The Issue Whether just cause exists to suspend Respondent without pay for a total of ten days, based on two separate incidents.
Findings Of Fact Mr. Marshall has been a teacher in Broward County for approximately 20 years. At all times pertinent to the instant case, Mr. Marshall was employed as a math teacher at McArthur High School. Prior to working at McArthur High School he had taught math at Hollywood Hills High School, and then at Flanagan High School. During his tenure at Hollywood Hills High School, Mr. Marshall was placed on a Performance Development Plan (PDP), which required Mr. Marshall to remediate and reteach math lessons in an effort to obtain 70 percent comprehension in his classes. During his tenure at Flanagan High School, Mr. Marshall was once again placed on a PDP, which included the same requirements as the previous PDP at Hollywood Hills. Mr. Marshall was next transferred to McArthur High School for the 2007-2008 school year. Because Mr. Marshall had not completed the second PDP while at Flanagan High School, he was placed on a PDP and 90-day probationary period to start his tenure at McArthur High School. He successfully completed the PDP. During the fall of 2010, Mr. Marshall complained about Mr. Jose Gonzalez, the assistant principal who supervised the math department at the time. Mr. Marshall was then permitted to choose which assistant principal would supervise him. He chose Shawn Aycock, who at the time worked as the assistant principal for the language arts department. On November 5, 2010, Ms. Aycock observed Mr. Marshall in his classroom. Ms. Aycock noticed the following deficiencies: Mr. Marshall did not have the students start an activity as soon as the students entered the room, he had the students perform a task that had no educational value and was not tied to the day's activity, he gave inappropriate responses to students' questions, the students were confused with the lesson, he did not provide proper feedback to the students, he did not provide complete answers to student questions, he used vocabulary that was beyond the students' ability, he gave the students a sample problem but did not work through the problem with the students, and he made no attempt to re-teach the lesson or remediate in any way. On November 16, 2012, Ms. Aycock met with Mr. Marshall to discuss the observation. Mr. Marshall was confrontational, denied that the observation of hers was accurate, and accused Ms. Aycock of lying. Ms. Aycock had observed many teachers before she observed Mr. Marshall, but had never seen the need to write up notes after a meeting with a teacher. But after her meeting with Mr. Marshall, she did. Since then, she has not seen the need to write notes arising from a meeting with any other teacher. During the meeting, Mr. Marshall indicated that he would not water down his instruction for any student, and that he would have no problem with observations that were done ethically and did not consist of lies that were made by unqualified individuals. On November 19, 2010, Ms. Aycock provided Mr. Marshall with a memo detailing her concerns and expectations: Concerns: Students were asked upon entering the class to copy the day's objective. Students did not understand all of the math vocabulary used to explain the lesson. A student seeking further explanation on a problem was told,"If you didn't get it not to worry. It will not be on the quiz." Students were referred back to their notes when they questioned the lesson. Only two math problems were worked during a half an hour review. Expectations: All student activities should be of value and tied to the day's activity. Teacher will use math vocabulary consistent with student ability level and explain lessons in multiple ways. Insinuating that lessons are learned only for a test is inappropriate. All student questions will be answered and explained in full. During a review a minimum of five review problems will be worked per concept. Additionally, we discussed the importance of you checking your email. I am directing you to check your email prior to the conclusion of first period and again prior to the conclusion of fourth period. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received hours upon hours of assistance in these areas. My expectation is that you will follow the directives listed above immediately. If you feel you need assistance, please see me. Next, Ms. Aycock requested that Principal LaPace, who had an extensive math background, observe Mr. Marshall. He did so on January 7, 2011. Mr. LaPace's extensive notes regarding the observation detail Mr. Marshall's failure to have a proper lesson plan, his scattered presentation manner, and his ineffective management of the classroom. Mr. LaPace prepared a memo detailing his concerns and expectations: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. The objective on the board did not match the lesson being taught. Modeling sample problems were ineffective. Expectations: Always give clear and concise directions to students. Plan and deliver lessons so that are presented in sequential order. The lesson presented in class will align with the objective posted for the day. During a lesson a minimum of three sample problems will be worked per concept. