The Issue The basic issues in these consolidated cases are whether the Respondent should be dismissed from his employment as a school teacher in the Broward County School District and whether his Florida teaching certificate should be disciplined based upon substantially similar charges filed by the respective Petitioners. Petitioners allege that the Respondent conducted himself improperly on three separate occasions with three different female students. The Petitioner School Board of Broward County seeks the Respondent's dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) immorality, (b) misconduct in office, and moral turpitude. The Petitioner Betty Castor seeks to discipline the Respondent's Florida teaching certificate pursuant to Section 231.28, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) gross immoral-ity or an act involving moral turpitude, (b) personal conduct which seriously reduces his effectiveness as an employee of the School Board, and (c) violations of the code of conduct for educators in the State of Florida. The Respondent denies any misconduct.
Findings Of Fact Facts stipulated to by all parties The Respondent, Wayne N. Bailey, holds Florida teaching certificate 478398, covering the areas of Science, Biology, and Physical Education, which is valid through June 30, 1995. At all times pertinent to these consolidated cases, the Respondent was employed as a teacher and coach at South Plantation High School in the Broward County School District, and was so employed since 1980. The Respondent holds a continuing contract as a classroom teacher. Virgil L. Morgan, is the Superintendent of Schools for Broward County, Florida. Facts established at the hearing Facts regarding the student J.F. 1/ During the 1987-1988 school year, a female student named J.F. was a student in the fifth period Biology class taught by the Respondent. J.F. was a student in that class for the entire school year. During the first half of the school year she sat in the front of the classroom. Sometime during the 1987-88 school year, J.F. reported to the school authorities that the Respondent had passed a note to her in class containing words to the effect that the Respondent thought she was a bright girl, that he wanted to get to know her better, and requesting her telephone number. The record in this case lacks persuasive evidence that the incident reported by J.F. actually occurred. 2/ Facts Regarding the Student C.P.C. 3/ During the first half of the 1987-88 school year, a female student named C.P.C. was a student in the second period Biology class taught by the Respondent. One evening after a football game at South Plantation High School, C.P.C. was sent to get some ice from a locked concession stand. When she got to the concession stand, she saw the Respondent holding something that she believed contained beer. 4/ On several occasions thereafter, C.P.C. joked with the Respondent to the effect that she had seen him with beer in the concession stand. Towards the end of the first semester of the 1987-88 school year, in conjunction with seeking a transfer out of the Respondent's class, C.P.C. reported that the Respondent had offered to provide her with beer and had invited her to drink beer with him at his house. The record in this case lacks persuasive evidence that the offer and invitation reported by C.P.C. actually occurred. 5/ Facts Regarding the Student L.H. 6/ During the 1989-1990 school year, a female student named L.H. was a student at South Plantation High School. During that school year, L.H. was in the twelfth grade. She was never a student in any class taught by the Respondent, and prior to the incident described below she had had very little contact with the Respondent. During the 1989-90 school year, L.H. was a member of the girl's varsity basketball team. The incident described below occurred on an afternoon in early January (probably January 3) of 1990, prior to a home basketball game that was played on the campus of South Plantation High School. Because there was a basketball game later that day, on the day in question L.H. remained on the school grounds when classes were over at 2:35 p.m. Two other students stayed on the campus with her, D.G. 7/ and S.M. 8/ Sometime after 3:00 p.m., but before 4:00 p.m., L.H. wanted to go to the coaches' office inside the gymnasium in order to get some fruit from her gym bag. She and her two student companions went to the gymnasium and found that it was locked. The three students began to knock on the door. Shortly thereafter, the Respondent came to the door and asked why the students wanted to come into the gymnasium. After L.H. explained what she wanted, the Respondent allowed her to enter and then closed the gymnasium door, leaving the other two students outside the gymnasium door. Again, the gymnasium door was locked. L.H. entered the coaches' office inside the gymnasium and proceeded to retrieve her gym bag. The Respondent followed her into the coaches' office and closed the door to the office behind him. Thereupon, the Respondent approached L.H., began trying to fondle her body, began kissing her, and while doing so succeeded in partially unbuttoning the top of L.H.'s jump suit and pulling it down over her shoulder. The Respondent then lifted L.H.'s bra, exposing her breast, whereupon he rubbed her breast with his hands and then placed his mouth on her breast and sucked hard and/or bit on her breast. During the course of this activity the Respondent also unzipped his pants, removed his penis from his pants, and then pushed one of L.H.'s hands until it was in contact with his penis. The Respondent also attempted to get L.H. to lie down on a desk in the coaches' office. During the course of the activities described immediately above, the Respondent was speaking to L.H. encouraging her to consent to sexual intercourse, while she was asking him to stop and struggling to free herself from his clutches. Shortly after the commencement of the activities described above, the two students who had remained outside began to knock loudly on the locked gymnasium door. Shortly after the knocking began, the Respondent released L.H., zipped up his pants, sat down, and pretended to be talking on the telephone. He then said to L.H., "this will be our secret, just between me and you." As soon as the Respondent released her, L.H. rearranged her clothes, left the coaches' office, and then left the gymnasium. When she met D.G. and S.M. outside the gymnasium, L.H.'s hair was messed up and it appeared to both D.G. and S.M. that something was bothering L.H. D.G. proceeded to ask L.H. several times what was bothering her. Because she was embarrassed, frightened, and confused, L.H. did not tell D.G. or S.M. what had happened until sometime later. Later that same evening, L.H. called D.G. on the telephone and told him in detail what the Respondent had done to her in the coaches' office. L.H. did not report the Respondent's conduct to school authorities until February 28, 1990, during the course of an interview by her school guidance counsellor. Her delay in reporting the matter to school authorities was due to her embarrassment and to her concern that the school authorities might not believe her word over that of a teacher. The Respondent's effectiveness as an employee of the Broward County School Board has been seriously diminished by the incident involving L.H.
