The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2006),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Reopel holds Florida Educator’s Certificate 973284, covering the area of social science. The certificate is valid through June 30, 2008. At all times pertinent to the allegations in the Administrative Complaint, Ms. Reopel was employed as a social studies teacher and an assistant softball coach at Oak Ridge High School (Oak Ridge) in the Orange County School District (School District). In April 2007, Ms. Reopel was 25 years old. In the 2006-2007 school year, Tiffany Pagan was a senior at Oak Ridge. She turned 18 years of age on April 6, 2007. She was not a student in one of Ms. Reopel’s academic classes. At Oak Ridge, a student was not to assist a teacher unless the student had been assigned to the teacher as a student assistant. Ms. Pagan was not a student assistant assigned to Ms. Reopel. However, Ms. Pagan was a member of the girls’ softball team for which Ms. Reopel coached. Ms. Pagan was part of a work-study program at Oak Ridge, in which she took some academic classes and then left the school campus to work. Once a student who was participating in the work-study program completed classes, the student was to leave the campus. Ms. Pagan has engaged in a sexual relationship with more than one girl while she was a student at Oak Ridge. Ms. Pagan did not make it a secret that she liked girls, and Ms. Reopel was aware that Ms. Pagan was a lesbian. In April 2007, Ms. Reopel’s classroom was a portable classroom with windows facing a covered hallway located outside the classroom. In order to see into the classroom from the outside, one would have to lean toward the window and press one’s face to the glass. Based on Ms. Reopel’s and Ms. Pagan’s independent drawings of the configuration of the classroom, Ms. Reopel’s desk was located in a corner area of the classroom where no windows were located and near an area in which three- drawer file cabinets were placed in front of the windows. Based on their description of the location of the room’s furnishings, it would be difficult at best to see the desk from outside the classroom while walking past the classroom. On April 12, 2007, Edward Smith, a technology support representative at Oak Ridge, was inventorying the computer equipment at the school. At mid-day, he went to Ms. Reopel’s classroom and found it locked.2 Using his master key, he entered the classroom. The lights were off, but there was sufficient light coming from the windows so that he could see clearly. He walked into the classroom, thinking that there was no one in the room because the lights were out. He heard a movement and looked up. Mr. Smith saw Ms. Reopel sitting in a chair behind and slightly to the right side of her desk. There was a female student on the floor on her knees facing Ms. Reopel. The student had her left arm propped on the desk. Mr. Smith does not recall seeing any papers on the floor near Ms. Reopel and the student. Mr. Smith observed Ms. Reopel make two downward and upward motions as if she were pulling her clothes up. Ms. Reopel asked Mr. Smith if she could help him, and he told her that he was counting computers. He counted the computers in the room and left. Neither Ms. Reopel nor the student got up. The student never turned around. After Mr. Smith exited the classroom, he went past the windows and looked toward the classroom. He could not see inside the classroom. After making sure that he was past the classroom windows, he used his radio to call the assistant principal at Oak Ridge, Michael Scott Hanson, to let the assistant principal know what he had just seen. Mr. Hanson and Mr. Smith advised Maxine Risper, the principal at Oak Ridge, of what Mr. Smith had seen. Ms. Risper advised Orange County School District Employee Relations (Employee Relations) of the situation. The following day Ms. Reopel was relieved of her classroom duties and told to report to Employee Relations. After some investigation, it was revealed that Ms. Pagan was the student that Mr. Smith had seen in Ms. Reopel’s classroom. Ms. Pagan was called into Ms. Risper’s office to discuss the incident with Ms. Reopel. At first, Ms. Pagan denied any relationship with Ms. Reopel, but later admitted that she did have a relationship with Ms. Reopel. Ms. Pagan said that the relationship had not begun until she turned 18 years old. Ms. Pagan’s mother was called to come to the school. When Mrs. Pagan learned of the allegations, she became angry with her daughter. Ms. Pagan wanted to know whether the incident would affect Ms. Pagan’s graduation. The day after the incident, April 13, 2007, Melissa Moser, the head softball coach and Ms. Reopel’s friend and colleague, became concerned that Ms. Reopel was not at school. That evening, she went to Ms. Reopel’s apartment to learn why Ms. Reopel had not been at school. Ms. Reopel told Ms. Moser that the day before she and her boyfriend had been caught in her classroom while involved in sexual activity, and that was why she had been relieved of her teaching duties. On Monday, April 16, 2007, Ms. Moser had heard students talking about Ms. Reopel not returning to the classroom. That evening Ms. Moser sent a text message to Ms. Reopel asking Ms. Reopel whether Ms. Reopel’s having been relieved of teaching duties had anything to do with Ms. Pagan. At first, Ms. Reopel replied that it did not, but, after further questioning, Ms. Reopel told Ms. Moser that nothing physical had happened with Ms. Pagan until Ms. Pagan was 18 years old. By letter dated April 17, 2008, Employee Relations requested Ms. Reopel to attend a meeting to discuss the allegations. By letter dated April 18, 2008, Ms. Reopel submitted her resignation to the School District. Both Ms. Reopel and Ms. Pagan deny that any romantic relationship existed between them until after Ms. Pagan graduated from high school. However, Ms. Pagan made statements to numerous witnesses concerning her romantic involvement with Ms. Reopel prior to April 12, 2007. During the 2006-2007 school year, Nestor Velazquez was a classmate and close friend of Ms. Pagan. In February 2007, Ms. Pagan told Mr. Velazquez that she was having sexual relations with another female. At the time, Ms. Pagan did not reveal the identity of her lover. During this time, Ms. Pagan was also having romantic relationships with another female, Marianne Pena, and a male. Sometime between March 13 and April 12, 2007, Ms. Pagan confided to Mr. Velazquez that she had been having a sexual relationship with Ms. Reopel. Ms. Pagan described sexual acts that had occurred with Ms. Reopel, including the use of sexual aids. While at the Oak Ridge school library, Ms. Pagan and her friend, Liz Ortiz, told Mr. Velazquez about an incident in which Ms. Reopel, Ms. Ortiz, Ms. Pagan, and Cindy Rivera had gone to Ms. Reopel’s apartment where Ms. Reopel and Ms. Pagan had sex in the bedroom and the other couple had sex in the living room. Ms. Pagan told Mr. Velazquez that Ms. Reopel’s cat had scratched one of the females in the living room on the female’s buttock, while she was engaged in sexual activity. Mr. Velazquez’s mother, Rosa Cruz Flores, became good friends with Ms. Pagan, Ms. Ortiz, and Ms. Rivera. All three students came to Ms. Flores’ home at various times. Ms. Pagan and Ms. Flores had worked at the same movie theater. Ms. Pagan would tell Ms. Flores personal things. Ms. Flores knew that Ms. Pagan dated both males and females. Ms. Pagan had told Ms. Flores about her relationship with a person, Ms. Pagan referred to as “baby.” In March 2007, Ms. Flores, had a birthday party for Mr. Velazquez. Ms. Pagan arrived at the party late. As she was talking to Ms. Flores, Ms. Pagan began texting a message on her telephone. Ms. Flores asked Ms. Pagan to whom she was texting, and Ms. Pagan replied that it was “baby.” Ms. Ortiz and Ms. Rivera, who were