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. When Mr. LaPace met with Mr. Marshall regarding his observation, Mr. Marshall disagreed with Mr. La Pace's observations, but did not indicate why he did. Mr. Marshall also declined all types of support from other staff members. The administration asked Mr. Marshall to provide documentation of remediation and retesting of students if he had over 35% of his students earning Ds or Fs. The documentation needed to be specific information regarding times that Mr. Marshall sat down with students in small group settings, or phone logs regarding communication with parents, or any type of specific information regarding steps that Mr. Marshall was taking to raise the level of success of his students. Mr. Marshall was never observed remediating or re-teaching, despite the fact that all teachers were asked to allot the final 30 minutes of a class to these activities. On February 17, 2011, Ms. Aycock, Mr. Gonzalez, and Mr. Marshall met for a Pre-Disciplinary Meeting. Mr. Marshall was given a verbal reprimand for insubordination. In the memorandum which documented the verbal reprimand, Ms. Aycock directed Mr. Marshall to: Reduce the number of students in your class receiving D's [sic] and F's [sic] to at or below thirty-five percent through re-teaching and remediating of those students. Check your school email throughout the day, a minimum of twice per day. Follow all directives given by and with proper authority. Failure or refusal to follow the above directives will result in further disciplinary action. On September 20, 2011, Ms. Aycock again met with Mr. Marshall to discuss concerns and expectations, and also to conduct a Pre-Disciplinary Meeting, wherein Mr. Marshall was issued a second verbal reprimand for insubordination. On September 22, 2011, Ms. Aycock wrote a memorandum detailing the conversation during the meeting, and reminding Mr. Marshall that from June 2010 through September 2011, he had attended seven meetings regarding the high percentage of students in his classes that were receiving Ds and Fs. At each meeting, he had been directed to reduce the number of students receiving Ds and Fs to at or below 35 percent, through remediation and re-teaching. Because Mr. Marshall had failed to comply with these directives, and had failed to provide a reason why he should not be disciplined, he was issued the second verbal reprimand. He was also directed to: Reduce the number of students in your class receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Follow all directives given by and with proper authority. Stemming from the same meeting, Ms. Aycock documented her concerns and expectations: Concerns: You are receiving a large number of student and parental complaints in relation to your teaching practices. Students are not being graded in a fair and consistent manner. The department grading policy is not being followed. Meaningful assignments are not being given to students. Students are not receiving corrective and immediate feedback as it relates to their assignments. Expectations: You will model lessons for students. You will differentiate instruction to meet the needs of all the students. You will develop and implement rubrics so students have clear expectations of class participation and effort requirements. All assignments will correlate to the standards as tested by the Geometry EOC. Students will receive corrective feedback within seventy-two hours. It is important for you to know and understand that these are the same issues that you have had in previous years. Your previous Performance Development Plans (PDPs) have addressed these same concerns. You have received adequate assistance in these areas. My expectation is that you will follow the directives listed above starting immediately. Around December 2011, Ms. Aycock was promoted to the position of Principal for a middle school, and Ms. Arnita Williams became Mr. Marshall's supervising Assistant Principal. Ms. Williams and Ms. Aycock once again conducted a classroom observation of Mr. Marshall, and Ms. Williams documented her concerns and expectations as follows: Concerns: Students were not given clear directions causing confusion among the students. The lesson was not sequential. You did not address students' questions and concerns. Modeling sample problems was ineffective. You did not provide and use the correct mathematical vocabulary. Expectations: Always give clear and concise directions to students and check for understanding. Plan and deliver lessons so they are presented in sequential order. Students' questions and concerns need to be addressed. Mathematical vocabulary on student's level should be used. In previous memos additional directives were given. Below were the following expectations: You will develop and implement rubrics so students have clear expectations of class participation and effort. Provide a copy of your participation rubric to Ms. Aycock by the close of business on Friday, September 26, 2011. Differentiate instruction every day the last 30 minutes of class the [sic] meet the needs of ask [sic] your