The Issue Whether Respondent violated section 1012.795(1)(d) or (1)(f), Florida Statutes (2019), and, if so, what penalty should be imposed.1 1 Unless otherwise noted, all references to the Florida Statutes herein are to the 2019 version, which was in effect when the actions alleged in the Administrative Complaint took place.
Findings Of Fact Petitioner is the chief educational officer of the state, who recommends members for appointment to the Education Practices Commission—the statewide commission with the authority to discipline Florida educators. See §§ 1001.10(1), 1012.79(1), and 1012.795(1), Fla. Stat. (2021). Respondent, Calvin Chin, holds State of Florida Educator’s Certificate 737639, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2026. Respondent has served as an educator for 27 years, primarily with the Marion County School District (“District”). He was first employed by the District as a math teacher at Dunnellon High School (“Dunnellon”) in 1994, where he continued for 12 years. Respondent was promoted to dean of students at Dunnellon in 2002 and served in that capacity through 2012. During that time-frame, Respondent was also a part-time math instructor at a local community college. Respondent served as dean of students for College Park Elementary School from 2012 through 2016, when he returned to Dunnellon to continue teaching math for college readiness and dual enrollment math for students enrolled for college-level credit math instruction. Respondent also had a 19-year career with the U.S. Marine Corps. He originally enlisted in 1978 after graduating from high school, then joined the Marine Reserves while he pursued his college education. Respondent graduated from the University of Florida in 1983 and became a commissioned officer through the Reserve Officer Training Corps (“ROTC”) program in December of that year. Respondent served in the Marine Corps through 1994. In 1996, Respondent established the Young Marines at Dunnellon, a program similar to ROTC that teaches discipline and military structure to youth. Respondent is passionate about teaching and shaping the lives of young people. Respondent has never had any disciplinary action taken against his license or against him by either the District or any school at which he has taught. Relationship with Joanne Mandic Respondent and Joanne Mandic are not married, but have been in a relationship for 19 years. Respondent and Ms. Mandic have lived together as a couple for over 18 years. The couple has one child together, C.C., who lives with her parents. C.C. was 13 years old and home-schooled by Ms. Mandic at all times relevant hereto. Ms. Mandic has another child, Nyasha Mandic-Mandaza, from a prior relationship. Ms. Mandic-Mandaza was 22 years old at all times relevant hereto. She does not live with her mother and Respondent; however, on the date of the incident, Ms. Mandic-Mandaza was staying at their home. October 25, 2019, Incident On Friday, October 25, 2019, Respondent came home from Dunnellon and prepared himself an alcoholic drink. At some point during the evening, he asked Ms. Mandic what she was preparing for dinner and she responded that she was too tired to cook. Respondent became upset that Ms. Mandic was not preparing dinner. By this time, Respondent had consumed several alcoholic drinks, and he and Ms. Mandic got into a verbal altercation about dinner. During the verbal altercation, Respondent came out of his bedroom holding his handgun. He said to Ms. Mandic, “Don’t piss me off. I am a Marine and I know how to shoot,” or similar words. Respondent “racked” the gun, which made a distinctive sound audible to Ms. Mandic. Afterward, Respondent returned to his bedroom. Ms. Mandic is familiar with the gun and familiar with Respondent’s habit of storing the gun and ammunition separately. According to Ms. Mandic, the gun was unloaded when Respondent brought it out of the bedroom. Ms. Mandic testified that she knew the gun was unloaded and that she was not in fear of Respondent. Ms. Mandic testified that this incident was not indicative of her relationship with Respondent and that he has never been violent toward either her or the children. She further testified that there has been no similar incident since that date. C.C. was home in her bedroom and heard, but did not see, the altercation between her parents. No evidence was introduced regarding C.C.’s reaction to the incident or its effect on her. Ms. Mandic-Mandaza both heard and saw the altercation between Respondent and her mother. Ms. Mandic-Mandaza had come to the house after work and was preparing to leave for the evening, when she stepped into the hallway in response to the verbal altercation. She saw Respondent walking down the hallway with his handgun. Ms. Mandic-Mandaza was in fear as Respondent appeared to be approaching her in the hallway; however, Respondent passed by her and moved towards her mother, who was in the kitchen. Ms. Mandic-Mandaza retreated to a bedroom where she called the police to report the incident, then left the house shortly thereafter. Respondent’s Arrest In response to the 911 call, Marion County Deputy Sheriffs Joseph Diaz and Christopher White, as well as Sergeant Moore, were dispatched to the Chin home. Both Respondent and Ms. Mandic were interviewed by the officers. During his interview with the officers, Respondent was forthcoming about his actions. He demonstrated to the officers how he held and racked the gun, and repeated the statements he made as he held the gun. Ms. Mandic downplayed the incident when she was interviewed, describing Respondent’s actions as simply “showing us his handgun.” Deputy White also contacted Ms. Mandic-Mandaza via telephone and interviewed her, as well as meeting with her to take her statement. She was reticent to discuss the incident with Deputy White and expressed that she did not want to get Respondent in trouble. Respondent was arrested for Aggravated Assault with a Deadly Weapon Without the Intent to Kill and Possession of a Firearm During the Commission of a Felony, and was incarcerated from October 25 to November 2, 2019. On November 21, 2019, the State Attorney for the Fifth Judicial Circuit filed an “Announcement of No Information” on the allegation of Use of a Firearm During the Commission of a Felony and charged Respondent solely with Aggravated Assault with a Deadly Weapon (without Intent to Kill). On March 11, 2020, Respondent plead nolo contendere to the lesser charge of Improper Exhibition of a Firearm, which is a misdemeanor defined in section 790.10, Florida Statutes, and adjudication was withheld. Respondent received credit for eight days served, was placed on a year of probation, assessed court and prosecution costs of $350, and was required to submit to random alcohol screens at least two times per month during probation. Subsequent Events Following his incarceration, Respondent voluntarily participated in mental health counseling and alcohol evaluation. Respondent testified that he “talked about drinking” with the counselor. Respondent further testified that, since the incident, he has “not been drunk like that.” The District placed Respondent on administrative leave with pay through December 2020. Respondent was placed on administrative leave without pay in December 2020, but returned to teach at Dunnellon in March 2021 just before spring break. Following spring break, due to the COVID-19 pandemic, the school moved classes to an online format and Respondent continued teaching in that format throughout the remainder of the 2020-2021 school year. Respondent remains employed by the District and is currently teaching at Dunnellon. Neither Dunnellon nor the District imposed any disciplinary action against Respondent due to the incident and his subsequent arrest. Respondent testified that neither any student nor any fellow teacher has questioned him or made any remark about the incident or his arrest. Petitioner introduced no evidence of any press coverage or community concern regarding the incident. Character Witnesses Stephen Ayers is the director of student assignment and school choice for the District. Mr. Ayers has worked in various educational capacities with the District for 27 years, including as a math teacher, dean, assistant principal, principal, and coordinator for the District. Mr. Ayers met Respondent in 