The Issue The issues to be determined are whether Respondent, Ms. Claudine Etienne, violated section 1012.795(1)(j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Ms. Etienne holds Florida Educator's Certificate 845026, covering the areas of English and mathematics, which is valid through June 30, 2018. At all times relevant to the complaint, Ms. Etienne was employed as an English teacher at Miami Springs High School in the Miami-Dade County School District. On or about January 20, 2012, an unknown student ignited a smoke bomb or large firecracker in a locker in Ms. Etienne's classroom. Ms. Etienne was unsure what the device was or how it was ignited. Smoke was generated from the device, and it filtered into the classroom. One or more students requested to leave the room because of the smoke. In her deposition, Ms. Etienne indicated that at the time of the incident, she was aware that one of the students assigned to her class, C.E., had asthma because she had a conversation with C.E.'s mother in December about it. Ms. Etienne testified that she did not recall C.E. asking her to leave the room on the day of the incident, however, and in fact did not remember if C.E. was even in class that day. Ms. Etienne did not believe the smoke was sufficiently serious to require her to allow the students to leave the room. She was uncertain how to proceed until administrators who had been called arrived in the classroom. Ms. Etienne instructed the students to stay in the room until an administrator arrived. One student subsequently required medical attention as a result of the smoke inhalation. In her written statement, C.E. stated that paramedics came to the school to assist her because she could not breathe after her exposure to the smoke in the classroom.2/ Ms. Etienne later received a verbal reprimand from the school district.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Ms. Claudine Etienne in violation of section 1012.795(1)(j), Florida Statutes, through her violation of Florida Administrative Code Rule 6B-1.006(3)(a), issuing her a letter of reprimand, and assessing a fine against her in the amount of $500. DONE AND ENTERED this 7th day of February, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 7th day of February, 2017.
The Issue The issues presented for determination are the following: Whether Respondent has violated rules of the School Board of Palm Beach County so as to constitute misconduct in office. If Respondent has committed misconduct in office, what penalty is to be imposed, including whether Respondent is entitled to back pay and in what amount.
Findings Of Fact At all times material hereto, Respondent, Dr. James McCabe, was employed by Petitioner, Palm Beach County School Board, as the Assistant Principal for Student Services in charge of special education at Crestwood Community Middle School. In this capacity, Respondent's duties include the supervision of the students and teachers in special education. He is responsible for parent contact and involvement in addition to student discipline. He manages the dropout prevention and honors program. Additionally, he has other administrative duties which relate to the migrant and alternative education programs. Although he is primarily assigned to the special education program, he assists in other areas such as school-wide discipline. On December 14, 1989, in the early afternoon, Respondent was called to Mr. Mundt's shop class with Mrs. Satchel, another Assistant Principal for Student Services, by the school's walkie-talkies. Responden1t was informed by Mr. Mundt, the shop teacher, that a baseball card worth in excess of $50 was missing. The baseball card had been displayed in the same class during the beginning of the period. The period was split by a lunch break. It was after the students returned from lunch that Respondent and Ms. Satchel were called to investigate its loss. The parties stipulated that, "Presumably, it [the card] had been taken by someone in the class." According to Respondent, the card was owned by a student with cerebral palsy. The student was limited physically and could not participate in sports at the school. He collected baseball cards as his sport. When they arrived, Respondent took charge of the male students while Ms. Satchel assumed the responsibility for the female students, as the logical separation of duties. Respondent asked the boys to go to one side of the room and told them that he would like the baseball card to appear on the table. He told them he would turn his back to them, and that if the baseball card appeared, that would be the end of it. Respondent then turned his back, and the baseball card did not appear. Prior to this incident, thefts of other valuable merchandise had occurred around the area of the shop class. A wallet was stolen from a teacher's car which was parked immediately outside the shop class just a week prior to the incident at issue. Respondent did not think that a particular student had stolen the card. Instead, he reasonably suspected that someone in the group had taken it. The period was coming to an end and another class was due in the room. Respondent did not attempt a lesser method of searching the boys for the baseball card, nor was a lesser method of searching the boys proven at the hearing. Instead, Respondent, in accordance with the procedure at Crestwood, instructed the boys to all go down to the clinic which is not within the immediate vicinity of the shop