Findings Of Fact Petitioners Doulgas L. Adams, Kenneth E. Moore, Joe Louis Holland, Haywood McKinney, Joe Richardson, and Stephen Harkins are all inmates incarcerated in Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a correctional facility operated by the Department of Corrections of the State of Florida. In December of 1982 and July of 1983, Respondent amended Rule 33-3.045, Florida Administrative Code, to delete certain items which had previously allowed inmates to receive in Christmas packages from friends or family outside the prison. Specifically, these items were apples, candies, chewing gum, cookies, fruit cakes, and nuts, including unshelled English walnuts. In addition, the amended rule provided that items sold in a correctional facilities canteen would not be approved for a package permit. Rule 33-3.045(2)(g), Florida Administrative Code. On August 23, 1983, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 3.04.11, entitled Inmate Package Permit. Included in Section 70 of this directive is the provision that ". . . items sold in Institution Canteens will not be approved on Permit." This provision is substantially identical to the requirement contained in Rule 33- 3.045(2)(g), Florida Administrative Code. This directive, which was introduced into evidence in this proceeding as Petitioners' Exhibit 3, is silent as to the deletions of the aforementioned items from the Christmas package permitting system. On October 12, 1983, the Assistant Superintendent of Baker Correctional Institution issued an interoffice memorandum concerning Christmas package permits which provided, in pertinent part, as follows: Recently concerns have been voiced by the inmate population regarding the Christmas Package Permits and what items may be received, particularly in the area of candy and cookies, as well as personal hygiene items. In March 1983, the Department of Corrections revised Policy and Procedure Directive 3.04.11, Inmate Package Permits and deleted Additional Christmas Items to include applies, candies, chewing gum, cookies, fruit cakes and nuts. Therefore, since these items are no longer permissible on the Christmas Package Permit by departmental policy, it would not make any difference whether they were homemade or store bought items. In reference to the 'Other Items' section of the Package Permit regarding personal hygiene, the same departmental Policy and Procedure Directive on Inmates Package Permits states that items sold in the institutional canteen will not be approved on permit. Our institutional canteen provides a wide variety of personal hygiene items which are the same, or comparable to thos [sic] items requested on the Package Permit and, therefore, we will not be approving other items on the Christmas Package Permit. . . During 1982, approximately two thousand Christmas package permits were issued to inmates at Baker Correctional Institution. Approximately fourteen hundred Christmas packages were received at that facility, of which approximately four hundred contained contraband items. The items which Respondent deleted from the list of acceptable commodities to be received by inmates in Christmas packages were found by Respondent to lend themselves to the introduction of contraband. Examples of how contraband might be received into a correctional institution through these items would include inserting contraband into an unshelled nut and replacing the shell; injecting oranges with hypodermic needles containing a contraband substance; baking drugs or alcohol into cakes, cookies, brownies, or other pastry goods; and unwrapping items such as chewing gum, introducing a contraband substance, such as cocaine into the product, and resealing it in its original wrapper. Respondent has encountered great difficulty in being able to detect the presence of contraband within package goods. Contraband such as alcohol, marijuana, or other drugs is difficult if not impossible to detect within baked goods even with an x-ray machine. Respondent does not have sufficient staff or facilities necessary within mailrooms located within correctional facilities to adequately monitor these items during the Christmas season. Further, the items deleted from the Christmas Package Permit by the amendments to Rule 33-3.045, Florida Administrative Code, are generally available within either the canteen at various correctional facilities or are otherwise provided to the inmates at said institutions.
Findings Of Fact Luis Ortiz was a seventh grade student at Nautilus Junior High School during the 1984-85 school year until his assignment to the alternative school. Ortiz is 13 years old and was born on March 11, 1972. Prior to his enrollment in junior high school in 1984, Ortiz was an A and B student who exhibited good behavior. He did not adjust well to the new school at which he began junior high school. Ortiz was involved in eight incidents of misbehavior at Nautilus. On October 29, 1984, Ortiz was rude, discourteous; failed to complete an assignment and engaged in general disruptive behavior. He was placed on indoor suspension for general disruptive behavior and defiance of school authority on December 6, 1984. On January 11, 1985, Ortiz was referred for discipline for general disruptive behavior, use of provocative language and defiance of school authority. He was referred for counseling for general disruptive behavior, being rude and discourteous, and cutting class on January 25, 1985. Ortiz was placed on outdoor suspension for general disruptive behavior and defiance of school authority on January 28, 1985. Ortiz' behavior appeared to improve and he was not involved in further disciplinary incidents until April 2, 1985, when he was again placed on outdoor suspension for general disruptive behavior end defiance of school authority. He was recommended for assignment to opportunity school for general disruptive behavior and defiance of school authority on May 15, 1985. Before he was reassigned to opportunity school, Ortiz was reprimanded for general disruptive behavior, use of provocative reprimanded for general disruptive behavior, use of provocative language, defiance of school authority, and being rude and discourteous. Ortiz has been somewhat unsuccessful academically in his first year in junior high school. He was failing three classes before his last outdoor suspension and assignment to opportunity school. He then failed all of his subjects because he failed to complete his course work and failed to take his final exams. Ortiz must repeat seventh grade. The School Board failed to present any evidence of efforts made to provide assistance to Ortiz regarding this lack of success in academics. In fact, the school board's only witness had no knowledge of Ortiz' grades or behavior prior to beginning seventh grade at Nautilus. Additionally, the school board's witness provided no details about the actual misbehavior of Ortiz. Instead, Smith merely read from a computer printout, without specifying the nature of the acts which lead to the disciplinary referrals. It is therefore impossible to determine if Ortiz' acts were of a major or minor nature. Dennis Segall, a teacher who knew Ortiz from elementary school, has continued to work with Ortiz in the last year. According to Segall, Ortiz was successful and well-behaved prior to the 1984-85 school year. He recognizes that Ortiz' behavior changed at Nautilus and states that Ortiz knows he "messed up" at Nautilus and is ready to change his attitude. Mrs. Ortiz moved during the summer of 1985, and now resides in a different school district. If Ortiz is allowed to return to the regular school program, he would attend Citrus Grove Junior High School.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Luis Ortiz to the regular school program. DONE and ENTERED this 26th of September, 1985, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esq. Suite 800, 300 Executive Plaza 3050 Biscayne Boulevard Miami, FL 33137 Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132 Ms. Esther Ortiz 1255 S.W. 1st Street Apartment 403 Miami, FL 33135