1994 when they were both pursuing their graduate degrees. Mr. Ayers later worked at Dunnellon as assistant principal, then principal, while Respondent served as dean of students. In those capacities, Mr. Ayers was Respondent’s supervisor at Dunnellon. Mr. Ayers described Respondent as “an exemplary dean” and “a mentor with … youngsters.” Mr. Ayers was aware of Respondent’s October 25, 2019 arrest and “the basis and reason for that arrest.” Mr. Ayers testified that he has no doubt Respondent can continue to perform his duties effectively and does not consider Respondent’s effectiveness in the community to be diminished by that arrest. Bobby James retired from the District in 2018 after serving the District for 47 years as a teacher, coach, principal, school board member, and school board chairman for three terms. Mr. James was the principal at Dunnellon in 1994 and hired Respondent as a math teacher. Mr. James remained principal for 12 years and moved Respondent into the dean of student’s position. Mr. James initiated the Young Marines program at Dunnellon and chose Respondent as the first instructor in the program. After leaving Dunnellon for a position with the school board, Dunnellon remained a school in which Mr. James, as a school board member, exercised oversight authority. Mr. James frequently visited Dunnellon and met Respondent and administrative leaders there. Mr. James described Respondent’s performance as an educator and leader of young people as “exceptional,” especially in working with youth who have difficult life challenges. Mr. James was familiar with Respondent’s arrest and “had heard” that a firearm was involved in the October 25, 2019 incident. He was not aware of the specific statements alleged to have been made by Respondent to Ms. Mandic. During cross-examination, Mr. James admitted that, if Respondent had said, “Don’t piss me off, I have a gun and I know how to use it,” that would not be appropriate conduct for an educator, or for that matter, “for any person.” However, Mr. James testified that, given his 25 years of experience with Respondent in service to the District, even knowing the specifics of the incident, he believes Respondent can remain an effective educator. Mr. James testified that Respondent’s character with students and District employees is proven, and indicated that, if he were in a position to do so, Mr. James would rehire Respondent. Ryan Malloy met Respondent through the Young Marines program in middle school when Respondent was the commanding officer of the program (for both high school and middle school). Mr. Malloy left the Young Marines program before high school but has maintained a mentoring relationship with Respondent through his recent graduation from the University of Florida. Respondent taught Mr. Malloy the game of golf and the two play golf regularly. Mr. Malloy testified that Respondent has served as a constant mentor in his life; that when he is really struggling with something, he talks to Respondent. He related that Respondent encourages him to consider both sides of a situation and avoid quick judgments. Mr. Malloy was generally familiar with Respondent’s arrest and the circumstances surrounding the arrest. Mr. Malloy testified that Respondent’s effectiveness as a mentor has not been diminished by the incident. He testified that Respondent has helped him acknowledge his own mistakes and learn from them. Mr. Malloy stated that Respondent taught Mr. Malloy that true character is built by taking ownership of one’s mistakes and using them for self-improvement. Mr. Malloy believes that is an important trait for all teachers to be effective role models. Linda Malloy, Mr. Malloy’s mother, retired from the District in May 2019, was a fellow teacher with Respondent at Dunnellon for 24 years, and second in command of the Young Marines with Respondent for 10 years. She described Respondent as strict, honest, and fair. She admired his ability to reach students through Young Marines and help them turn their lives around when they were headed “down the wrong path.” Ms. Malloy was familiar with Respondent’s arrest and the fact that a gun was involved in the October 25, 2019 incident. Ms. Malloy testified that Respondent can remain an effective educator because she “believe[s] in his core values.” She trusted him with her own child and still would to this day. Ms. Malloy has not heard anyone in the education community suggest that Respondent should not continue to teach. Sharon Lambert has taught at Dunnellon for 22 years and currently teaches business technology and serves as the teachers’ union representative. Respondent was in charge of the Young Marines when Ms. Lambert began teaching at Dunnellon. Her impressions of Respondent as an educator are that he cares about his students, wants to help them succeed, and “would do anything to help them learn what he’s supposed to teach.” Ms. Lambert was familiar with Respondent’s arrest. She testified that the incident has not had any negative affect on his ability to teach his students. To her knowledge, since Respondent returned to the classroom, there has been “no talk amongst the students or the teachers” concerning the incident or Respondent’s ability to teach. Respondent also introduced a letter from Jay Easom, who served as president of the Dunnellon School Advisory Council (“SAC”) from 2007-2010 and is familiar with Respondent in that capacity, as well personal conversations with him. The letter relates as follows: I am writing on behalf of “Captain Chin.” I am acquainted with him for more than ten (10) years. I’ve had the opportunity to know him in his capacity of leadership at our local high school as well as our personal conversations detailing his desire to be responsible to his family. He always plans well and stands firmly in his commitment to reach his personal goals for the benefit of his family. I can’t tell you how surprised I was when [Respondent] shared with me the events of October 25, 2019 that resulted in him being charged. I instantly detected his regret and disappointment. The idea of [Respondent] bringing harm to anyone escapes my consideration especially in the handling of a firearm. My children attended and graduated from [Dunnellon]. I know [Respondent] in this period during my participation as president of the [SAC] from 2007-10. I learned more about [Respondent] when as a part of our meetings, he introduced proud young men and women to share their outlook for the future that had joined Young Marines. He provided a path of personal development for them and I am sure that his peers will tell you that his hard work, dedication, and friends in the community supported the program because of his commitment. I expect that [Respondent] has a plan to be sure that there will never again be such an event in his life as this. I hope that you may have the opportunity to give him further consideration as his employer, students, peers, and friends have over a very difficult year and a half. Thank you. Respondent also introduced the following letter from Jeffery Daniel Ratliff: To whom it may concern, Captain Calvin Chin has been, and still is, one of my largest influences throughout my life. I still remember the very first time I met him, and that was over 20 years ago. It was my first day in a new school, an entirely new state, at [Dunnellon]. While waiting with my parents in the front office to get registered for classes, in walks this Marine wearing freshly starched cammies with flickering silver and gold on his uniform, and it was at that moment that I decided to become a Marine. Over my high school career Captain Chin shaped and guided me in a way that only a true leader can. When my temper or overzealousness got the best of me, he did not hesitate to punish me but always ensured that a lesson was learned. When I was unable to understand the mathematic teachings of Mr. Gaitanis’ overeducated ramblings, Captain Chin would break it down simply for me and insist that I already knew how to do it. And he was right! When I left for Marine Corps bootcamp, he gave me some last-minute advice, but insisted that I would do fine … as long as I didn’t ask too many questions. He was right about that too. When I got back from Iraq and needed another Marine to vent to about what I saw, he was there for me. He wasn’t judgmental at all. After