class where they were temporarily detained. He chose to remove the boys from the classroom because he did not want to subject them to the confusion from the incoming class or to any unnecessary embarrassment which might be caused by questioning them in front of it. He also wished to protect the learning environment for the incoming students. The clinic is a three room complex. To avoid unnecessary embarrassment of the students, Respondent took one student at a time into one of the outer rooms of the complex. He then asked the student to remove his shirt. He felt the shirt and handed it back to the student. He then requested their shoes and socks and handed those back after searching them. He then asked for the students outer pants. He did not request that any student remove his undergarments; their underpants and undershirts or T-shirts, if any, remained on. As Respondent completed his check of each piece of clothing, he handed the article back to the student. If the student was slow in completing his dressing, he then asked that student to finish dressing in the back of the room. At times, while the slow student was completing his dressing, the next student was asked to come in and commence the disrobing procedures. At times, more than one student was in the room. One was tying his shoes while the other was handing his shirt to Respondent. Respondent believed that he had the right to search the students to the extent necessary after having received instruction to that effect from school security and after having read the school board rule on detention, search and seizure. He apologized to the group for having to perform the search in this manner which was necessary under the circumstances. According to Respondent, sometime during the search, a couple of boys came into the room and asserted that one of the boys, who had not been searched at the time, had the card. The boys suggested that Respondent search just this one student and stop the search of each student. In reply, Respondent said, "I don't want to embarrass him anymore than anybody else. I really don't want to put any suspicion on him. Let's just take him in the normal course of events, when his turn comes up," and continued the search of each student in his charge. Each student cooperated with Respondent. Out of the twelve or thirteen students involved, only one student objected to the search procedure. In response to the objection, Respondent gave the student the opportunity to call the school security or to call his mother and ask her to come to the school. The student chose neither option and participated in the search. As Respondent reached the last student, Mr. Hagan, the principal at Crestwood, came into the room and asked Respondent to step outside. He told Respondent that he did not see how the school could benefit from the search and told him to stop the search. The baseball card had not been located at that point. Respondent stopped immediately. If Mr. Hagan believes that a teacher or administrator is not effective at his school, there is a procedure for asking that teacher or person to be removed from the staff. Mr. Hagan chose not to commence the procedure in this instance. Prior to this incident, searches of students occurred at Crestwood, but no search had involved the removal of the students clothes. The guidelines for detention, search and seizure of students in the Palm Beach County School District is contained in Palm Beach County School Board Rule 5.18(5). The rule authorizes school personnel, such as Respondent, to temporarily detain students for questioning, upon reasonable indication of wrongdoing, and to search, to the extent necessary, students upon reasonable suspicion of illegal activity. The rule, however, does not establish the permissibility or impermissibility of any specific search procedure, i.e., pat down, strip search or other means of locating the missing items. Although the School Board gives periodic seminars, and Respondent has attended every seminar at which his attendance was required, no seminar has given specific instruction on the procedures to be used when searching students. Respondent had read the rule on detention, search and seizure prior to the December 14 incident. Also, prior to the incident, Respondent had requested the advice of the school security director assigned to Crestwood, Mr. Willie Noland, about his right to search and has discussed procedure relating to specific incidents with Mr. Noland. From Mr. Noland, Respondent was assured that he had the right to search students. One incident, in particular, on which Respondent sought Mr. Noland's advice involved a student who allegedly had threatened another student with a knife. Respondent was asked to look into the threat fifteen minutes prior to the end of the school day. When Respondent asked the student if he had a knife, he voluntarily emptied his pockets. Respondent did not ask him to remove his clothes. Unfortunately, the student did have a knife lodged in the mid-seam of his trousers. After that incident, Mr. Noland advised Respondent that students do not hide things in their pockets. Instead, Mr. Noland recommended checking down in the student's waistbands and in their shoes and socks for the missing items. Mr. Hagan had also informed the school personnel not to be alone with students and to avoid situations which could be embarrassing. His purpose in giving the admonition was to avoid the potential for child abuse