students. Student will receive corrective feedback within seventy-two hours on all graded work. Reduce the number of students receiving Ds and Fs to at or below thirty-five percent through re-teaching and remediation of those students. Daily indicate in your lesson plans interventions and strategies used to differentiate instruction. A minimum of two grades each week must be entered into pinnacle per student. Vocabulary used in class must be consistent with student's ability. Check your school email throughout the day, a minimum of twice daily (before and after school). During a lesson a minimum of three sample problems will be worked per concept. Follow all directives given by and with proper authority. You have been given the above directions numerous times in the past. It is my expectation that all directives will be implemented immediately. On December 12, 2011, Ms. Williams issued a written reprimand for failing to meet the performance standards required of his position as a math teacher. As grounds for the written reprimand, Ms. Williams focused on Mr. Marshall's repeated failure to reduce the number of students receiving Ds and Fs to at or below 35 percent through remediation and re-teaching, and his failure to follow all other directives given by and with proper authority. School administration consistently directed Mr. Marshall to remediate and re-teach daily; he advised the administration that he would do so on one particular day of the week. The administration denied that request. As a result of Mr. Marshall's non-compliance, students were moved from Mr. Marshall's class to other classes, which resulted in a disparate amount of students in other classes. While most math teachers had from 30-35 students in their classes, Mr. Marshall's class was reduced to about 17 students. On January 5, 2012, Ms. Williams conducted a pre-disciplinary meeting with Mr. Marshall, for failure to provide daily re-teaching and remediation for students the last 30 minutes of class, as he had been instructed to do numerous times. He was informed by letter that he was being recommended to the School Board for a three-day suspension. On October 10, 2012, approximately nine weeks into the next school year, Ms. Williams sent Mr. Marshall a memorandum that stated: Due to the large number of complaints, schedule changes, high failure rate and conferences, you are hereby directed to provide the following documentation for each of the 93 students (Juniors) who presently have a grade of F in your class at interims by October 15, 2012. Please provide copies to Ms. Williams and Ms. DiPaolo by 2:45 p.m. Interventions and strategies for each student Parent phone contact log On that same date, Mr. Marshall responded to this request by giving Ms. Williams a document that read as follows: MATHEMATICAL RUBRIC Tests/Quizzes Correct Problems 10pts. Completely Wrong 0pts. Total is 100% Please note that the total number of questions can affect the outcome. Since the reply by Mr. Marshall was completely lacking in usefulness and did not supply the information requested by Ms. Williams, she attempted once again to solicit the proper information from Mr. Marshall by sending an e-mail to him on October 15, 2012, at 6:03 a.m., giving him a second notice that the deadline for production of the requested information was that same day. Mr. Marshall never complied with the directive to provide information on each student who was failing his class. He never asked for more time to collect the information, and despite that fact that he admitted it would have been easy to retrieve his phone log and submit it, he never did so. Ms. Williams met with Mr. Marshall, informing him that he would be recommended to the School Board for a seven-day suspension. The greater weight of the evidence established that Mr. Marshall is guilty of gross insubordination for his conduct before and after July 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board issue a final order suspending Mr. Marshall without pay for a total of ten days, based on his conduct before and after July 2012. DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 28th day of August, 2013.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates, as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2017). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2017). Respondent holds Florida Educator's Certificate 880641, covering the areas of Middle Grades Integrated Curriculum, Physical Education, Social Science, and Exceptional Student Education (ESE), which is valid through June 30, 2022. At all times pertinent hereto, Respondent was employed as an ESE teacher at GHS in the Alachua County School District. Respondent began his teaching career at GHS in 2002 teaching ESE classes. The incident that forms the basis for this proceeding occurred on May 12, 2016, during the 2015-2016 school year. Teachers employed by the Alachua County School Board are subject to the Collective Bargaining Agreement between the Alachua County School Board and the Alachua County Education Association, the local teachers’ union. Article IX, Section 21(a), of the Collective Bargaining Agreement, which was in effect during the 2015-2016 