the Young Marines program was removed from the high school, he chose to keep it active and open it up for all ages from 8 to eighteen. He even encouraged me to come volunteer after I had gotten out of the Marines. I did not have the patience or understanding to deal with such young children at the time, but Captain Chin did. Even though I have two loving parents who are still together, and love me very much, I still refer to Captain Chin as my Adopted Asian Dad. I have seen this man motivate, influence and inspire so many young minds over the years that I lose count. As Dean at the high school, the kids who he had to punish still respected him and find him years later to tell him that they are doing so much better now, because he showed them respect first. It is impossible to fit everything that Captain Chin has done to help me, influence me on one page. Just know that this is one of the most selfless human beings I have ever met, that has committed his entire life to serving and helping others, and will continue to do so until he is no longer physically able. Respondent also introduced his final evaluation from the District for the 2020-2021 school year on which he received the rating of “Effective” on all four instructional practice domains in which he was assessed. Respondent became emotional during his testimony at the final hearing. Petitioner introduced, and played for the undersigned, body-camera footage from the responding officers on October 25, 2019. Respondent was ashamed and remorseful of his behavior on the night of the incident. Respondent was dismayed by his own behavior and it obviously pained him to watch the video footage.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(f), but, based on the Findings of Fact herein, including substantial factors in mitigation, take no action against Respondent’s certificate. DONE AND ENTERED this 29th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
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
Findings Of Fact William Haynes Gandy, for 17 years a school teacher and coach, began his most recent stretch of employment with the Santa Rosa County School Board in the fall of 1978 at Jay High School. He coached football and taught girls' physical education and math courses during the 1978-1979 school year, even though he held a teacher's certificate in physical education only, at all pertinent times. Coaching assignments entail a certain amount of prestige and entitle their recipients to a salary supplement. In Santa Rosa County, school principals make coaching assignments in their unfettered discretion. LETTER NO FACTOR On July 1, 1979, Mary Cecelia Diamond Findley, assistant principal of Jay High School during the preceding school year, became principal. During Dr. Findley's first year as principal, Mr. Gandy taught math and science courses. In the fall of the year, a student asked petitioner to write a letter on her behalf, because she had been accused of a burglary. Dr. Findley's son had also been charged with this crime. On November 30, 1979, Mr. Gandy addressed the following letter "To Whom it May Concern" and gave it to the student's parents: I, W. H. Gandy, being employed by Santa Rosa County School Board as an in- structor at Jay High School do hereby give the following statement in behalf of Karen Cooley. I have known this student for several years. She was in my class last year and was an excellent student. I found her to be very cooperative, initiative [sic] and enthusiastic young student. Her capabilities and talents are unlimited if she applied herself. I know of no past conflicts or involvements in our community or school which would reflect on her character. In working directly with young people for the past 15 years, I have found that most all students need help at one time or another. Of course, their needs vary, from personal, emotional problems, school discipline problems, to problems with the laws of our society and state. I feel Karen realized what she did was wrong and now must face the consequences. She has already been subjected to the scrutiny of her classmates at school, to the embarrassment of hurting her parents and family, and to the fact that she took part in crime and now has a record which will remain with her the rest of her life. Karen cannot undo the wrong she has done, but certainly since this is her First Offense, and she has the ability and desire to mature into a useful citizen in our community, she should be given this opportunity. I hope and pray that she will be given some kind of a probation period and given the opportunity to finish school and start a meaningful life of her own. Petitioner's Exhibit No. 1 He told no one other than the Cooleys and Karen's attorney about the letter, at the time. Dr. Findley did not learn of the letter until this year. Dr. Findley's decision not to reappoint Mr. Gandy as assistant football coach, more than two and a half years after the letter was written, took place after discussions with the head football coach and had nothing to do with the letter or any other exercise by petitioner of his first amendment rights. TRANSFER Beginning with the 1979-1980 school term, Mr. Gandy has been on continuing contract as a teacher for respondent. On Dr. Findley's recommendation, at the close of the 1982-1983 school year, and that of Bennett C. Russell, respondent's superintendent, respondent transferred Mr. Gandy to the Gulf Breeze Middle School. Originally he was to teach health classes there, but he was assigned physical education classes after his request for formal hearing was filed. Respondent had taught some classes out of his field every year he was at Jay High School. Before the letter on behalf of Ms. Cooley was ever written, and, according to petitioner, before there were any ill feelings between Dr. Findley and himself, he was assigned exclusively math and science courses for the 1979-1980 school year. In 1980-1981, and again the following school year, Mr. Gandy taught a single physical education class and several math classes. He taught math courses exclusively during the 1982-1983 school year. By the spring of 1983, there were five teachers at Jay High School who had taught there shorter periods than the five years petitioner had taught at Jay High School. Of these, Oliver Boone, the band director, and Deborah Walther, who was certified in art and science, were retained. Desiree Jamar, who was certified in art, was transferred; and the two other junior teachers did not have their annual contracts renewed. One of these two, Deborah Gomillion, who is certified to teach exceptional education classes, was subsequently rehired to head the exceptional education program at Jay High School. Five of the 32 teachers at Jay High School for the 1982-1983 school year were certified in physical education, but, unlike respondent, some of them were certified to teach other subjects, as well. Respondent transferred another coach from Jay High School who was certified in social studies as well as physical education. There was only one teacher certified in mathematics for the 1982-1983 school year. Respondent hired a second certified mathematics teacher for 1983-1984 who was to teach five mathematics courses and coach football at Jay High School. On July 28, 1983, respondent hired a teacher certified in physical education to teach at Pace High School. Dr. Findley and Mr. Gandy had their differences. She believed him guilty of certain improprieties never formally established. He resented a notice of non-renewal Dr. Findley, under the erroneous impression that Mr. Gandy had not yet been awarded a continuing contract, sent in response to instructions so to notify all annual contract teachers who taught compensatory classes like the math classes he was teaching at the time. The low esteem in which Dr. Findley held petitioner was a factor in her recommending that he be transferred. The superintendent was aware of the friction, but he made his decision "because we were cutting back personnel at Jay High School and we had a position available at Gulf Breeze Middle School." (T. 129) Respondent's superintendent did not accept her recommendation that petitioner be transferred just to keep the peace. Dr. Findley herself was transferred from Jay High School for the 1983-1984 school year. The continuing contract of employment between the parties does not grant petitioner the right to teach in a particular school. Joint Exhibit No. The master contract in effect between Santa Rosa County School Board and the Santa Rosa Professional Educators provides: Involuntary transfer of teachers shall be made by the Superintendent and Board based upon: l) Santa Rosa County School District needs as determined by the Superintendent and the Board; 2) certification; 3) length of service in Santa Rosa County; and, 4) any other data. Petitioner's Exhibit No. 6, p. 8. Article IV of the same agreement establishes in detail a grievance procedure, but does not make it mandatory or exclusive.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's request for hearing, without prejudice to his filing a grievance as regards his transfer. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of September, 1983. COPIES FURNISHED: Philip J. Padovano, Esquire 1020 East Lafayette Street Tallahassee, Florida 32302 Paul R. Green, Esquire Post Office Box 605 Milton, Florida 32570