allegations. It was with the direction given by Mr. Noland and Mr. Hagan, combined with Respondent's understanding of the governing rules, that he undertook the type of search he performed. With reasonable concern that he might be subjecting himself to a potential child abuse allegation and in a diligent attempt to locate the missing baseball card, Respondent chose to ask the students to remove their clothes, rather than search the clothes while on their bodies. Under the circumstances, the search procedure was necessary and reasonable. After the December 14 incident, Respondent, as was his usual behavior, cooperated completely with the directives of his superiors. He voluntarily completed an incident report in which he related the facts surrounding the search. An investigation into the incident by the School Board was performed, and a report from the investigation was given to the Superintendent of the Palm Beach County School District. Without performing a personal investigation, talking with Respondent or with Respondent's coworkers about the incident, the Superintendent suspended Respondent and recommended to the School Board that Respondent be suspended without pay and terminated. The Superintendent based his recommendation on his belief that Respondent's conduct violated the school board rule and the Code of Ethics and Principles of Professional Conduct for educators in Florida to the extent that his effectiveness in the school system was impaired. The School Board accepted Respondent's recommendation and this proceeding ensued. At the time of the incident, Crestwood had four assistant principals in addition to Respondent. At the hearing, three of the four, each of whom had worked with Respondent, had observed Respondent and had shared responsibilities with him, unanimously agreed that his performance in the school system up to the time of the incident was effective and each agreed that they would not object to his return to the school. The fourth was not asked the questions at the hearing. Also, approximately eighty signatures appear on a petition in support of Respondent's effectiveness from the faculty and staff of Crestwood to Petitioner dated January 17, 1990. l6. Since 1964, except for a brief period, Respondent has been involved in education and primarily working with, teaching about or studying exceptional students. His tenure in the Palm Beach County School District began as Director of Special Education in September 1, 1981 where he was assigned until June 30, 1983. From August 1983 to June 1986, Respondent served in the capacity of a Specialist in Education. In July, 1986, Respondent was appointed as an Assistant Principal at Gove Elementary School. At the request of Mr. Hagan, Respondent was transferred to the Crestwood Community Middle School in January, 1987 and has served in his present capacity since then. While employed as an assistant principal, Respondent has received nothing but outstanding evaluations. Respondent holds a regular instructional certificate in the area of administration and supervision. Respondent is a credible individual, and an experienced educator who has the interest of his students as his main concern. At no time during the incident in question, did Respondent intend to embarrass or disparage any of the students. Instead, in his best professional judgment, under the circumstances, he attempted to protect the students from unnecessary embarrassment and made reasonable efforts to protect the learning environment of all the affected students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Palm Beach County issue a Final Order reinstating Respondent with full back pay and benefits retroactive to January 24, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1990. JANE C. HAYMAN 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 13th day of June, 1990.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Frank T. Brogan, as the Commissioner of Education, is the state official charged with investigating complaints against teachers and, upon a finding of probable cause, with filing formal administrative complaints against teachers' certificates. Section 231.262, Fla. Stat. The Education Practices Commission is the state agency charged with the responsibility for issuing final orders and imposing penalties. Id. At all times material to this case, Loretta L. Young held Florida Educator's Certificate 591375, covering the area of biology. Ms. Young currently holds this certificate, which is valid through June 30, 1999. During the 1993-1994 school year, Ms. Young was employed as a science teacher at North Dade Middle School in Dade County, Florida. During that school year, she taught a seventh-grade science class which consisted mostly of African-American children. A male student named C. M. was a member of this class. This seventh-grade science class was large, and the students were very unruly. Ms. Young had a very difficult time controlling the class, and she often became irritated with the students. In addition, the students used to ignore her when she told them to be quiet, and they would "pick at her" and make derogatory comments about her to one another in voices pitched loud enough for her to hear. On March 14, 1994, C. M. was in the back of the classroom playing cards and gambling with several other students. Ms. Young told C. M. to stop gambling. C. M., who was described as a bad student who was consistently disrespectful to Ms. Young and generally