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue presented for decision in this case is whether Petitioner, the School Board of Lee County (the "School Board"), has just cause to dismiss Respondent, a teacher at Cypress Lake High School ("Cypress Lake"), for setting his car on fire on school property.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Since August 1995, Respondent has been employed as a high school classroom teacher by the Lee County School District, teaching Spanish at Cypress Lake. He worked for the school district continuously until April 20, 1999, when he was suspended with pay and benefits. Throughout his active employment with the school district, Respondent’s performance evaluations and assessments showed that he met or exceeded all performance criteria. Respondent has not been subjected to discipline prior to this case. William Geddes, the principal of Cypress Lake, hired Respondent and had known him for five years. He testified that Respondent was a very effective Spanish teacher. He testified that Respondent got along well with students and staff and greatly improved the school’s Spanish club. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has known Respondent professionally for five years and described him as a very good teacher, doing exciting things in the classroom. She said Respondent was popular with students and fellow teachers. Ms. Gruhn called Respondent "fair" and "upright." Donald Koedyker is the sites maintenance person at Cypress Lakes. He begins work at about 6 a.m., Monday through Friday. He testified that he uses a golf cart to get around the campus during the day. On April 19, 1999, Mr. Koedyker arrived at the Cypress Lake campus at around 5:45 a.m. He opened the storage shed and got his golf cart and a trash barrel. He testified that he picks up trash on the school grounds first thing in the morning. Mr. Koedyker stated that he was running late that morning because there was a flat tire on his golf cart. He either pumped the tire or took the other golf cart, then began his rounds. As Mr. Koedyker drove his golf cart past a building toward the parking lot, he saw a flicker of light. After he rounded the corner of the building, he could see Respondent’s car burning. The car was parked in a handicapped space near the front of the main school building. Mr. Koedyker estimated the distance to be about 30 feet from the car to the building entrance. Mr. Koedyker drove to the cafeteria and pounded on the door. Carol Cote, the lunchroom manager, answered the door. Mr. Koedyker told her to call 911, then he headed back to the burning car. Mr. Koedyker saw Respondent coming through a wrought iron gate from the courtyard to the back of the cafeteria parking lot. Respondent was walking in no apparent hurry. Mr. Koedyker did not notice whether Respondent was carrying anything. Mr. Koedyker yelled to Respondent that his car was on fire. Respondent climbed onto the golf cart and rode to the parking lot with Mr. Koedyker. Mr. Koedyker testified that Respondent told him that he couldn’t believe his car was burning. He described Respondent as being "in shock." They stopped the golf cart about 30 to 40 yards from the car. Mr. Koedyker testified that the fire appeared to be burning more intensely than when he first saw it. Shortly thereafter, a fire truck arrived and they watched the firemen attempt to put out the fire for about 25 minutes. Mr. Koedyker testified that the flames were intense enough that he could feel the heat from where he stopped the golf cart, some 30 or more yards away. Mr. Koedyker testified that he saw no damage to the main building at the time of the fire, but the next day he saw that the asphalt was singed where the car had been parked. Mr. Koedyker estimated that five or six teachers were at work at the time he discovered the fire, which he estimated to be at about 6:10 a.m. The custodian who opens the school building was also there. By the time the fire was put out, nearly all the staff and faculty were at school. Mr. Koedyker estimated that the fire department arrived at about 6:20 a.m., and that the fire was out by 7 a.m. Mr. Koedyker testified that he saw no students at the time of the fire, though some students regularly arrive early to run track. Mr. Koedyker testified that the school building is usually open by 6:05 a.m. He was not aware of any school policy prohibiting students from entering the school until a time certain. Mr. Koedyker testified that Respondent regularly arrives early at school. He described Respondent as one of about four "early bird" teachers. Mr. Koedyker stated that Respondent arrives about the same time as he does. Mr. Koedyker stated that Respondent was not parked in his usual spot that day. Respondent walks with a cane, and has a handicapped parking sticker, but usually does not park in the handicapped space. Respondent is one of two staff people at Cypress Lake with handicapped parking stickers. Mr. Koedyker recollected that Respondent stated he was told to park there on the morning of April 19, 1999. Construction was still going on in the main building. The actual construction was finished, but punch list items and cleanup were still under way. Mr. Koedyker testified that Respondent was aware of his morning routine, and that his routine made it likely that he might discover the person setting the car on fire. Mr. Geddes has been the principal of Cypress Lake for over a year and has worked at the school for 24 years. Mr. Geddes testified that the official work day for teachers runs from 7:00 a.m. until 2:30 p.m., and that they report to work from 6:30 to 6:45 a.m. He testified that he prefers to keep students out of the building until 7 a.m. On April 19, 1999, Mr. Geddes arrived on the campus at 6:23 a.m. He recalled the precise time because he checked his watch as he drove onto Panther Lane, the main road into the school. As he drove in, Mr. Geddes saw a fire truck pull out of Panther Lane. As he drove the 200 feet from the entrance to the front of the campus, Mr. Geddes saw several police and fire department cars, and yellow tape cordoning off the burned vehicle. He saw no flames coming from the car. Mr. Geddes’ testimony has the fire already out at about 6:25 a.m., roughly the same time Mr. Koedyker testified the fire truck first arrived. This variance in the testimony is noted, but has no real bearing on the relevant facts of the case. In any event, Mr. Geddes’ testimony on this point is credited due to his more precise recollection. Mr. Koedyker testified that he was estimating the times. Mr. Geddes spoke to a police officer, who told him that a student may have set the car on fire. Mr. Koedyker told Mr. Geddes that the car belonged to Respondent. Mr. Geddes commenced looking for Respondent. He called for Respondent over the school loudspeaker system. He waited ten to fifteen minutes, but received no response. Mr. Geddes then went back to the parking lot, but did not see Respondent there. He saw the that the police and fire department were still investigating the scene, and that they had pulled a one gallon container of liquid from the vehicle. Mr. Geddes stated that the officers told him they were going to bring in arson investigators, but there was nothing for him to do and he should simply go about the business of running the school. Mr. Geddes testified that the fire did not delay the start of school. Mr. Geddes testified that Respondent’s car was parked about 50 feet from the entrance of the main building, in the parking space closest to the school. Cypress Lake has a circular drive, with a student drop- off area near the school. School buses drop off students about 200-250 feet from the school entrance. The students exit the buses and walk up a covered walkway to the entrance. Mr. Geddes estimated that the burned car was parked about 200 feet from the bus drop-off point, but only 30 feet from the nearest point on the walkway. Mr. Geddes returned to his office at about 6:45 a.m. and again called for Respondent over the school loudspeaker system. At about 7:10 a.m., Respondent came to Mr. Geddes’ office. He told Mr. Geddes that he had not heard the call on the loudspeaker, but had been told that Mr. Geddes was looking for him. Mr. Geddes testified that he never found out what Respondent was doing during the period between the first loudspeaker call and his arrival at the office. Mr. Geddes testified that Respondent was a smoker, and that teachers are not supposed to smoke on the campus. Mr. Geddes conceded that Respondent may have been smoking a cigarette at the shed where the golf carts were stored, but stated that the loudspeaker can be heard at the shed because he had fielded complaints about it from the residents of the suburb behind that area. Respondent told Mr. Geddes that he left his car unlocked as he came into the school to copy some papers for a class, and that a student apparently "torched" his vehicle while he was in the building. Respondent said he could think of no one who would set his car on fire, and said nothing to implicate himself. Respondent told Mr. Geddes that he was unhurt, but "pretty shook up." Mr. Geddes told Respondent that he would see that Respondent’s classes were covered, and that Respondent should concentrate on taking care of this matter. Respondent left the office and went outside to work with the fire and police investigators. Mr. Geddes contacted the district office to inform them of the matter. At around 9:30 a.m., Mr. Geddes received a phone call from the Lee County