school year, provides that: Subject to the approval of the principal or his designee, a teacher may leave the campus of his particular school if appropriate arrangements are made to insure that students are not left unsupervised. Approval is required for each circumstance or situation. The principal or his designee will not unreasonably deny such a request. A teacher will use this privilege only in unusual circumstances. At the beginning of each school year, before students report, a faculty pre-planning meeting is held at GHS to go over information provided by the school district. Supervision of students is among the topics of discussion, and teachers are advised that they are not to leave students unsupervised in their classrooms. The reason for the instruction is obvious -- GHS, being responsible for the safety of its students, should take all reasonable measures to ensure their safety on campus. In addition to the instruction provided at the pre- planning meeting, GHS sent periodic emails to teachers throughout the year reiterating that students were not to be left unsupervised in classrooms. On April 5, 2016, an email was sent directed to the general problem of unsupervised students “walking around A, B, and C hallways” during the lunch periods. The email noted that some teachers allowed students to come to their classrooms during the lunch period for mentoring, which was recognized as a laudable activity. One teacher responded the next day expressing appreciation for the reminder, noting that “[t]here are students all over upstairs in A & B wings. They also hang out in the stairwells, especially on the West end.” On April 7, 2016, Mr. Shelnutt sent an email to all teachers reiterating that it was “fantastic” that teachers allowed students in their classrooms during the lunch period, but that students were not to be “roaming around.” The email emphasized that “if you chose to allow students in your classroom during your lunch, you are assuming responsibility for supervising them.”2/ During the lunch shifts, school employees were routinely stationed in areas where general education students were allowed to eat lunch in order to provide adult supervision while their teachers took their 30-minute lunch break. As will be described herein, ESE students were subject to a different lunchtime regimen. During the 2015–16 school year, Respondent was assigned to teach a self-contained class of 4 to 7 students with intellectual disabilities. The “self-contained” setting means that students generally remained in the Gaines building on the GHS campus with other students with disabilities. Respondent’s students were intellectually disabled, but functioned at a higher level than their ESE peers in other classrooms, who had more severe disabilities. Respondent’s students identified more with general education students, and were much more likely to interact with general education students than with those in the other ESE classrooms.3/ The Gaines building was a “community of classrooms,” in that a teacher could request and receive assistance from teachers or paraprofessionals in the other two classrooms in the building. The ESE classrooms surround a small courtyard at the Gaines building. The courtyard has a table and seating, and students would most often sit there to eat their lunch. One of the three ESE teachers usually oversaw the courtyard, and the courtyard could be seen from the ESE classroom windows. There is also a basketball court and track behind the Gaines building, which were occasionally used by ESE students before and after school, and during lunch period. The school day at GHS has six periods. Respondent taught ESE students for five of the six daily periods. During the period when Respondent’s ESE students were at their P.E. class, Respondent was assigned to teach a general education history class. Mr. Shelnutt indicated that “[e]very teacher [at GHS] should have a 30-minute duty free lunch in addition to a planning period.” Mr. DeLucas testified that Respondent was in “a very unique situation. The other self-contained rooms had multiple paraprofessionals. He did not have multiple paraprofessionals.”4/ Consequently, Respondent was the only teacher in his classroom and was assigned students every period of the school day with no planning period. Because of the circumstances, if it became necessary for Respondent to leave the classroom, he would ask one of the teachers or paraprofessionals from the other ESE classrooms to watch his class. Unlike the situation that was the subject of the April 5, 2017 and April 7, 2017, emails referenced above, which appears to describe a general education student lunch period, ESE “self-contained” students were allowed to get their lunches and then return to their classrooms, to avoid the crowds and the lines. It was apparently not uncommon for special needs students to go to the cafeteria during the 20-minute break between the end of A-Lunch at around 11:55 a.m. and the beginning of B-Lunch at 12:15 p.m. when there is not a standard lunch shift. Respondent’s only break in the school day was during his students’ lunch period, from 12:15 p.m. to 12:45 p.m. Since ESE students