disruptive in her classroom, reacted to this order with anger. He walked to the front of the classroom and tapped her on the shoulder. She turned around quickly and struck C. M. in the stomach with her elbow. C. M. loudly accused her of hitting him and threatened to go to the office and tell what she had done. Ms. Young sent a student to summon security, and C. M. was removed from the classroom. Ms. Young consistently referred to the students in her class as "niggers." One of the students who testified at the hearing gave the following as an example of the remarks Ms. Young often made: "Ya'll niggers, ya'll niggers don't know how to act, ya'll don't have no home training." Although children sometimes refer to each other as "niggers," the use of such an epithet by a teacher when addressing students is unprofessional; it causes students to feel uncomfortable in the teacher's classroom, thereby diminishing the teacher's effectiveness. Even Ms. Young admitted that the term "nigger" is derogatory and degrading. It is not acceptable for a teacher to hit a student. Not only does such an act expose the student to physical harm, it diminishes the teacher's effectiveness in the classroom and is in violation of school board policy. There is, however, no violation of school board policy when a teacher inadvertently touches or bumps into a student. The evidence presented by the Commissioner is sufficient to establish that Ms. Young often addressed the students in the seventh-grade science class identified herein as "niggers." The evidence presented by the Commissioner is not, however, sufficient to establish that Ms. Young intentionally hit C. M. in the stomach with her elbow. The greater weight of the evidence presented by eyewitnesses to the event involving C. M. establishes that C. M. startled Ms. Young when he approached her from behind and tapped her on the shoulder, causing her to turn quickly and inadvertently strike him in the stomach.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding that Loretta L. Young violated section 231.28((1)(i), Florida Statutes, and rule 6B-1.006(3)(e), Florida Administrative Code, and placing Ms. Young on probation for a period of three years, subject to such conditions as the Commission deems appropriate. DONE AND ENTERED this 5th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1997.
Findings Of Fact Respondent is a school teacher who has earned an associate's degree from Miami-Dade Community College, a bachelor's degree in education from the University of Miami and a master of science degree from Florida International University. Respondent has a valid and current Florida Teacher's Certificate and is certified in the areas of science and social studies. Respondent has been employed for thirteen years as a teacher by the Dade County School Board. He was employed for one year in 1965-69 re-employed in 1972 and continued his employment until his suspension on July 25, 1984. The Dade County School Board has an official policy of annual performance evaluations of all teachers. The criteria established by the Petitioner for the teacher evaluations are: (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction, (5) assessment techniques, (6) teacher-student relationship, and professional responsibility. For the years 1972 through 1983 Respondent was annually evaluated by the Petitioner, his job performance was found to be acceptable, and he was annually recommended for continuing employment with Petitioner. For the school year 1983-84 Respondent received an evaluation of "acceptable" and he was recommended for employment. However principal Henry Pinkney later amended his "acceptable" evaluation recommending that Respondent continue his employment under prescription. During the 1983-84 school year Quentin Collins was a student attending North Dade Junior High School where Respondent was one of his teachers. On May 10, 1984, Quentin Collins was one of approximately 30 students in a class taught by Respondent. On that date Collins was repeatedly talking, misbehaving, and disrupting the class. After several warnings by Respondents the student was directed to go to the teacher's desk in the front of the classroom. For the next several moments while Respondent attended to the other students in the classrooms Collins was at various times sitting, kneeling, squatting and leaning on or against the teacher's desk. After he decided to sit on the floors his back was against the teacher's desk and his legs were extended straight out so as to block the aisle next to that desk. After Respondent finished walking around the classroom and talking with other students, he turned to return to the area of his desk and literally, almost stepped on Collins' legs. As Respondent stepped over (and not on) Collins' legs, Collins raised his knees and grabbed Respondent's legs in such a manner that Respondent feared he was going to be "tripped" by the student. In a brief and sudden instant, Respondent grabbed both of Collins' legs, lifted him in the air, and then lowered Collins back down. During this brief bodily entanglement, Collins' head may have bumped the linoleum floor. The incident was not reported to the school administrators until four days later and Collins did not tell his mother about these events until a later date. Collins was examined by a physician four days after the incident. There is no evidence that the student sustained any injury or has any medical problems as a result of