Sheriff’s Office telling him that they were taking Respondent to the district substation for further investigation. Some time between 11:30 a.m. and noon, the Sheriff’s Office called Mr. Geddes to tell him they were arresting Respondent and charging him with arson. Respondent was to be transported to the Lee County Jail. Shortly thereafter, Respondent called Mr. Geddes and asked him to bring his briefcase, keys, and cellular phone down to the police station. Mr. Geddes told Respondent that he would bring the items to the jail after school, and asked Respondent if his wife knew what had happened. Respondent said she didn’t, and accepted Mr. Geddes’ offer to call her. Mr. Geddes called Respondent’s wife, informed her of the events of that morning, and told her that he was going to try to see Respondent at 3:00 p.m. Respondent’s wife said she would try to meet Mr. Geddes at the jail. Mr. Geddes tried to deliver the briefcase to Respondent, but the police would not allow him to see Respondent because Respondent had not yet been arraigned. The police told Mr. Geddes that only Respondent’s lawyer could speak with Respondent prior to arraignment. Mr. Geddes testified that he waited for Respondent’s wife at the police station until about 4:15 p.m., but she never appeared. Mr. Geddes testified that Respondent told him during their telephone conversation that he was sorry for what he had done. Respondent sounded as if he was choking back tears. Mr. Geddes testified that he did not take this statement as an admission that Respondent had set the fire. Mr. Geddes testified that in the immediate aftermath of the fire, teachers on the Cypress Lake campus were concerned about students setting fires. The Lee County Sheriff’s Office told Mr. Geddes that Respondent had admitted setting the fire. The officers also told him they had found burns on Respondent’s body. Mr. Geddes attended the predetermination hearing concerning Respondent’s employment status. Also present were Gail Williams, a secretary; and Respondent and his counsel. Respondent’s counsel advised Respondent to make no statements pending resolution of the criminal charges. After the meeting, Mr. Geddes recommended that Respondent not return to Cypress Lake, believing that it was in no one’s best interests to have him on the campus. Mr. Geddes testified that there was shock on the campus when it was learned that Respondent had been charged with arson, but also relief that the perpetrator apparently was not a student. Mr. Geddes testified that the incident undermined Respondent’s effectiveness on campus. Mr. Geddes testified that the area where Respondent’s car was parked on April 19 was generally more visible than the area where Respondent usually parked. He testified that there were less obvious places on campus to set a car on fire. Daniel Leffin is a battalion chief with the Iona MacGregor Fire District and an officer with the Lee County Sheriff’s Office. On the morning of April 19, 1999, Mr. Leffin was on duty at the fire department. His unit was dispatched to Cypress Lake shortly after 6:00 a.m. Mr. Leffin testified that, as shift commander, he separately drove a car to the scene, arriving two minutes after the call. The fire truck followed immediately behind him. Mr. Leffin estimated they arrived at the school at about 6:15 a.m. He testified that five to seven people, including Respondent, were in the parking lot as they arrived. Respondent was sitting on Mr. Koedyker’s golf cart. The firemen found a Toyota 4Runner "fairly well involved" in a passenger compartment fire. The fire had broken out the windows, and flames were shooting about two feet over the top of the car. Mr. Leffin testified that the car could have blown up, but that explosions are not something the firemen ordinarily worry about. Explosions are very rare, usually caused by ruptures in the gas tank. Mr. Leffin stated that he has seen only two car explosions in 19 years of work, and both of those involved crashes. Mr. Leffin testified that the fire was hard to extinguish. He stated that water is usually sufficient for car fires, but in this case foam had to be used. Foam is usually used on fuel fires. Mr. Leffin stated that it took about five to ten minutes to put out the fire. After the fire was extinguished, Mr. Leffin surveyed the car in an effort to discover how the fire started. He found fuel containers under the floor boards of the passenger seat and the rear left seat. At that point, he did not remove the containers. Mr. Leffin testified that it was apparent that the fire had been started intentionally, and he called in the police and the State Fire Marshall. The scene was cordoned off with yellow tape for a radius of 20 feet. Mr. Leffin estimated that the vehicle was parked about 30 feet from the walkway, and was about 50-75 feet away from the main building. While waiting for the police to arrive, Mr. Leffin spoke to Respondent, who told him he didn’t know what happened. Respondent told Mr. Leffin that he had gone into the building to make copies, and was told by Mr. Koedyker that his car was on fire. Mr. Leffin asked Respondent whether anybody was "mad" at him. Respondent said he could not think of anyone. Mr. Leffin testified that the conversation was limited after this point, because he had begun to suspect that Respondent set the fire. Also arousing Mr. Leffin’s suspicions was the fact that, when Respondent went to view the burned vehicle, he walked straight to the left back window and looked in where one of the fuel containers had been. Mr. Leffin had mentioned the fuel containers to Respondent, but had not told him their location in the car. Mr. Leffin waited for Philip Roman of the State Fire Marshall’s office to arrive before questioning Respondent any further. In Mr. Roman’s presence, Mr. Leffin removed one of the fuel containers from the car and set it aside. The odor and color of the liquid in the container indicated it was "some sort of accelerant." Philip Roman was the arresting officer, though Mr. Leffin sat in on the interview at the district substation. During the interview, Mr. Roman noted singed hair on Respondent’s right upper hand and palm. He also noted what appeared to be heat blisters on Respondent’s pant legs. Mr. Leffin testified that Respondent appeared "indifferent" at the outset of the interview, sitting and listening without any outward display of emotion. Later, Respondent appeared to be on the verge of breaking down, holding back tears. Mr. Roman read Respondent his Miranda rights and had Respondent sign a "Miranda Warning" form. Respondent wrote "No" next to the question, "Having these rights in mind, do you wish to talk to us now?" Mr. Leffin testified that there was a period during which Respondent wanted to talk to them, but then changed his mind. Still later, Respondent agreed to talk to Mr. Roman alone. After that discussion, Mr. Roman taped a statement by Respondent. Mr. Leffin testified that Respondent confessed to Mr. Roman that he had gotten the fuel containers out of a recycling bin, filled them with gas at a Hess station on the way to school, and set the car on fire. Respondent did not tell them why he did it. Respondent was charged with second degree arson. At the hearing, Respondent produced an Order Granting Defendant’s Motion to Suppress, entered by Circuit Judge Isaac Anderson, Jr. in the criminal case against Respondent. Judge Anderson found that Mr. Roman "used pressure designed to embarrass, intimidate and to ultimately get the Defendant to confess," and that these actions justified suppression of Respondent’s confession. Gail D. Williams is the director of personnel services for the Lee County School District. Among her duties are disciplinary and internal investigations. In this case, her supervisor received the complaint and initiated the investigation. Ms. Williams then chaired the predetermination conference for Respondent on July 26, 1999. After the conference, the Superintendent recommended moving forward with Respondent’s termination. His reasoning was that Respondent’s actions jeopardized the safety of students and staff at Cypress Lake. The Superintendent notified Respondent of his recommendation by letter dated August 10, 1999. Ms. Williams could not say whether Respondent ever admitted to school district personnel that he set the fire. On advice of counsel, Respondent said nothing at the predetermination conference. Ms. Williams stated that Respondent’s actions constituted violations of Rules 6B-1.006(3), 6B-1.006(5)(a), 6B-1.001(2), and 6B-1.001(3), Florida Administrative Code. Andrew W. Baker has been a teacher and basketball coach at Cypress Lake for three years. He knows Respondent as a co-worker, and as a volunteer ticket taker at basketball games. On the morning of April 19, 1999, Mr. Baker arrived