typically had lunch in the Gaines building courtyard or their classrooms, even Respondent’s “duty free lunch” was not free of duties. On May 12, 2016, Respondent released his students -- which on that day were only B.S., B.H., and N.C. -- around 12:05 p.m. to get lunch from the cafeteria. Respondent’s students had been watching a movie, and wanted to finish the movie during the lunch period. Respondent agreed to let the students return to his classroom to finish watching the movie. Before the students returned to the classroom, Respondent received a telephone call from the baseball booster club president regarding an upcoming banquet. When the students returned to the classroom, Respondent continued the telephone call outside. When Respondent ended the telephone call, he realized that the lunch period was “counting down.” Respondent left the Gaines Building, with the students unattended in his classroom, and drove to a sandwich shop several blocks away. There was no explanation as to why Respondent did not ask one of the other ESE teachers or paraprofessionals to watch his classroom. During Respondent’s absence from the classroom, another of Respondent’s students, J.H., entered the classroom and saw male ESE student, B.S., emerging from a storage closet in Respondent’s classroom, and thereafter discovered female ESE student, B.H., in the closet crying. J.H. went to the office and told Ms. Conyers what he had seen. Ms. Conyers radioed for a dean or an administrator to report to Respondent’s classroom. Ms. Gantt and Mr. Bauer arrived at the classroom at about the same time. Ms. Gantt questioned B.H. as to what had happened, and Mr. Bauer went to the nearby basketball court where B.S. had been reported to have gone. B.H. and B.S. were taken to the Dean’s office for questioning. At some point after Ms. Gantt and Mr. Bauer arrived at Respondent’s classroom, and approximately 15 minutes after his departure from campus, Respondent returned from the sandwich shop. There was considerable evidence devoted to the events that occurred in Respondent’s classroom closet during his absence. All of the evidence was hearsay. However, what was established (and agreed upon) is this: On May 12, 2016, while Respondent was absent from his classroom, during which time students were left unsupervised in the classroom, an event occurred that was of sufficient severity that the police were called in, that the police conducted an investigation, and that the police ultimately completed a sworn complaint charging B.S. with lewd and lascivious molestation of B.H. Alachua County Public Schools charged Respondent with violating school board policies regarding student supervision, specifically a policy that required teachers to obtain the permission of the school principal before leaving school campus, and recommended his termination from employment. Respondent contested the recommendation of termination. On February 16, 2017, the Alachua County School Board, the Alachua County Education Association, and Respondent executed a settlement agreement, providing that: (1) the superintendent would rescind the recommendation for Respondent’s termination; (2) Respondent would take an unpaid leave of absence beginning March 1, 2017, until June 6, 2017; Respondent would agree to complete Safe Schools online training regarding classroom supervision and school safety; and upon completion of the Safe Schools training, Respondent would be returned to paid status as an employee of Alachua County Schools. Respondent fulfilled the terms of the settlement agreement and, with regard to the Safe Schools training, exceeded the required courses. For the 2017–2018 school year, Respondent has been assigned as a P.E. teacher at the Sidney Lanier Center, a K-12 public school in Alachua County. Sidney Lanier is a specialized school for ESE students. The principal of Sidney Lanier was aware of the events of May 12, 2016, when Respondent was assigned. It should be acknowledged that Respondent taught ESE classes at GHS for 14 years without incident. He had no prior discipline and received uniformly good evaluations. He was well regarded as a teacher and a coach, and was generally acknowledged to have had a positive impact on students’ lives. Respondent expressed genuine remorse about leaving students unattended in his classroom, and credibly testified that he would never again do so. The incident did not involve Respondent denigrating or disparaging students, or improperly or abusively making physical contact with students. Nonetheless, Respondent violated a clear and direct requirement that he not leave students unattended. Although he believed his students would not engage in the activity described, such action on the part of a high school student was certainly not unforeseeable. There was conflicting evidence as to whether B.H.’s mental health was actually affected by the incident. A preponderance of the evidence indicates that it had some negative effect. However, rule 6A-10.081(2)(a)1. “does not require evidence that Respondent actually harmed [a student]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect his students from conditions harmful to their mental or physical health, or safety, pursuant to rule 6A- 10.081(2)(a)1.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(2)(a)1. It is further recommended that Respondent’s educator’s certificate be suspended for a period of 30 days, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension, which penalty is within the range of penalties established in rule 6B-11.007(2). DONE AND ENTERED this 21st day of November, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2017.
