Findings Of Fact On or about September 13, 1976, Petitioner Alvin Leonard Pondexter, was convicted in Leon County, Florida, of attempted petty larceny, a misdemeanor, on the charges of attempting on May 26, 1976 to steal two bicycles from students on the campus of Florida State University. At the hearing in this cause, Petitioner maintained that he only admitted to, and was convicted of, attempting to steal one bicycle. On June 12, 1976, while the charges contained in the preceding paragraph were pending and Petitioner was awaiting sentencing, Petitioner was arrested in Leon County, Florida, as he attempted to steal a ham from a Tallahassee food market. In an effort to free himself from restraint by the store security guard, Petitioner bit the tip of one finger off the guard's hand and bit the guard on the inside of a thigh. On December 20, 1976, Petitioner was convicted of battery on the guard and shoplifting, both misdemeanors, and was sentenced to one year in the Leon County jail. On or about September 9, 1979, Petitioner was arrested in Dade County, Florida, for lewd and lascivious behavior after police officers observed him performing oral sex with a 15-year-old male while in a parked car which was located in a beach parking lot off Collins Avenue. Bruce Munster, one of the officers who observed the Petitioner's conduct at the time of his arrest, noticed that the Petitioner became irate and caused Munster to pull his gun to effect the arrest. Petitioner refused to discuss the case at the hearing because the criminal charges against him in connection with this matter were dropped. Petitioner did not offer any rebuttal evidence at the hearing on this charge and in his deposition, he admitted that at the time of the arrest that his companion in the car was sitting in the front seat with his pants down. In 1980, Petitioner applied for a teacher's certificate. On October 21, 1980, his application was denied for the same reasons set out in the foregoing paragraphs. Petitioner failed to appeal or in any way contest the denial of his application. Dr. Patrick Gray, Executive Director, Division of Personnel Control, Dade County, testified as an expert in the areas of education and personnel administration in Dade County and the State of Florida, and as an expert with respect to the Code of Ethics and the Principals of Professional Conduct regulating teachers. The Petitioner's conduct amounts to immorality and moral turpitude, and lessens Petitioner's effectiveness as a public educator in the public school system. In addition, as stated by Dr. Gray the Dade County School system would not hire the Petitioner even if he were granted a certificate.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a Florida Teacher's Certificate. DONE and ENTERED this 23rd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1984. COPIES FURNISHED: Alvin Leonard Pondexter 17120 Northwest 27th Street Miami, Florida 33056 Wilson Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Donald L. Griesheimer, Director Education Practices Commission Knott Building Tallahassee, Florida 32301
The Issue Whether or not Donald Eugene McKinney was arrested by vice squad officers H.R. Hall and J.N. Henry of the Jacksonville Sheriff's Office, Duval County, Florida, at the St. Johns Marina men's room, and was charged with exposure of sexual organs on September 24, 1976 and entered a plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior as set out in Section 798.02, Florida Statutes, and due to the above alleged misconduct, has failed to perform his duties as an educator as described in Section 231.09(2), Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not Donald Eugene McKinney was arrested by vice squad officers H.R. Hall and H.N. Henry of the Jacksonville Sheriff's Office, Duval County, Florida, at the St. Johns Marina men's room, and was charged with exposure of sexual organs on September 24, 1976 and entered a plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior as set out in Section 798.02, Florida Statutes, and through these acts has violated the substantive provisions of Section 231.28, Florida Statutes and subjected himself to the penalties contained in that section. Whether or not on September 24, 1976, Donald Eugene McKinney solicited sex with an undercover officer, H.R. Hall, and through the above alleged misconduct, has failed to perform his duties as an educator as described in Section 231.09(2), Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not on September 24, 1976, Donald Eugene McKinney solicited sex with an undercover officer, H.R. Hall, and through the above alleged misconduct, has violated the substantive provisions of Section 231.28, Florida Statutes and subjected himself to the penalties contained in that section.