The Issue The issue to be resolved in this proceeding concerns whether Respondent's employment as a teacher should be terminated for just cause, as delineated in Section 1012.33(1)(a), Florida Statutes (2005).
Findings Of Fact Kara Mort (Dr. Mort) has worked in the field of education since 1969 and in her chosen field as a Special Education teacher from 2001 through May 2005 in St. Johns County, Florida. She earned a Bachelor's Degree in Art Education from the University of North Carolina in 1968; a Master's Degree in Emotionally Disturbed Student Education from the Peabody College of Vanderbilt University in 1969; a Ph.D. in Special Education and Administration and Supervision from the University of North Carolina in 1982; and a Juris Doctorate Degree from the University of Florida in 1989. She has been certified to teach in North and South Carolina, Georgia, and Florida and holds an active Florida teaching certificate in the areas of Art, Emotionally Disturbed, Learning Disabled, Mental Retardation, and Administration and Supervision. Her licensure has never been subjected to any disciplinary action in any of the states in which she has had certification as an educator and the evidence reflects no prior employment discipline during her practice in the teaching profession. Dr. Mort has been a National Board Certified Teacher since 2001, which allows her to earn a bonus of 10 percent of the statewide average teacher's salary for each year of employment in a full-time position in a Florida public school. National Board Certified Teachers in Florida can also earn another 10 percent of the statewide average teacher salary as a separate bonus in any year in which they perform a required amount of mentoring services to help other teachers improve their classroom skills. Dr. Mort earned both types of bonuses in each of her four full years of service as a teacher for the Petitioner School District, but was ineligible to receive either bonus for the 2005-2006 school year because of the termination action. In April 2005, the St. Johns County School Board (Board) approved the Respondent for tenured teacher status under a professional services contract (PSC). Based upon her work in the 2004-2005 school year at Nease High School she received an outstanding performance evaluation. Principal Fred Cole offered praise of her relationships with her students and her leadership skills that year and she was selected by District officials to attend a two-day leadership retreat as one of the District's "cadre of excellent teachers and educational leaders." Dr. Mort had two classroom aides beginning with the 2004-2005 school year, Ms. Martha Lucas and Ms. Kathleen Tolx. Dr. Mort and the two aides were all new to Nease High School that year. Dr. Mort had been hired by the Principal of Nease High School, Robert Schiavone, to implement a new special education program. The program included students with significant learning disabilities and emotional disabilities. The curriculum was focused on basic level academic skills, as well as social, daily living, and employability skills. Dr. Mort had eight or ten Special Education students in her class at any given time during her school day that year. The students were all mentally retarded to one degree or another, with most having other substantial deficits, physical or emotional, or sometimes both. One of the students, J.H., has a history of engaging in physical attacks upon teachers, staff, and parents, apparently often related to seizures. J.H. is a large student, being approximately 5'10" tall and between 180 and 190 pounds in weight. When he is agitated he displays great physical strength and agility and is difficult to restrain or control. He often attacks his caretakers for seemingly minor reasons or totally unpredictably. His attacks typically involve grabbing his caretakers' arms to claw and scratch at them. He is extremely limited in his ability to communicate. His speech is very limited and the sign language he knows is imperfect and is best understood only by members of his family. Ms. Lucas had been previously involved in J.H.'s education, when she was part of a summer school program in which he was enrolled in a prior school year. He attacked Ms. Lucas during that summer school program and made a similar attack upon Dr. Mort in the fall of 2004. After that attack on Dr. Mort in the full of 2004, Ms. Lucas told Dr. Mort that she would not intervene if he became violent again, although she would continue to work with him on academic skills. J.H. made significant progress during the 2004-2005 school year as to his academic and developmental progress. His attacks on others diminished in frequency. His parents were very pleased with Dr. Mort's program, her relationship with their son, and the manner in which she managed his conduct when he became violent. Jane H., J.H.'s mother, and her husband continue to feel the same way about Dr. Mort and her ability to work effectively with J.H. and other students, notwithstanding the May "striking incident" described below. They made those feelings known to the Superintendent of the School District as well as the School Board when the termination of Dr. Mort's employment was under consideration. Dr. Mort and her staff and J.H.'s mother, Jane H., on some occasions are able to diminish the anger and violent conduct of J.H. by using certain techniques, such as threatening to call the school resource officer, a deputy sheriff, repeatedly making him aware that his conduct will not let him get his way; and persuading him to take his oral medication (Ativan) that tends to calm him down. His fits of anger and his attacks are unpredictable, however, as to when the occur, how long they will last, or how violent they may be. During their discussions concerning J.H.'s progress and management during the 2004-2005 school year, Mr. and Mrs. H and Dr. Mort agreed that the Ativan should only be used sparingly because it tends to put J.H. to sleep, wasting the remainder of the school day after the medication is administered. Additionally, since the medication is given orally, J.H. must be willing to cooperate for it to be taken or administered in order to achieve its calmative effect. Because of this discussion and circumstance, Dr. Mort chose to use verbal techniques to calm J.H. down, when possible, without given him the medication. During those times when he remained agitated and aggressive he was likely to refuse to take the medication anyway. The Ativan was kept in the office area between the two adjoining Special Education classrooms, one of which was Dr. Mort's. The District provides "walkie-talkie" communicators to teachers to enhance their ability to communicate with each other, the staff, and the school resource officer (SRO) during emergency situations. Ms. Binns kept two walkie-talkies in her classroom area next door to Dr. Mort's classroom. Dr. Mort and her classroom was not assigned a walkie-talkie because apparently the school did not have available the type that Dr. Mort requested. During the 2004-2005 school year the Petitioner began training a few of its special education teachers in a new crisis intervention program known as PCM. Ms. Binns received the training in the first half of that school year and her aide, Ms. Zwolinski, received PCM