also at the party, urged Ms. Pagan to tell Ms. Flores the identity of “baby.” Ms. Pagan told Ms. Flores that she was dating her softball coach, Ms. Reopel. Ms. Pagan had sent a text message to Ms. Reopel to come to the party to pick her up. Ms. Reopel did go to Ms. Flores’ home to get Ms. Pagan. Ms. Reopel did not get out of her vehicle, and Ms. Flores did not see Ms. Reopel. Ms. Flores candidly admitted that during the birthday party, she served alcoholic beverages to underage students, including Ms. Pagan. Ms. Flores claims that she had 12 Smirnoff beverages, which were served to the party attendees. Ms. Pagan claimed that she drank “a whole six-pack . . . maybe a little less.” Ms. Pagan claims that she called Ms. Reopel to come and get her because she was intoxicated and that there was no one else to take her home because Ms. Flores was the only adult at the party, and the rest of the attendees did not have cars. Ms. Pagan further contends that she called Ms. Reopel as an emergency measure because she could not let her father know that she had been drinking and that Ms. Reopel had told her softball team that they could call her in an emergency. Ms. Pagan’s testimony is not credible. Ms. Pagan had been texting messages to Ms. Reopel while Ms. Pagan was at the party and prior to texting a request for a ride home from the party. Such action indicates that Ms. Pagan was not making an emergency call for help to Ms. Reopel in the context of a student calling a teacher for help. The request was made in the context of a relationship that went beyond teacher and student. Additionally, it is not credible that Ms. Flores would have allowed Ms. Pagan to consume a six-pack of alcoholic beverages. Sometime in the spring of 2007, Ms. Flores went to Oak Ridge to pick up Mr. Velazquez. While she was there, Ms. Flores saw Ms. Pagan, who began to tell Ms. Flores about the cat scratching one of the girls at Ms. Reopel’s apartment. During the conversation, Ms. Pagan confided that she and Ms. Reopel had been having sex in another room when the scratching incident took place. On April 17, 2007, Ms. Pagan wrote a letter to Ms. Ortiz concerning the incident with Ms. Reopel on April 12. Ms. Pagan wrote: I feel like my whole life is slowly coming to an end. I don’t know what I will do if this all ends really badly. My life as I know it will be nothing. I just don’t know what to do! I don’t think I will be able to handle this. I have dealt with something like this before but its different this time because I didn’t love the other person. I love her so much and what have I done, I have ruined her life. I don’t deserve to have her love me. I don’t even deserve to have her in my life at all. I don’t deserve to have anything good in my life. But then I can’t be without her because then I feel like nothing. Ms. Pagan now claims that the love for Ms. Reopel to which she was referring was just the love that a friend has for another friend and not a romantic love. Given statements that Ms. Pagan made to others concerning her relationship with Ms. Reopel, Ms. Pagan’s assertion that she was not talking about a romantic love is not credible. After the April 12, 2007, incident between Ms. Pagan and Ms. Reopel, Ms. Flores got a telephone call from a friend who told her about the incident. Ms. Flores tried to contact a local television station concerning the incident, but was put on hold. Ms. Flores contacted Mr. Velazquez’s father and told him what she had heard. Mr. Velazquez contacted another television station about what Ms. Flores had told him. A reporter from the television station contacted Ms. Flores for an interview, but Ms. Flores refused to give an interview. Mr. Velazquez did talk to the reporter and gave his views on the matter. Ms. Flores went to see Ms. Risper. At that point, Ms. Risper was still investigating the allegations against Ms. Reopel. Ms. Flores told Ms. Risper that Ms. Pagan was probably the student who was involved in the incident. As a result of the incident of April 12 and the attention that resulted from the media and students at Oak Ridge, Ms. Pagan was not allowed to walk with her classmates at Oak Ridge for graduation. Ms. Pagan did walk with students from Freedom High School at graduation and did receive a diploma from Oak Ridge. Additionally, as a result of the situation created by the relationship between Ms. Reopel and Ms. Pagan, Ms. Pagan’s brother, who had been attending Oak Ridge, was transferred to another high school. As of the date of the final hearing, Ms. Reopel and Ms. Pagan were engaged in a romantic lesbian relationship and were living together in the home of Ms. Pagan’s parents. Both Ms. Reopel and Ms. Pagan claim that their romantic relationship did not begin until after Ms. Pagan graduated from high school. Their contention is not credited. Based on the clear and convincing evidence presented, Ms. Reopel and Ms. Pagan had begun an inappropriate personal relationship prior to Ms. Pagan turning 18 years old and prior to Ms. Pagan’s graduation from high school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Reopel violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes; finding that Ms. Reopel violated Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h); and permanently revoking her teaching certificate. DONE AND ENTERED this 21st day of September, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2009.
The Issue The issue for disposition is whether Barbara Higgins should be suspended for a period of three days without pay because she allegedly "frisked" an employee on October 11, 1989.
Findings Of Fact Barbara Higgins is employed by the School Board of Seminole County as Supervisor of Operations for the transportation department. She began service with the board in 1966, working as a bus driver, then moved up to the position of trainer, then to area supervisor, and into her current position in 1986. Ms. Higgins supervises approximately 300 employees, including an assistant supervisor of operations, six area supervisors, all of the bus drivers, bus monitors, dispatchers, and office personnel. Thomas Preston, Assistant Director of Transportation, is her immediate supervisor; Benny Arnold is Director of Transportation; and Richard Wells is the Assistant Superintendent of the School Board of Seminole County, in charge of the transportation department. On October 11, 1989, Barbara Higgins was in a county vehicle driven by Thomas Preston, with Tyrenna Gouvia, Assistant Supervisor of Operations, and Kathy Chapman, who had recently been promoted to Area Supervisor. The group had been to the county office and had stopped for lunch to celebrate Ms. Chapman' s promotion. On the way back to the bus compound, Ms. Gouvia saw Seminole County school bus number 65 and said in an excited voice that she needed to "follow that bus". Ms. Gouvier had been notified earlier in the day that a driver had failed to pick up a student bound for Milwee School. The phrase, "follow that bus", led to laughter and kidding regarding being in hot pursuit, and a game of cops and robbers began. Although bus number 65 is a spare bus and does not ordinarily pick up for Milwee, the group, joking and horsing around, followed the bus into the compound. As bus number 65 pulled next to one gas pump, Thomas Preston pulled into the adjacent island. As the bus driver, Geraldine Cozad, exited the bus to obtain gas, Barbara Higgins got out and approached her asking, "You don't go to Milwee do you?" Laughing, Ms. Higgins then said "I'll frisk you anyway" (or words to that effect), and "Put your hands on the bus." Geraldine Cozad turned, put her hands on the bus and Barbara Higgins lightly patted her three or four times on her sides. To the witnesses, Ms. Cozad appeared to be participating in the joke and was laughing as well. Then Ms. Higgins turned to her companions in the car and said, "She's clean." She