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
Findings Of Fact During the 1983-84 school year, Respondent was an eighth grade student at North Miami Junior High School. Due to academic deficiencies, she would be required to repeat the eighth grade if she remains in the regular program. Petitioner related some 12 incidents of disruptive or rebellious behavior by Respondent over the past two academic years which resulted in disciplinary action. She was also disciplined on at least two occasions for repeated tardiness and unexcused absences. Petitioner has made reasonable efforts to assist Respondent in adjusting to regular junior high school. She was transferred from one class due to disagreements with her teacher and she has received counseling on at least four occasions regarding her behavior problems. Respondent's year-end grades are unsatisfactory in mathematics and language arts, which are both remedial courses. She is thus experiencing serious academic as well as behavior difficulties.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Celia Lela Benjamin to its opportunity school. DONE and ENTERED this 5th day of September, 1983, at Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Maebelle Bolden Abner 2396 North West 73rd Terrace Miami, Florida 33147 Daniella S. Levine, squire Legal Services of Greater Miami, Inc. 149 West Plaza, Suite 210 7900 North West 27 Avenue Miami, Florida 33147 Dr. Leonard Britton Superintendent of Schools School Board of Dade County Lindsey Hopkins Building 1410 North East 2nd Avenue Miami, Florida 33132
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend and terminate Respondent from his employment as a teacher.
Findings Of Fact The Parties Petitioner is the School Board of Broward County, Florida, the agency head for the Broward County Public Schools, a public school district serving Broward County, Florida. Petitioner is charged with the duty to operate, control, and supervise free public schools within the Broward County school district, pursuant to article IX, section 4(n) of the Florida Constitution and section 1012.33, Florida Statutes. At all times relevant to this proceeding, Respondent was employed by Petitioner as a teacher at Arthur Ashe Middle School ("AAMS"), a middle school within the Broward County school district. Respondent has been a teacher for a total of 12 years, having taught at AAMS for ten of those years. He has been employed by Petitioner since 2003. Respondent started the 2011-2012 school year as a sixth grade language arts teacher.2/ In late January or early February 2012, Respondent was asked, and agreed, to assume a new teaching assignment as a seventh grade language arts teacher, specifically to prepare seventh grade students to take the Florida Comprehensive Assessment Test.3/ Respondent has received uniformly satisfactory performance evaluations throughout his teaching career with Petitioner and enjoys a reputation as an excellent teacher. He has not previously been disciplined. Background The incident giving rise to this proceeding occurred on or about February 16, 2012, while Respondent was teaching a seventh grade language arts class to which he recently had been assigned. Petitioner alleges that on that day, Respondent pushed one student, choked another student, and used profanity toward the students in the class. The Broward District Schools Police Department conducted an investigation of these alleged actions and presented the case to the Professional Standards Committee ("PSC") for a determination of probable cause. The PSC found probable cause that Respondent engaged in the alleged conduct, and recommended to the Superintendent for Broward County Public Schools that Respondent be suspended without pay pending final disposition of the matter and that he ultimately be terminated from his employment as a teacher. The Superintendent confirmed this recommendation, and on or about February 5, 2013, Petitioner suspended Respondent without pay and took proposed action to terminate him from his employment as a teacher with Broward County Public Schools. Incident Giving Rise to Charges Respondent taught the seventh grade language arts class during the first instructional period of the day. On the day of the incident, Respondent timely arrived at the class but thereafter was summoned to the office by the head guidance counselor to deliver a report. Two substitute teachers, Christopher Hugley and Joyce Utley-Smith, were in the classroom at that time. Respondent was the designated lead teacher that day and the substitute teachers were assigned to assist him. Respondent estimated that he was absent from the classroom for approximately five minutes. Upon his return, he found, in his