at school at 5:50 a.m. He opened his classroom, then walked to the main office at 6:00 a.m. to sign in. Mr. Baker said good morning to Respondent in the office. He noticed nothing unusual in Respondent’s behavior. Mr. Baker then walked to the main entrance of the building to get a morning newspaper and walked back to his classroom to read the newspaper. He did not see a fire in the parking lot at that time. He testified that the lot adjacent to the main entrance is the best lit parking lot on the campus. Mr. Baker testified that he saw Respondent again about 20 minutes later. Mr. Baker was sitting in his classroom, reading the paper, and drinking coffee when Respondent knocked and came in. Respondent told Mr. Baker, "Somebody blew up my truck." Respondent wondered aloud, "Why would a kid do this to me?" Mr. Baker testified that Respondent was crying. Mr. Baker testified that on a typical day, there are five or six teachers and other employees at the school at 6 a.m., including Mr. Koedyker. Mr. Baker testified that he did not hear any sirens, because his classroom is "clear in the back of the school." Mr. Baker testified that he heard some students discussing the incident later. He described their state of mind as encompassing confusion, surprise, and shock. Mr. Baker also heard students discussing Respondent’s arrest. Some of the students told him they had seen Respondent being handcuffed. Mr. Baker testified that he did not know if the handcuffing actually occurred. Mr. Baker testified that no one questioned him about the incident. Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has worked at Cypress Lake for eight years. She has known Respondent professionally for five years, and described him as a very good teacher. On April 19, 1999, Ms. Gruhn came in late to school, at about 8:30 a.m. She was told about the fire when she called in to the office to say she would be late. The person on the phone told her there was some "excitement" at the school, that someone had set Respondent’s car on fire and that there was gasoline in the car. When she arrived at school, Ms. Gruhn heard more about the incident from teachers. Ms. Gruhn testified that the teachers were scared, and were asking her about security in the parking lot. Some of the early arriving teachers asked Ms. Gruhn if they should wait until 7 a.m. to come to school henceforth. After she arrived at the school, Ms. Gruhn talked to Respondent. Ms. Gruhn described Respondent as very upset, crying off and on. Respondent told her that someone had started a fire in his car, and Mr. Koedyker had come running to tell him it was on fire. Ms. Gruhn discussed the matter with the deans at the school. They wondered who was the likely candidate to have come in early to the school and burned Respondent’s car. None of them was privy to what the investigators at the scene were thinking. Ms. Gruhn recalled that on the next day, Mr. Geddes told her confidentially that Respondent had set the fire.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, and ordering that Respondent be dismissed from employment with the Lee County School Board. DONE AND ENTERED this 28th day of March, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 28th day of March, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Keith B. Martin, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Dr. Bruce Harter, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3916
The Issue The issue in this case is whether the Education Practices Commission should take disciplinary action against the teacher certificate held by the Respondent, Allan Rubenstein, based on an Administrative Complaint charging him with violating Florida Administrative Code Rules 6A-10.081(3)(a) (failure to make reasonable effort to protect students from conditions harmful to learning or to students' mental or physical health or safety) and 6A-10.081(3)(e) (intentional exposure of students to unnecessary embarrassment or disparagement) and, therefore, violating section 1012.795(1)(j), Florida Statutes (2011) (for those rule violations). (The statutes and rules charged were those in effect at the time of the alleged violations.)
Findings Of Fact The Respondent is a high school English and journalism teacher, who also coached volleyball and acted as faculty adviser and sponsor of the yearbook. He holds Florida educator certificate 721989, which expires on June 30, 2019. He is certified in the areas of English (grades 6 through 12) and physical education (grades 6 through 12). Prior to the 2011-2012 school year, the Respondent's performance, in all aspects of his employment as a high school teacher, was exemplary and without incident of any kind. The Respondent's difficulties at Timber Creek began when two female high school seniors named Haley Bryant and Shannon Mullins, who were yearbook editors, complained to the school administrators that the Respondent called them to the front of his classroom in late November 2011 and offered to give them Victoria Secret lingerie. The Respondent disputes the students' versions of what happened that day. Eleven days later, the Respondent demoted the students as yearbook editors; had them do book work, instead of yearbook work during class; and denied them access to the yearbook. The students complained that the demotions and denials of access to the yearbook were in retaliation against them for reporting the alleged lingerie gift offer to the school administration. The Petitioner sides with the students' versions and takes the position that the facts justify teacher certificate discipline under rules 6A-10.081(3)(a) (failure to make reasonable effort to protect students from conditions harmful to learning or to students' mental or physical health or safety) and 6A-10.081(3)(e) (intentional exposure of students to unnecessary embarrassment or disparagement), which are parts of the Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct), governing Florida teachers. The Respondent denies retaliating against the students and explains that the demotions and access denials were not related to what they reported to the school administration. Instead, he states that he demoted them due to poor performance, as he had warned them repeatedly would happen if their performance did not improve, and that he denied them access to prevent them from sabotaging the yearbook after their demotions. According to Shannon and Haley, on Monday, November 28, 2011, the Respondent called Shannon and Haley to his desk, "out- of-the-blue," during the yearbook class, and told them he had a gift for them, if they wanted it--namely, a Victoria's Secret bra that did not fit his wife. They testified that this made them feel uncomfortable, and they did not know what to say but laughed it off and walked away. They testified that they talked it over later in the day but were afraid to tell an adult for fear of repercussions from the Respondent. The Respondent testified that Shannon and Haley's version is false. He says what actually occurred on that day was that the Respondent's yearbook class was engaged in a holiday gift exchange called "Secret Santa." Each student and the Respondent picked a name randomly and were to purchase a Christmas gift for the person whose name was picked. To help the gift-giver (the "Secret Santa"), students wrote their names and a suggested gift on the board. The Respondent became concerned when he saw that the student whose name he had picked wrote "Victoria's Secret" on the board. He testified that he summoned Shannon and Haley, told them such gifts were inappropriate and asked them to have the student who wrote it on the board to erase it and write something else. The Respondent's wife testified that the Respondent came home from school visibly upset one day and told her about his conversation with Shannon and Haley. She testified that he told her he tried to illustrate his discomfort by relating a story about how embarrassed he was to buy a Victoria's Secret gift for her once and later was too embarrassed to return it when his wife did not want it. According to the Respondent's wife, the Respondent told her that Shannon and Haley then asked if they could have the gift. The Respondent's wife then admonished him and advised him to make it very clear to them the next day that such a gift to them would be inappropriate and that he was not offering the item to them. She added that there actually was no such item, as they had donated it to a charity after the Respondent declined to return it. The Respondent corroborated his wife's testimony and testified that he followed her advice and, on November 29, erased all the Secret Santa's gift suggestions from the board; later reiterated and emphasized to Shannon how uncomfortable he was with their request for Victoria's Secret gifts