got back in the car and the group left the gasoline pump area. Leonard Williams, a custodian at the bus garage observed the incident from a nearby gas pump. He asked Ms. Cozad why Barbara frisked her, and she replied that she did not know. He had seen the group laughing and grinning, like they were having fun, including the bus driver. Ms. Cozad got her gas, gave Mr. Williams her mileage, and left. Roberta Trammell was a bus monitor on bus number 65 on October 11, 1989. She did not witness the actual "frisking" from her seat on the bus, but heard Ms. Cozad laughing. Ms.Cozad proceeded to run her normal route the rest of the day and did not appear to be upset or nervous. The next afternoon, Geraldine Cozad talked to Union President Caroline Perry, at Longwood Elementary School, a stop on her route. She was advised to contact Nancy Wheeler, the executive director of Seminole County School Bus Driver's Association, Inc. (the union). Nancy Wheeler contacted Richard Wells and also sent a letter to the school board superintendent, Robert Hughes, demanding that Barbara Higgins and Thomas Preston be terminated. Richard Wells and his Director of Transportation, Benny Arnold, investigated the incident. When Benny Arnold asked Barbara Higgins what happened, she was surprised that anyone was inquiring. Ms. Cozad refused to come in to discuss the incident and Richard Wells had the impression that she did not want to talk without her attorney. Initially the supervisors felt that Barbara Higgins should apologize, and she agreed to do so. The letter from the union convinced them that it was not considered a minor incident, and more stringent discipline was recommended. Publicity of the incident caused factional disputes in the agency, with some groups arguing that Barbara Higgins was a victim, and with others taking Geraldine Cozad's side. The event exacerbated friction between the union and management and both Wells and Arnold spent many hours investigating and trying to resolve the conflict. In a letter dated November 16, 1989, Benny Arnold notified Barbara Higgins that he was recommending a suspension of three days without pay because of the October 11th incident. The letter states, in part: "I do not feel that your actions were intentional or malicious. However, an employee did suffer embarrassment from the incident. A higher level of conduct must be expected from administrators in positions similar to yours. [School Board Exhibit #3] Robert Hughes, Superintendent concurred with the recommendation in a letter dated November 20, 1989. Geraldine Cozad was embarrassed, although she never communicated that directly to any of the supervisors at the transportation department, nor did she appear upset to the witnesses of the event. Barbara Higgins had no intentions to embarrass anyone. The type of joking and fooling around that occurred on October 11th was common in the transportation department, where an atmosphere of light camaraderie alleviated stress. Prior to the incident, Barbara Higgins had an excellent rapport with her staff. She usually arrived at work at 5:30 a.m. and was the last to leave in the afternoon. She came up through the ranks and was respected. Some described her as a "mother figure". She has always received at least satisfactory annual performance evaluations, and in twenty-four years with the school board her only discipline has been a single verbal reprimand. On her personnel evaluation, dated 11/17/89, after the incident she was rated "outstanding" or "satisfactory" in all areas except judgement, which was rated "needs improvement". The school board has no progressive disciplinary guidelines nor any rules or guidelines on touching or joking among the employees. The bus drivers have in the past hired strippers to come perform on the occasion of someone's retirement, without apparent embarrassment to others and without disciplinary consequences. It is axiomatic that supervisors should conduct themselves in a manner consistent with their managerial responsibility, that they should avoid inappropriate embarrassment or harm to their subordinates and should strive for efficient operations and smooth labor relations. In retrospect, Barbara Higgins' conduct was inappropriate because of the effect it caused. She is recommended for discipline not because of her joking, but because of the way the joke was perceived and she had no warning of that effect. That effect was not foreseeable in the silliness of the moment. Ms. Cozad's account of the "frisking" is an intrusive prolonged and thorough patting or feeling of most of her body. She may truly believe that is how she was touched; such touching would have been undeniably improper. The weight of the evidence does not support her account. Every other witness, for both the school board and Ms. Higgins, established in competent, credible testimony that the alleged "frisking" did not resemble a real frisking as by a law enforcement officer seeking contraband, but rather consisted of quick, cursory pats on Ms. Cozad's sides. According to Ms. Higgins' supervisors, she is being disciplined for "frisking" her employee, not for joking with her. The evidence establishes that the incident was a joke and was not a "frisking" in the objective sense, or a "search" of Ms. Cozad. The discipline is, therefore, unwarranted.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a Final Order be issued by the School Board of Seminole County rescinding its notice of three day suspension of Barbara Higgins, and dismissing the petition of Thomas Preston. DONE and RECOMMENDED this 14th day of May, 1990, in Tallahassee, Florida. MARY CLARK 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 14th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 89-6999, 89-7001 The following constitute specific rulings on the parties' proposed findings of fact. THE SCHOOL BOARD OF SEMINOLE COUNTY 1. Adopted in number 1. 2. through 4. Adopted in number 2. 5. Adopted in number 3. 6. through 8. Adopted in number 4. 9. through 14. Adopted in substance in number 5. Adopted in substance in numbers 6 and 7. Adopted in substance (as to Ms. Cozad's subjective perception) in number 18. Adopted in numbers 8 and 7. 18, 19. Adopted in numbers 10 and 11. 20. through 22. Adopted in number 12. Rejected as unnecessary. Adopted in number 12. Rejected as contrary to the weight of evidence. Adopted in part in number 16, otherwise unnecessary. Adopted in number 17. Rejected as unnecessary. Adopted in number 13. Rejected as redundant and unnecessary. Rejected as contrary to the weight of evidence. Adopted in number 15. 33 and 34. Rejected as unnecessary. BARBARA HIGGINS Adopted in number 1. Adopted in number 15. Adopted in numbers 3 and 4. Adopted in number 5. through 7. Rejected as summary of the testimony, however the facts based on that testimony are found in numbers 5 through 7. Adopted in part in number 8, otherwise unnecessary. Adopted in part in numbers 14 and 19, otherwise unnecessary. Adopted in number 15. Adopted in part in numbers 10 and 11, otherwise unnecessary. Adopted in number 16. COPIES FURNISHED: Donna L. Surratt-McIntosh, Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons P.O. Box 1330 Sanford, FL 32772-1330 John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, FL 32308 Robert Hughes, Superintendent School Board of Seminole County 1211 Mellonville Avenue Sanford, FL 32771 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Leslie Weaver Procedural Safeguards Department of Education 325 West Gaines Street, Suite 614 Tallahassee, FL 32399-0400 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons P.O. Box 1330 Sanford, FL 32772-1330
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee, on the basis that Respondent failed to satisfactorily and efficiently perform his assigned job duties, and/or he committed gross insubordination and willful neglect of duties.