Findings Of Fact The Respondent, Donald Eugene McKinney, is the holder of Florida Teacher's Certificate Number 178946, Special Postgraduate Rank 1A, and was employed with the Duval County Florida Public School System on September 24, 1976, and prior to that date. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated November 15, 1976, addressed to the Commissioner of Education. Upon examination of the recommendation, the Commissioner of Education found probable cause for revocation of the Respondent's teacher's certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, Florida Administrative Code. This determination by the Commissioner was made on January 27, 1977. Subsequently, a petition for revocation of the teacher's certificate was filed on March 7, 1977, and amended on July 12, 1977. The Respondent answered the original petition by denying the allegations, and stood mute on the allegations found in the amendment to the petition. The allegations contained in the original petition and the amendment to the petition are identified in the section of this recommended order entitled ISSUES. The hearing has been referred to the Division of Administrative Hearings pursuant to the action of April 19, 1977, in which the Professional Practice Council relinquished jurisdiction over the hearing process and requested the hearing to be conducted by the Division of Administrative Hearings. On September 24, 1976, officer H.R. Hall of the Jacksonville Sheriff's Office vice squad was on duty at the St. Johns Marina, which is located in Jacksonville, Florida. This marina is part of an overall public park known as Friendship Park. The purpose of officer Hall being on duty was to investigate cases of alleged homosexual activity, which were occurring in the men's restroom at the marina. This restroom is available for public use. A rough description of the inside of the restroom is seen in Respondent's Exhibit No. 1 admitted into evidence. This exhibit describes the location of the sinks, urinals and toilets found in the facility. The room is approximately 18 feet long and 10 feet wide. At around 3:30 p.m. on the aforementioned date, officer Hall entered the restroom and took a position against the far wall which faces the two toilets. These toilets are located in stalls, and there are partition walls separating the toilets and the toilet near the door from the two urinals. There were no doors on the toilets on the day in question. Officer Hall observed a male seated on the first toilet fondling his penis, to the extent that the man had achieved an erection. At this point the Respondent had also entered the restroom and was standing by the area of the sinks. McKinney had observed officer Hall watching the man in the first toilet stall and was of the opinion that the man and officer intended to commit some form of sexual activity. Because of this opinion, McKinney made some comment that it was alright for Hall and the other unidentified male to do so and he, McKinney, would wait. Prior to this brief conversation with officer Hall, McKinney had been in the restroom and observed that the two toilets were being used and observed officer Hall standing in the restroom. He had left the restroom and come back and that was the point at which he engaged officer Hall in the conversation. The purpose that McKinney had for coming to the restroom was twofold. He felt that he needed to use the facilities for the intended purpose, but also indicated that he understood that homosexual activity occurred in that location and he expected that he might be able to engage in that activity with someone once he entered the facility. There is some difference in testimony as to the time that McKinney came to the location, his estimate being approximately 3:45 p.m. and officer Hall's estimate being between 3:30 p.m. and 3:45 p.m. By either account, McKinney had come to the location after completing the assigned duties of his employment for that day. (On September 24, 1976, McKinney was actively employed as and administrative assistant to the principal of Windy Hill Elementary School, Duval County, Florida). After McKinney spoke to Hall, officer Hall followed the unidentified male out of the restroom. While officer Hall was outside the restroom, McKinney entered one of the toilets and seated himself. Again, there is a difference in testimony between McKinney and Hall as to exactly which of the two toilets he sat on, McKinney and Hall as to exactly which of the two toilets he sat one, McKinney saying that he was in stall number two identified on the diagram and Hall saying that he was located in number one. Regardless of the true location, officer Hall stood and observed McKinney masturbating while McKinney was seated on the toilet, with his penis exposed. At that point of observation McKinney had an erection. McKinney then stood up and moved to the location of the urinals. He did not expose his sexual organs while moving from the location of the toilets to the location of the urinals. Once he was standing at the urinal, McKinney removed his penis from his pants and masturbated. This was observed by officer Hall. During the course of McKinney's activity at the