the incident of May 10, 1984. Although Respondent was evaluated as "acceptable" and recommended for employment by the principal of North Dade Junior High School after the incident with Collins and after the principal had been advised of the incident with Collins the May 15, 1984 Annual Evaluation of Respondent was amended by the principal on June 7, 1984 to show that Respondent was unacceptable in the area of professional responsibility. Even the "amended" Annual Evaluation fails to recommend that Respondent be terminated from his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Specific Notice of Charges filed against him reinstating Respondent as an employee of the Dade County School Board and awarding to Respondent full back pay for the period of time that he has been suspended from his employment DONE and RECOMMENDED this 8th day of May 1986, at 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 8th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2750 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 Dan J. Bradley Esquire 2950 Southwest 27th Avenue Coconut Grove Florida 33133 Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami Florida 33132 APPENDIX Petitioner's proposed findings of fact numbered 1-3 and 6 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, argument of counsel or conclusions of law. Petitioner's proposed findings of fact numbered 4 and 5 have been rejected as not being supported by the evidence herein. Respondent's proposed findings of fact numbered 1-11, 13, and 14 have been adopted either verbatim or as modified to conform with the evidence or style. Respondent's proposed finding of fact numbered 12 has been rejected as being immaterial. Respondent's proposed findings of fact numbered 15 and 16 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, argument of counsels or conclusions of law.
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 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. FOR THE PETITIONER: 1. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U. S. Highway 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issues to be determined are whether Respondent, Jean- Baptiste Guerrier, made inappropriate comments to, or engaged in inappropriate conduct with, female students, or inappropriately discussed the topic of sex with his class, as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals holding Florida educator's certificates. Mr. Guerrier held Florida Educator's Certificate 596926, covering the areas of English and middle grades, which was valid through June 30, 2015. At all times pertinent hereto, Mr. Guerrier was employed as a vocational education teacher at D.A. Dorsey Education Center School in the Miami-Dade County School District. Mr. Guerrier primarily taught English to students who had dropped out of school earlier and were returning for vocational education. Some of his students were adults, and some were still minors. On August 2, 2012, Ms. Ana Sanchez, an investigator for the Miami-Dade County School Board, received a case alleging that Mr. Guerrier had made inappropriate comments of a sexual nature to his students and had inappropriately touched female students. Ms. Sanchez interviewed students and prepared an investigative report detailing what each student told her regarding Mr. Guerrier's conduct in class. She did not personally observe Mr. Guerrier's conduct in the classroom. On September 6, 2012, Mr. Guerrier wrote a letter to Ms. Anne-Marie DuBoulay, the district director of the Office of Professional Standards. In the letter, Mr. Guerrier indicated that he had read the allegations and that he denied them. On or about October 5, 2012, the Miami-Dade County School District notified Mr. Guerrier that he would be recommended for suspension without pay and dismissal. On or about October 8, 2012, Mr. Guerrier submitted his resignation from his position at the Miami-Dade County School District. On October 10, 2012, Ms. DuBoulay prepared a memorandum for the file indicating that Mr. Guerrier had resigned and that the investigative information had been transmitted to Professional Practices Services of the Florida Department of Education. On August 12, 2013, an Administrative Complaint was filed against Mr. Guerrier by the Commissioner. It was subsequently sent to the Division of Administrative Hearings. At hearing, Ms. Sanchez testified that she interviewed several students from Mr. Guerrier's classes. She testified that some students told her that Mr. Guerrier often made inappropriate comments about sex and female anatomy to his students. She testified that students told her that he inappropriately touched students. She testified that students told her that he had asked female students, "What would you do for a grade?" She testified that Elijah Del'Valle, a 21-year-old student, told her that he saw Mr. Guerrier pulling a female student's G-string, confirming the female student's statement to her. The investigative report prepared by Ms. Sanchez indicated that D.W., a 25-year-old female student, told Ms. Sanchez that Mr. Guerrier would make sexual comments to his female students on a daily basis. The report indicates that D.W. told Ms. Sanchez that Mr. Guerrier asked her in class if he could see her private parts and asked "what she would do for the grade." The report indicates that K.L., a minor female student, told Ms. Sanchez that Mr. Guerrier rubbed her stomach and asked her to kiss him. The report indicates