Findings Of Fact The allegations against Respondent are set forth in the Petition for Termination of Employment (the Petition), dated August 7, 2008, and filed with DOAH on September 12, 2008. Respondent was employed as a custodian with the Lee County School Board (Petitioner) since January 12, 2000. He currently is assigned to Riverdale High School. The position of custodian is an educational support employee. Carl Steven Adams (Adams) is assistant principal for administration at Riverdale High School. He was responsible for all matters relating to the school maintenance, including supervision of custodians. Adams prepared Respondent's annual performance assessment for each of the 2005-2006, 2006-2007, and 2007-2008 school years. Adams scored Respondent's performance in the 2005-2006 year as achieving an effective level of performance, the highest possible score, in all 28 areas targeted for assessment. For the 2006-2007 and 2007-2008 school years, Respondent worked the evening shift and was assigned to clean the gym, the boys' locker rooms, the band room, the chorus room, three portable classrooms, the agricultural hallway, the football restrooms, and a portion of the cafeteria. During the 2007-2008 school year, after Respondent requested assistance, he was relieved of cleaning the boys' locker rooms and was assigned eight additional portable classrooms. For the 2006-2007 school year, Adams scored Respondent as achieving an effective level of performance in 18 of the 28 areas targeted for assessment, including "completes requests and directives in a timely manner," "begins tasks with minimum of direction," "maintains continuous workflow," and "takes advantage of available training opportunities." Respondent received a lower score of "focus for development/feedback" in ten areas targeted for assessment. Those areas that needed improvement included "effectively plans, schedules and controls work"; "completes a reasonable amount of work in a timely manner"; and "seeks to improve quality and efficiency of work." Adams testified that he did not score Respondent as performing at an "unacceptable level of performance observed," because he did not have any written documentation to that effect. On September 4, 2007, Respondent was issued a "letter of warning regarding allegations of incompetence in reference to your job," which "directed [him] to pay closer attention to [his] assigned job duties, ask for assistance when needed, and ask for instructions and guidance in defining [his] job duties." No evidence of documented performance deficiencies relating to Respondent was offered in evidence for the first semester of the 2007-2008 school year. The Petition and Joint Pre-hearing Stipulation listed only alleged performance deficiencies commencing on or after January 7, 2008. On January 7, 2008, Respondent was charged with failing to perform his duties as instructed after allegedly being instructed by his supervisor to clean the restrooms at the football field. Respondent's immediate supervisors were the building supervisor and head custodian, neither of whom testified at the hearing. Respondent testified that he indeed had cleaned the restrooms twice that day, but the attendees at a swimming meet on that date used the facilities and "messed" them up. Respondent's testimony was credible. On January 10, 2008, Respondent is alleged to have been instructed to clean the cafeteria, in preparation for an open house that evening, and failed to perform the duties as instructed. Upon entering the main building after cleaning his assigned portable classrooms, Respondent was notified of the open house. Respondent testified that he and the other custodians were informed of the open house only one hour before the commencement of the event. The lunch tables had been pushed into his designated area so the other custodians could complete cleaning their respective sections of the cafeteria. He therefore had to wait for the removal of the tables before he could attend to his section. He hurriedly attempted to clean his area, but was not afforded sufficient time to properly clean the area before the entry of the public. On January 25, 2008, Respondent was charged with failing to perform his duties as instructed after the school athletic director allegedly instructed Respondent to clean the gymnasium, locker rooms, and lobby restrooms in preparation for a wrestling tournament. As with the building supervisor and head custodian, the athletic director did not testify at the hearing. Respondent, however, testified that he had cleaned the gym, locker rooms, and lobby restrooms. However, participants and others at a dance and/or choir event remained past the end of Respondent's shift at 11:00 p.m. and left the lobby and restrooms a mess. This resulted in the restrooms not being presentable to the public. On March 18, 2008, Respondent was charged with having failed to clean one of his regularly assigned areas: the agricultural hallway. Respondent testified that it is difficult to keep this hallway clean, because it has a door at the end that opens to the outdoors and leaves and debris blow into the hallway when there is a draft. The hallway also is located by the varsity athletes' locker room; foot traffic from the locker room to and from the playing fields can contribute to the hallway appearing messy even after its been cleaned. Respondent testified that he was only responsible for the tiled section of the hallway and that he regularly cleaned it. Adams conceded that he was only told of Respondent's alleged failure to clean the hallway and did not independently verify the charge. Adams also acknowledged that March 18, 2008, was a Tuesday night. Tuesday nights are usually very active at the school, during that time of year. It was entirely possible that Respondent had cleaned the hallway and that foot traffic from the varsity athletes' locker room could have caused it to become dirty. On March 19, 2008, Adams personally found the restrooms on the south end of the football field "too disgusting to be opened for the lacrosse game." Respondent testified that these restrooms are supposed to remain locked and be cleaned only as needed. However, periodically people access them and leave the facilities dirty. Respondent discussed the problem with Adams, and he was assured the restrooms would remain locked. On March 19, 2008, Respondent had not been informed that there was a scheduled lacrosse game, and, thus, was unaware of the need to check on the condition of the restrooms. Adams did not know whether anyone had, in fact, notified Respondent of the scheduled lacrosse game. On March 24, 2008, Respondent received a letter of reprimand from Adams recounting the foregoing alleged performance deficiencies on January 7, 10, and 25; and March 18 and 19, 2008. The following day, Adams presented Respondent with his 2007-2008 annual performance assessment, scoring Respondent as unacceptable in four areas targeted for assessment. It included: "begins tasks with minimum direction," "seeks to improve quality and efficiency of work," and "inconsistently practiced" in ten areas targeted for assessment. It also included: "completes a reasonable amount of work in a timely manner," "achieves expected results with few errors," and "completes requests and directives in a timely manner." The letter of reprimand, issued the previous day, furnished the requisite documentation for Adams to give Respondent a poor performance assessment for the year. Adams' testified that Respondent's letter of reprimand, delivered to Respondent one day before the negative performance assessment, was "coincidental." The letter of reprimand Respondent received March 24, 2008, cautioned Respondent that "[f]rom this point forward, you are to follow all directives given to you by your supervisors. Failure to comply with these directives will result in disciplinary action up to and including dismissal." Adams failed to contemporaneously notify Respondent of the now documented performance deficiencies, thus, preventing Respondent a timely opportunity to rebut the charges or remediate his performance. In the second semester of the 2007-2008 school year, Nancy Bell (Bell) sent Adams a total of six e-mails complaining about Respondent's work performance in her room, two of which were on successive days regarding the same complaint and three of which were in the course of one week in March. Bell directed her e-mail complaints about Respondent's performance solely to Adams and did not notify Respondent or his immediate supervisors about her complaints. Bell testified that she was instructed by Adams to follow this protocol. On April 24, 2008, Respondent was provided a letter of reprimand dated April 23, 2008, that outlined the following issues with his performance: Bell's classroom was not cleaned; Respondent was sleeping in the custodial room on April 16, 2008, at 9:15 a.m.; and Respondent's job performance has been below the standards required by the school and Petitioner. In this letter of reprimand, Adams wrote that he had "received six e-mails from one of the teachers in a classroom in your area of responsibility that describe unclean conditions and unsatisfactory work being done by you." Adams previously instructed the teachers at the school that if they had any concerns regarding the cleanliness of their room, they were to e-mail him. Bell is the only teacher to register a complaint with Adams about Respondent's work performance in her classroom, even though Respondent had the responsibility for cleaning three classrooms initially during the 2007-2008 school year and eight additional classrooms when he was relieved of cleaning the boys' locker rooms. Adams never spoke with Respondent about Bell's complaints until he presented the letter to Respondent on April 24, 2008. Although two of Bell's complaints predated his delivery of the first letter of reprimand to Respondent, Adams neglected to reference either of those complaints in the initial letter of reprimand. At the time, Adams simply referred Bell's complaints to the building supervisor and head custodian and relied on those individuals to address the matter with Respondent. Adams does not know when, or if, they did so; nor does he know whether Respondent was ever shown the e-mails prior to April 24, 2008, and, thus, had an opportunity to address her concerns. The evidence presented by Respondent satisfactorily explained the