toilet and at the urinal, other persons were coming in and out of the restroom. After Hall watched McKinney at the urinal for a brief period of time, he motioned by a gesture of his head, that McKinney should follow him outside. McKinney's testimony was that he thought that the officer might wish to perform some homosexual activity with him, specifically oral sex, and he followed Hall outside. McKinney recalls that the officer suggested that he go to the officer's car. To which McKinney recalls responding that he felt that it was too dangerous and that he had better go home. Officer Hall does not recall that conversation. Officer Hall and McKinney do agree that at some point after they arrived outside the restroom, McKinney said "I'm not looking to suck, I want to be sucked." At this point in time, officer Hall identified himself as a police officer and arrested the Respondent for exposure of his sexual organs. Subsequent to the arrest, within approximately a week, the Respondent resigned his position with the Duval County School System. He then took a job with the School System in Mecklenburg County, North Carolina. There was no testimony that the incident in the restroom was ever revealed to the public in general or to the members of the faculty at the Windy Hill Elementary School, children, or parents of those children. The only persons that were informed of the incident were those persons in administration who were working directly in the personnel and security department, and the principal of Windy Hill Elementary School. Buford Galloway, Director of Evaluation, Duval County School Board, Duval County, Florida, offered testimony in the hearing. He indicated that he had investigated approximately 30 cases of homosexual activity by personnel of the school system in Duval County, to include six or eight cases of lewd and lascivious conduct. Mr. Galloway indicated that in those instances where the homosexual activity became a matter of public knowledge, the effectiveness of the teacher was reduced. Potentially he felt that effectiveness of a teacher would be reduced in a situation such as the Respondent's should it become a matter of public knowledge. As stated before, the incident involving the Respondent has not become a matter of public knowledge, in either Duval County, Florida or Mecklenburg County, North Carolina. Continuing an examination of the question of reduced effectiveness, there was not testimony offered which competently spoke to the quality of McKinney's performance in his duties after the events of September 26, 1976. His stay in Duval County was only for a short period of time before resigning, and not sufficient enough to allow a competent opinion on his performance there. For the remainder of the 1976-77 academic year, following his resignation in the Duval County School System, the Respondent served as an elementary teacher in the Mecklenburg County School System. No officials from Mecklenburg County testified about his effectiveness in their system. After his arrest, the Respondent was charged with engaging in lewd and lascivious behavior in violation of Section 798.02, Florida Statutes. He entered a plea of guilty in absentia and paid a $25.00 fine in response to the charges. The subject plea was entered on October 12, 1976. On May 18, 1977, an order of expungment was issued in accordance with Section 901.33, Florida Statutes, a copy of this order of expungment may be found as Respondent's Exhibit No. 2 admitted into evidence. Based upon these facts the Petitioner, has made a series of charges. The initial contention by the Petitioner is that the Respondent has violated Section 231.09(2), Florida Statutes, based upon the arrest of September 24, 1976, for the incident previously reported in these facts, and the plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior, a violation of Section 798.02, Florida Statutes. (The Petitioner is limited specifically in this contention, to any violation which might be shown under Section 231.09(2), Florida Statutes. This limitation is established by the answer to Interrogatory No. 8, propounded by the Respondent to the Petitioner. This answer to the Interrogatory serves as a bill of particulars and identifies Section 231.09(2), Florida Statues, as the basis of the claim in paragraph 3., of the original petition. Therefore any consideration of other subsections of Section 231.09, Florida Statutes, other than Section 231.09(2), Florida Statutes, is barred). The particular subsection, i.e., Section 231.09(2), Florida Statutes states the following: "EXAMPLES FOR PUPILS. - Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate by precept and example, the principals of truth, honesty and patriotism and the practice of every Christian virtue." In the case of Meltzer v. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), that Court held Section 231.09(2), Florida Statutes to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc reported, at 553 F. 2d 1008, the Unites States Fifth Circuit Court of Appeals granted rehearing with the right for oral argument and the opportunity to submit supplemental briefs, with the date of the oral argument to be announced in the future. The rehearing has not been held at the time of this recommended order. Consequently, the undersigned will report whether the evidential facts ad demonstrated, establish a violation under the language of Section 231.09(2), Florida Statutes, with the caveat that this section may not withstand the final order of the court in Meltzer, supra. Should Section 231.09(2), Florida Statutes, be upheld, the act of being arrested and pleading guilty to a violation of Section 798.02, Florida Statutes, would not violate Section 231.09(2), Florida Statutes. A violation would not be established because the order of expungment of May 18, 1977, entered in accordance with Section 901.33, Florida Statutes, would not allow punishment on the basis of the entry of the plea, because the order places the Respondent in the same position he would be in had the crime never occurred. This expungment would not prohibit the assessment of a penalty under the terms of Section 231.28, Florida Statutes, based upon the underlying evidential facts in the incident that led to the arrest and subsequent plea herein. These facts establish that the Respondent failed to labor faithfully and earnestly for the advancement of the pupils in their deportment and morals, in accordance with Section 231.09(2), Florida Statutes, assuming this latter section is constitutional. The evidential facts spoken of are those pertaining to the Respondent's motivation in coming to the Marina and what he did while in the restroom. No other violation of Section 231.09(2), Florida Statutes, under this contention, has been proven. Another contention found in the petition is that the matters pertaining to the arrest on September 24, 1976, and subsequent plea of guilty on October 12, 1976, as established above, constitute a substantive violation of Section 231.28, Florida Statutes, and would lead to action against the license on that basis. In pertinent part, Section 231.28(1), Florida Statutes, and would lead to action against the license on that basis. In pertinent part, Section 231.28(1), Florida Statutes, states that the license can be suspended or revoked provided: "It can be shown that such person obtained a teaching certificate by fraudulent means, has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the state board of education or the school board of the district in which he is employed." For reasons stated above, the order of expungment of May 18, 1977, together with the fact that the Respondent was never convicted of Section 798.02, Florida Statutes, would prohibit the revocation of his certificate on that basis alone. Nonetheless, based on the evidential facts set forth in the preceding paragraph, the Respondent, " . . . has been guilty of gross immorality or an act involving moral turpitude . . .," Section 231.28(1), Florida Statutes. These evidential facts do not show that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, according to the terms and conditions of Section 231.28(1), Florida Statutes, and no other substantive provisions of Section 231.28(1), Florida Statutes, have application. Moreover, although Section 231.28(3), Florida Statutes, states that a plea of guilty in any court, to one of the offenses listed in Section 231.28(1), Florida Statutes, constitutes a prima facie proof of grounds for revocation of the certificate, this is effectively rebutted by the expungment of May 18, 1977. The third overall claim against the Respondent was that he solicited sex with officer Hall which is contended as a violation of Section 231.09(2), Florida Statutes. In addressing this contention, the discussion of the constitutionality of Section 231.09(2), Florida Statutes, entered into before would have application in considering this third point. Therefore, assuming that the section is held to be constitutional, the Respondent solicited sex with the undercover officer and by doing so has failed to labor faithfully and earnestly for the advancement of the pupils and their deportment and morals, in violation of Section 231.09(2), Florida Statutes. This solicitation is established by the Respondent's conduct with the officer in the restroom and by his activities outside the restroom in stating that "I'm not looking to suck, I want to be sucked." Petitioner has failed to establish a violation of any other substantive element of Section 231.09(2), Florida Statutes. Finally, Petitioner has claimed through petition that the Respondent violated the conditions of Section 231.28, Florida Statutes, by soliciting sex with the undercover officer, Hall. In considering the particular language of Section 231.28(1), Florida Statutes, the conduct of the Respondent discussed in the above paragraph, constituted an act of gross immorality and an act involving moral turpitude, as stated in Section 231.28(1), Florida Statutes. These evidential facts do not show that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board according to the terms and conditions of Section 231.28(1), Florida Statutes. There has been no showing of any further violation of Section 231.28(1), Florida Statutes, by the act of soliciting sex with the undercover officer, as described in the preceding paragraph.