that K.L. told Ms. Sanchez that Mr. Guerrier told a story in class about a student who had reported him and that he told his class that the student was mad because he would not have sexual relations with her. The report indicates that K.L. told Ms. Sanchez that Mr. Guerrier told K.L. that her boyfriend "could not handle her." The report says that K.L. told Ms. Sanchez that she witnessed Mr. Guerrier pull G.C.'s underwear in class. The report indicates that J.S., a minor female student, told Ms. Sanchez that Mr. Guerrier always used inappropriate slang terms for female anatomy in class and that she heard Mr. Guerrier ask K.L. to show him her private parts. The report indicates that J.S. told Ms. Sanchez that she saw Mr. Guerrier touching K.L.'s stomach. The report indicates that J.S. told Ms. Sanchez that Mr. Guerrier told one female student, "What if I turn off the lights and tell you to undress?" The report indicates that J.S. told Ms. Sanchez that she did not recall which student Mr. Guerrier made this comment to. The report indicates that Mr. Del'Valle, an adult male student, told Ms. Sanchez that he observed Mr. Guerrier flirting with female students and making sexual remarks in class. The report indicates that Mr. Del'Valle told Ms. Sanchez that Mr. Guerrier would ask his female students what they would do for a grade. The report indicates that Mr. Del'Valle told Ms. Sanchez that he saw Mr. Guerrier pull a student's pants from behind during class and then ask the young lady where she was going. The report indicates that Mr. Del'Valle told Ms. Sanchez that Mr. Guerrier was always looking at the female students when they walked by and would rub his shoulder and arm against them. The report indicates that G.C., a minor female student, told Ms. Sanchez that she saw Mr. Guerrier rub K.L.'s belly area and say, "let me lick that belly ring of yours." The report indicates that G.C. told Ms. Sanchez that Mr. Guerrier is always brushing himself up against the female students. The report indicates that G.C. told Ms. Sanchez that Mr. Guerrier told a story in class about a student who had reported him and that that student was mad because he had not had sexual relations with her. The report indicates that G.C. told Ms. Sanchez that she once asked Mr. Guerrier for help with a lesson and that he pulled her G-string when she was getting up from the chair and pulled her back down. Mr. Guerrier testified at hearing that he did not do any of the things he was accused of. Mr. Guerrier said that his accusers had a motive to fabricate their stories because they were very poor students. He said that some of them slept in class, others texted throughout class, and others did not show up at all. He stated that some of them had no grades in his grading book and that he had no basis to give them a grade. He stated the students went to a counselor and fabricated the stories.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Jean-Baptiste Guerrier. DONE AND ENTERED this 20th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 20th day of June, 2016.
The Issue The issues are whether Respondent committed the act alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(c) and (i), Florida Statutes (2003), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and the entire record in this proceeding, the following Findings of Fact are made: At all times pertinent to this proceeding, Respondent held a Florida Educator's Certificate No. 891417. Respondent was first employed as a teacher at River Ridge Middle School ("River Ridge") in the Pasco County School District in August 2003, under a ten-month contract. During the 2003-2004 school year, Respondent taught sixth-grade geography at River Ridge. On April 15, 2004, during the five-minute period while classes were changing and before the fourth-period class started, Respondent left his classroom to go to the faculty bathroom. Prior to leaving the classroom, Respondent announced to the class that there would be a "pop quiz" that day and told them to sit down, study their notes, and/or read the book. Respondent was gone no longer than five minutes. When Respondent returned to the classroom, M.M. and one of his friends, another student, were standing up "play fighting." This "play fighting" involved the two students pushing each other. Upon observing the two students pushing each other, Respondent reasonably, but mistakenly, believed the two students were fighting and took immediate action consistent with that belief. Respondent approached M.M. and the other student and yelled at them, "Break it up!" Respondent then pushed or grabbed M.M.'s shoulder, pivoting him around Respondent, in an attempt to separate him from the other student. Immediately thereafter, while Respondent was turning toward the other student, he heard a commotion, which presumably was M.M. falling on the floor.2/ Immediately after Respondent grabbed or pushed M.M., he (M.M.) fell on the floor. Prior to landing on the floor, M.M.'s back hit the corner of a nearby table.3/ As a result of hitting the table, M.M. testified that he had a bruise on his back. However, there was no evidence to substantiate this claim, including evidence as to the severity of that alleged injury or whether it required medical attention. When M.M. got up from the floor, Respondent walked M.M. over to his seat. At first, M.M. sat in his assigned seat, but then he got up from his seat and "got in Respondent's face." During this