complaints received by Adams in regard to Respondent's performance of his duties on February 12, March 24, March 26, March 28, and April 10, 2008. The April 23, 2008, letter of reprimand also accused Respondent of having been discovered by his supervisor sleeping at 9:15 a.m. during spring break in 2008 when he was working daytime hours. Petitioner did not present any evidence to substantiate this charge, and Respondent vehemently denied ever sleeping on the job. Petitioner failed to prove this charge. There were occasions when upwards of three custodians would be absent from work. The custodians reporting for duty would have to clean the absent custodians' areas. Consequently, they would have less time to devote to their regularly assigned areas. Petitioner did not establish whether the custodial staff was always at full strength on the occasions when Respondent is accused of performing less than an adequate job of cleaning. Petitioner's investigator, Craig Baker (Baker), conducted a tour of the areas assigned to Respondent. He testified that he performed his inspection on Tuesday, May 20, 2008, at approximately 5:30 a.m., when the school was first opened and there had not been any activity in the school following the conclusion of the custodians' shift from the night before. He documented Respondent's alleged performance deficiencies with a digital camera. Due to his unfamiliarity with the operation of the camera, the photographs were of poor quality, and Petitioner elected not to introduce them into evidence. Baker detailed the results of Respondent's assigned work area. Baker testified that there was loose dirt and paper along the baseboard in the gym and that "it appeared that it had not been swept or cleaned from the evening or the day before." In the restrooms adjacent to the gym he noted "there was one toilet that had unflushed feces. It had not been flushed from the night before." Baker testified that, although the band room "looked adequately clean," he observed that in Bell's classroom there was "paper underneath one of the desks," "old gum stuck on the back of a desk," and "dust along the area adjacent to a computer that had not been dusted in some time, it appeared to me." Baker testified that, in the lunchroom, he observed "[s]everal trash cans that had not been emptied from the day before. They had trash in it, paper from food goods, things like that." Finally, Baker testified that he saw, "primarily in the hallway where the lockers were, one particular area there was [sic] loose screws where a maintenance worker had been doing some work that had not been cleaned for several hours, students could trip on them." Based on this inspection, Baker concluded that Respondent's work performance had not improved from the year before. However, Baker admitted on cross-examination that, based on the date stamped on the photographs he took while conducting his tour of Respondent's areas, the actual date of his inspection was Monday, May 19, 2008, at 5:30 a.m. He acknowledged that Respondent's last work shift preceeding the inspection was Friday, May 16, 2008. Baker did not know what athletic events or activities occurred at the school over the weekend. He admitted that the feces in the toilet could have been placed there after Respondent completed his shift on Friday and before Baker conducted his tour. He was unable to state whether the other deficiencies he noted were the consequence of people being in the building or activities occurring over the weekend. Charles Drayton, a custodian at the school for six or seven years, testified that, during the 2007-2008 school year, he stood in as acting head custodian when Floyd Davison, the head custodian, was absent. He explained that when he was acting head custodian, and it was necessary to clean the area of another custodian who was sick or absent, he would have all the custodians assemble at the absent custodian's assigned area and clean it en masse before returning to their individual job assignments. He testified that on those occasions Respondent did a good job and that he performed with the same level of professionalism as every other custodian. Charles Drayton's testimony was credible. Respondent was assigned to clean the large areas in the school that had a lot of foot traffic. In regard to the difficulties Respondent experienced cleaning the boys' locker rooms, it is not uncommon for a custodian to clean the locker room, complete his shift, and leave only to have the athletes return from a game and "make a mess of it" resulting in his supervisor accusing him of not cleaning the area. There are a number of athletic events and other activities at the school that extend past the 11:00 p.m. termination of the custodians' shift. For both the 2006-2007 and 2007-2008 school years, Respondent was responsible for cleaning the agricultural hallway, cleaning the bleachers, as well as cleaning the locker rooms. These are high foot traffic areas. With athletic events not concluding until 10:00 p.m. or later, and athletes returning from away games following the conclusion of Respondent's shift, Respondent would be pressed for time to thoroughly clean those areas or would have already cleaned them only to have them appear to be messy, even after they have been cleaned. Since Respondent commenced working for Petitioner, he received one probationary performance assessment and nine annual performance assessments. With the exception of his last two years at Riverdale High School, i.e., the 2006-2007 and 2007-2008 school years and one year at Franklin Park Elementary School in the 2004-2005 school year, Respondent scored at an "effective level of performance" in all areas targeted for assessment. There was no probable cause for disciplinary action against Respondent for alleged incompetence in the 2004-2005 school year at Franklin Park Elementary School. Petitioner rescinded Respondent's dismissal and placed Respondent at Riverdale High School for the 2005-2006 school year. In Respondent's probationary and 1999-2000 annual performance assessments, Respondent's supervisor wrote favorable comments in the comments section regarding Respondent's performance. In his succeeding three years at Bayshore Elementary, his supervisor also wrote favorable comments on his 2000-2001, 2001-2002, and 2002-2003 annual assessments. Two classroom teachers at Riverdale High School, Michael Skocik and Christy Danielson, testified that they were very satisfied with Respondent's work performance during the 2006-2007 and 2007-2008 school years, and that he kept their classrooms clean. The evidence is insufficient to constitute just cause to terminate Respondent's employment. Petitioner did not call as witnesses Respondent's supervisors, the building supervisor, and head custodian, nor did it call the athletic director, to refute Respondent's testimony that he complied with their directives and satisfactorily performed his assigned job duties within the constraints presented by the unique nature of his job assignment. The greater weight of evidence established that Respondent satisfactorily and efficiently performed the large majority of his assigned job duties and that Respondent had a reasonable explanation and justification for those of his admitted deficiencies. Petitioner did not prove by a preponderance of evidence its charge that Respondent committed gross insubordination and willful neglect of duties, as those terms are defined in Florida Administrative Code Rule 6B-4.009(4), by continuously refusing to perform the custodial tasks assigned to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits to September 10, 2008. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2009. COPIES FURNISHED: James W. Browder, Ed.D. Superintendent of Schools The School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966
Findings Of Fact The parties stipulated that in February, 1984, while respondent was a student in the ninth grade at Westview Junior High School he punched another student in the face. As a result, respondent was required to serve a five day suspension. As a result of respondent's discussions with his mother concerning the incident, respondent wrote a letter of apology to the other student. The parties further stipulated that in March, 1984, while respondent was a student in the same school, he was involved in a fight. As a result, he was required to serve a ten day suspension. Although petitioner's attorney argued at the formal hearing that the March incident involved some type of "aggravated assault" and/or inciting to riot," petitioner failed to introduce any evidence in support of that argument or even regarding the incident itself. On the other hand, the evidence is uncontroverted that no charges were filed against respondent and no involvement with the juvenile justice system followed the March, 1984. On April 13, 1984, petitioner administratively reassigned respondent to Miami Douglas MacArthur Senior High School - North. The parties stipulated at the time of the Final Hearing in this cause that respondent's overall grades and conduct have been satisfactory throughout respondent's attendance at Miami Douglas MacArthur Senior High School - North. For the last one and a half years respondent has been voluntarily participating in a private community youth guidance program. Although that program accepts some court referrals, respondent was not referred by the courts, is a continuous participant in the program, and can remain in the program for two more years until he reaches the age of 18. Respondent attends activities conducted by that program once a week after school. His counselor, Greg Rounds, believes respondent to be a quiet person who does not belong in an alternative program school and who is more likely to become and remain rehabilitated if returned to the regular school program.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, therefore, RECOMMENDED THAT a Final Order be entered returning respondent to the regular school program and reversing the determination that respondent be placed or retained in an educational alternative program. DONE and RECOMMENDED this 23rd day of August, 1984, in Tallahassee, 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 23rd day of August, 1984. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Mr. James Nealy 12315 North West 18th Place, Apt. #B Miami, Florida 33167
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint.