Recommendation It is recommended that the Florida Teacher's Certificate Number 178946, Special Postgraduate Rank 1A, held by the Respondent, Donald Eugene McKinney, be revoked, and that the revocation take effect, notwithstanding the eventual outcome of the consideration of Section 231.09(2), Florida Statutes, taking place in the case of Meltzer v. Board of Public Instruction of Orange County Florida, etc., et al., supra, and the Respondent's previous excellent employment record. DONE and ENTERED this 6th day of September, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1501 Tallahassee, Florida 32302 L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
Recommendation Based upon the foregoing, it is recommended: That Laurie J. Oldock be found guilty only of attempting to use a person under eighteen to deliver a controlled substance, and that the other charges set forth in the Notice of Intent to Take Action be dismissed. That Laurie J. Oldock be dismissed as an employee of the School Board of Collier County, as set forth in the Stipulated Disposition. RECOMMENDED this 10th day of July, 1990, in Tallahassee, Florida. Administrative Hearings Parkway 32399-1550 of the Administrative Hearings July, 1990. VERONICA E. DONNELLY Hearing Officer Division of The DeSoto Building 1230 Apalachee Tallahassee, FL (904) 488-9675 Filed with the Clerk Division of this 10th day of COPIES FURNISHED: James H. Siesky, Esquire Siesky and Lehman, P.A. 700 Eleventh Street South Suite 203 Naples, Florida 33940 Jerry Berry, Esquire 2500 Airport Road South Suite 309 Naples, Florida 33962 Dr. Thomas L. Richey, Superintendent Collier County School Board 3710 Estey Avenue Naples, Florida 33942 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 ================================================== ===============
The Issue Whether Respondent's teacher's certificate should be revoked or Respondent otherwise disciplined for alleged violation of Section 238.28(1), F.S., as set forth in the Petition herein, dated July 24, 1978. This proceeding arises from a petition filed by the Professional Practices Council, Department of Education, on July 24, 1978, that seeks to revoke or suspend the teaching certificate of Respondent Doris J. Black, an elementary school teacher in the public schools of Gadsden County, Florida. The petition alleges that Respondent issued a number of worthless checks during the period 1974-1978, and an instance of shoplifting in 1977. Respondent requested an administrative hearing on the charges on August 21, 1978. The petition was amended on August 31, 1978, to allege two additional bad-check charges occurring in 1978. Petitioner seeks to take disciplinary action against Respondent under Section 238.28(1), Florida Statutes, on the basis that her conduct constitutes gross immorality and personal conduct which reduces her effectiveness as an employee of the Gadsden County School Board, and under Section 231.09(2), Florida Statutes, in that she has not set a proper example for students. The petition further asserts that Respondent's conduct is sufficiently notorious to bring her and the education profession into public disgrace and disrespect. At the commencement of the hearing, Respondent admitted the allegations contained in the petition, as amended, but reserved the right to present extenuating and mitigating circumstances. Nevertheless, the parties agreed that evidence would be presented by both parties in support of their respective positions.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 264506, Post Graduate, Rank II, valid through June 30, 1981, covering the area of elementary education and junior college. She has been employed in the public schools of Gadsden County at George Munroe Elementary School as an elementary teacher for eight and one-half years. (Petition, testimony of Boyd, Respondent) In 1969, Respondent opened a checking account at the Quincy State Bank, Quincy, Florida, Account No. 0123237100, in the name of Doris Black. Respondent also maintained a checking account at the Citizens Bank and Trust Company, Quincy, Florida, Account No. 115027, in the name of Doris Black during the years 1977-1978. On June 3, 1975, Respondent opened Checking Account No. 700666 in the name of Doris B. Tucker in the Lewis State Bank, Tallahassee, Florida. The account was opened with a deposit of $1,000, but became overdrawn on June 18, 1975, and was closed on August 28, 1975 for being in an overdrawn status whereby service charges of $182.51 had accrued. During the period June-August, 1975, the bank returned 37 checks for insufficient funds. Respondent continued writing checks on the closed account for approximately two years after it had been closed. (Testimony of Smith, Dawson, Hutchinson, Respondent, Petitioner's Exhibits 2-5) Pursuant to stipulation of the parties, as supported by Petitioner's Composite Exhibit 1, the following facts are found as to certain checks issued by Respondent on the above-cited checking accounts: On or about July 15, 1974, Doris J. Black presented a check in the amount of $14.55 to A. L. Wilson Company in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same on presentation. Doris J. Black was arrested on or