The Issue Whether Respondent, a middle school teacher, violated section 1012.795(1)(d) and (1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., (2)(a)5., (2)(a)8., (2)(c)1., (2)(c)8., and (2)(c)9., as alleged in the Amended Administrative Complaint (AAC); and, if so, the appropriate penalty.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Respondent holds Florida Educator Certificate number 1299379, covering the area of music. The certificate is valid through June 30, 2020. At all times pertinent hereto, Respondent was employed as a Music Teacher at LMS in the Manatee County School District. 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. The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Background On April 28, 2017, Respondent submitted a resignation letter to MCSD, and later that same day rescinded this resignation letter. Based on a prior investigation, on May 17, 2017, Respondent was issued a letter of reprimand by the LMS principal for poor judgement and poor classroom management. MCSD Office of Professional Standards started another investigation of Respondent in May 2017. In June 2017, PPD served a subpoena on Respondent, and seized his electronic devices. On August 4, 2017, Respondent was temporarily reassigned to MCSD transportation office. On August 17, 2017, MCSD placed Respondent on paid administrative leave. In August 2017, Investigator Nelson completed an investigation report that went to MCSD senior administrators, including the superintendent and its legal counsel. A practice of MCSD is that once an investigation is opened involving a union member, that union member is represented by a union paid counsel. MCSD communicates solely through the employee’s counsel. At the time, Respondent was a union member, and was represented by counsel during the pertinent MCSD’s investigations. On August 30, 2017, Respondent was not present when his counsel met with Investigator Nelson and MCSD general counsel. They advised Respondent’s counsel of the evidence found regarding Respondent, and that MCSD was going to move forward with the termination of Respondent’s employment. Respondent’s counsel was informed that Respondent could resign his teaching position in lieu of termination. Respondent submitted a letter of resignation to the Manatee County School Board (Board), dated September 1, 2017, providing for his resignation to become effective on September 12, 2017. Further, this letter provided that Respondent would not seek “reemployment” with MCSD. The Board was scheduled to meet on September 12, 2017, and would have considered any termination requests. Once Respondent resigned, MCSD did not have any further jurisdiction over Respondent. Dr. Breslin served as an assistant principal at SCSD’s Booker High School (Booker) when Respondent applied for a position there shortly after he resigned from MCSD. She was on the committee that interviewed the various candidates, including Respondent, and decided to hire Respondent. Respondent was hired by SCSD and taught at Booker. During his probationary period, Respondent was released from his SCSD employment. Material Allegations The material allegations upon which the charged violations are predicated are, in their entirety, as follows: During the 2016-2017 school year, Respondent engaged in an inappropriate relationship with K.A., a sixteen year old female student, as evidenced by a picture of Respondent and K.A. kissing. On or about September 5, 2017, in the midst of a district investigation into inappropriate relationships between Respondent and female students, Respondent resigned in lieu of termination from his teaching position with the district, to be effective September 12, 2017. On or about September 22, 2017, Respondent submitted an application for a teaching position with Sarasota County Public Schools. Respondent fraudulently answered 'no' to the following questions: Have you ever: failed to fulfill a teaching or administrative contract? had any disciplinary action taken against you by any Board of Education? been removed or dismissed from any position? resigned in lieu of termination? On the last page of Respondent’s SCSD application, he certified that his answers were true and to the best of his knowledge. Pictures In June 2017, pursuant to a search warrant, the PPD seized Respondent’s laptop computer and two cell phones, and sent them to FDLE for analysis. FDLE Analyst Carson was assigned to retrieve any pictures and/or text messages from Respondent’s devices. FDLE Analyst Carson issued the results via a report to the PPD. The FDLE report was not admitted into evidence. Mr. Oyler (and other PPD officers) reviewed the FDLE report, including the pictures4/ taken from Respondent’s devices, and found no evidence of an inappropriate relationship as alleged by a female LMS student. However, Mr. Oyler observed pictures of Respondent with another young (female) person. Mr. Oyler contacted LMS Resource Officer Moore to determine the identity of this other young female. Officer Moore, a 17-year employee of PPD, has been a