Recommendation Based on all of the foregoing, it is RECOMMENDED that final orders to the following effect be entered in these cases: In Case No. 90-3615, a final order should be entered concluding that the Respondent is guilty of "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment with the Broward County School Board. In Case No. 90-6154, a final order should be entered concluding that the Respondent is guilty of "gross immorality or an act involving moral turpitude," of conduct "which seriously reduces that person's effectiveness as an employee of the school board," and of conduct violating paragraphs (a) and (e) of subsection (3) of Rule 6B-1.006, Florida Administrative Code, within the meaning of Section 231.28(1)(c), (f), and (h), Florida Statutes, and permanently revoking the Respondent's teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of December 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December 1991.
The Issue Whether Respondent committed the offenses set forth in Administrative Complaint and, if so, what penalties should be imposed?
Findings Of Fact Respondent holds Florida Education Certificate No. 460644, covering the areas of Educational Leadership and Social Science. The license is valid through June 30, 2001. At all times material to this proceeding, Respondent was employed as a substitute teacher at Marathon High School in the Monroe County School District. On or about November 26, 1996, Respondent submitted an application for renewal of a Professional Florida Educator's Certificate to Petitioner's Bureau of Teacher Certification. On the application, Respondent checked "no" in response to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre or had adjudication withheld in a criminal proceeding; or are there any criminal charges now pending against you. Failure to answer this question accurately could cause denial of certification. By indictment of the grand jury convened in Pickens County, South Carolina, on June 22, 1995, Respondent was charged with "Assault and Battery of a High and Aggravated Nature" and with the offense of "Disturbing Schools." Respondent pled guilty to the charge of Disturbing Schools and the lesser charge of "Simple Assault and Battery" on March 18, 1996. He received a sentence of a $200 fine and a suspended 90 days jail sentence. On or about October 6, 2000, Petitioner submitted its First Request for Admissions to Respondent. Respondent failed to answer, admit, or deny the truth of the matters asserted in the request; namely, that Respondent submitted the application for renewal of a Professional Florida Educator's Certificate in the manner and form described in paragraph 3, above, and that he pled guilty to the criminal charges described in paragraph 4, above. Pursuant to Rule 1.370(b), Fla. R. Civ. P., the truth of the matters asserted in the request is conclusively established.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate for a period of three years. DONE AND ENTERED this 22nd day of December, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2000. COPIES FURNISHED: William B. Graham, Esquire Graham, Moody & Sox, P.A. 215 South Monroe Street, Suite 600 Tallahassee, Florida 32301 Costa Lempesis 1334 Bryjo Place Charleston, South Carolina 29407 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 614 Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent committed the offenses charged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting complaints against individuals who hold a Florida educator’s certificate and who are alleged to have violated one or more provisions in section 1012.795 and implementing rules. Respondent holds Florida educator’s certificate 777352, covering the area of social science, which is valid through June 30, 2020. Prior to becoming a teacher, Respondent was in the military for 21 years, serving as a soldier and non-commissioned officer in the U.S. Army. Respondent describes himself as a “great leader,” a skill he believes he developed in the Army. Respondent was employed as a teacher for the Lee County School District (School District) beginning in 1998 or 1999.6/ He taught social science classes at Bonita Springs Middle School until 2009. A former student who attended that school between 2002 and 2004 spoke highly of Respondent as her teacher. That student has not been in a classroom with Respondent since 2004. Beginning in early 2005, Respondent’s record as a teacher at Bonita Springs Middle School became spotted with disciplinary measures being regularly taken against him. The matters for which Respondent was disciplined were similar, evidencing a pattern of inappropriate physical contact with students, angry outbursts, conflicts with principals, and inappropriate classroom conduct, including ridiculing, embarrassing, and yelling at students. In February 2005, at the request of the Bonita Springs Middle School principal, Respondent attended an in-service training on Anger Management and De-Escalation Training. Despite that training, between 2005 and 2009, Respondent received six letters of reprimand from three different principals and two different directors of the School District’s Department of Professional Standards and Equity (DPSE). The letters of reprimand were for incidents described as: pushing a student (letter of reprimand, March 2, 2005); inappropriate physical contact--putting his hands in the pants of a female student (letter of reprimand, September 27, 2005); shoving two students out of the classroom (letter of reprimand, March 2, 2006); shouting at students in the hallway in a very harsh and loud tone (letter of reprimand, September 22, 2006); exposing students to unnecessary embarrassment or disparagement (letter of reprimand, August 6, 2009); and kicking three students out of class, and yelling at the remaining students in the classroom, “You all are a bunch of idiots” (letter of reprimand, October 26, 2009). On December 8, 2009, Respondent was involved in another incident with a student, E.C., who was a seventh-grade female. Respondent had sent E.C. to a neighboring classroom, connected to his classroom by a vacant office. When E.C. tried to return to Respondent’s classroom through the vacant office to retrieve her things, Respondent stopped her and told her to return to the other classroom. E.C. was determined to get her things and disobeyed Respondent. When she tried to go around him to go back into his classroom, Respondent put his hand on her shoulder in an attempt to stop her. E.C. told him: “Don’t touch me.” She retrieved her things from Respondent’s classroom and then returned to the other classroom where Respondent had sent her. At that point, Respondent called the office for assistance. The District’s DPSE immediately began an investigation. Respondent was suspended from teaching with pay and benefits as of December 9, 2009, pending completion of the investigation. Following the investigation and a predetermination conference, the School District’s superintendent filed a Petition for Termination, alleging that Respondent was guilty of misconduct and other violations in connection with the incident on December 8, 2009. Respondent, represented by counsel, requested an administrative hearing to contest the proposed termination. Beginning March 9, 2010, the terms of Respondent’s suspension were changed to without pay pending resolution of the administrative proceeding. A DOAH evidentiary hearing was held on July 14, 2010. The resulting Recommended Order found Respondent guilty of misconduct and some of the other charged violations. The recommended penalty was suspension without pay from March 9, 2010, through January 1, 2011. The Recommended Order’s findings of facts, conclusions of law, and recommended penalty were adopted in a Lee County School Board Final Order rendered November 2, 2010. Lee County School Board v. Joseph