ms. Grant did not show up at school on October 27, 2001, but she telephoned at around 11:00 a.m. to request six days' sick leave. It was necessary for the school to obtain emergency coverage of Ms. Grant's classroom. Ms. Grant did not return to the Shenandoah Middle School campus after October 25, 2001, except to collect her personal belongings from her classroom. A Preliminary Personnel Investigation was completed on December 19, 2001, regarding the incident that allegedly took place on October 24, 2001, during which Ms. Grant was accused of having grabbed a student's shirt and having pushed him into a wall. The investigator took the statements of witnesses and of Ms. Grant and concluded that the charges that Ms. Grant inflicted corporal punishment on a student in violation of Miami-Dade County School Board Rules 6Gx13-5D-1.07 and 6Gx13-4A- 1.21 were substantiated. A Preliminary Personnel Investigation was completed on January 14, 2002, regarding the incident that took place on October 25, 2001. The investigator took statements from witnesses and concluded that the charges that Ms. Grant left her classroom unattended and used profanity in front of Dr. Robinson and Mr. Perez in violation of Miami-Dade County School Board Rule 6Gx13-4A-1.21 were substantiated. On February 7, 2002, Ms. Delgado recommended to the Miami-Dade County School Board's Regional Superintendent that Ms. Grant's employment with the Miami-Dade County School Board be terminated. Ms. Delgado had no personal knowledge of the October 24, 2001, incident and had very little personal knowledge about Ms. Grant's behavior on October 25, 2001. Consequently, Ms. Delgado based her termination recommendation on the information contained in the two Preliminary Personnel Investigation reports and the conclusions of the investigators that the charges against Ms. Grant were substantiated. At its meeting on June 19, 2002, the Miami-Dade County School Board took action to suspend Ms. Grant and initiate dismissal proceedings against her. Ms. Grant did not request a hearing, and the dismissal became final. In Dr. Robinson's opinion, Ms. Grant's actions on October 25, 2001, were the result of a number of stress factors that had accumulated throughout her time at Shenandoah Middle School. During both the 2000-2001 and the 2001-2002 school years, Ms. Grant asked Dr. Robinson and others for assistance on a number of occasions, but she felt that she was not given the assistance that she needed by other teachers and by administrators in learning techniques of classroom management and in dealing with the problems she had communicating with students' parents.6 Although Dr. Robinson tried to help Ms. Grant deal with classroom management and with irate parents, he was not the administrator responsible for the sixth grade and so was unable to spend a lot of time working with her. During the year and a half that Ms. Grant taught at Shenandoah Middle School prior to October 25, 2001, neither Dr. Robinson nor Ms. Gonzalez, both assistant principals, observed Ms. Grant behaving in an unprofessional or inappropriate manner, nor had they heard any complaints of Ms. Grant's acting in an unprofessional or inappropriate manner towards students, fellow teachers, or parents. Ms. Grant taught at a Broward County high school during the 2004-2005 school year, beginning shortly before Christmas break and continuing for the remainder of the school year. She then moved to Palm Beach County and taught at Atlantic Community High School during the 2005-2006 school year. She received an overall "Satisfactory" evaluation for the 2005- 2006 school year, and was found "acceptable" in all evaluation categories. During the 2005-2006 school year, Ms. Grant acted as a mentor to a new teacher at Atlantic Community High School and provided a great deal of assistance to this teacher, even after she left the school on maternity leave. During the year she taught in the classroom next to Ms. Grant's, the new teacher did not hear any complaints about Ms. Grant from either students or teachers, and she never saw Ms. Grant behave in an unprofessional or disrespectful manner toward students, teachers, or administrators. Findings of Ultimate Facts7 The Commissioner failed to introduce any credible evidence to support the allegations in the Amended Notice of Reasons that Ms. Grant improperly disciplined a student by grabbing his shirt and pushing him into a wall, causing him to sustain minor injuries, and with having directed profanity at the student. The only evidence the Commissioner presented was the Preliminary Personnel Investigative report completed December 19, 2001, and the testimony of Ms. Delgado. The victim and witness statements, the statement summaries, and the conclusions of the investigator contained in the Preliminary Personnel Investigation report are hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. Ms. Delgado had no personal