resource officer assigned and stationed at LMS since 2013. In early 2016, Respondent was investigated for “some allegations,” and Officer Moore had a conversation with Respondent about his interactions with female students. Officer Moore advised Respondent to: So you just protect yourself. Make sure you’re keeping the door [to his classroom] open if you can between classes with view so the other [band/orchestra] teacher has observation. Don’t be alone with students, especially female students. Make sure you’re protecting yourself and making smart choices about it. Officer Moore knows N.A., the mother of K.A.5/ During the 2016-2017 school year, Officer Moore and N.A. both worked at LMS. Officer Moore would see K.A., a MCSD student, when she came to LMS to wait for her mother. Additionally, Officer Moore socialized with the A. family at various parties, including K.A.’s graduation from high school in May 2018. At the hearing, Officer Moore was shown a picture retrieved from Respondent’s devices of two people kissing, specifically Petitioner’s Exhibit 18, page 39 (hereafter referred to as the “kissing photograph”). When shown the kissing photograph, Officer Moore expressed no doubt or hesitation in identifying the two persons kissing: Respondent and K.A. Further, Officer Moore identified Respondent and K.A., individually or together, in the remaining pictures of Petitioner’s Exhibit 18, pages 40-47. Officer Moore’s testimony is found credible. Investigator Nelson conducted two investigations of Respondent, and met with him five or six times. When shown the pictures retrieved from Respondent’s devices, Investigator Nelson expressed no doubt or hesitation in identifying Respondent in all of the pictures found in Petitioner’s Exhibit 18, including the kissing photograph. Investigator Nelson’s testimony is found credible. Respondent’s counsel, through questioning of Mr. Oyler intimated that K.A. manipulated and uploaded multiple altered images to Respondent’s electronic devices. Mr. Oyler provided that he had heard K.A. “saying that she modified the images,” or that she had “doctored the photos.” K.A. did not testify in this hearing, nor did any other students. However, Mr. Oyler interviewed K.A. during the course of the PPD investigation. Initially K.A. denied having any relationship with Respondent. However, when Mr. Oyler presented K.A. with all the pictures found in Petitioner’s Exhibit 18, her reaction left Mr. Oyler with the impression that K.A. and Respondent had “more of a romantic, physical relationship.” Mr. Oyler’s testimony is found credible. Pastor Mazon was asked the following question: “Do you recognize the male in that photograph [the kissing photograph]?” He answered “Not really, not from that angle . . . no, not really.” He was then asked specifically: “Does that appear to be Mr. Peterson [Respondent] in that photograph?” Pastor Mazon responded: “It would be hard for me to tell from the side view like that. I would have to see it from the front.” And when shown the same kissing photograph in color and asked if the male was Respondent, Pastor Mazon replied: “That’s still a hard call for me. You know, skin tone. But then I see a scar from – on behind the ear, which I never saw, which I never - - that’s kind of hard for me, yeah. . . . I wouldn’t be able to identify him in that fashion.” Pastor Mazon was unable to confirm or deny that Respondent was in the kissing photograph, yet he positively identified Respondent in each remaining picture of Petitioner’s Exhibit 18. Pastor Mazon’s testimony lacks clarity and credibility as he waffled on identifying Respondent in the first picture, but had no hesitation in the remaining pictures. Ms. Bellamy, Respondent’s aunt, testified that she did not recognize the male in the kissing photograph. In the remaining pictures, Ms. Bellamy confirmed Respondent was in the pictures on pages 40 and 42 of Exhibit 18, but was not in the pictures on pages 41 or 43 through 47. Ms. Bellamy did confirm that Respondent was in the picture in Petitioner’s Exhibit 20. As Respondent’s relative, Ms. Bellamy’s testimony appears to be selective and is not found credible. Sarasota County School District Petitioner’s Exhibit 17, which was admitted without objection, provided that Respondent was under contract with MCSD to serve as an instructional employee for the 2017-2018 school year. Petitioner’s Exhibit 12, Respondent’s resignation letter, which was admitted without objection, provided that Respondent resigned his MCSD position for the 2017-2018 school year, effective September 12, 2017. Further, Respondent agreed to not seek reemployment with MCSD. Dr. Breslin was an assistant principal at Booker in Sarasota, Florida, for the 2017-2018 school year. She served on the committee that interviewed candidates for a teaching position at Booker. Dr. Breslin reviewed and relied upon Respondent’s SCSD application, and interviewed Respondent (with the other committee members) for the Booker teaching position. Further, Dr. Breslin performed the reference checks regarding