the day before; and told her never to ask for them again. According to Shannon, on Friday, December 2, she went to the Respondent's classroom to retrieve some of her belongings, and the Respondent told her he had underwear to go with the bra and asked if she wanted them. She testified that she became uncomfortable, did not respond, and left the classroom. The Respondent denied that any such conversation ever took place. Shannon testified that after the alleged underwear offer, she felt it was a serious matter that made her extremely uncomfortable, and she decided to tell her parents. She testified that her parents wanted to go directly to the school administration, but she asked them to let her handle it herself. Her father testified that he contacted the school administration anyway, but there is no record or indication that Mr. Mullins contacted the school until much later in December. Shannon testified that she went to a trusted teacher, Elizabeth Eskin, on Tuesday, December 6, and told her what the Respondent had said to her and Haley. According to Ms. Eskin, Shannon was straightforward but acted upset, like it was "weighing on her and she needed a release." Ms. Eskin escorted Shannon to the school administration office where Shannon reported her version of conversations with the Respondent regarding lingerie. Haley was summoned, and she corroborated Shannon's story. Both appeared to be crying, and they seemed uncomfortable and embarrassed to the adults present, who initiated an investigation. The next day, December 7, the Respondent was summoned to be questioned by two administrators, Pat Burney and Jeffrey Boettner. They informed him that there had been a complaint against him, and they asked him if he had offered a gift to any student. They did not identify the students or tell him anything else about the complaint. The Respondent denied knowing what the complaint could be about. He wondered aloud if it could be about the yearbook class Secret Santa gift exchange, saying that there had been some conversation among the students to the effect that whoever the Respondent drew would receive something nice, that someone said something about Abercrombie, that someone else said something about Victoria's Secret, and that he told the students such gifts would be inappropriate. Later in the day on December 7, the Respondent emailed Messrs. Burney and Boettner his complete answer to their question. He wrote that there were numerous things over the years that could be considered gifts by him to various students, including Secret Santa gifts. None of the gifts described in the list would be considered inappropriate. He did not mention any conversations with Shannon and Haley or with his wife, which the Petitioner contends is significant, but those conversations would not have been directly responsive to the question if no such gift was offered to them. By the following day, December 8, the Respondent had figured out that the complaint probably had been made by Shannon and Haley based on things he heard other students saying. On Friday, December 9, the Respondent separated Shannon and Haley; had them do book work, instead of yearbook work during class; and denied them access to the yearbook. Shannon and Haley were very upset. They thought the Respondent appeared to be angry. Haley began to cry. The Respondent's action and the reaction by Shannon and Haley were very obvious to the entire class. Shannon texted her mother about what was happening and asked two other students to go to the office between classes (Shannon and Haley had two consecutive classes with the Respondent) to tell the administration what was going on. Shannon's mother arrived at school, and Shannon was summoned to the office. Haley was summoned a short time later and was crying when she arrived. The students told the administration that the Respondent had retaliated against them for having reported the lingerie gift offers by demoting them from their positions as yearbook editors, isolating them from the rest of the class, and denying them access to the yearbook, which was humiliating and embarrassing. In response, the administration told the Respondent that he was to pack up his things and leave the school pending an investigation and until further notice. The following week, the school principal, John Wright, interviewed the Respondent. The Respondent told him his version of his conversations with Shannon and Haley. He denied retaliating against them. Instead, he said he was following through on repeated warnings he had given both of them for inadequate performance as yearbook editors. Based on statements initially made by Shannon and Haley, the Petitioner attempted to portray them as model, high-performing, unfailingly honest students, who gave the Respondent no reason to criticize their performance as yearbook editors, which is a position usually only offered to students meeting that description. To the contrary, the greater weight of the evidence was that the Respondent and the representative of the yearbook publisher, who worked closely with the Respondent over the course of several years, had serious questions about how Shannon and Haley would perform as yearbook editors. During the spring of 2011, when they were juniors, they were invited as prospective yearbook editors for the following year to the headquarters of the publisher to learn and start to plan the next year's yearbook. On the trip, Shannon was obstinate in insisting on her preferred yearbook theme, which was "the end of the world," as supposedly predicted by the ancient Mayan calendar. Although a bad idea for a high school yearbook, Shannon could not be dissuaded and became sullen, uncooperative, and troublesome when the Respondent finally made it clear that she would not get her way. This reaction was not out-of-character for Shannon, who had similar reactions when she did not make varsity volleyball in either her sophomore or senior years. (She did not try out in her junior year.) Shannon also seemed more interested in shopping than the yearbook. Shannon was a negative influence on Haley, who tended to follow Shannon's lead. Despite these concerns, the Respondent decided to give Shannon and Haley a chance to prove themselves as editors during their senior year, in part, because there were no other rising seniors who looked to be any better prospects. As it happened, from the start Shannon and Haley did not perform well as editors, and the Respondent repeatedly warned them that he would have to remove them as editors if they did not improve. While first denying that she performed poorly or that the Respondent warned her about poor performance, Shannon later admitted that she was warned, but said she did not take the warnings seriously. Not long before November 28, 2011, the Respondent decided that he had to do something if the yearbook for 2011-2012 was going to measure up to the high standards that had been set in prior years. Instead of removing Shannon and Haley, he named a junior as co-editor. This did not sit well with Shannon and Haley. Based on past experience, it would not be out-of-the- question for Shannon to plot to get back at the Respondent using false lingerie gift allegations and other fabrications, or for Haley to go along with it. When the principal heard the Respondent's side of the story, he criticized how the Respondent handled things, even assuming he was telling the complete truth. Based on the testimony of the principal and assistant principal, John McHale, the Petitioner takes the position that the Respondent should have: just erased the blackboard with the Secret Santa gift suggestions, instead of asking Shannon and Haley to do it, and canceled Secret Santa; reported problems with the performance of Shannon and Haley to Mr. McHale, who was his direct supervisor; had "due process" meetings with Shannon and Haley and their parents before demoting them; and notified Mr. McHale before taking action to demote them. However, there were no written school policies regarding "due process" meetings or notification to the direct supervisor. Meanwhile, the Respondent had a written contract with his yearbook students, approved by the school, stating that demotion and denial of access would be a consequence of poor performance by a yearbook editor. The school referred the inappropriate gift and retaliation charges to the Orange County School District for investigation. The Respondent was placed on "relief of duty with full pay and benefits as of December 9, 2011." His principal gave him "directives" for clarification and guidance regarding expectations (which are not considered to be disciplinary in nature) and put him back to work as a teacher on January 10, 2012, except that he was replaced as yearbook sponsor. The Respondent continued to