Findings Of Fact At all pertinent times, Clifton Jerome Locke has held Florida Teacher's Certificate Number 361372 for the areas of psychology, administration and Junior ROTC, and has taught as a Junior Army ROTC instructor at Crestview High School. Major Jordan was the director of army instruction for the Okaloosa County School Board and Sgt. Locke's "superior officer" at all pertinent times. Ever since Sgt. Locke began as a Junior Army ROTC instructor at Crestview High School, in January or February of 1971, Major Clifton D. Jordan's job was "[t]o coordinate and to command, really, if you will, the Army ROTC operations within the county school system." (T. 39-40) TELEPHONE BILLS The Okaloosa County School Board relied on the ROTC program to secure reimbursement from the U. S. Army for long distance charges incurred by ROTC. When the School Board received telephone bills for the ROTC telephone at Crestview High School, the office of the assistant superintendent for finance paid them, and sent copies of the bills to Crestview High School's Junior ROTC program. As the monthly phone bills arrived, Sgt. Locke looked them over, then gave them to a cadet, who prepared DA Form 360 and DA Form 3953, for Major Jordan's signature. Major Jordan signed the Army form to which a copy of the monthly telephone bill was attached, DA Form 3953. This form and attachments were regularly sent to the signal officer at Fort Rucker, Alabama, until the practice ceased in the spring of 1978. Although unsure whether his office, the school principal or Major Jordan received the Army's reimbursement checks, Creel Richardson, Jr., assistant superintendent for finance for the Okaloosa County School Board, testified without contradiction that the U. S. Army had not reimbursed long distance charges incurred by the Junior ROTC program at Crestview High School over a 46-month period beginning in the spring of 1978. During this entire period, Major Jordan was "telephone control officer." Army regulations precluded Sgt. Locke's serving as telephone control officer. (T. 81) Some time in 1978 Sgt. Locke received a note from Mrs. Strauder of the signal office which read: Returning your bill to be corrected. Please mark calls on the phone bill that add up to fifty-three ninety- five ($53.95), all three copies, please. It was about this time that Sgt. Locke and Major Jordan discussed the use of the telephone for other than official long distance calls. Although Major Jordan did not recall this conversation, he did testify at hearing that he had made various personal long distance calls on the ROTC telephone and had sought Army reimbursement for them by failing to delete personal items from the phone bill copies forwarded to Fort Rucker. Without counting calls made in 1982, Major Jordan made more than two hundred personal, long distance calls on the ROTC telephone, between February 14, 1978, and May 26, 1983. See Respondent's Exhibit No. 5. Eventually, the Federal Bureau of Investigation looked into Major Jordan's personal use of the ROTC telephone for long distance calls, but criminal charges were not brought. Other school personnel also made unauthorized use of the ROTC telephone. Major Jordan, who had never delegated any responsibility or duty in connection with telephone bill reimbursement to Sgt. Locke in writing, told him not to be concerned about which of the phone calls were in fact official calls. Sgt. Locke continued for a few months to give phone bills to cadets for preparation of the reimbursement request forms and the forms continued to be prepared. But Major Jordan stopped signing them and Sgt. Locke eventually stopped giving the phone bills to the cadets who prepared the forms. Of the 46 monthly bills for which no reimbursement was sought, 29 had not been opened in March of 1982, at the time Sgt. Locke was transferred from the ROTC department and Major Jordan went through respondent's desk drawers. At some point, Sgt. Locke told Major Jordan he would rather not be involved in preparation of the forms. He told the student cadets responsible for preparing the forms to deal directly with Major Jordan. In or about October of 1982, the signal office inquired about phone call reimbursement and charges for long distance. Phone calls billed to the ROTC number at Crestview High School aggregated $2,974.42 over the 46-month period. How much of this sum reflected official calls was not clear from the record. Another year elapsed after Sgt. Locke's transfer from the ROTC department before Major Jordan signed and transmitted any phone bill reimbursement forms to the signal office, with the result that reimbursement for any official calls was lost to the Okaloosa County School Board for much of that period as well. CANDY SALES Toward the beginning of the 1981-1982 school year, Jerry Pilgrim, a candy salesman from Milton, Florida, spoke to Major Jordan and Sgt. Locke about the ROTC students' selling candy to raise money. In October, it was agreed that a sale would take place later in the fall. Mr. Pilgrim discussed the candy sales with Major Jordan, who told him to deal with Sgt. Locke. Orders for candy to be delivered in November and December were not filled on time, so Sgt. Locke cancelled them, fearful the upcoming Christmas vacation would complicate matters. When Mr. Pilgrim stopped by the school to apologize for his failure to deliver the candy on time, Major Jordan said ROTC might sell candy some other time. In all, Mr. Pilgrim spoke to Major Jordan six to ten times and never got any indication that Major Jordan opposed a candy sale. It was Major Jordan who chose the particular kind of candy (Reese's candy bars) the day Mr. Pilgrim handed out samples. Major Jordan never told respondent not to conduct a candy sale. Major Jordan and Sgt. Stakley's testimony otherwise has not been credited. In January, Sgt. Locke placed another order for candy by telephone and Mr. Pilgrim delivered the candy the third week of January, 1982. He unloaded the trunk of his car at the ROTC office at Crestview High School, and returned two days later with 20 more cases of candy. Two weeks later he again called at the school, but Sgt. Locke told him that the principal was upset and that ROTC would not be ordering more candy. For the 1981-1982 school year and for some time previously, there was a written policy at Crestview High School requiring approval in advance of fund raising projects, and requiring, with respect to sales conducted by students, that a form be filed reflecting beginning inventory, cost per item, closing inventory, profit, total cost and total items sold. Petitioner's Exhibit No. 1. Both Major Jordan and Sgt. Locke knew or should have known of this policy, even though there was no evidence that the ROTC program had followed it in the past. Approval was not obtained for the candy sale in advance, nor was the required form filed. On January 21, 1982, six students turned in a total of $89.50 to Sgt. Locke, money they had been paid for candy. On January 25, 1982, six students turned in more candy sale proceeds to the respondent, aggregating $86.00. On January 26, 1982, Sgt. Locke entered the hospital, having suffered a mild stroke. He had trouble seeing, was unable to change gears driving, and finally fainted, slumping over his typewriter at Crestview High School. In the hospital, he remembered the money in his desk and asked his daughter, Cynthia Faith, who was also a cadet in the ROTC program, to retrieve the cash from his desk drawer. Sgt. Locke could not see well enough to count the money, so his wife, his daughter and his parents, who were visiting at the hospital, counted it for him. His wife drew a check in the amount of $175.50 on a joint account she shared with respondent, and one of the respondent's daughters gave the check, Petitioner's Exhibit No. 6, along with the required "Report of Monies Collected" forms, Petitioner's Exhibit No. 5, to the school bookkeeper, Ms. Earlene Carter, on February 5, 1982. (T. 163) Proceeds from the candy sale totalled at least $1385.86 and there were no complaints about the handling of the rest of the money. Insofar as the evidence shows, all the money the students turned in was ultimately deposited with the school bookkeeper. School policy required that "teachers who receive money from students in a school related activity should . [t]urn the money into the bookkeeper the day it is collected or as soon thereafter as possible." Petitioner's Exhibit No. 2. Pictures were taken of the ROTC students by James L. Davis of Stone Studio in Pensacola. Most of the students showed up with their money at the time pictures were taken in January of 1982. Others, including respondent's two daughters, did not pay for their photographs the day they were taken, but Cynthia Faith Locke later gave Sgt. Stakley $20 for the pictures taken of her sister and herself, and the photographer was eventually paid in full. Major Jordan testified at hearing that he found a "collection voucher" in Sgt. Locke's desk drawer reflecting that four ROTC students had made payments of ten dollars each for photographs, but that no money was attached to the voucher or present elsewhere in the drawer. Two of the students Major Jordan said were listed on the "voucher" were Sgt. Locke's daughters. The evidence was insufficient to show that Sgt. Locke ever received any money from any student for photographs. The "voucher" Major Jordan claimed he found was not produced at hearing. Aside from Major Jordan's testimony, which has not been credited in this regard, no evidence suggested any impropriety in the handling of any moneys respondent may have received in connection with the sale of photographs to ROTC students. APPLICATION LATE Dean Oliver Casey, a student enrolled in the ROTC program at Crestview High School, filled out an application for an ROTC scholarship in December of 1980. Major Jordan and Dean Casey had discussed the scholarship application two or three times between September 1, 1980, and mid-November of that year, and Major Jordan had told him to mail the completed application to Fort Monroe, Virginia, but he missed the December 15, 1980, deadline. Later Dean Casey gave the completed application to Sgt. Locke who asked Major Jordan if he could "pull any strings" to get the application considered, even though the deadline for submission had passed. After Major Jordan "relieved" Sgt. Locke of his ROTC assignment, respondent went to work in Okaloosa County School Board's finance department at the Carver Hill complex. On the assumption that the allegations against him were true, his effectiveness as a ROTC instructor had been impaired, the consensus of the testimony was, but there was no evidence of the impact on his effectiveness on the assumption that the charges were false, even in part; and no evidence as to his effectiveness while employed in the finance department. The parties' proposed findings of fact have been considered in preparation of the foregoing. To the extent they have not been adopted, they have been rejected as unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 25th day of May, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Ronald G. Meyer, Esquire Pamela Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32301
The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether the Superintendent of Hamilton County Schools recommended that the Respondent enter into a professional services contract with the Petitioner, Gene Starr?