Cofield, Case No. 10-1654 (Fla. DOAH Sept. 24, 2010; Lee Cnty. Sch. Bd. Nov. 2, 2010) (2010 Suspension Order). Detailed findings of fact were made in the 2010 Suspension Order regarding the history of disciplinary action taken against Respondent from 2005 through 2009, which went uncontested by Respondent through the grievance process available to dispute disciplinary action. See 2010 Suspension Order, RO at 3-7. The findings also describe the repeated warnings given to Respondent in the numerous letters of reprimand, which went unheeded; Respondent continued to engage in the same types of inappropriate behavior, despite the discipline and the warnings. Findings were also made in the 2010 Suspension Order regarding Respondent’s positive contributions as a teacher during the same time span as his patterned inappropriate behavior. These included: being honored in 2005 as Wal-Mart Teacher of the Year; being honored by Florida Gulf Coast University as College Reachout Program Coordinator of the Year; participating in a conference in January 2009 to discuss the Troops to Teachers Program; coordinating a computer give-away program in conjunction with a community organization that presented computers to Bonita Spring Middle School; and achieving success in Cadet and College Reachout Programs. See 2010 Suspension Order, RO at 11-12. The 2010 Suspension Order concluded as follows: The School Board did establish that Mr. Cofield placed his hand on a student’s shoulder without the permission of the student. Mr. Cofield has been warned and disciplined in the past for placing his hands on students without the student’s permission. Mr. Cofield chose not to heed those warnings. Mr. Cofield argues that placing his hand on E.C. was reasonable force needed to control his classroom. This argument is without merit. Mr. Cofield did not need to put his hand on E.C.; he could call the office for assistance. The School Board has established that Mr. Cofield’s conduct constitutes misconduct[.] * * * Mr. Cofield has performed outstanding work with the various programs designed to assist students, such as the computer give-away program, the Cadet program, and the College Reachout Program. This work mitigates against termination. However, placing a hand on a student without justification warrants a serious disciplinary action. 2010 Suspension Order, RO at 14-15. Respondent did not appeal the 2010 Suspension Order. Its findings, officially recognized herein, establish the backdrop of Respondent’s significant track record of discipline, and of the repeated warnings given in connection with disciplinary measures, from 2005 through 2009. No contrary evidence was offered. In October 2010, just before the School Board rendered the 2010 Suspension Order, Petitioner issued an Administrative Complaint against Respondent (2010 Complaint), seeking to take disciplinary action against Respondent’s educator’s certificate. The 2010 Complaint set forth Respondent’s “history of discipline related to conduct with students,” listing in summary fashion much of the same disciplinary history detailed in the 2010 Suspension Order. Respondent’s disciplinary history set forth in the 2010 Complaint was as follows: On or about March 2, 2005, Respondent received a Letter of Reprimand from [the] principal related to pushing [a] student. On or about September 27, 2005, Respondent received a Letter of Reprimand from [the] principal resulting from allegations that Respondent put [his] hand into [a] student’s front pocket. On or about September 25, 2006, Respondent received a Letter of Reprimand from [the] principal for yelling at Cadets in a loud and harsh manner. On or about October 9, 2009, Respondent received a Letter of Reprimand from [the] principal for, among other things, Respondent’s confrontational behavior towards [the] principal. On or about October 28, 2009, Respondent received a Letter of Reprimand from [the] principal relating to conduct with students. On or about December 9, 2009, Respondent received a Letter of Suspension from [the] principal related to allegations of [a] physical assault on a student. 2010 Complaint at 1-2 (Pet. Exh. 1). The 2010 Complaint added allegations of other incidents of inappropriate conduct by Respondent during the 2008-2009 school year, including the following: Respondent called students embarrassing names such as “knucklehead” and “fruitcake.” Respondent looked at female students in a manner that made the students feel uncomfortable and self conscious. Respondent threatened students telling them, “I will cut your fingers off,” or “I’ll smash your head into a wall,” or words to that effect. 2010 Complaint at 2 (Pet. Exh. 1). Respondent, represented by counsel, entered into a settlement agreement to resolve the charges in the 2010 Complaint, rather than contest them in an administrative hearing. Respondent signed the agreement on April 28, 2011. Pertinent terms of the settlement agreement were: Respondent neither admits nor denies, but elects not to contest the allegations set forth in Petitioner’s Administrative Complaint, which are incorporated herein by reference. Respondent agrees to accept a letter of reprimand, a copy of which shall be placed in his certificate file with the Department of Education and a copy of which shall be placed in his personnel file with the employing school district. Respondent agrees that he shall be placed on probation for a period of two (2) employment years. . . . As conditions of probation, Respondent: * * * shall, within the first year of probation, take a 3-credit hour college level course in the area of Classroom Management. . . . shall violate no law and fully comply with all district school board regulations, school rules, and State Board of Education Rule 6B-1.006 [transferred to rule 10A-1.081 in January 2013; see endnote 2]; and shall satisfactorily perform his duties in a competent, professional manner. * * * In the event Respondent fails to comply with each condition set forth herein, he agrees that the Petitioner shall be authorized to file an Administrative Complaint based upon the violation of the terms of this Settlement Agreement. Settlement Agreement at 1-2 (Pet. Exh. 1). By Final Order rendered on August 9, 2011, attaching and incorporating the 2010 Complaint and settlement agreement, the EPC accepted the settlement agreement and ordered Respondent to comply with its terms. Respondent did not appeal. Respondent was on probation, and subject to the specific probation conditions imposed by the EPC Final Order, for the 2011-2012 and 2012-2013 school years. Meanwhile, Respondent completed the term of his suspension from teaching without pay imposed by the School Board’s 2010 Suspension Order on January 1, 2011; he was allowed to return to work on January 3, 2011. Respondent was not asked to return to teach at his former school, Bonita Springs Middle School. Instead, he was offered a teaching position at the Alternative Learning Center (ALC). The ALC principal, Ken Burns, was told to make a spot for Respondent to teach there, and he did. Respondent accepted the teaching position at ALC. He taught eighth grade social studies. ALC is an alternative school. Students are sent to ALC because they are having problems at other schools. Principal Burns describes the ALC students as kids who made bad decisions, but who are not bad kids. These students can present challenges for teachers and administrators. In classrooms, sometimes these students do not act properly. They can be disruptive. The teachers are responsible for managing their classrooms properly, in accordance with standards set by Florida law and regulations, and School District policies. Principal Burns described some of the methods used at ALC to deal with problems in the classroom. One tool in place is called Team Time Out. Specific teachers are scheduled to be in charge of Team