about September 9, 1974, and posted a bond in the amount of $40.00. The bond was estreated on October 15, 1974. Between the period November 25, 1974, to January 4, 1975, Doris J. Black presented six checks in the amount of $41.75 to Kelley Junior Store of Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such checks that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. On September 20, 1975, Doris J. Black was arrested and charged with six counts of issuing worthless checks; she posted a $50.00 bond which was estreated on November 3, 1975. On or about March 15, 1975, Doris J. Black presented a check in the amount of $33.02 to Rose's Supermarket in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The check (#2) was returned marked insufficient funds and notices requesting payment were ignored. On or about June 14, 1975, Doris J. Black presented a check in the amount of $35.00 to the Class of `65 in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check was returned marked insufficient funds and notices requesting payment were ignored. On or about August 2, 1975, Doris J. Black was arrested and charged with two counts of uttering worthless checks. The Respondent posted a $25.00 bond on each count. The bonds were estreated on September 2, 1975. On or about January 26, 1976, Doris J. Black presented a check in the amount of $45.65 to the Top Dollar Store in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check (#150) was returned marked closed and notices requesting payment were ignored. Doris J. Black was arrested on February 19, 1976, and posted a bond in the amount of $40.00. The bond was estreated on March 1, 1976. On or about January 18, 1976, Doris J. Black presented a check in the amount of $21.45 to Discount Grocery in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check (#149) was returned marked closed and notices requesting payment were ignored. Doris J. Black was arrested on March 2, 1976, and charged with uttering a worthless check. She posted a $40.00 bond which was estreated on April 12, 1976. On or about December 23, 1977, Doris J. Black presented a check in the amount of $29.04 to Top Dollar Store in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company to pay same upon presentation. The check (#116) was returned marked insufficient funds and notices requesting payment were ignored. On or about December 29, 1977, Doris J. Black presented a check in the amount of $32.84 to Auto Supply in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company to pay same upon presentation. The check (#117) was returned marked insufficient funds and notices requesting payment were ignored. On or about February 12, 1978, Doris J. Black was arrested and charged with two counts of uttering worthless checks. The respondent plead guilty on March 8, 1978, to both counts for which she was sentenced to one year's probation, ordered to make restitution and pay $75.00 court costs. On or about January 19, 1978, Doris J. Black presented a check in the amount of $12.48 to the Yankee Peddlar in Leon County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The charge was dismissed on April 18, 1974, on $40.00 court costs and restitution. On or about January 13, 1975, Doris J. Black presented a check in the amount of $23.81 to the National Shirt Shop of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The charge was dismissed on March 12, 1975, on $40.00 court costs and restitution. On or about November 18, 1974, Doris J. Black presented a check in the amount of $13.28 to Millers of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The charge was dismissed on $40.00 court costs and restitution on May 28, 1975. On or about August 1, 1975, Doris J. Black presented a check in the amount of $14.00 to Ford's Shoe Store, Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation Doris J. Black entered a plea of Nolo Contendere on November 26, 1975, and was found guilty. She was fined $15.00. On or about June 21, 1975, Doris J. Black presented a check in the amount of $42.66 to K-Mart Store of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. Doris J. Black entered a Plea of Nolo Contendere on November 26, 1975, and was found guilty. She was fined $15.00. On or about February 24, 1978, Doris J. Black presented a check in the amount of $93.49 to Standard Sales of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that she did not have sufficient funds on deposit or credit with Citizens Bank and Trust Company of Quincy to pay same upon presentation. On or about March 3, 1978, Doris J. Black presented a check in the amount of $109.24 to Standard Sales of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that she did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company of Quincy to pay same upon presentation. On August 17, 1977, Respondent took unpurchased merchandise, to wit: three bottles of Charlie Cologne, one bottle of Musk, one bottle of Mink and Pearls, one bottle of British Sterling, one bottle of Old Spice Musk, one Moon Drops Body Oil, one Vigorol 8, one Afrosheen, from the premises of a mercantile establishment, Skaggs Albertsons, located at 1925 North Monroe Street, Tallahassee, Florida, with the intent to convert