perform in an exemplary manner in all other respects for the rest of the school year. During the Orange County School District's investigation, students were interviewed and were asked whether they had any knowledge of inappropriate cell phone communication with the Respondent. The students searched their phones to find texts that might be deemed inappropriate. The evidence suggests that cell phone texting was a common means of communication among the Respondent, Shannon, and Haley. There was no convincing evidence that texting, per se, was inappropriate. The Petitioner questions the appropriateness of two text communications and takes the position that they justify teacher certificate discipline under rules 6A-10.081(3)(a) or 6A-10.081(3)(e). One September 2011 text stated that the Respondent was "pissed" about the failure of the yearbook editor to meet a deadline. The Petitioner takes issue with the language used. (Incidentally, this text and others in evidence corroborated the Respondent's testimony that he was indeed upset with Shannon and Haley for their poor performance as editors and their disrespect for him as teacher and yearbook sponsor.) In an exchange in November 2011, the Respondent received a text from Shannon that included "SMH." The Respondent answered "SMFH." The Respondent testified that he is not text-savvy and was not aware that there was a commonly understood vulgar meaning of those texts. He testified that he ignorantly and naively thought they meant "something like . . . see my hand" and "see my face and hand." The Respondent's testimony on this point seemed improbable, but not completely implausible. The evidence was not clear and convincing that he knew the vulgar meanings at the time. Regardless whether the Respondent knew the vulgar meanings of SMH and SMFH, the evidence was not clear and convincing that by using them and the word "pissed" one time, the Respondent failed to make reasonable effort to protect students from conditions harmful to learning or to students' mental or physical health or safety, or intentionally exposed students to unnecessary embarrassment or disparagement. On June 6, 2012, the Respondent acknowledged receipt of a written reprimand from his principal. The reprimand, dated January 10, states that it summarizes a meeting between the principal and the Respondent that took place on January 5 and refers to the directives given to the Respondent by the principal on January 10. It is unclear why the Respondent did not acknowledge receipt of the reprimand until June. The reprimand is for the inappropriate use of poor judgment in interactions with students. It cites to the following provision of the Principles of Professional Conduct: "The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity." This is not a ground for proposed discipline in this case. The Respondent decided not to return to Timber Creek High School for the 2012-2013 school year. Instead, he took a job teaching, coaching volleyball, and sponsoring the yearbook at Father Lopez Catholic High School (Father Lopez High School) in Volusia County. The evidence was that he has performed in all three roles in an exemplary manner at Father Lopez High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission dismiss the charges. DONE AND ENTERED this 31st day of August, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2015. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 (eServed) Carole C. Schriefer, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714-2033 (eServed) George F. Indest, III, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714-2033 (eServed) Ritisha K. Chhaganlal, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714-2033 Cheryl L. Wolf, Esquire Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent Will H. McRaney has been employed by petitioner Bay County School Board at Rutherford High School since 1965. In the past, he has worked as a coach and as a classroom teacher at Rutherford. During the current school year, respondent was job entry coordinator; in this capacity, he had responsibilities in connection with the vocational counseling of Rutherford seniors. Darlene Ann Peeples is an eighteen year old senior at Rutherford High School. In her junior year, she had been a student in a class respondent taught. On January 17, 1977, when she arrived at her fourth period class, friends told her that respondent had come by looking for her and for another student, and wanted to see them in his office. Her friends also told her that the other student summoned by respondent had gone to lunch, so Ms. Peeples went to respondent's office by herself. When she arrived, respondent was seated behind a desk in his office, facing sideways. He invited her in, asked her to close the door behind her, and told her to take the empty seat beside him. Respondent's office at Rutherford High School was small and windowless, except for a window in the door which was covered over from the inside. There were only two chairs in the office on January 17, 1977. The chair to which respondent directed Ms. Peeples was very near his; when she sat down one of her knees touched respondent. She asked why she had been sent for, and respondent mentioned some job possibilities. Conversation turned to the school's Christmas ball, at which Ms. Peeples had been chosen Christmas ball queen. Respondent allowed as how her selection did not surprise him, because she had a nice personality and a nice body. In the course of discussing Ms. Peeples' plans for the future, respondent learned that her family was slated to move to England and offered to let Ms. Peeples live with him in his home, when her family left. Respondent took one of Ms. Peeples' hands in his, and remarked on its warmth. Then he cupped one hand round the back of her head, and drew her head down to the vicinity of her knees, doubling her over. When she succeeded in sitting up straight again, respondent kissed her full on the mouth. Immediately afterwards, he said he was sorry, and he repeated the apology when the interview concluded. Within a half hour of their occurrence, Ms. Peeples gave tearful accounts of these events to her boy friend, and to her fifth period teacher, Mrs. Gail Fischer. In 1975, respondent worked in petitioner's summer recreation program as a swimming instructor at the swimming pool at Mosley High School. Among the children he taught was Macy Ellis, who was born on October 7, 1965. There were from 10 to 25 children in Macy's swimming group. Some 40 other children in other groups and at least two other adults used the swimming pool at the same time respondent taught Macy's group. On July 2, 1975, respondent was supervising an underwater swimming drill. Macy and the other children in her group stood in the water along the edge of the swimming pool; they took turns doing "fish dives" and swimming through respondent's spread legs, while he stood in the middle of the pool in about five feet of water. When Macy went underwater, she noticed that respondent's swimming trunks, although fastened at the waist, were unzipped, and she saw respondent's penis. As she swam face down between respondent's legs, respondent placed his hands on her back to steady her. Otherwise, there was no physical contact between them. Respondent did not intend that any of the children see his genitalia, and it was only by accident that they happened to be visible to Macy Ellis. Statement Required By Stuckey's of Eastman, Georgia v Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976) The first paragraph of petitioner's proposed fact findings has been adopted, in substance. The second paragraph of petitioner's proposed fact findings has been rejected because the only witness whose testimony tended to establish the occurrence, Debbie Holt, was not worthy of belief, in the hearing officer's opinion. She was adamant about such details as the color of respondent's bathing suit, even though her testimony contradicted that of the other witnesses. She and Macy Ellis were playmates who confided in one another and, according to Macy Ellis, it was when Debbie learned what Macy had seen that Debbie made her accusations against respondent. Finally, testimony was adduced to the effect that Debbie Holt's reputation for truth and veracity is not good. The substance of the third paragraph of petitioner's proposed fact findings has been largely adopted, except that the proof failed to establish any intent on respondent's part, and except for the date, which is immaterial. The number of people in the pool area, the size of the pool, the fact that other children were lined up waiting their turns, the fact that Macy told her father that she saw respondent tuck his penis back in his swimming trunks, all persuaded the hearing officer that the incident was accidental.