Time Out for a period of time. If a student is getting unruly in a classroom, the teacher can send the student to the designated teacher in charge of Team Time Out. The student is allowed to cool down before returning to class. Another tool used is a regular Time-Out Room. If a student is disrupting a class, the teacher might send the student to the Time-Out Room, where the student can work on assignments. Regardless of the student problem being confronted, each teacher is expected to abide by the code of conduct established for the education profession. Rather than violate those conduct standards, if the teacher cannot otherwise handle a student problem, the teacher is expected to call administration or security for assistance. On November 30, 2012, while on his EPC-imposed probation, Respondent received a letter of warning, which is a form of disciplinary action, from the ALC principal. As described in the warning letter, a student reported that Respondent pushed the student out the door during a fire drill, and that the push nearly caused the student to fall. The incident described in the letter of warning is similar to the long list of prior incidents for which Respondent was disciplined and about which Respondent was repeatedly warned, including the incident for which Respondent had recently served a suspension without pay for nearly ten months. The November 30, 2012, letter of warning ended with a yet another reminder “to assist in correcting this conduct,” providing as follows: “From this point forward, please remember at no point should a student be physically touched. If you are having an issue with a student please notify the administration or security for immediate assistance.” Very shortly after that incident, the ALC principal received other complaints about Respondent’s behavior with students and his classroom temperament. The complaints came not just from students, but also from a paraprofessional (teacher’s aide) who was concerned about Respondent’s behavior that she had observed when she was in his classroom. The ALC principal consulted with the School District’s DPSE, collected statements from the paraprofessional and students, and passed on the information to the DPSE. By letter dated January 11, 2013, Respondent was informed that the DPSE was conducting an investigation into allegations of misconduct. Because the allegations involved issues of student safety, the notification letter informed Respondent that he was suspended from teaching with pay during the investigation. Andrew Brown, then-investigator for the DPSE, conducted the investigation of alleged incidents involving Respondent in December 2012 and January 2013, and prepared an investigative report. The complaints that were investigated were summarized in the report as follows: On or about December 20, 2012 (just before Winter Break), Mr. Cofield allegedly slammed a student’s fingers between the student’s desk and a binder the student was holding. In a separate incident [on] December 19, 2012, Mr. Cofield allegedly threatened a student by grabbing and holding a keyboard in a threatening manner. He allegedly slammed a door behind the same student as the student was leaving the room, making contact with the student’s arm. In a third incident [on] 1/8/12 [sic: 2013], Mr. Cofield allegedly embarrassed students by asking each one to sit separately on a stool at the front of the room and answer the question, “Do you have a teacher’s license?” before sending the same students out of the class. The investigative report noted that Respondent was “on probation” with the EPC “for similar allegations and conduct.” A predetermination conference was held on January 30, 2013, to allow Respondent to respond to the investigation findings and add any information he would want considered. Respondent was represented by union counsel at that conference. By letter dated February 5, 2013, Respondent was informed that the School District found probable cause for disciplinary action based on the allegations of misconduct investigated, and would be recommending termination of his employment.7/ As was done in 2009, the terms of Respondent’s suspension were changed to without pay, as of February 6, 2013. Before the School District could proceed with a Petition for Termination, Respondent submitted a letter of resignation on March 12, 2013. Respondent has disputed Petitioner’s contention that the resignation was in lieu of termination. When Respondent was deposed, he testified that he wrote his resignation letter to explain that this was a stressful situation for him. However, the letter makes no mention of a stressful situation. It simply reports that Respondent was taking the time for pursuit of higher education, to complete a master of arts degree and then seek a doctorate degree, and that Respondent had concluded: “I feel that it is time to resign in my career as a classroom teacher. I will peruse other opportunities that will be open to me as a result of obtaining my new graduate education.” Respondent testified that he did not think he had already been suspended from teaching when he resigned, and he thought he was still being paid. Contrary to Respondent’s recollection, he had not been teaching for nearly two months, having been suspended on January 14, 2013. He resigned six weeks after being confronted with the details of the DPSE’s investigation in a predetermination conference, and five weeks after he received a letter informing him that probable cause had been found and the recommendation would be made to terminate his employment. He had not been paid for five weeks when he submitted his letter of resignation. A fair inference from the timing is that he chose to resign when he did to avoid being terminated from employment and/or having to contest the charges in another administrative hearing. Pursuant to section 1012.796(1)(d), Florida Statutes, even though Respondent had resigned, the School District was required to report the alleged misconduct to the Department of Education, which then conducted its own investigation. Petitioner issued an Administrative Complaint against Respondent on March 9, 2015, and an Amended Administrative Complaint on December 3, 2015. The specific incidents alleged in both versions of the complaint, are as follows: On or about December 19, 2012, Respondent grabbed a keyboard from a computer being used by R.T., a fourteen year old, male student. Respondent held the keyboard over the head while glaring at R.T. and in a manner that made the student believe Respondent was about to hit him with the keyboard. On or about December 20, 2012, Respondent became angered when C.G., a thirteen year old, male student, tapped on his binder repeatedly. Respondent slammed C.G.’s binder with force, bringing the binder down on C.G.’s fingers causing pain to C.G. Respondent then threw C.G.’s binder in the trash. On or about January 7, 2013, Respondent called students in his class to the front of the room and individually asked them, in front of the class, if they had a license to teach. Respondent disputed the first allegation of a keyboard incident; Respondent admitted parts of the second allegation of a binder incident, while denying part of the allegation; and Respondent admitted the third allegation. No non-hearsay evidence was presented to prove the allegations regarding a computer keyboard incident on December 19, 2012. The student, R.T., did not testify; no other students or other eyewitnesses testified; and Respondent denied the allegations. R.T. provided a written statement about the incident, which is in evidence, but that statement is hearsay and cannot be used as the sole basis for a finding of fact. Petitioner did not argue that R.T.’s statement would be admissible over objection in a civil action, and the statement does not supplement or explain any non-hearsay evidence. Respondent