said merchandise to personal use without paying the purchase price. She was apprehended by the assistant store manager after placing the above-described articles in a straw bag and leaving the store with the articles which were valued at approximately $48.00. She was subsequently arrested and, on November 30, 1977, entered a plea of Nolo Contendere to the charge of petty theft. Adjudication of guilt was withheld and she was placed on thirty days probation by the County Court for Leon County, Florida. At the hearing, Respondent admitted taking the merchandise at the suggestion of a friend of hers whom she met while she was in the store. (Stipulation, Testimony of Giberson, Respondent, Petitioner's Exhibit 1) In the opinion of the Principal of George W. Monroe Elementary School, the Superintendent of Schools of Gadsden County, and the Chairman of the Gadsden County School Board, Respondent's effectiveness as an employee of the Gadsden County school system had been reduced as a result of her past conduct. They were further of the opinion that her actions failed to set a proper example for students and was in violation of ethical standards of the teaching profession. The school principal has received approximately fifty telephone calls at the school in the past five years from Respondent's creditors and, on several occasions, individuals had come on to school premises to discuss delinquent obligations with the Respondent. (Testimony of Boyd, Greene, Bishop) In her testimony at the hearing, Respondent attributed her financial difficulties primarily to her ex-husband Matthew Tucker, whom she met in May, 1974, and married in October, 1974. She testified that she had given her paycheck to Tucker on various occasions to deposit in her bank account, but he failed to do so, thereby providing an insufficient balance when she wrote checks on the account. She maintained that he would come to the elementary school on payday and induce her to turn over her check to him, and that he would intercept her mail so that she was unable to become aware of the status of her account by mailed bank statements. She further testified that her husband had been violent on occasion and had assaulted her at which times she had called the local police for assistance. Although records of the Gadsden County Sheriff's Office and the Quincy Department of Public Safety failed to reveal that any such incidents had been reported, Respondent's testimony was corroborated in part by the testimony of a friend, Catherine James, who saw the Respondent on an unspecified occasion with bruises on her face. Mrs. James had loaned money to Respondent on several occasions and had given as reasons for the loans the fact that her husband had not deposited money or had taken money from her. Respondent's mother, Fanny Black, had loaned money to her and her husband on several occasions in the past. She was further aware that Respondent's husband frequented dog and race tracks where he gambled with money earned by the Respondent. Although the Respondent divorced Tucker in August, 1977, she later learned that she was pregnant and continued to live with him until April, 1978. (Testimony of Respondent, F. Black, James, Woodham, Beach)
Recommendation That the teaching certificate of Respondent be suspended for a period of one year, pursuant to Section 231.28, Florida Statutes. DONE and ENTERED this 1st day of December, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Holder, Esquire 110 North Magnolia Drive Tallahassee, Florida 32301 Luther C. Smith, Esquire Hugh Ingram, Administrator 121 1/2 South Monroe Street Professional Practices Council Tallahassee, Florida 32301 Department of Education Room 3, 318 W. Madison Street Tallahassee, Florida 32304
Findings Of Fact 1. On April 18, 2014, the Board issued an Invitation to Bid (‘2014 ITB”) for holding pond and related grounds maintenance work. The 2014 ITB specifically advised bidders that the Board reserved the right to contract “all or none, or by group to responsible and responsive bidder(s) determined to be the most advantageous to the District, taking into consideration price, product quality and other requirements as set forth in this ITB.” The language in the 2014 ITB gives the Board the discretion to award the contract to one bidder, several bidders or no bidders. 2. The 2014 ITB specifically advised bidders of their right to challenge the terms and conditions of the ITB. Petitioner, Mark's Lawn Maintenance, Inc., did not challenge the terms or conditions of the 2014 ITB. 3. The 2014 ITB specifically informed bidders that local and small business certification preferences were available to bidders, where applicable. Petitioner was given a 3% local preference for having a business in an adjoining county. Val’s Lawncare, Inc. ("Val's”) received a 5% small business certification preference. Applying the discount, Val's was the lowest bidder. 4. In 2007 and 2010, the Board issued ITBs for holding ponds and grounds maintenance services, and, each time, the contract was awarded to multiple bidders. 5. The 2014 ITB was awarded in accordance with the terms and conditions set forth therein, and not any prior practice or any language from prior ITBs.