Respondent’s application. Dr. Breslin was instrumental in the decision to hire Respondent for the position at Booker. Dr. Breslin was never provided a copy of Respondent’s letter of reprimand or his MCSD resignation letter. Further, during SCSD’s interview process, Dr. Breslin was not told that Respondent had been under investigation by MCSD. Dr. Breslin confirmed that by Respondent’s failure to tell her (or the committee) of these (the letter of reprimand, his resignation letter from MCSD, and/or the investigation), Respondent gave a false presentation. Had Dr. Breslin known of any of these, Respondent would not have been brought in for an interview and would not have been hired. Dr. Bowden testified that Respondent was released from his SCSD teaching contract during his probationary period. Typically, SCSD does not provide a reason for an employee’s release. However in this case, Respondent’s employment was terminated based on his arrest. Dr. Bowden also testified that Respondent’s failure to advise SCSD of his resignation from MCSD, his letter of reprimand, and that he was under investigation was tantamount to falsification of his application to work for SCSD. Respondent was represented by competent counsel, during MCSD’s investigation and his ultimate resignation from MCSD.
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 on Counts 1, 2, and 5 through 8, and permanently revoking his Educator Certificate. DONE AND ENTERED this 24th day of October, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 October, 2019.
Findings Of Fact At all times material, Respondent, Claudia Walker, was employed as a continuing contract teacher by Petitioner Broward County School Board. The Respondent taught from January 1979 through November 1, 1984 at Bright Horizons School. In November 1984, she transferred to South Florida State Exceptional Student Center and thereafter taught elementary school age children with behavioral problems. Among those assigned to her Self-contained classroom were some homicidal and suicidal students with low impulse control. During the time Respondent has worked for the Broward County School Board, her teaching evaluations have been good, to outstanding, to exceptional. She has never previously been cited or disciplined. Doris Seitner was employed by Petitioner as a teaching assistant from approximately September 3, 1985 to December 3, 1985 and was assigned to Respondent's class. On Thursday, November 7, 1985, Respondent and Seitner took the class of about 25 students on a field trip to the Metro Zoo. Prior to their departure on the bus, Ms. Seitner noticed Respondent entering the staff restroom. When Respondent emerged, a student immediately entered the restroom. Upon the student exiting the restroom, Ms. Seitner also entered the restroom where she found a small pink glasses case. Believing the case belonged to the student, the aide opened the purse and saw a plastic baggie containing a white powder, a small vial, a razor blade, and several cut up straws. Upon leaving the restroom, Ms. Seitner encountered the Respondent, who identified the case as hers and took it. At this point, the state of events was that Doris Seitner had seen a substance she thought was cocaine. Doris Seitner is not an expert on drug identification. She admits never previously having seen cocaine up close. Although she had seen some drug abuse classes at the school, she had no courses in cocaine and had never smelled or tasted it. She did not open the plastic baggie or examine its contents on November 7, 1985. However, believing that the case contained cocaine and drug related paraphernalia, Ms. Seitner confided what she had found, together with her suspicions to a number of people and sought their advice on how to proceed. Shawn Joseph, another teacher's aide, suggested Ms. Seitner inform the school officials of what she had found. Later in the evening, Ms. Seitner contacted Pam Tepsic, a teacher on task assignment, who suggested she advise the principal immediately. The acting principal, Kathryn Mangan, upon learning of the discovery, contacted Howard Stearns, Petitioner's Director of Internal Affairs, who referred her to William Bohan. At all times material, William Bohan was employed by Petitioner as an investigator for Internal Affairs and has been a certified law enforcement officer. On November 12, 1985, Mangan told Bohan about Ms. Seitner's belief that she had seen cocaine in Respondent's glasses case. Bohan instructed Mangan to take no action but to call him in case the glasses case was seen again. Bohan interviewed Ms. Seitner and instructed her to watch out for the case. On the morning of Monday, November 25, 1985, while Respondent was in her classroom, Ms. Seitner came in and asked if she could fetch lunch for Respondent. Respondent retrieved her purse from the back room of the self- contained classroom, a location called "the teacher planning area", wherein she normally isolates her purse from the students, and gave Ms. Seitner money to pay for her lunch. Doris Seitner sat at the desk, and