admitted parts of the allegations regarding a binder incident on December 20, 2012. Respondent acknowledged that a student in his classroom, C.G., was tapping on, flipping, or otherwise playing with a notebook or binder when the class was supposed to be taking a test. Respondent admitted that he took the binder out of the student’s hands, and threw the binder across the room into the garbage can. As he testified: A: If there is a kid sitting in my classroom after I’ve given instructions of what to do and they still banging on a desk, yes, I have the right to go remove this noise away from these students that are trying to get ahead. If there is something wrong with that I don’t need to be in a classroom. Q: And throw this in the trash can? A: Sir, when I took -- as my statement says, I took the binder away from the child and I threw it across the classroom. If it went in the garbage can, sir, it went in the garbage can. I don’t -- I didn’t pay attention to where it went at. I stopped the negative behavior going on in my classroom. Q: So now your testimony is you took it and threw it across the classroom? A: Sir, I took the instrument away from the student and it went in the garbage can. Q: . . . [T]ell us what you told them at your predetermination conference. Didn’t you say you put it in the garbage? A: No, I put the binder in the garbage, that’s what it states. But we clearly know that that’s not . . . [t]here’s nothing false about that. What it means is the binder left the student’s desk and wound up in the garbage can. Q: It didn’t wind up there, you put it there, right? A: Yes sir, I put it there. (Tr. 131-132). In his deposition testimony, Respondent more clearly acknowledged that he intended to throw the student’s binder in the garbage can; he did not equivocate as he did at hearing: Q: Then you didn’t walk over to the trash can and, in a Frisbee-type manner, throw the binder into the trash can? A: Oh, I most definitely put it in the garbage can, sir. Q: You did? A: Yes sir, I did. Q: All right. Why did you do that? A: Because the student was disrupting – or, I mean, was interrupting a test environment. Q: Okay. A: and that – and that instrument was the thing that was causing all of that disturbment [sic]. (Pet. Exh. 11 at 39-40). The facts regarding this binder incident that were admitted by Respondent were supplemented and explained by a number of written witness statements by students who were present, including C.G. These statements confirm that Respondent got angry because of C.G.’s toying with his binder, and that Respondent snatched the binder out of C.G.’s hands, and then either went across the room and then tossed it Frisbee-style into the garbage can or tossed the binder Frisbee-style across the room where it landed in the garbage can. While Respondent may have had good reason to stop C.G. from disrupting the classroom, the manner in which he went about it was inappropriate and contrary to the repeated warnings he had been given over the prior seven years by no less than four different principals (including, most recently, the ALC principal) to avoid any physical contact with students. See 2010 Suspension Order (detailing past disciplinary warnings and identifying principals issuing them). Respondent did not admit to having smashed the binder down on C.G.’s hand before snatching it away from C.G., and there was no independent non-hearsay evidence to prove that aspect of the allegation. Nonetheless, Respondent’s admissions establish that he took C.G.’s binder away while C.G. was tapping on it, flipping the cover, or otherwise playing with it, as the means Respondent chose to stop C.G. from playing with his binder. The only reasonable inference is that Respondent forcibly removed the binder while at least one of C.G.’s hands was on, in, or under the binder--an inappropriate physical contact. Respondent’s explanation that he did this because the binder was the instrument being used to cause disruption is insufficient to justify the inappropriate physical contact that had to occur to remove the binder from C.G. while he was playing with it. Respondent’s additional acts of tossing C.G.’s binder like it was a Frisbee and throwing the binder in the garbage can were inappropriate responses that went well beyond the claimed objective of stopping the disturbance. These actions can only be explained as displays of anger, presumably because C.G. did not listen to Respondent’s instructions to stop playing with the binder. If Respondent were genuinely concerned only with stopping the disruptive behavior, he would not have reacted by causing an even greater disturbance by tossing the binder like a Frisbee into the garbage can. Instead, he would have, and should have, dealt appropriately with C.G. Moreover, it was irresponsible for Respondent to throw the binder in the garbage can, after he had wrested the binder away from C.G. The binder could have contained important schoolwork for Respondent’s class or another class. Despite being on probation for a string of similar incidents, despite having been suspended from teaching for nearly ten months for a similar incident, and despite having just received a letter of warning three weeks earlier, Respondent failed to heed the repeated warnings that if he had an issue with a student, he should contact security or administration for immediate assistance rather than inappropriately attempting to “control” the situation by making contact with the student. The evidence was clear and convincing that in this binder incident, Respondent did not act with the calm, professional demeanor expected of a teacher who is able to deal appropriately with a student disrupting the classroom by playing with a binder. Instead, Respondent acted inappropriately with a temper that made an all-too-regular appearance in the classroom. The ALC principal described Respondent as having a temper that would turn on and off like a switch. His testimony was credible and is credited. Ms. Lewis, the paraprofessional who spent time working in Respondent’s classroom during the 2012-2013 school year, observed the same thing: Respondent had a temper that greatly affected his classroom conduct. Set off by minor incidents of students talking or not listening, Respondent would get angry, yell at the students, use profanity (not the “f” word, but somewhat milder words),8/ and act in volatile ways, such as tossing text books so that they would slide on a table and stop just before they hit students. Respondent’s unpredictable outbursts caused concern for the students’ safety; sometimes when Respondent got angry, he would clench and shake his fists, trembling as if he was about to strike out. Respondent’s classroom temperament was unlike anything the paraprofessional observed from any other teacher in the other ALC classrooms where she also worked. While Respondent’s temper and classroom temperament, as described by the ALC principal and paraprofessional, were not set forth as the subjects of separate charges in the Amended Administrative Complaint, they tend to support the findings above that Respondent’s admitted conduct on December 20, 2012, was inappropriate, just as they undermine Respondent’s claimed justification. Respondent’s temper and lack of control also were on display on several occasions during the course of the hearing, adding even more credence to the findings. He raised his voice and got agitated while giving his sworn statement. He also accused the undersigned of having “belittled” him, without explanation as to why he said that. (Tr. 105). Respondent also admitted the third allegation describing his classroom conduct on January 7, 2013: Q: Did you do that on January -- on or about January 7, 2013, did you bring students up to the front of the class and ask them, “Do you have a license to teach?” A: I most – yes I did, sir. Q: All right. Good. So