words, "chaos." Notwithstanding the presence of the two substitute teachers——who apparently took no effective action to control the class——the students were throwing candy and textbooks, talking loudly, using profanity, and walking around the room rather than staying seated in their desks.4/ Respondent began setting up a laptop computer and projector and passing out instructional packets to the students in preparation to conduct his lesson. Three female students in the class asked Respondent for permission to go to the restroom but he refused, consistent with his class policy of not allowing students to go to the restroom during class time except in an emergency.5/ The girls then asked Hugley if they could go to the restroom. Notwithstanding that Respondent did not allow them to go, Hugley gave them permission because, in his view, Respondent was "not prepared" and because he believed the students would have ample time to use the restroom and return to class before instruction started. AAMS has a policy that requires all students who leave class to be escorted by a security monitor. Nonetheless, Hugley did not summon a security monitor to escort the girls to the restroom, and instead allowed them to go unaccompanied. Respondent questioned Hugley as to why he had allowed the girls to go to the restroom after he had refused to allow them to go. As the girls were returning to the classroom, Respondent heard them in the hallway and went to the door. He saw them at the door of a neighboring classroom, causing a commotion with students in that class. The girls then tried to reenter Respondent's classroom but he stood in the door and refused to allow them to reenter because they left the class without his permission. One student, T.W., attempted to force her way back into the classroom by repeatedly trying to duck under Respondent's arm or maneuver around him, but he blocked her way each time. Respondent then attempted to close the door, but T.W. grabbed the door handle and tried to push Respondent aside. Respondent braced himself against the door frame and, in doing so, touched T.W.'s shoulder to prevent her from reentering the classroom. The persuasive evidence establishes that T.W. made the initial contact with Respondent; that Respondent did not push, shove, or punch T.W. or any of the other girls; and that neither T.W. nor any of the other girls fell into each other or onto the floor. Respondent closed the door, shutting the girls outside the classroom. Some students, angry at Respondent for not allowing the girls to reenter the classroom, directed profanity at him. Respondent admits that he responded by directing profanity back at them. At hearing, Respondent expressed sincere remorse and disappointment with himself for having behaved in this manner. The evidence establishes that Respondent had not previously used profanity in dealing with students and that this was an isolated incident. One student, T.L., was seated at the back of the classroom, with earphones in his ears, listening to an electronic device. The persuasive evidence establishes that T.L. said to Respondent "I wish you'd say that to me" or something to that effect. Respondent perceived this statement as a challenge to his authority and approached T.L. At that point, T.L. stood up from his desk and his chest bumped Respondent. Respondent put his hands on T.L.'s chest to push him away. In course of this altercation, Respondent and T.L. moved such that T.L.'s back became positioned against a cabinet. Respondent credibly testified that as the altercation ensued, T.L. repeatedly put his hands into his pockets, apparently attempting to retrieve items. Respondent was concerned that T.L. was attempting to retrieve a weapon, so he kept his hands on T.L.'s chest and remained close to him. At some point, Respondent felt T.L. relax, so he, too, relaxed and released T.L. The entire incident took place in a matter of a few seconds. At that moment, Assistant Principal Maddox entered the classroom and removed T.L. from the room. The persuasive evidence establishes that T.L. made the initial physical contact with Respondent; that Respondent pushed T.L. and put his hands on T.L.'s chest as a means of defending himself; and that Respondent did not choke T.L. The persuasive evidence further establishes that Respondent was an effective teacher before this incident and remains so after the incident. This incident has not impaired Respondent's effectiveness as a teacher in the school system. Findings of Ultimate Fact Petitioner seeks to suspend Respondent and terminate his employment on the basis of "just cause." Sections 1012.33(1)(a) and (6) provide in pertinent part that instructional staff may be terminated during the term of their employment contract only for "just cause." See § 1012.33(1)(a),(6), Fla. Stat. (2011).6/ "Just cause" is defined to include misconduct in office. § 1012.33(1)(a), Fla. Stat. Petitioner has charged Respondent with committing misconduct in office. Misconduct in office is defined in Florida Administrative Code Rule 6A-5.056(3)7/ as: violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. Fla. Admin. Code R. 6A-5.056(3) (emphasis added). In order to find Respondent guilty of misconduct under rule 6A- 5.056, not only must Respondent be determined to have violated rules 6B-1.001 and 6B-1.006, but the violations also must be so serious as to impair Respondent's effectiveness in the school system. See McMillan v. Nassau Cnty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993)(where evidence did not establish impaired effectiveness, there was no basis for determining that teacher engaged in misconduct warranting termination from employment). Rule 6B-1.001,8/ the Code of Ethics of the Education Profession in Florida, provides: The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of a democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. 