The Issue Whether just cause exists for Petitioner to suspend Respondent, a teacher, for ten days without pay for failing to supervise a third-grade student who left campus alone and walked home during the school day.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a third-grade teacher at NAGE, a public school in Broward County, Florida. Respondent has taught for the School Board for 15 years without receipt of any prior discipline. The proposed discipline is based upon conduct occurring on Thursday, March 4, 2014. During the 2013-2014 school year, Respondent co-taught a third-grade class with Pelletier. Respondent and Pelletier had adjoining classrooms. Each was assigned approximately 18 students. Respondent taught English and social studies, and Pelletier taught math and science. Their classes switched in the afternoon. At approximately 11:45 a.m. on March 4, 2014, Respondent told her students to clean their desks and line-up for lunch. The students lined up and Respondent opened and stood at the door. The students moved into the hallway in a line where they were instructed to stop. Respondent checked the classroom to see if any students were left behind and saw three students (two girls and a boy, C.S.) completing a social studies test. Respondent instructed the students to finish up and join their classmates in line. A student who was holding the door with Respondent asked to go back in the classroom to get a tissue. While Respondent waited for the remaining students to exit the classroom, the line began to move down the hall toward the stairs to the right of the classroom door. Respondent told the students in line to wait. When she looked back into the classroom, Respondent saw one female student remaining. When that student exited the room, Respondent assumed that all students had gotten in line. Respondent walked her class down the hall on the second floor, down the stairs, and waited at the stairs to watch her students enter the cafeteria for lunch. Unbeknownst to Respondent, C.S. remained in the classroom bathroom and did not exit the classroom with his classmates to go to lunch. Respondent's usual habit was to walk her students all the way to the cafeteria doors; however, on this day, she only walked them to the bottom of the stairs where she had an unobstructed view as she watched them enter the cafeteria. Respondent then went to the main office to pick up some printouts from the office printer. Respondent then returned to the cafeteria to pick up a few of her students who were coming back with her to the classroom to enjoy “lunch bunch” as a reward for good behavior. After lunch, Respondent and/or Pelletier returned to the cafeteria to pick up the students and take them to their designated “specials” classes. Respondent was unaware that C.S. was missing. After Respondent initially left the classroom, but before she returned with the “lunch bunch,” C.S. left the classroom, surreptitiously went down the stairs, ducked under the cameras near the front office, and exited the school property through the car circle. C.S. proceeded to walk 14 blocks home, past a construction site, and near an extremely busy road, and entered the house where he was discovered by his grandmother at approximately 12:20 p.m. C.S. was unharmed on his walk home. C.S.'s grandmother contacted C.S.'s mom, C.C., at work and told her that her son was at the house instead of at school. After going home and checking on C.S.'s safety, C.C. immediately drove to NAGE and asked Shacter if she knew where her son was located. C.C. also checked the sign-out log to see if anyone signed her son out. C.C. informed Shacter that C.S. was at home, had climbed through a window to get inside, and had his backpack with him. C.C. was understandably angry and upset. Shacter called Respondent's classroom but no one was there. Next, she called Guidance Counselor Lamar to stay with C.C. while she went to find Respondent. When Shacter went to Respondent's classroom, she found Respondent, Pelletier, and Pelletier's intern. Shacter asked about C.S., and Respondent said that she took him to the cafeteria for lunch. Shacter directed Respondent to look for the backpack. Respondent went to C.S.'s desk and was surprised that his backpack was gone. Shacter took Respondent to meet with C.C. Respondent also told C.C. that she had taken C.S. to the cafeteria. Because C.C. was so upset, Shacter separated Respondent from C.C. Shacter requested to interview C.S. at home or at school, but C.C. refused. Shacter asked that Lamar go to the house, which would be less threatening for the child, and C.C. allowed Lamar to go to her home and speak with C.S. C.S. reported that he was in the class bathroom just prior to lunch. When he came out of the bathroom, his class was gone. He had a stomach ache so he decided to go home. Video from the school's security camera system shows C.S. leaving the classroom after his class departed for lunch. The video also shows C.S. took several evasive actions to avoid detection, including ducking behind a trashcan and hugging the walls and ducking below the windows to exit without being caught. The classroom teacher is primarily responsible to account for, and supervise, her assigned students while they are at school. At the time of the incident, the School Board and NAGE had no policy, procedure, or protocol for assuring that all students remained within the supervision of their teachers at all times. Prior to this incident, the method of accounting for students throughout the day, particularly when moving from one part of the campus to another, was left to the discretion of each individual teacher by NAGE. As a result of the investigation that followed this incident, the School Board voted to suspend Respondent with pay for ten days. Findings of Ultimate Fact As discussed in greater detail below, the School Board failed to demonstrate by a preponderance of the evidence that the Respondent engaged in misconduct in office or willful neglect of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding that no “just cause” exists to discipline Respondent. DONE AND ENTERED this 10th day of December, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 10th day of December, 2015.
The Issue Whether just cause exists for Petitioner, Palm Beach County School Board ("Board"), to suspend Respondent, Lori Schwartz, from her position as a Speech and Language Pathologist ("SLP") for a period of ten days without pay.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District on August 3, 2005. Respondent is employed with Petitioner as an ESE teacher, teaching SLP at Sunrise Park. She has been a SLP for 32 years. Respondent's employment is governed by the collective bargaining agreement between the District and the Palm Beach County Classroom Teachers Association ("CBA"), Board policies, Florida law, and Department of Education rules. As an SLP, Respondent's duties include: testing and providing therapy to students who need assistance in speech or language skills; writing Individual Education Plans ("IEPs"); writing quarterly progress notes for her students; drafting the Plan of Care for each student; reevaluating students; and billing for Medicaid. These duties are time-sensitive because a student's course of study and evaluation for needed accommodations to provide appropriate academic support rely upon the IEP and Plan of Care. There are also strict federal guidelines regarding when these items need to be accomplished. In 2001, Respondent was diagnosed with multiple sclerosis ("MS"). MS is a progressive debilitating disease that results in physical deterioration. As a result of her MS, Respondent has difficulty walking, using her hands, seeing, concentrating, and prioritizing tasks. Respondent testified that she continues to work because she "want(s) to help people communicate better and learn and progress to the next level." To assist Respondent in performing her assigned duties, the District provided a variety of supports including: a walker and scooter to get around school; the assistance of a one-on-one paraprofessional to type and write for Respondent and to transport SLP students from their sessions with Respondent back to their classrooms; an enlarged computer screen to help her see; and individual coaching on time management and prioritization of tasks by Traci Boysaw, a teacher with the title of PAR Counselor. Respondent testified that she was provided with all the assistance she needed to perform her assigned duties. Respondent was also referred to the District's Employee Assistance Plan but declined to avail herself of that opportunity. Circumstances Giving Rise to Respondent's Discipline In accordance with the CBA, Respondent was subject to increasing levels of discipline for failing to follow directives and meet deadlines for certain tasks prior to her ten–day suspension. On March 30, 2017, Respondent received a Verbal Reprimand with Written Notation ("Verbal Reprimand") from Sunrise Park Principal, Alicia Steiger, for insubordination for not complying with directives to complete certain work by assigned deadlines given to her on September 2, 2016, and January 27, 2017. In this Verbal Reprimand, Respondent was directed to adhere to all deadlines and complete testing and reevaluation of students by deadlines in April. She was also directed to ensure all documents for IEPs and reevaluations were completed before the specific meeting with the IEP team was scheduled. Respondent was also directed to submit weekly logs by the end