confrontation, Respondent told M.M. that he was tired of dealing with him and to go to the principal's office. Initially, M.M. didn't move, but just stood there facing Respondent. Eventually, M.M. left the classroom and went to the principal's office. However, before he left the classroom, M.M. told Respondent, "I'll get you." M.M. was embarrassed by the incident. When M.M. arrived at the principal's office, he told John Joens, the school principal, that Respondent had pushed him down. In addition to M.M.'s verbal account of the incident, he also gave Principal Joens a written statement concerning the incident.4/ After Principal Joens listened to M.M.'s account of the incident, he also discussed the incident with Respondent. Respondent told Principal Joens that he was trying to break up a confrontation between M.M. and another student. To do so, Respondent explained that he grabbed M.M. by the shoulders, pivoted the student around behind him [Respondent] to move M.M. behind him, and then turned back to the other student. In discussing the incident with Principal Joens, Respondent also reported that after M.M. fell to the floor, he told M.M., "I know you're embarrassed but you have to go sit down." Finally, with regard to students who may have seen the incident, Respondent told Principal Joens that given the seating arrangement in the classroom, most of the students could not have had a clear vision of what happened. After listening to Respondent's explanation about the incident, Principal Joens' primary question to Respondent was how the student ended up on the floor. However, Respondent was unable to answer that question, because he was not sure how M.M. ended up on the floor. After listening to Respondent's explanation, Principal Joens could not understand or determine how M.M. had ended up on the floor. Therefore, in an effort to ascertain what had actually happened, Principal Joens decided to identify and interview as many students as possible who were eyewitnesses to the incident. As part of his investigation of the subject incident, Principal Joens interviewed 16 or 17 students who were in Respondent's fourth-period class on April 15, 2004. He also had the students to prepare and give him written statements about what, if anything, they observed relative to the incident. After Principal Joens completed his investigation, which consisted of input from M.M., information provided in student interviews, and Respondent's explanation and responses, he still could not determine how M.M. landed on the floor. On the day of the incident, except for two student desks and two tables, where a total of four students sat, the front of all of the student desks faced south; the backs of those desks faced north, which was the area of the classroom where the incident occurred. Therefore, in order to observe the incident, the students sitting at their desks would have had to get up from their seats or turn around in their seats. Two of the students who were in Respondent's fourth- period class on April 15, 2004, testified at this proceeding. Both students were credible witnesses. However, given the lapse of time since the incident (almost four years) and the proximity of their desks to the area where the incident occurred, it is understandable that there were details that they could not clearly recall, if they ever knew those details, or the sequence of the events. J.W., a student in Respondent's fourth-period class on April 15, 2004, recalled that when Respondent entered the classroom that day, he approached M.M. and two other students who were pushing each other around and told them, "Break it up!" J.W. also testified that "they [presumably Respondent and M.M.] were arguing and Respondent pushed M.M. down and M.M. fell on the floor." When J.W. observed the incident, he was sitting at his desk, which was three rows from the area of the classroom where the incident occurred. J.W. testified that in order to see the incident, he had to turn around in his seat or look over his left shoulder, since the back of his desk faced the area where the incident occurred. D.L., a student in Respondent's fourth-period class on April 15, 2004, testified that she recalled that Respondent pushed M.M. on the shoulder area and then M.M. hit the table and then fell to the chair. She did not recall M.M. falling or ending up on the floor. Furthermore, D.L. did not know the reason Respondent pushed M.M. or even if there was a reason for pushing him. When D.L. observed the incident, she was sitting at her desk, which was in the last of five rows of desks in Respondent's classroom and the row farthest from the area in the classroom where the incident occurred. The back of D.L.'s desk faced the area where the incident occurred, and in order to see the incident, she had to turn around. According to Principal Joens, the only reason an adult "gets between two students is to provide . . . [for] the safety of that student or the other student's [safety]." In this case, Principal Joens testified that he does not believe that any student's safety was in danger and, thus, there was no need for Respondent to touch M.M. and "use that force." Two days after the incident, Respondent resigned from his teaching position at River Ridge. During the eight months that Respondent was teaching at River Ridge, Principal Joens observed Respondent while he was teaching and interacting with the students. Principal Joens described Respondent's interactions with students during those observations as positive. Moreover, two former students who were in Respondent's fourth-period class on April 15, 2004, testified that Respondent was a good teacher.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2008.