that, you admit? A: I clearly admit that, yes. Q: All right, good. A: And I –- and I will challenge anybody that -- that's in my classroom that’s trying to disrupt the class that don’t have a teaching license. (Pet. Exh. 11, p. 46). Respondent acknowledged to having engaged in that conduct on other occasions--indeed, as a matter of course: “I can guarantee you that I have asked all of my students over many periods of time do they have a license, because I’m the only person in that classroom with a teacher’s license.” (Pet. Exh. 11, p. 45). The paraprofessional working in Respondent’s classroom was an eyewitness to this conduct, which she described as very demeaning and embarrassing for the students. Respondent’s admissions and the paraprofessional’s eyewitness observations are corroborated by numerous written statements by students subjected to this conduct. Respondent sought to justify his conduct as legitimate teaching strategy. As he tried to explain it: It’s effective classroom management. If you have a bunch of students that do not have the ability to stop stopping their behavior, you have to ask them before you take them away from the classroom do they know what they’re doing. If the answer is yes, I know what I’m doing, then you need to send them out. If the person says no, I have no idea what I’m doing you need to work with that student until that student understands what is wrong with that behavior that you want to correct. (Tr. 129-130). Respondent’s explanation for his conduct does not square with his actual conduct. He is not being accused of asking unruly students whether they know what they are doing and then working with those students to correct their misbehavior. Instead, he is accused of demeaning these young teenaged students by isolating them one at a time at the front of the room, and requiring them to face their peers and announce that they are not licensed to teach, so that Respondent can remind them that he is superior. This has nothing to do with addressing unruly or disruptive behavior, questioning that behavior, or attempting to correct that behavior. Instead, Respondent dealt with disruptive students by belittling them, embarrassing them, and reminding them that he is better than them. As the ALC principal confirmed, there is no reasonable explanation for Respondent’s conduct as any form of legitimate teaching strategy. Instead, this is inappropriate conduct for a teacher. Respondent offered little by way of specific evidence in his defense. Instead, at times he claimed to not recall anything about his disciplinary track record, or about the incidents alleged in the Amended Administrative Complaint.9/ He repeatedly challenged Petitioner to produce video evidence of the incidents, but never proved that any video evidence existed. If there had been video evidence, it would have been in the possession of the School District, but no video is identified in the investigative report as would be expected if it existed. Respondent could have taken steps to compel the production of any such evidence by the School District, but he did not. Respondent’s other defense was to attempt to challenge the credibility of Petitioner’s witnesses. These efforts were ineffective. Respondent made general sweeping statements that he was “shocked” by the testimony of Petitioner’s witnesses, which he repeatedly characterized as filled with lies, without proof of that characterization. Other than those broad generalizations, no specifics came to light as to why the testimony of Petitioner’s witnesses should not be believed. Respondent argued in his opening statement that the ALC principal “has seemed to have an axe to grind and has been on the greatest witch hunt to railroad a great educator.” (Tr. 17). That charge was wholly unsubstantiated. Instead, the ALC principal recognized the same pattern of behavior evident since 2005 when Respondent was first required to take anger management training by a former Bonita Springs Middle School principal. Respondent proclaimed himself a great leader while offering his view that with one exception, none of the principals he worked for in Lee County were good leaders. It is worth noting that according to the 2010 Suspension Order, the “one great principal” Respondent identified (Tr. 113) was the principal who had Respondent undergo anger management training in early 2005, and who issued Respondent’s first letter of reprimand for pushing a student. To the extent Respondent attempted to blame his disciplinary history and the allegations he is now facing on his principals, rather than excusing or explaining the conduct for which he was disciplined and for which he is subject to discipline in this proceeding, the impression given is that Respondent has had difficulty accepting the subordinate role of teacher vis-à-vis principal. Indeed, Respondent admitted that he “did tell the principal the one that write down these false things against me, I could do your job just as well as you can do it. And maybe that offend some people. . . .” (Tr. 115). Respondent also attempted to discount the significance of the EPC Final Order by alluding to various medical problems he was experiencing that caused him to enter into a settlement agreement, even though he claimed the charges were not true. Respondent offered no evidence to substantiate his claims, but stated generally that he “had just got over having a kidney removed” and that he “had prostate cancer.” He also said that he had taken his wife’s money to fight the allegations, and agreed to the settlement so he could get back to work. (Tr. 111). Notwithstanding Respondent’s testimony, the EPC Final Order cannot be collaterally attacked in this proceeding. Respondent accepted the terms of that Final Order, and knew full well that he was required to comply with the probation conditions or face more discipline for violating the terms of his probation. Respondent also claimed that he was set up for failure by being assigned to ALC, which was more than one hour away from his home instead of the ten-minute commute he enjoyed when teaching at the school where he earned a lengthy suspension, after a string of six letters of reprimand. Respondent did not contest the assignment, but accepted the teaching position at ALC. Respondent’s school assignment may have been a matter he could have raised in a grievance proceeding, but it is not a matter that explains his inappropriate conduct while teaching there, especially knowing he was on probation. Finally, in a seeming admission that his temper was erratic and his behavior volatile while he was teaching at ALC, Respondent testified that he was undergoing radiation treatment for prostate cancer, and that anybody undergoing that treatment “would have such mood swings some times.” Yet in the next breath, he said: “But it never affected my effectiveness in my classroom.” (Tr. 112). In his predetermination conference in which Respondent was informed of the investigation findings and allowed to respond to the allegations of misconduct, Respondent did not mention that he had been undergoing treatment that may have affected his behavior or his classroom conduct. If this was a legitimate reason that might explain or excuse, even in part, Respondent’s conduct in December 2012 and January 2013 that was the subject of the School District’s investigation, surely Respondent would have shared information about his treatment and how it might have affected him in a conference to determine if there was probable cause to proceed to terminate his employment. Without more to substantiate the relevance of any medical conditions, treatment, or other external factors alluded to by Respondent, including specifics as to the timing of such matters, they cannot excuse or explain Respondent’s improper conduct as found above. As in the administrative hearing that resulted in the 