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. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of community, the educator strives to achieve and sustain the highest degree of ethical conduct. Rule 6B-1.006,9/ the Principles of Professional Conduct for the Education Profession in Florida, provides in pertinent part: The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/ or physical health and/or safety. * * * (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement. * * * (5) Obligation to the profession of education requires that the individual: * * * (d) Shall not engage in harassment . . . which unreasonably interferes . . . with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment . . . . Although there was conflicting testimony as to whether Respondent pushed T.W., the persuasive evidence establishes that T.W. made the initial physical contact with Respondent while attempting to reenter the room contrary to his direction; that in bracing himself against the door frame to prevent the girls from reentering the room, Respondent touched T.W.'s shoulder; and that Respondent closed the door, shutting the girls out of the room. The evidence does not establish that Respondent pushed or punched T.W. or any of the other girls, or that they fell into each other or onto the floor. There also was conflicting evidence as to whether Respondent choked T.L. The persuasive evidence establishes that T.L. made the initial contact with Respondent, which Respondent interpreted as a sign of aggression, and that Respondent pushed against T.L.'s chest in order to defend himself. The evidence does not establish that Respondent choked T.L. Under these circumstances, Respondent's conduct constituted justifiable self-defense10/ because he was fearful that T.L. may have been searching for a weapon in his pockets. There is no dispute that Respondent used profanity in addressing the students in the classroom. In doing so, Respondent violated rule 6B-1.001 by failing to exercise his best professional judgment in dealing with the students on that particular occasion. Additionally, Respondent violated rule 6B- 1.006 by exposing the students to conditions that were harmful to learning. His conduct exposed the students to unnecessary disparagement; was harassing and interfered with the educational process on that particular day; and was hostile, abusive, and offensive. Even though the students directed profane language toward Respondent, he was not justified, as a professional educator, to respond in kind. However, the evidence did not establish that Respondent's effectiveness in the school system was impaired by this incident. Respondent previously had received only positive evaluations during his tenure with Petitioner, and the evidence clearly established that he enjoyed, and continues to enjoy, a reputation as an excellent teacher, even after the incident. Respondent had never before used profanity in dealing with students, and this was a one-time event. Respondent was remorseful and disappointed with himself for having engaged in such conduct. In sum, the persuasive evidence establishes that Respondent's effectiveness in the school system has not been impaired by this matter. Based on the foregoing, it is determined that Petitioner did not sustain its burden to demonstrate, by a preponderance of the evidence, that Respondent's conduct amounted to a violation of rules 6B-1.001 and 6B-1.006 which is so serious as to impair his effectiveness in the school system. Accordingly, Respondent did not engage in misconduct as defined in rule 6A-5.056. Accordingly, there is no just cause, as required by subsections 1012.33(1)(a) and (6), to suspend Respondent without pay for the period commencing on February 5, 2013,11/ to present, and to terminate his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County Public Schools, enter a final order: (1) finding that just cause does not exist to terminate or suspend Respondent's employment; (2) imposing a punishment consisting of suspension from employment for a total of 15 work days for violation of rules 6B-1.001 and 6B-1.006 that does not amount to misconduct in office; and (3) awarding Respondent back-pay for the period commencing on the date of his suspension to the date of entry of the final order, less the amount of salary for the 15-work day suspension period. DONE AND ENTERED this 8th day of July, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 8th day of July, 2013.