Findings Of Fact Gene A. Starr has been continuously employed by the School Board of Hamilton County as an agriculture teacher since the 1985-1986 school year. On March 18, 1988, the principal of Hamilton County High School recommended to the Superintendent of the Respondent that the Respondent enter into a professional service contract with Mr. Starr. At a meeting of the Respondent held on April 12, 1988, the Superintendent made recommendations to the Respondent concerning reappointment of a number of employees. The Superintendent specifically recommended that Mr. Starr receive a professional service contract. A motion was made and seconded by members of the Respondent to accept the recommendations of the Superintendent. The following events took place, as reported in the minutes of the Respondent's April 12, 1988, meeting: At the Board's request, Mr. Lauer [the Superintendent] appeared to discuss the recommendation of Gene Starr. The consensus of the Board was that the agriculture program has not progressed as per expectations, and that Mr. Starr's coaching duties conflict with his duties as an agriculture teacher. It was the opinion of some members that there should be more emphasis on crop production and harvesting and on supervision of home projects. Following the discussion of the Superintendent's recommendation concerning Mr. Starr, the Superintendent "asked for and was granted permission to withdraw his recommendation on & Mr. Starr and to resubmit another recommendation on him at a subsequent meeting." The Superintendent then "amended his recommendation to omit Mr. Starr" and the motion to accept the Superintendent's recommendations was amended to reflect this change. The Respondent then approved the Superintendent's recommendations, as amended. The Respondent did not consider whether there was "good cause" to reject the Superintendent's recommendation concerning Mr. Starr. At a May 10, 1988, meeting of the Respondent the Superintendent recommended that Mr. Starr be reappointed to an instructional position for the 1988-1989 school year and that Mr. Starr serve in the instructional position for a fourth year on annual contract instead of being granted a professional services contract. The recommendation was withdrawn on advice of counsel for the Respondent. At a May 23, 1988, meeting of the Respondent Mr. Starr and the Respondent agreed that Mr. Starr would agree to a fourth year on annual contract, "subject to and without prejudice to a formal hearing on his right to a professional services contract." Mr. Starr was informed of this action in a letter dated May 31, 1988. Mr. Starr filed a Petition for a Formal Hearing challenging the Respondent's action with regard to the Superintendent's recommendation to the Respondent that Mr. Starr receive a professional services contract. In the Petition, Mr. Starr specifically requested the following relief: That the matter be assigned to the State of Florida Division of Administrative hearings [sic] for the assignment of a hearing officer. That a formal hearing be held on this particular petition pursuant to Sec. 120.57(1), Fla. Stat. as to Petitioner's entitlement to employment under a professional services contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the recommendation of the Superintendent of Hamilton County Schools be accepted by the School Board of Hamilton County unless the School Board of Hamilton County concludes that there is good cause for rejecting the recommendation. DONE and ENTERED this 18th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4116 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-9. 3 10. 4-8 Statement of events which occurred at the formal hearing and some of the arguments advanced by the parties at the formal hearing. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 Donald K. Rudser, Esquire Post Office Drawer 151 Jasper, Florida 32052 Owen Hinton, Superintendent Hamilton County School Board Post Office Box 1059 Jasper, Florida 32052 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue By letter dated December 17, 1984, Petitioner, School Board of Dade County, advised the mother of Respondent, Torrey Sherwin Davis, that Respondent was being administratively assigned to an educational alternative program at Jann-Mann Opportunity School- North effective upon receipt of the letter because of Respondent's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." Thereafter, Respondent's mother timely requested a hearing to contest this assignment.
Findings Of Fact At all times relevant thereto, Respondent, Torrey Sherwin Davis (Torrey), was a sixth grader at Rainbow Park Elementary School in Dade County, Florida, during school year 1984-85. The school is under the jurisdiction of Petitioner, School Board of Dade County. While attending Rainbow Park, Torrey exhibited disruptive behavior on a number of occasions. The dates of such behavior and a detailed description of the same are set forth in detail in Petitioner's exhibit 1 received in evidence. They include pushing, hitting and biting other students both in and out of the classroom, yelling and disrupting classes during periods of instruction, being rude and disrespectful to teachers, and "feeling" female students. Torrey has been repeatedly counseled by teaching personnel regarding his conduct, and at least two or three teacher-parent conferences were held by school officials with Torrey's father. This counseling failed to produce a change in his behavior. Respondent's conduct become so disruptive by December, 1984, that Torrey was unable to function properly in a normal school environment. After a careful assessment of his academic progress and behavior by school officials, Petitioner reassigned Torrey on December 17, 1984, to Jann-Mann Opportunity School- North effective immediately. He has remained there since that time. Although Respondent's mother contended that Torrey was "picked on" by his teacher, periodic monitoring of Torrey's classes by the school's assistant principal dispelled the validity of this claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered determining that Respondent be placed in an educational alternative program. DONE and ORDERED this 8th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 Administrative Hearings this 8th day of August, 1985. COPIES FURNISHED: Ms. Mary Davis 1500 N.W. 154th Street Opa Locka, Florida 33054 Mark A. Valentine, Esq. Suite 800, 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent’s teaching certificate and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 484422, covering the areas of biology and mathematics, which is valid through June 30, 2017. During the 2013-2014 school year, Respondent was employed as a mathematics teacher at Oak Park. Respondent worked at Oak Park from September 25, 2013, to May 20, 2014. On May 21, 2014, Respondent was removed from her classroom as a result of the May 16, 2014, student-smoking incident (the “incident”) described herein and assigned to the school district office in a non-instructional position. Respondent was a first-year probationary teacher at Oak Park. Due to the incident, Respondent’s employment with the school district was not renewed for the following school year. Respondent is currently employed at Emerald High School in Greenwood County, South Carolina. Respondent had not been the subject of any previous complaints or disciplinary actions during her period of employment. The first session of the Oak Park school day, extending from 9:04 to 9:34 a.m., is called Knights Unite (“KU”). KU is described as: 30 minute period where healthy relationships between the students, faculty and staff of OPMS can be built. It is a time set aside for mentoring, engaging students with interactive activities to build their character, interactive activities to review content and to give each student of Oak Park someone they can trust and confide in. Respondent described the KU period as one in which she could help students to make up work, help them with independent study, allow students to meet with other teachers for help or independent study, engage in certain mandated activities, e.g., bullying lessons, and perform student-related administrative tasks. Fridays were typically independent study days in which students were allowed to make up work from the week. On Friday, May 16, 2014, during the KU period, students were involved in independent study and with filling out required address forms. Students needing to go to the media center, the guidance office, the main office, or to meet with other teachers during the KU period are given passes. Allowing students to engage in those tasks, including issuing passes for students “to get assistance or additional paperwork from a different teacher” was not contrary to Oak Park policy, nor did it violate any standard. Except for the four students involved in