2010 Suspension Order, Respondent offered evidence of his positive contributions as a teacher, as mitigating evidence to consider in imposing discipline. However, most of Respondent’s evidence is old, pre-dating Respondent’s suspension, and in fact, duplicating the evidence of Respondent’s contributions, honors, and achievements considered and addressed in the 2010 Suspension Order. Respondent’s contributions and achievements in 2009 and earlier years were expressly credited as mitigating against a harsher result in the 2010 Suspension Order for his misconduct committed during the same timeframe as the contributions. Having already enjoyed the mitigating benefit of his pre-2010 achievements, honors, and contributions to lessen the consequences of his pre-2010 misconduct, Respondent’s older achievements are not considered again in this proceeding in mitigation of the appropriate penalty for Respondent’s post- suspension improper conduct. Respondent presented evidence that after he returned to teaching when his suspension was completed, he continued his participation in the computer give-away program, working with a community computer club sponsoring free laptop computers for selected students who wrote an essay explaining how they would benefit from a laptop. Respondent provided one such essay submitted by an ALC student. Respondent’s continued involvement in the computer give-away program while at ALC was a positive contribution for at least one ALC student who participated. The other post-suspension evidence offered by Respondent shows that he is bettering himself by pursuing higher education, obtaining an additional degree and a certificate, as he stated he would do in his March 2013 resignation letter when he stopped teaching. These are positive contributions by Respondent, but cannot be considered contributions by Respondent as an educator to mitigate the penalty imposed for Respondent’s improper conduct as an educator. Respondent has not worked as a teacher since he submitted his resignation letter to the School District in March 2013, but he has been pursuing the higher education described in that letter. It is unclear whether Respondent would otherwise be seeking work as a classroom teacher pursuant to his educator’s certificate. Petitioner’s witness for the School District testified that he could not imagine that the School District would consider hiring Respondent back to teach there. The ALC principal echoed that sentiment. The principal would be concerned because it is his job to make sure the school is safe for all students. He would not want Respondent back in a teaching role at his school because of his track record.
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 Respondent guilty of violating section 1012.795(1)(j) and (1)(l), Florida Statutes, and Florida Administrative Code Rule 10A-1.081(3)(a), (3)(e), and (5)(p); Finding Respondent not guilty of violating section 1012.795(1)(g); and Revoking Respondent’s educator’s certificate no. 777352 for a period of three years. DONE AND ENTERED this 1st day of August, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 1st day of August, 2016.
The Issue Whether the teaching certificate of Respondent John Eugene Armstrong should be suspended, revoked or annulled.
Findings Of Fact The Petitioner Professional Practices Council seeks to revoke Respondent John Eugene Armstrong's teaching certificate based on a recommendation filed September 20, 1976, by Hugh Ingram, Administrator of the Council. The Council alleges that the Respondent is guilty of gross immorality and that he failed to perform his duties as educator as required by Section 231.09, Florida Statutes. Pursuant to the raising of the issue of fairness and constitutional guarantees by the hearing panel of the Professional Practices Council and without admitting the validity of the issue, the Council relinquished jurisdiction of the cause and requested that jurisdiction be assumed by a Hearing Officer from the Division of Administrative Hearings. The Petition for the Revocation of Teacher's Certificate filed by the Petitioner on October 7, 1976, contended that Respondent John Eugene Armstrong: "1. On August 16, 1967, at 4:00 p.m. made two threatening phone calls to Mr. Claude O. Hilliard, former principal, using pro- fane language; On or about January 14, 1975, made an obscene gesture with his fingers to Linda Rhodes, a student; On or about June 20, 1975, confronted Mrs. Marilyn H. Bagby, Coordinator EMR, in a classroom and made threatening remarks; On or about November 10, 1975, entered the girls' locker room when the girls were dressing out for class as observed by Coach Ruth Stevens and Coach Geraldine Williams; On or about November 10, 1975, in rela- tion to the incident in Number 4, threatened Ms. Ida L. Shellman, Administrative assistant; On or about December 10, 1975, fondled the upper portion of Gwendolyn Lowe's, a student's, body; On January 29, 1976, in the presence of Mr. R. L. Ballew, Director, Area I, made accusations against Mr. Milton Threadcraft, principal, in a threatening manner; On March 3, 1976, struck Lavern White, a student, on or about his neck causing bruises; On March 12, 1976, struck Johnny Hill, a student lacerating his upper lip; The Respondent Armstrong was first employed by the Board of Education in the public schools of Duval County, Florida, in 1952. He holds valid Florida Teaching Certificate Number 401436. In 1973 he was assigned to Northwestern High School to teach industrial arts and was assigned to teach classes of educable mentally retarded (EMR) students. He taught special education industrial arts classes consisting of seventh and eighth grade students. Respondent stated that he had attempted to obtain a transfer from the Northwestern School on a number of occasions both because of dissatisfaction with the facilities and because of harassment he received from the administration. He stated that discipline was a major problem among EMR students. Various witnesses were called to testify and findings in regard to the aforementioned charges are as follows: The charge that Respondent made threatening phone calls to Mr. Claude O. Hilliard, former principal, using profane language was not proved. The charge that Respondent made an obscene gesture with his fingers to Linda Rhodes, a student, was denied by the Respondent who stated that he did not know what an obscene gesture meant. The student testified that he "shot a bird" at her and demonstrated by position of her fingers. She was a member of Respondent Armstrong's class two years ago and was advised by her counselor, Mrs. Shellman, to write out a complaint against Respondent. Upon observing the demeanor of the witnesses, I find the Respondent did make such a gesture to Linda Rhodes, a sixteen year old student. Considering the testimony of the Respondent and of Mrs. Marilyn H. Bagby, the Hearing Officer finds that Respondent was upset and did in fact make remarks to her concerning a report she made subsequent to her observation of Respondent's teaching and room atmosphere which he had not received and that the witness Bagby was in fact frightened by the presence of the Respondent in her room alone, his close proximity and his tone of voice on or about June 20, 1975. She verbally reported the incident to her supervisors and later made a written report of the incident. Respondent testified that if he threatened her he did not recall it. The Respondent admitted that he did in fact enter the girls locker room when the girls were dressing out for class on or about November 10, 1975. The evidence does not show that the entrance into the girls locker room was for an immoral purpose although he knew or should have known he should not have entered when the girls were in various stages of undress. Considering the testimony of the Respondent and Mrs. Ida L. Shellman, Administrative