training in April or May of that school year. The Respondent had requested the training, but was not scheduled to attend any of the 2004-2005 training sessions. PCM training was not provided to Ms. Lucas or Ms. Tolx during that year either. The special floor mat that is required in order to use PCM restraint techniques was not present at Nease High School during the school year and the school did not yet have a full PCM team of three or more trained persons during that school year. PCM techniques are not authorized to be used in restraining students by persons not trained in PCM techniques. The physical restraint methods used in PCM require two, three, or four PCM trained individuals. On March 7, 2005, Dr. Mort suffered a serious injury to her left wrist and arm when another student, N.W., accidently pushed her to the ground while trying to get past her. She fractured her wrist in trying to break her fall, hurt her tailbone, and hit her head on a cabinet. She was unable to use her left hand or arm during the reminder of the 2004-2005 school year. Her left hand remains substantially useless as of the date of the hearing. Although she was seriously injured, Dr. Mort had the presence of mind to remain calm and spoke kindly to N.W. in order to keep him from feeling guilty about causing her injury. On May 17, 2005, J.H. was not feeling well. He apparently was upset about school personnel changes he had recently heard about involving the principal and assistant principal leaving the school at the end of that school year. He wanted to go home because he felt badly. He became very agitated when Dr. Mort told him she was unable to send him home because she was unable to contact his parents to come get him at that time. Over the course of that morning J.H. intermittently became upset, calmed down to the point where he would lie down for periods of time, only to become agitated again. During the lunch period that day, shortly before noon, he again became angry and frustrated about his circumstances and acted out by throwing books and other objects off a classroom table and onto the floor, which caused a great deal of noise. Dr. Mort repeatedly told him in a stern tone that he would have to pick up the books before he could go home. Eventually, he did kneel down and begin picking up the books. Ms. Zwolinski, Ms. Binns' aide, heard the books land on the floor and looked through the window between the classrooms to see what was happening. She entered Dr. Mort's room briefly through the hallway between the rooms and heard Dr. Mort twice ask Ms. Lucas to press the "panic button" to get help. This is a button by which help can be summoned from elsewhere on the campus during an emergency situation. Ms. Zwolinski saw Ms. Lucas push the emergency button after Dr. Mort's second, more agitated request. Ms. Zwolinski then returned to Ms. Binns' room to work with the students who were returning from lunch. During the event she observed, Ms. Zwolinski did not see Ms. Tolx in Dr. Mort's room nor did she see Ms. Tolx passing through Ms. Binns' room on the way to the adjoining room from the cafeteria. She never heard Ms. Tolx ask Dr. Mort if she needed help dealing with J.H. Dr. Mort then went to a nearby table where student J.P. was seated. He was in the vicinity of where the books landed. Dr. Mort was trying to be sure that he had not been hit or hurt by the flying books. In the meantime, J.H. stopped picking up the books and went to the day bed in the classroom. After sternly telling J.H. once again that he would not be able to go home until he picked up the books, Dr. Mort began to kneel down to help J.H. pick the books up. At that moment J.H. ran at Dr. Mort, and grabbed her arms as part of the first of three attacks over a period of the next few minutes. Initially he grabbed Dr. Mort's arms and clawed at the lower parts of both arms. Dr. Mort stepped back and pulled away from J.H. slightly and then he grabbed her again and began clawing at her breast area with one hand and the upper part of her usable arm with his other hand. She continued to try to twist out of his grasp as best she could, managing to break free slightly from his hold. He then attacked more violently a third time resumed his clawing of Dr. Mort's upper arms and buried his head into her chest and began biting her breast. By the time of this third assault Dr. Mort moved back to a nearby table and was leaning back against it with her lower body. J.H.'s clawing and biting of her breast caused severe pain, during which Dr. Mort continued to plead for Ms. Lucas' assistance. Ms. Lucas was in the room during the attack and finally pushed the emergency button at some point to summon help from the administration. No help ever came. The attacks intensified and Dr. Mort continued pleading for Ms. Lucas to help her. Ms. Lucas then retreated into Ms. Binns' classroom and got the walkie-talkie to try to summon the school resource officer. This was to no avail. The deputy, the SRO, never arrived. Dr. Mort's severe pain continued as she tried unsuccessfully to fend J.H. off with her one functional arm and hand. She was very concerned that his severe biting would cause damage to her breast and nipple and made repeated efforts to verbally snap J.H. out of his trance-like state, to no avail. Seeing no sign of any help and being in severe pain, Dr. Mort testified that she "cupped" her good hand and struck firmly one time at J.H.'s upper shoulder. Dr. Mort hoped that a "cup-pop" type of blow would create noise that would snap J.H. out of his seizure like state and stop the attack. Dr. Mort's one strike of J.H. coupled with her request for him to stop hurting her ultimately caused him to end his assault and he let go of her immediately thereafter. The single blow, on or near J.H.'s left shoulder was administered in the hope by Dr. Mort that it would prevent further serious harm to her without harming him. She did not strike him out of anger, but as a means to defend herself and snap him out of his trance-like state and end the attack. J.H. suffered no injury or bruises with respect to the May 17th incident, although Dr. Mort certainly did. Moreover, J.H. was never injured during the 2004-2005 school year, apart from occasional self-inflicted bite marks on his arms. Both Ms. Tolx and Ms. Lucas maintained that Dr. Mort had slapped J.H. in the face with her open hand, rather than administering a "cup-pop strike" to J.H.'s shoulder. In fact, however, the competent, persuasive evidence shows that Ms. Tolx was in the lunchroom during the May 7, 2005, incident and did not even see the attack of J.H. upon Dr. Mort nor Dr. Mort's strike of J.H. Ms. Lucas could not clearly seeing what was occurring between Dr. Mort and J.H. because the room was somewhat dark, she was busy locating and trying to use the walkie-talkie in the next room and has poor vision. She generally tried to avoid dealing with J.H. when he became violent. Ms. Tolx and Dr. Mort had been roommates for a few months in the Falll and Winter of 2004, because two hurricanes had rendered Dr. Mort's home temporarily unlivable. Ms. Tolx had angrily ordered Dr. Mort to leave her home one evening in January of 2005 for allegedly causing an argument between her and her 36-year-old developmentally disabled son that resulted in him leaving the house. Moreover, the relationship between Ms. Lucas and Dr. Mort was a strained one as well. Dr. Mort considered Ms. Lucas a poor employee and had previously told her so. Ms. Lucas and Dr. Mort had had a heated argument only a week before the J.H. incident and Ms. Lucas believed that Dr. Mort planned to have her fired. Ms. Lucas sought a re- assignment at some point and no longer works for the school district. It is determined that the testimony of Ms. Lucas and Ms. Tolx's under the above-found circumstances is not credible and persuasive. The testimony of Dr. Mort and Ms. Zwolinski is more credible. Consequently, Dr. Mort's testimony concerning the details of the incident involving the attack on her by J.H. is more credible and is accepted over that of Ms. Lucas and Ms. Tolx. Moreover, J.H. is a quite large, 190 pound student who is unpredictably aggressive and violent. If, indeed, Dr. Mort had slapped his face in an effort at self-defense and in trying to get him to end an acutely painful and injurious attack, it is deemed