Conclusions This matter came upon before the Board for entry of a Final Order upon entry of an Order Relinquishing Jurisdiction by June McKinney, an Administrative Law Judge of the Florida Division of Administrative Hearings, and, having reviewed the same, and ail other matters of record, and being otherwise advised in the premises, the Board finds and concludes as follows:
Findings Of Fact The Respondent, Richard Witherspoon (Witherspoon), is an employee of the Broward County School Board, holding a professional services contract, and is currently employed as a teacher at Broward Estates Elementary School. On November 30, 1994, the Fort Lauderdale Police Narcotics Unit was conducting an undercover drug operation at 2146 N.W. 7th Court in Fort Lauderdale. As part of the operation, Detective Clay Barrett posed as a drug dealer. Witherspoon approached Detective Barrett and asked him for a dime bag of marijuana. Witherspoon gave the officer money and received a bag of marijuana. Detective Barrett then signaled to other officers, who came and took Witherspoon into custody. Witherspoon was handcuffed and taken to the police department's processing room, where he was photographed. Witherspoon told the police that he was a school teacher. An information was filed against Witherspoon, charging him with the purchase of a controlled substance. In lieu of standing trial, Witherspoon agreed to enter a drug intervention program through the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida. As a prerequisite to become eligible for the drug intervention program, Witherspoon admitted to the presence of the drug. There were newspaper articles concerning the arrest of Witherspoon for purchasing marijuana, stating that Witherspoon was a schoolteacher. Witherspoon completed the pretrial intervention drug program. On January 30, 1996, the criminal case involving the purchase of a controlled substance was dismissed. Prior to his arrest, Witherspoon's teaching performance at Broward Estates Elementary School had been satisfactory and there had been no complaints concerning his teaching ability. After the arrest and resulting newspaper articles, there were still no complaints concerning Witherspoon's teaching performance but parents did express their disappointment in him because of his arrest. In 1989, Witherspoon was employed with the Dade County School Board as a teacher at Avocado Elementary School. On May 12, 1989, in Jefferson County, Alabama, he was arrested and charged with five counts of negotiating a worthless instrument. Witherspoon entered a bonding agreement for his release before trial. He failed to appear at trial and defaulted on his bonding agreement. Witherspoon was taken into custody at Avocado Elementary School and transported to Alabama to stand trial. He pled guilty to all five counts and was sentenced to a six month prison term, one year of probation, and charged with court costs and restitution. On October 30, 1989, Witherspoon resigned from employment with the Dade County Schools. In his letter of resignation, Witherspoon requested the Dade County Schools to send any correspondence to him at his sister's address. In July, 1990, the Florida Education Practices Commission filed an administrative complaint against Witherspoon based on the Alabama charges, seeking action against Witherspoon's teacher's certificate. Attempts to serve the complaint by mail and hand delivery were unsuccessful. Notice of the complaint was published in a Dade County newspaper on November 13, 19, 16, and December 3, 1990. A notice of the hearing on the administrative compliant was sent to Witherspoon by restricted delivery on January 14, 1991, but was returned to the Education Practices Commission because Witherspoon had moved and left no forwarding address. On February 1, 1991, the Education Practices Commission reviewed the case record. By Final Order of the Florida Education Practices Commission dated February 27, 1991, Witherspoon was found guilty of gross immorality, moral turpitude, and personal conduct which seriously reduced his effectiveness as an employee of the Dade County School Board. Witherspoon's teaching certificate was suspended for a period of six months commencing on March 8, 1991. Witherspoon was issued a written reprimand and was required to serve three years probation, with conditions to be met upon his reemployment as a teacher. Copies of the Final Order were sent to Witherspoon by regular and certified mail, but were returned to the Education Practices Commission, marked "Moved, Not Forwardable." Witherspoon applied for employment as a teacher with the Broward County School Board on June 18, 1991. He answered "no" on his application in response to the following question: "Have you ever had your teaching certificate from any state suspended or revoked?" At the time that he applied for employment, he did not know that his teaching certificate had been suspended. Witherspoon first learned that his certificate had been suspended during a conversation with an employee of the Education Practices Commission on November 7, 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's suspension and terminating his employment with the School Board of Broward County, Florida. DONE AND ENTERED this 10th day of May, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5767 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-6: Accepted. Paragraph 7: Sentences 1-7 are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 8: Accepted. Paragraph 9: The first two sentences are accepted. The remainder is accepted in substance to the extent that factually he was suspended but rejected to the extent that it implies that Witherspoon knew he was suspended at the time he made the application and that he knowingly falsified his application. Paragraph 10: Rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraph 1: The third sentence is rejected as constituting argument. The remaining is accepted insubstance. Paragraph 2: Rejected as subordinate to the facts found. Paragraph 3: The first sentence is accepted in substance to the extent that there had been no problems with Witherspoon's teaching performance prior to the newspaper articles appearing concerning his arrest. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 4: The first sentence is accepted to the extent that that is what the Petitioner charged. The last sentence is rejected as irrelevant since the Final Order came from the Education Practices Commission not from the Dade County School Board. Paragraphs 5-8: Accepted in substance. Paragraph 9: Rejected as constituting argument. COPIES FURNISHED: Carmen Rodriguez, Esquire Whitelock Soloff, Rodriguez and Williams, P.A. One East Broward Boulevard, Suite 601 Fort Lauderdale, Florida 33301 Mr. Richard Witherspoon Post Office Box 1795 Fort Lauderdale, Florida 33302 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Frank R. Petruzielo, Supertintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