Assistant, concerning the locker room incident, the Hearing Officer finds that by Respondent's presence with his hands in his pockets, his remarks and his general tone of voice, Mrs. Shellman was in fact threatened and frightened. Respondent testified that he did not recall his conversation relative to the incident as being threatening. The charge that on or about December 10, 1975, Respondent fondled the upper portion of Gwendolyn Lowe's, a student's, body was not proven by the evidence. The charge is that on January 29, 1976, in the presence of R. L. Ballew, Director, Area I, Respondent made accusations against Mr. Milton Threadcraft, the principal, in a threatening manner. The testimony of Mr. Threadcraft is believable when he testified that Respondent accused him of being incompetent and said that he, Respondent, was not going to put up with it. The remarks of Respondent were subsequent to a commotion in the school room in which wood was being thrown about and the Respondent had taken a student by the arms to discipline him. The principal, Threadcraft, was called by other students to witness the actions of Respondent. Respondent was relieved of his duties for the remainder of the day after a later confrontation with the principal and director. The testimony and evidence supports the charge. Charge Number 8 that Respondent struck Lavern White on March 3, 1976, on or about his neck causing bruises was proven by the testimony of the student, Lavern White, and also by a fellow student, Johnnie Hills. Sufficient evidence was not shown that Respondent in fact did strike Johnnie Hills on March 12, 1976, lacerating his lip although the evidence shows that Respondent did use corporal punishment by pushing the student against the wall to discipline him. Respondent attempted to discipline students through physical restraints. The Respondent was dissatisfied with his teaching position in the school to which he was assigned. He had asked to be transferred, he testified, about ten times in three years. The students were a discipline problem. The method of discipline of the students was to use force which, among other things, caused the students to be dissatisfied with their classwork. Order was not kept in the class and objects were thrown about the class from time to time. The Respondent was feared by some of the other teachers and by some of the students. From the general comments of the students of Respondent and the adult staff members, it is evident that the classes of Respondent did not reflect an atmosphere for optimum learning. Respondent appeared resentful of his professional status and uncooperative toward the other members of the educational community. He displayed no interest in the education of his students.
Recommendation Suspend the teaching certificate of the Respondent Armstrong for a period of time not to exceed three (3) years. DONE and ORDERED this 29th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Barrett, Esquire Post Office Box 1501 Tallahassee, Florida 32302 Donald Nichols, Esquire 320 East Adams Street Jacksonville, Florida 32202
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), 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, 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. (2016). 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. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
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 section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 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 23rd day of January, 2017.
The Issue Whether Respondent committed offenses, as set forth in the Administrative Complaint, sufficient to justify the imposition of discipline with regard to Respondent's Florida educator's certificate, and if so, what penalties should be imposed?
Findings Of Fact Respondent holds Florida Education Certificate No. 720360, covering the area of business education, and was employed in the Santa Rosa County School system during the 2000-2001 school term as a business education teacher at Milton High School. Student S.B. was born April 19, 1983, and attended Milton High School for four years. During that time, she knew Respondent as a teacher and coach at the school. As a senior during the Fall of 2001-2002 school year, S.B. and her friend, J.N., another female student, called Respondent on the telephone as a joke. They told him they were coming to see him at his house. He said okay. That night, as the two female students left Respondent's home after staying about an hour, Respondent kissed S.B. on the mouth. Later, Respondent called S.B. at her home or placed calls to her cellular telephone on several occasions. S.B. also called Respondent. Sometimes, these telephone calls lasted for an hour or more. During the 2000-2001 school year, S.B. visited Respondent at his home on at least four and possible as much as six different occasions. Each visit occurred in the evening at Respondent's home when S.B. and Respondent were the only persons present. Respondent was a 33-year-old teacher and S.B., a 17-year-old student. Respondent and S.B. kissed and embraced each other on each of the visits by S.B. to Respondent's home. On the last visit, Respondent removed S.B.'s shirt, fondled her breasts through her bra and touched her vaginal area through her clothing. Respondent laid on top of S.B. and pressed his penis against her vagina through their clothing. Respondent professed his love for S.B. and talked to her about a future together following her graduation from high school. Respondent and S.B.'s relationship became the subject of rumors at Milton High School in March of 2001. Approximately three teachers had conversations with the Milton High School assistant principal that something was going on between S.B. and Respondent. The assistant principal confronted Respondent on March 16, 2001. Respondent denied any involvement with the two female students, S.B. and J.N., beyond two visits with them at his home where, he claimed, nothing happened between him and S.B. The assistant principal spoke with S.B. on March 16, 2001, and again confronted Respondent. This time, Respondent confessed to the relationship. He admitted to three or four occasions when he had kissed S.B. in the course of her visits to his house and that he had rubbed her breasts over her shirt. Respondent's improper conduct with S.B. became common knowledge among faculty, parents, and students at Milton High School. As a result of his admitted misconduct with S.B., the Santa Rosa County School District suspended Respondent on April 12, 2001, and that suspension continues in effect pending the outcome of this proceeding. Respondent's actions with regard to S.B. is immoral. A 33-year-old male teacher kissing, fondling, and hugging a 17-year-old student is an act of moral turpitude. Respondent's involvement with S.B. and the resulting publicity have seriously reduced Respondent's effectiveness as a teacher. Respondent's conduct and actions with S.B. exposed the student to conditions which were, or could have been, harmful to her mental and physical health. Respondent's actions knowingly and intentionally exposed S.B. to unnecessary embarrassment and disparagement. Respondent exploited his relationship with S.B. for personal gain. Respondent carried on a romantic relationship with a 17-year-old girl in order to satisfy his own romantic and sexual desires.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses set forth in the Administrative Complaint and revoking Respondent's Florida Educator Certificate No. 720360. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2002. COPIES FURNISHED: J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 R. John Westberry, Esquire Holt & Westberry 1108-A North 12th Avenue Pensacola, Florida 32501 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