to have been reasonable force, undertaken in a last ditch effort at self-defense, to prevent further physical harm to herself, while causing the least possible harm to the student in trying to stop his attack. She did not strike J.H. in anger or as a means of retaliation for his hurting her. Under the circumstances found herein, based on persuasive, credible evidence, even more force than a slap to the face would have been reasonable. The Department of Education has adopted guidelines to evaluate the reasonableness of incidents of force used by teachers to prevent physical harm to themselves, school staff, or students. Those guidelines were adopted in 1997 by the Department of Education, as required by Section 1003.32(1)(j), Florida Statutes (2005). Given the circumstances with which Dr. Mort was confronted on May 17, 2005, her physical response to J.H.'s repeated and increasingly violent, painful, and injurious attacks was undertaken solely to prevent more serious injury to herself and to minimize injury to the student J.H. (in fact he was not injured at all). Such constituted reasonable force as authorized by Section 1003.32(1), Florida Statutes (2005), the referenced guidelines, as well as the applicable collective bargaining agreement. Nothing Dr. Mort did on May 17, 2005, reduced her effectiveness as an employee of the School District. The testimony adduced from witnesses presented by the Petitioner, to the effect that there has been a loss of trust by parents, other teachers, and students in Dr. Mort, because of her striking J.H., and to the effect that she cannot in the future maintain a calm, positive, productive, and safe educational environment in her classroom and with staff and parents is deemed unpersuasive. There is no persuasive evidence that other parents, some of whom testified, have found her to have lost her effectiveness as a teacher and an employee of the School District nor that parents have lost confidence and trust in Dr. Mort as a teacher of their children. More credible and accepted is Dr. Mort's testimony and that of J.H.'s mother herself (and the other parent witnesses) who find that Dr. Mort has provided an effective, positive, productive, and loving educational environment for J.H. and other students. In fact, it is undisputed that Dr. Mort is academically well-qualified to teach exceptional students and the parents of the students in her classroom have characterized her as an effective teacher during her tenure at Nease High School. Additionally, Mr. Cole, who was responsible for evaluating her during the 2004-2005 school year, observed and found a healthy learning environment maintained by Dr. Mort. He gave her a very favorable formal evaluation for that year. Dr. Mort's replacement for the 2005-2006 school year, Mr. Hill, did receive PCM training. That means that Nease High School now has a full PCM trained team of three individuals. In the fall of the 2005-2006 school year, Mr. Hill and Ms. Zowlinski responded to yet another physical encounter between J.H. and Ms. Tolx. They had to use an aggressive two- person PCM restraint technique to subdue J.H. In order to restrain J.H., who continued flailing and scratching at them during this occurrence, Mr. Hill and Ms. Zowlinski ultimately had to sit on him for an hour and ten minutes before calling the school resource officer to help end the encounter. Ms. Zowlinski suffered a serious back injury as a result of this incident and restraint of J.H. Because of the termination action, Dr. Mort lost a substantial amount of regular salary, supplemental pay, and bonus income she would have otherwise earned. Among those lost wages and bonuses are her previously-approved summer school pay, hospital/home bound salary for services she expected to provide that summer and into the next school year, and almost $10,000.00 payable to her because of her National Board Teacher's certification status. Additionally, she could not attend, and was not paid for an approved two-day leadership retreat to which she had been invited. She has lost both leave and retirement- related credits and benefits and had to pay COBRA insurance premiums of over $400.00 dollars per month to secure continued medical insurance coverage since October 1, 2005. In summary, the above-found facts, based upon persuasive, credible testimony and evidence show that Dr. Mort employed reasonable force in her involvement in the incident of May 17, 2005.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of St. Johns County dismissing all charges and reinstating Dr. Mort to her employment position with the full range of regular and supplemental back-pay and reimbursement of all categories of lost benefits, as delineated above, as a "make- whole" remedy. DONE AND ENTERED this 18th day of May, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 COPIES FURNISHED: Thomas J. Leek, Esquire Kelly Parsons, Esquire Cobb & Cole Post Office Box 2491 Filed with Clerk of the Division of Administrative Hearings this 18th day of May, 2006. Daytona Beach, Florida 32115-2491 Anthony D. Demma, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Dr. Joseph Joyner Superintendent St. Johns County School Board 40 Orange Street St. Augustine, Florida 32084-3693 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was employed by Petitioner under a continuing contract. The Respondent, Muriel Johnson Krueger, holds Florida teaching certificate number #0367469 issued by the Florida Department of Education covering grades K through 6. The Respondent is also certified in Florida for administration and supervision, grades K through 12. She also holds a Wisconsin teaching certificate. The Respondent taught in Wisconsin for a number of years; she taught in a one-room school house, grades 1 through 5. She began teaching in Florida in 1974 at Brooksville Primary School in Hernando County, where she taught first grade for two years. She next taught first grade at Moton School Center (Moton) also in Hernando County, for four years. She received her continuing contract in 1977. In 1979, the Respondent was appointed primary specialist at Moton; she held that position until August, 1985. As primary specialist, the Respondent was not assigned to a classroom; she worked primarily with teachers and teachers' aides. She was not responsible for drawing up lesson plans, recording grades, or developing pacing schedules, as those procedures are used in the ordinary classroom. The Respondent received favorable evaluations throughout her career in the Hernando County school system, until January, 1986. However, Respondent has never received an evaluation of her performance which would support her dismissal. In March, 1985, the Respondent was diagnosed as having certain physical and psychological problems, including diabetes and atypical psychosis. The Respondent's medical conditions, including the details regarding her psychological illness, were reported to the school system by the Respondent's doctors, Dr. Renee Haney, a psychiatrist and Dr. Joanne Pegg- McNab., a psychologist. In August, 1985, two days prior to the commencement of the school year, the Respondent was notified by the Petitioner that she would be teaching third grade at Spring Hill Elementary School (Spring Hill) during the 1985-86 school year. Previously, the Respondent had been given to understand, based on representations made to her by school administrators, that she would be teaching second grade in 1985-1986. The Respondent had prepared materials for the teaching of second grade, which she was unable to use in teaching third grade. Louise Ross, principal of Spring Hill, was aware that Respondent had not been a classroom teacher for at least four years prior to Respondent coming to Spring Hill in August, 1985. Ross was aware of Respondent's treatment for psychological illness. Prior to the students' return, the Respondent worked one week at Spring Hill. During that period, Respondent attended general meetings, and although Respondent received a packet of material during this period, it did not contain any specific instruction in regard to preparing lesson plans, grading or pacing. Respondent received specific written instruction regarding the recording of grades and pacing at a later date. Respondent did not receive any specific verbal or written instructions from Ross or any other