of the week to Principal Steiger and to follow all Board policies. She was advised that failure to adhere to these directives would be considered insubordination and result in further discipline. On May 23, 2017, Respondent received a Written Reprimand issued by Principal Steiger for insubordination and violation of Board Policies 1.013, Responsibilities of School District Personnel and Staff; 3.10, Conditions of Employment with the District; 3.02, Code of Ethics; and 2.34, Records and Reports. Respondent was cited for not following the directives of the Verbal Reprimand and continuing to ignore deadlines for student testing, reevaluations, and submitting documentation. She also came to an IEP meeting on March 17, 2017, "wholly unprepared." Respondent was specifically advised, "[y]our actions demonstrate a failure to fulfill the responsibilities of a teacher and to protect the learning environment." Respondent received a second Written Reprimand issued by Dianna Weinbaum, Director of Professional Standards, on December 7, 2017. Like her prior discipline, Respondent was cited for failing to adhere to testing, meet student evaluation deadlines, and complete Plan of Care documentation following each IEP meeting. She was advised her failure to abide by prior directives constituted insubordination and violated various School Board policies. Despite this progressive discipline and the extension of deadlines within which to complete certain tasks, Respondent failed to accurately or timely complete assignments. On March 14, 2018, Respondent was advised that the Office of Personnel Services ("OPS") was opening an investigation into her ongoing "gross insubordination." On April 4, 2018, Respondent was informed in writing that the investigation was nearing completion and a predetermination meeting was set for April 17, 2018. Respondent was advised that she was being investigated for policy violations related to failure to fulfill responsibilities as a teacher, ethical misconduct, and gross insubordination. The investigation confirmed that Respondent failed to meet specific deadlines and did not "complete work with fidelity." Respondent submitted work replete with errors after multiple correction attempts or in some cases, not at all. This was despite years of additional support and close direction from Eileen Peterson, another SLP at Sunrise Park who provided Respondent with technical assistance for seven years. Respondent was also provided a personal assistant, Susan Panatojov, who helped her with clerical duties and physically retrieving students for testing and therapy. Respondent was also provided an additional eight hours per week to assist her in getting her work done and additional time to test her students. The District provided all accommodations which were requested by Respondent. Despite this extra assistance and reduced work load, Respondent still submitted work with multiple errors and on an untimely basis. The April 17, 2018, predetermination meeting was held as scheduled and Respondent was provided an opportunity to provide additional information, dispute, explain, or elaborate on the information from the investigative report. On May 29, 2018, Respondent was provided notice that the District Superintendent intended to recommend a ten-day suspension without pay to the Board at its June 20, 2018, meeting. The Board voted to accept the recommendation and this decision was timely challenged by Respondent. At final hearing, Respondent admitted that her work was often untimely, contained errors, and that she had great difficulty in setting priorities and managing her time. She acknowledged that she missed the deadlines provided in the Verbal and Written Reprimands. Petitioner argues that this behavior is a direct result of her medical condition, that she never refused an assignment, and that it was unintentional. However, Petitioner also conceded that she never advised Principal Steiger that she could not perform her job due to her physical challenges, was provided all requested accommodations, trained properly on how to perform her assigned tasks, and given an extensive variety of support services to help her perform the essential functions of her job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the suspension of Respondent's employment for ten days without pay. DONE AND ENTERED this 13th day of June, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 June, 2019.
The Issue At issue herein is whether or not the Respondent's teaching certificate should be revoked for conduct which will be set forth hereinafter in detail which is allegedly violative of Sections 231.09 and 231.28, Florida Statutes, and Rules 6A-4.37 and 6B-1, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the argeements of counsel, the stipulation of the parties entered on June 7, 1979, and the entire record compiled herein, the following facts are found. The Florida Professional Practices Council (sometimes referred to as "Petitioner") received a report from the Superintendent of Pinellas County Schools on October 24, 1977, indicating that the district had reason to believe that there might be probable cause for revocation of the teaching certificate of John A. Lettelleir, Respondent. Pursuant to this report, and under the authority contained in Section 231.28, Florida Statutes, Petitioner's staff conducted a professional inquiry into the matter and on January 9, 1978, made its report to the Executive Committee of the Professional Practices Council. The Executive Committee recommended that the Commissioner of Education find that probable cause exists to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teacher's certificate. The Commissioner of Education found probable cause and directed the filing of a Petition on January 9, 1978, pursuant to the authority vested under Section 6A-4.37, Rules of the State Board of Education, and Section 231.28, Florida Statutes. In conclusionary allegations, the Petition cites that the Respondent engaged in acts which are "immoral, seriously reduced his effectiveness as a School Board employee and was not a proper example or model for students and not in the best interests of the health and safety of students" contra to Section 231.09; 231.28, Florida Statutes, and Rule 6A-4.37 and 6B-1, Rules of the State Board of Education. Respondent currently holds a Post-graduate, Rank II, Florida Teacher's Certificate No. 347804, covering elementary education, early childhood and junior college, which is valid through June 30, 1985. Respondent was employed in the Public Schools of Pinellas County as a teacher at Maximo Elementary School during the 1976-77 school year. Respondent resigned from his teaching position in the Pinellas County School System in October, 1977. Respondent chaperoned a three day Easter trip for male and female school children from Maximo Elementary School in April of 1976. The trip required three nights away from home for these children. On two of these nights, Respondent shared a sleeping bag with one of his male students. On both nights, Respondent improperly touched the student. During the fall of 1976, three male school children from Maximo Elementary School spent the night at Respondent`s home. The boys slept in Respondent's bedroom. Respondent slept in a double bed with one of the three students and improperly touched the student. Sandra McMichael and Louanne Crawford, teachers in the Pinellas County School System, appeared and testified respecting their relationship with the Respondent. Ms. McMichael and Ms. Crawford both related their professional involvement with Respondent and it suffices to say, in summary fashion, that they considered the Respondent a person of unquestionable character. (TR 20-57 of Joint Exhibit 2.) During the hearing, Respondent testified respecting the agony which the subject incident has brought to his family. Among other things, he stated that he only stipulated to the facts contained in Joint Exhibit 1 based on counsel's advice and their considered joint opinion that without regard to the outcome of his proof or innocence by a contested hearing in this matter, that ultimately he would have gained nothing based on the wide publicity which attaches to such hearings involving public figures. Therefore, Respondent, while maintaining his innocence of the material accusations against him, reluctantly entered into the stipulation which admits improper touching of a male student, in order to satisfy the apparent interpretation of Rule 6A-4.37, Rules of the State Board of Education during a prior hearing in this matter on August 15, 1979. Such an interpretation requires an admission of wrongdoing as a predicate to surrender of a teacher's certificate for less than permanent revocation. Based on the foregoing and the parties' joint stipulation for less than permanent revocation, i.e., five years, the undersigned is of the considered opinion that sufficient basis exists to support a favorable recommendation to the Board of Education for a five (5) year revocation with the running of the revocation period commencing in October, 1977, the date of Respondent's resignation from the Pinellas County School System. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent's teacher's certificate, No. 347804, be revoked for a period of five (5) years with entry of the revocation period commencing on October, 1977, the date of Respondent's resignation from the Pinellas County School System. ENTERED this 2nd day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