knowledge of the incident and relied for her recommendation of termination exclusively on the information contained in the Preliminary Personnel Investigation report and the conclusion that the charges were substantiated. The only direct evidence of this incident was presented by Ms. Grant, and this evidence establishes that Ms. Grant briefly restrained the student in order to prevent him from harming or causing harm to other students. The evidence presented by the Commissioner is not sufficient to establish that Ms. Grant lacks good moral character. Ms. Grant's behavior in using profanity in front of Mr. Perez in the parking lot and in the lobby of the attendance office on October 25, 2001, was unprofessional and unacceptable, no matter how stressful she found her teaching job at Shenandoah Middle School and no matter how upset Ms. Grant was at Ms. Gonzalez's placing the three tardy students inside her classroom. Ample evidence was presented, however, to establish that Ms. Grant had not previously exhibited any unprofessional behavior while teaching at Shenandoah Middle School; that Ms. Grant has taught successfully in both the Broward County and Palm Beach County public school systems subsequent to the events at issue herein; and that Ms. Grant is looked upon as a mentor by at least one beginning teacher. Ms. Grant's behavior at Shenandoah Middle School on October 25, 2001, was an isolated incident and does not constitute a sufficient basis on which to find that she lacks good moral character. The totality of the evidence presented is sufficient to establish that, under the circumstances presented in this case, Ms. Grant possesses good moral character. The Commissioner failed to present sufficient evidence to establish that the acts committed by Ms. Grant on October 25, 2001, constitute acts of gross immorality or of moral turpitude. Ms. Grant's behavior, while unprofessional and unacceptable in a school setting, was not so flagrantly inconsistent with the public conscience and moral standards as to be grossly immoral and did not exhibit the vileness, baseness or depravity required for acts of moral turpitude. The Commissioner failed to present any evidence to establish that Ms. Grant's conduct on October 25, 2001, would reduce her current or future effectiveness as a school board employee. The evidence does establish that Ms. Grant has been an effective employee of the Palm Beach County School Board, having received a satisfactory evaluation for the 2005-2006 school year. The evidence presented by the Commissioner is not sufficient to establish that, by briefly restraining an unruly student on October 24, 2001, Ms. Grant exposed any student to unnecessary embarrassment or disparagement. Nor is the evidence presented by the Commissioner sufficient to establish that Ms. Grant engaged in harassment of or discriminatory conduct toward a colleague when she called Dr. Robinson an "Uncle Tom" and used profanity in front of Mr. Perez in the parking lot and in front of Dr. Robinson and other staff members in the lobby of the attendance office. Ms. Grant did not direct profanity at any individual, and her insistence that the car blocking her car in the parking lot be moved did not rise to the level of harassment. Although Dr. Robinson was deeply offended by Ms. Grant's calling him an "Uncle Tom," the Commissioner failed to present any evidence that Dr. Robinson considered this remark discriminatory. The evidence presented by the Commissioner is sufficient to establish that, by abandoning the students in her classroom on October 25, 2001, Ms. Grant failed to make reasonable efforts to protect her students' safety. The Commissioner also presented sufficient evidence, through the testimony of Ms. Delgado, to establish that Ms. Grant failed to report to work at Shenandoah Middle School on October 26 and 27, 2001, and was late calling in on October 27, 2001, and that her failure to report to work or call the school timely violated the school's procedures. Although this conduct may have provided a basis on which Ms. Grant's employment with the Miami-Dade County School Board was terminated, this conduct does not constitute a violation which would allow the revocation of a teacher's certificate. Finally, it is undisputed that Ms. Grant's employment with the Miami-Dade County School Board was terminated in or about June 19, 2002.8 Ms. Grant's termination does not, however, constitute a violation for which a teacher's certificate may be revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission should enter a final order granting the application of Anitra Grant for a temporary educator's certificate and placing her on probation for a period of two years under such terms and conditions as the Education Practices Commission deems appropriate. DONE AND ENTERED this 30th day of August, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 30th day of August, 2007.