person respecting the procedures in effect at Spring Hill in regard to grading and pacing until the memorandums of September 24, 1985 and November 19, 1985 from Ross concerning grades and pacing, and the December 16, 1985 letter to Respondent from Ross setting forth Ross' concerns about Respondent's procedures in grading, pacing, and lesson plan preparation that were covered in the meeting between Ross and Respondent on December 16, 1985. On September 24, 1985, approximately one month after school opened on August 22, 1985, Ross issued a memorandum regarding the number of grades to be recorded for each subject, and the procedure for recording the grades. On November 19, 1985 Ross issued a memorandum regarding the Ginn Reading Program (pacing student in reading). Both the memorandum and the chart attached pointed out it was a "guide" and that the primary concern was for the student to master the material. There is insufficient evidence to show that Respondent received this memorandum prior to returning to work on December 16, 1985. No documents concerning the pacing in other subjects were issued to Respondent. Pacing involves setting a pace for the teacher and the student to cover the required material in a set time and yet allow the student to master the subject matter. The failure to properly pace a class usually results in the student requiring remediation in the subject matter. Although Ross collected and reviewed Respondent's lesson plan books during the beginning of the school year and prior to Respondent going on sick leave in November, 1985, Ross did not make any suggestions or criticisms concerning pacing because when she checked the lesson plan books Ross found them sufficient. Respondent was aware of the requirement of preparing lesson plans in advance, but at Moton, where she had previously taught, the requirement was to prepare three days of lesson plans in advance, not five days as was required at Spring Hill. Spring Hill required lesson plans to be ready on the Friday immediately prior to week of the lesson plans, but Ross had allowed teachers to prepare lesson plans over the week-end for the following week. Respondent was absent from school beginning November 20, 1985 through December 16, 1985 on approved sick leave. Respondent failed to prepare lesson plans and leave them for her substitute. Respondent's illness prevented her from preparing lesson plans for the period beginning November 25, 1985 and up until Respondent returned on December 16, 1985. However, the lesson plans for November 20, 21 and 22, 1985 should have been prepared prior to Respondent's illness. On December 16, 1985, the day Respondent returned from sick leave, Ross held a meeting with Respondent to advise her of certain changes in performance expected by Ross. The expected changes were the result of Ross reviewing Respondent's grade book and determining that the grades were not recorded in accordance with the September 24, 1985 memorandum, and reviewing Respondent's lesson plan books and determining that Respondent's class (an average class) was ahead of the top class in the third grade in reading and math. Respondent was advised of how to effect the changes and that compliance was expected by the beginning of the second semester. Although Respondent's third grade class was ahead of other third grade classes during the period of school prior to December 16, 1985, the student's mastery of the subject matter covered during this period was within an acceptable range, and remediation was normal. Subsequent to returning to work on December 16, 1987, and up until the Respondent took leave on March 12, 1987, the Respondent's pacing of her students was in accordance with school policy. Respondent's grade books may have shed some light on whether Respondent had properly recorded the student's grades but the grade books were not introduced into evidence. Prior to taking sick leave on November 20, 1985, the Respondent had, in addition to those grades recorded in her grade, recorded grades on sheets of paper in the back of her grade book contrary to the instructions given in the September 24, 1985 memorandum from Ross. However, Ross permitted the Respondent to record these grades in her grade book at a later time. Without knowing that it was against school policy, Respondent allowed her aides to record grades in her grade book. Subsequent to returning to work on December 16, 1987, and up until she took leave on March 12, 1986, the Respondent's recording of grades in her grade books was in substantial compliance with school policy. Although Respondent did not totally comply with the December 16, 1985 memorandum from Ross, her compliance with the memorandum satisfied Sonia Terrelonge, the third grade chairperson, who Ross had assigned the duty of working with Respondent to bring about compliance with the memorandum. Ross did not check Respondent's plan book or grade book on a regular basis as she had indicated in her memorandum of December 16, 1985 but delegated that responsibility to Terrelonge. On March 7, 1986, Respondent escorted her students to Terrelonge's portable classroom to see a movie and, since Respondent had detention duty, she picked up the students from other third grade classes on detention and returned to her portable classroom. At lunch time Respondent returned the students on detention to Terrelonge's portable classroom and escorted her students to lunch. After lunch Respondent escorted her students back to Terrelonge's portable classroom for the balance of the movie; again picked up the students on detention, and returned to her classroom. At the time scheduled for the conclusion of the movie, Respondent returned to Terrelonge's portable classroom to escort her students back to her classroom. Upon arrival at Terrelonge's classroom, Respondent discovered that her students had left earlier with either Maria Wolf or Catherine Winemiller or Jacqueline Mitchie, the other teachers having students at the movie. Although one of these three (3) teachers would have been responsible for supervising the return of Respondent's students to her classroom since Respondent was on detention duty, there is insufficient evidence to show which one had that responsibility. Upon return to her classroom Respondent observed some of her students outside the classroom unsupervised. Some of the students were running around and some were standing on a railing attempting to rescue a shoe from the roof. Respondent summoned her students into the classroom. None of the students were injured in any way. After the movie and the shoe incident the Respondent's children were "hyper". To calm them down, Respondent decided to go to the playground rather than to the scheduled special class. Respondent notified the special class teacher of this change but, without knowledge that she was required to notify Ross, failed to notify Ross of this change. This was the only special class the Respondent's student's missed while under her care during the 1985-86 school year. Other teachers took their students out on unscheduled recess when the children would not settle down. The evidence does not reveal any written policy concerning unscheduled recesses. Respondent kept blank discipline slips and omni passes in an unlocked desk drawer, and that students had on occasions filled out these slips without Respondent's knowledge. There was insufficient evidence to show that the children were under Respondent's supervision at the time the slips were taken out of the drawer and filled out. There were a number of disruptive and behavioral problem students in Respondent's class, but the number of disruptive or behavioral problem children in Respondent's class was not shown to be greater than in any other average third grade class. During the 1985-86 school year, Ross made frequent, unscheduled visits to Respondent's classroom and found Respondent's performance, including her classroom management, satisfactory, except on one (1) occasion, March 12, 1986. As a result of the shoe incident and skipping the special class, Ross called Respondent to a meeting on March 7, 1986 with Edward Poore, Assistant Superintendent, and Cathy Hogeland, Union Representative being present along with Ross and Respondent. As a result of this meeting, Ross advised Respondent to take the rest of that day off, which was