Findings Of Fact Respondent was first employed by Petitioner as a substitute teacher beginning June 8, 1990. Since August 1990, and at all times pertinent to this proceeding, Respondent was employed by Petitioner as a full-time teacher pursuant to a professional service contract and assigned to McMillan Elementary School. Petitioner is charged with the duty to operate, control, and supervise all free public schools within the School District of Dade County, Florida. McMillan Elementary School is a public school in Dade County under the control of the Petitioner. During the 1992-93 school year, Respondent routinely began one of his sixth grade math classes by telling jokes to his students and, at times, sang to his class songs that contained obscene lyrics. Many of these jokes contained obscenities and ethnic slurs. In addition to telling these jokes during class, Petitioner permitted his students to tell these same type jokes. This joke telling time was referred to as "joke-off" and took place in lieu of classroom instruction. During the 1992-93 school year, Respondent permitted male students to draw pictures of naked females and told one student he should enlarge the figure's breasts. During the 1992-93 school year, Respondent made inappropriate comments to a group of sixth grade girls, teasing them about having small breasts and buttocks. Respondent referred to these girls as the "itty bitty titty committee". During the 1992-93 school year, Respondent discussed with his students two sexual encounters he had experienced. During the 1992-93 school year, Respondent gambled with certain students while playing basketball and sold donuts and pencils to students. During the 1992-93 school year, Respondent engaged in prohibited corporal punishment by flicking students on their ears, by twisting a student's nose, and by throwing a student against the wall outside of his classroom. Respondent lifted a student off the ground by his ankles, thereby hanging the student upside down. These acts constituted inappropriate corporal punishment of students. During the 1992-93 school year, Respondent gave certain male students "wedgies" by lifting the students up by their underwear. While this activity may have been done in a playful spirit, this conduct was inappropriate and exposed the students involved to unnecessary embarrassment. During the 1992-93 school year, Respondent told a female student in the presence of other students that she was "full of feces and excrement." Respondent also told this student, who is of African-Caribbean heritage, that her race was unclear because she had Caucasian hair and an African nose. Respondent told this student that she had "jungle fever" because she dated a Caucasian boy. These statements to this female student were inappropriate and exposed the student to unnecessary embarrassment. During the 1992-93 school year, Respondent was habitually tardy or absent. Respondent was also frequently absent from his classroom while he conducted business unassociated with his duties as a classroom teacher. The principal and assistant principal had repeated conferences with Respondent about his attendance. During the 1992-93 school year, Respondent was habitually late to team meetings, failed to bring his grade book to conferences, and appeared to be sleeping during parent conferences. Respondent entered final grades for his students in an arbitrary fashion without referencing his grade book. The assistant principal reprimanded Respondent for eating in class, being absent from the classroom, and not applying approved methods for student grading. Following the suspension of his employment, Respondent was directed not to be on school grounds. Respondent violated this directive. He was arrested for trespassing and reprimanded by the assistant principal. The trespassing charges were subsequently dropped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and the conclusions of law contained herein and terminates Respondent's professional service contract. DONE AND ENTERED this 17th day of August, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5862 The following rulings are made on the proposed findings of fact submitted by the Petitioner: The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact contained in paragraphs 3-9 consist of the recitation of testimony that is subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by the Respondent: The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3, 4, 5, 6, and 10 are rejected as being argument that is unnecessary as findings of fact and, in part, contrary to the conclusions reached. Respondent failed to establish that the Petitioner violated any orders pertaining to discovery as asserted in paragraph 6. The proposed findings of fact in paragraphs 7, 8, 9, 11, 15, 16, and 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 12 and 13 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 14 are subordinate to the findings made. COPIES FURNISHED: Reginald J. Clyne, Esquire Williams & Clyne, P.A. 1102 Douglas Centre, Suite 1102 2600 Douglas Road Coral Gables, Florida 33134 Mr. Kenneth C. Patterson Post Office Box 161786 Miami, Florida 33116 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