the incident, there was no evidence that any student left Respondent’s classroom without a pass. Petitioner suggested that the tasks being performed (or that were supposed to be performed) in Respondent’s class on May 16, 2014, were inconsistent with Petitioner’s written KU guidelines. Since the activities being performed by students, with the exception of those related to the incident, were not alleged as violations in the Administrative Complaint, compliance with the KU guidelines is not at issue. Furthermore, the evidence demonstrates that activities, such as individual mentoring or tutoring and individual catch-up work, are an appropriate use of KU period time. According to Ms. Longo, there were 18 students in Respondent’s KU class on May 16, 2014. At the time of the incident, each student had an individual desk. Currently, as depicted in the photographs in evidence, the classroom has been reconfigured with tables that seat multiple students. At some point during the May 16, 2014, KU period, a group of four of Respondent’s less responsible students huddled furtively in the back of the classroom. The two male students involved, D.L. and J.G., lit the butt of a small “Tiparello”- style cigar, and took a few quick puffs. They had their backs to Respondent’s desk and ducked down to conceal their actions. One of the two female students, J.C., in order to preserve the foolhardy act for posterity, took a cell phone video of the incident. The length of the video was a total of one minute and 51 seconds. The cigar appeared to have been first lit at the 0:05 mark. The youthful miscreants did not intend to be discovered, as evidenced by one student’s hushed statement that “I swear to God if you show anybody that [unintelligible] snitch.” That their actions were not obvious is supported by the lack of attention that they drew from other more conscientious students in the class, who did not look up or react to the act of false bravado. At the 0:17 second mark, Respondent can be seen at her desk at the front of the room attending to H.E., another student who was not involved in the incident. H.E. was generally positioned between Respondent and the cigar-smoking students, shielding Respondent from their actions. Respondent was also in the process of taking attendance. Ms. Longo testified that it is appropriate for Respondent to be at her desk to perform those tasks. Although Respondent and H.E. are only glimpsed at the 0:17 mark, it is not reasonable to conclude that H.E. simply vanished at that point, exposing the four troublemakers to Respondent’s view. Rather, some seconds had to have passed before H.E. moved away. The student’s efforts to hide the cigar and fan away the smoke confirm their efforts to avoid detection. Although J.G. coughed, his proximity to the cell phone (one or two feet) makes it impossible to tell how noticeable the cough would be from a distance. At the 0:25 mark, D.L. eyed the recording cell phone and threw down with a devil-may-care “whazzup, whazzup.” From roughly the 0:33 mark to the 0:44 mark, the youthful miscreants hurriedly hid the evidence and assumed an attitude of casual insouciance. The video then went black from the 0:43 mark to the 0:55 mark and, although the picture returned, the cell phone was clearly being concealed from the 0:55 mark to the 1:03 mark. That thirty seconds of cover and concealment is consistent with Respondent’s testimony that she got up and went over to the students’ desk area. The video resumed at the 1:03 mark and, after a few furtive sweeps of the area, clearly taken from a low vantage point, again went black from the 1:11 to the 1:18 mark. At the 1:18 mark, the video resumed and, at the 1:22 mark, J.G. is seen lighting the half-inch butt with a Bic lighter. The behavior of J.G. and D.L. demonstrated a continued effort to conceal their actions. At the 1:30 mark, the video shows that the students had been “busted.” J.G., in a display of feigned innocence, loudly proclaimed “what is that smell?” By the 1:35 mark, Respondent had called J.G. and the owner of the phone to her desk, and they dutifully complied. An unidentified student mentioned the word “perfume,” and either J.G. or J.C. spoke of “cologne” in an obvious effort to explain the unusual aroma in the room. At the 1:48 mark, Respondent advised J.C. that Respondent would need her phone for the rest of the class. Though occurring after the 1:51 end of the video, Respondent successfully confiscated the phone, which Ms. Longo confirmed was the appropriate course of action. Respondent indicated that she could momentarily smell something unusual in the room, which she attributed variously to incense, cologne, or deodorant. Due to the pervasive musty and mildewy smell in the class caused by a water leak and chronically wet carpeting, along with her blocked sinuses, she could not tell what it was. As stated convincingly by Ms. Pickens, “there were different types of smells in there on one day to the next depending on whether or not they put the fan in the classroom to dry out the carpet.” There was no evidence that Ms. Warren could see what was occurring while taking attendance and consulting with the student at her desk.2/ Petitioner’s speculation that Respondent could have (or should have) seen exactly what was happening at the back of the room was just that - speculation. After J.C.’s cell phone was confiscated by Respondent, D.L. came up with several excuses as to why he should be allowed to leave the classroom. His requests were denied. Thereafter, as Respondent was calling the office to report the incident, D.L. and J.G., followed by the girls, J.C. and C.W., left the classroom without permission. Teachers are not allowed to physically restrain students attempting to leave the classroom. Rather, the teacher is to “push the call button that’s in every classroom immediately and say that so-and-so just walked out of my class.” Respondent complied with that expectation by calling the office, which is an acceptable option. Since no administrators were available, Respondent gave the information regarding the students’ escape from the classroom to Ms. Longo’s secretary. It took a while for anyone to respond to Respondent’s call. The students returned to the classroom after about five minutes. After their return, Mr. Justus, who was the school’s athletic director and “coach” for the social studies department, and a member of Ms. Longo’s “leadership team,” came to the room. Respondent wrote referrals on D.L. and J.G., and they left with Mr. Justus. After the boys were taken from the classroom, Respondent sent an email to Mr. Wade, the associate principal and dean of discipline, and Mr. Justus to inquire about the referral of the girls, J.C. and C.W., and to let them know that she had J.C.’s cell phone. Two periods later, Mr. Wade came to Respondent’s classroom, at which time Respondent turned over J.C.’s cell phone to him. By that time, she had retrieved a cigar wrapper from D.L.’s desk, which was also turned over to Mr. Wade.3/ Ms. Peterson concluded that “[n]o evidence exists to show that Ms. Warren was ever aware that students were actually smoking a cigar in her class.” She further testified that Respondent “wasn’t aware they were smoking. She thought something was wrong, but that doesn’t mean she knew that they were smoking. That could mean that someone’s with something like a piece of paper.” On May 20, 2014, Respondent was removed from the classroom and reassigned to the school district office. Respondent’s inability to see exactly what was occurring in the back of the classroom did not prevent her from suspecting improper conduct by the students and acting on that suspicion by appropriately requesting assistance from administration, confiscating the cellular telephone of a student, and investigating the matter herself to find the wrapper. The tone of the Administrative Complaint gives the impression that J.G. and D.L. put their feet up on their desks and enjoyed a fine Cuban Presidente while under Respondent’s approving gaze. Nothing could be further from the truth. The facts show that J.G. and D.L., in a manner that was as sneaky and surreptitious as possible, lit the small cigar and, over the course of approximately 28 seconds, took a few furtive puffs. After putting it out and hiding the evidence, the miscreants repeated the act for approximately 13 seconds before being nabbed. The suggestion that Respondent neglected her duties, failed to make reasonable effort to protect her students from conditions harmful to learning or to their mental or physical health or their safety, or engaged in personal conduct that seriously reduced her effectiveness as a teacher is simply not supported by the facts of this case.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 17th day of November, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2016.