Friday, and March 10, 1986 which was Monday. Respondent complied and returned to work on Tuesday, March 11, 1986. On March 11, 1986, the day Ross returned to school her students went on a field trip but Respondent was not allowed to accompany them. During the day Respondent worked on grading, grade books and planning. Also, on March 11, 1986, Ross gave Respondent a handwritten memorandum instructing her in class management, specifically addressing the supervision of students, class discipline, the following of lesson plans and attendance of students at special classes. Additionally, the memorandum instructed Respondent that teachers were not to eat lunch in the classroom and listed those areas where Respondent could eat lunch. On March 12, 1986, around noon, Respondent met with Ross, with Joanne Knight, being present as Union Representative. This meeting occurred as a result of Ross visiting Respondent's classroom and finding the students particularly disruptive and disorderly. When Respondent indicated that she could resume teaching her class that afternoon, Ross informed Respondent that she must take a leave of absence and have a complete physical examination and psychological evaluation or Ross would recommend her termination to the school board. Respondent was also informed by letter from Ross dated April 8, 1986 that her return to work would be based on the psychologist's report which should be submitted no later than May 31, 1986. Due to Ross' demands, Respondent requested leave and signed the necessary papers which had been filled out by the school board office. Respondent was put on leave without pay for the balance of the school year. Respondent resumed seeing Dr. Haney in April, 1986 but due to Dr. Haney's, or Respondent's oversight, an evaluation was not submitted until July 30, 1986. However, on July 1, 1986, Ross had recommended Respondent's dismissal to the superintendent based solely on Respondent's failure to provide the evaluation by May 31, 1986 without any further notice to Respondent other than the letter of April 8, 1986. Respondent learned of Ross's recommendation of dismissal sometime around July 16, 1986 when Ross notified her by letter. The letter also informed Respondent that this recommendation would go to the school board on August 5 1986. During Dr. Haney's treatment of Respondent in 1986, she prescribed medication for her mental condition which had no detrimental side effects on the Respondent. Dr. Haney's report of July 30, 1986 made no recommendation as to Respondent's ability to return to the classroom but left to the school system the interpretation of her findings. Dr. Arturo G. Gonzalez, Respondent's treating psychiatrist, began treating Respondent in October, 1986. Dr. Gonzalez's opinion was that while Respondent does have a mental condition, it is treatable with medication and does not affect Respondent's ability to teach. Dr. Gonzalez prescribes the same medication for Respondent as did Dr. Haney. From his observations, the Respondent takes the medication as prescribed. It was also Dr. Gonzalez's opinion that Respondent understands the need for medication. It was the opinion of Dr. Haney that Respondent better understood the need for medication after her second hospitalization in April 1986 then she had after the first hospitalization in 1985. It was the opinion of both Dr. Haney and Dr. Gonzalez that Respondent's mental condition would not prevent her from being effective in the classroom and that her presence as a teacher would not endanger the welfare of the students. Respondent was a concerned teacher, interested in her student's welfare. There is insufficient competent evidence in the record to show that Respondent had emotional outbursts in the presence of her students. There is insufficient competent evidence in the record to show that, due to Respondent's action, the students in her third grade class were deprived of minimum education experiences. Respondent substantially performed her duties as prescribed by law. There is insufficient competent evidence in the record to show that there was a constant or continuing intentional refusal on the part of Respondent to obey a direct order given by proper authority.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Petitioner, School Board of Hernando County, enter a Final Order dismissing all charges filed against the Respondent, Muriel Krueger. It is further RECOMMENDED Respondent be restored to her position as a continuing contract employee of the Hernando County School Board, and that she receive back pay for the entire period she has been in a non-pay status because of these charges. Respectfully submitted and entered this 14th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2001 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 in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 3, 4, and 7. Adopted in Finding of Fact 10 as clarified. Adopted in Finding of Fact 16 as clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 17 as clarified. Adopted in Finding of Fact 17 as clarified. Adopted in Findings of Fact 11 and 12 as clarified. Adopted in Finding of Fact 20 as clarified. Adopted in Finding of Fact 20. 11-13. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 11, 12 and 13. Adopted in Finding of Fact 14. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraph 15. Adopted in Finding of Fact 23 except for the last clause which is rejected as not supported by substantial competent evidence in the record. 17-19. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 17, 18 and 19. Rejected as not supported by substantial competent evidence in the record, except for the one occasion on March 12, 1986 which would not be described as a chaotic condition. That classroom management was discussed with Respondent is adopted in Findings of Fact 27 and 29. Rejected as not supported by substantial competent evidence in the record. That students took discipline slips and filled them out is adopted in Finding of Fact 24, the balance of paragraph 23 is rejected as not supported by substantial competent evidence in the record. 24-27. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 24, 25, 26, and 27. Adopted in Findings of Fact 6, 31, 32, 33 and 34. Rejected as not being relevant or material. Rejected as not being relevant or material because that was Dr. Haney's provisional diagnosis which was changed when she made her final diagnosis. The first sentence of paragraph 31 is adopted in Findings of Fact 3 and 4. The balance of paragraph 31 is rejected as not being relevant or material in that although Respondent admitted being acquainted with those school board policies there was credible evidence that Respondent was not aware at the beginning of the school year of Ross' or the Superintendent's specific instruction in regard to maintaining attendance records, grade books, etc. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 8, 10 and 11. Adopted in Finding of Fact 9 but clarified. Adopted in Finding of Fact 12. Adopted in Finding of Fact 15. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 20. Adopted in Finding of Fact 18. Adopted in Finding of Fact 21. Adopted in Finding of Fact 13. Adopted in Findings of Fact 20 and 21. 20.-21. Adopted in Finding of Fact 22 as clarified. Rejected as not being a finding of fact but only a restatement of testimony. Adopted in Finding of Fact 24. Adopted in Finding of Fact 22. 25.-26. Adopted in Finding of Fact 23. Adopted in Finding of Fact 25 but clarified. Adopted in Finding of Fact 27 but clarified. Adopted in Findings of Fact 28 and 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30 but clarified. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 31. Adopted in Findings of Fact 31 and 33. Adopted in Findings of Fact 34 and 35 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37 but clarified. Adopted in Finding of Fact 35 but clarified. Adopted in Finding of Fact 5. COPIES FURNISHED: Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 34601 Susan E. Hicks, Esquire Post Office Drawer 520337 Miami, Florida 33152 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32300 James K. Austin, Ed.D. Superintendent of Schools Hernando County 919 U.S. Highway 41 North Brooksville, Florida 33512-2997
The Issue Whether Respondent should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