looking down into the Respondent's unzipped purse, spotted the pink glasses case. Seitner notified Tepsic, who notified John Smith, acting principal, who notified Bohan, who came to the school. Bohan and Tepsic walked to Respondent's classroom. When they arrived there, Tepsic approached Respondent in the classroom; Bohan stationed himself at the door. Tepsic told Respondent that a man wanted to see her in the principal's office. Tepsic avoided responding to Respondent's repeated requests to know what was going on or answered Respondent that she did not know what was going on. Respondent walked with Tepsic to the door. Bohan asked Respondent if the purse by her classroom desk was hers. The Respondent answered, "yes" whereupon Bohan walked over, picked up the purse, and, retaining the purse, began walking with Respondent and Pam Tepsic to John Smith's office. On the way to Smith's office, Respondent told Bohan she could carry her own purse but Bohan responded that he could carry it. She repeated her questions to Pam Tepsic, asking what was going on and received the same evasions. In making the immediately preceding finding of fact, the testimony of Pam Tepsic, Investigator Bohan, and Respondent have been considered and weighed. While Investigator Bohan testified that Respondent said and did nothing to claim her purse after he seized it and Pam Tepsic initially related that Respondent said nothing about her purse at any time in the classroom or while walking over to the principal's office, Pam Tepsic's testimony as a whole reveals that she was particularly nervous during all these incidents and that at a point in time closer to the actual events, she had believed some such conversation took place between Bohan and Respondent, but that on the date of formal hearing she simply could not recall any conversation between Bohan and the Respondent, including Bohan's asking Respondent if the purse were hers and Respondent's reply, "yes", statements Bohan and Respondent each testified had been made. The Respondent's account of her request to carry her own purse is highly credible. It is simply not credible that any adult woman would not request return of such an intimate item as her purse, containing all her personal effects, including valuables and money, from a man whom she had never seen before in the absence of any explanation of what was going on. Bohan, Tepsic, and Respondent entered John Smith's office. Bohan placed Respondent's purse on Smith's desk in front of himself. Bohan told Respondent he had been informed she was in possession of an illegal drug and asked if she would consent to Bohan's searching her purse. Pam Tepsic's recollection of what happened next was that either Respondent said she would consent to the search or that someone else said Respondent had consented or said something like, "Well, then you consent," to Respondent. Respondent denies ever being asked to consent to a search of her purse. John Smith understood Bohan to ask permission to search the purse and understood that Respondent said "yes" to Bohan's request. Bohan relates an affirmative answer from Respondent. Before he started searching her purse, but after the question concerning consent/permission, Bohan asked Respondent did she have anything in her purse that might be a problem that she might want to tell him about before he searched her purse. Tepsic, Bohan, Smith, and Respondent are in agreement that Respondent replied, "yes" that she did want to tell Bohan what was in the purse. The explanation given at that time was that early that morning she had taken cocaine and other items from her estranged husband who had a drug problem. Bohan removed from Respondent's purse the pink glasses case; some other unrelated items; four small plastic bags containing a white powdery residue; four straws cut 2-1/4 inches to 2-3/4 inches long; one GEM single edge razor blade; one small, 3/4 inch empty vial; one piece of aluminum foil 2-1/2 inches by 3-1/4 inches; eight straws in Wendy's wrappers; one wooden toothpick; and one nickel. When Respondent persisted in her explanation that the drugs and paraphernalia were her husband's property and that she had taken them to protect him but in response to further questioning by Bohan, Respondent was unable to flesh out an explanation she had begun concerning the husband's drug counselling and treatment and her participation therein, Bohan told Respondent that her options were either jail in Fort Lauderdale via the Broward County Sheriff's Department or discussing the matter at Petitioner's Internal Affairs Office. Although Bohan asserted that he made no "threats," Bohan, Tepsic, Smith, and Respondent concur that these were the only alternatives Bohan provided Respondent during their confrontation in Smith's office. A subsequent laboratory analysis conducted on the items seized November 25, 1985 revealed the presence of cocaine only in the small plastic bag containing the white powder. The property in the purse was taken into the Internal Affairs Office for inventory. These items, including the cocaine, were described by Ms. Seitner as "similar" to the items she saw in the pink case on November 7, 1985. Respondent customarily keeps a razor blade in her purse to use for arts and crafts projects in her class. Other teachers at the center also use razor blades to perform art projects. The Respondent customarily keeps drinking straws in her purse to give to her three small children to drink with while they are riding in her car. Article XVIII, Section K, of the current collective bargaining agreement between the Broward Teachers Union and Petitioner provides: "No investigation of an em- ployee, beyond preliminary inquiry, by the Internal Affairs Department may be undertaken without written notice to the employee, such notice to include a statement of the cause giving rise to the investigation." No written notice was given to Respondent by Petitioner. A sign posted on the grounds of the school at the front gate notifies anyone entering that they are subject to being searched while on the grounds. (TR 149-150) Respondent accompanied Bohan to Internal Affairs where Bohan and Stearns interrogated her. Respondent again told them the drugs inventoried belonged to her husband. She further revealed to Stearns, apparently in hopes of receiving counselling instead of dismissal, that she had been clean of cocaine during the nine months of her recent pregnancy and clean recently until the immediately preceding Saturday night. (TR-205) After Internal Affairs finished questioning Respondent, Bohan took her to the Employee Assistance Program and then later to the Broward Alcohol and Rehabilitation Center. Respondent claims she was denied use of a phone to contact anyone until she reached the Employee Assistance Program, but she concedes there were public phones available at the school and she did not insist on using any. At hearing, Respondent testified that she had never used cocaine and would not have used it in November, 1985 because she was breastfeeding her new daughter. She also testified that the contraband items were taken from her husband the morning of November 25, however, rather than corroborating this story, the testimony of Wilton Johnson, her estranged husband, is contrary to Respondent's account of the incident in so many details as to adversely affect Respondent's credibility that the incident occurred. Respondent was suspended with pay November 26-28, 1985, the remainder of the school week. On Monday, December 2, 1985, she was permitted to resume her classroom duties until she was notified of suspension with pay, December 6, 1985. On December 19, 1985, Petitioner suspended Respondent without pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order dismissing Counts I and II, finding Respondent guilty as charged in Counts III and IV, and dismissing her from employment. DONE and ORDERED this 5th day of September, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS 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, 1986.
The Issue Petitioner University of Florida seeks to terminate Respondent, pursuant to Rules 6C1-1.007, 6C1-1.008, 6C1-7.018, and 6C1-7.048, Florida Administrative Code, for conduct alleged as follows: Abusing the faculty member-student relationship; Fostering, by example, an environment in which substance abuse is promoted to students whom Respondent supervises; Creating a hostile learning environment; and Retaliation in the course of a sexual harassment investigation.
Findings Of Fact In order to resolve the legal issues herein, it is not necessary to relate all the evidence taken, to relate the stipulated facts verbatim, or to record the entire sequence of events and all the opinions various witnesses expressed of one another. Accordingly, and in accord with Section 120.57(1), Florida Statutes, only material findings of fact have been made.3 In doing so, effort has been made to reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth, but where conflicts existed, the credibility issue has been resolved on the characteristics listed in Standard Jury Instruction, (Civil) 2.2b.4 Respondent was initially hired at UF on July 17, 1992, in a non-permanent position as a Research Scientist, at its main campus in Gainesville, Florida. Beginning April 1, 1997, and at all times material, Respondent was employed on the main campus as a non-permanent Assistant Professor in the Institute of Food and Agriculture Sciences (IFAS), Department of Fisheries and Aquatic Sciences, at UF. As such, Respondent was assigned teaching, research, and extension duties that include teaching undergraduate and graduate courses and mentoring students. Respondent did not hold tenure, but was in a tenure-earning status for nine years. Respondent is an ichthyologist and was employed in the specialized academic field of wildlife conservation genetics, within a limited professional community comprised of only approximately 100 professionals in the United States. Students, graduate students, and colleagues of Respondent understand that this is a tight-knit professional community and that Dr. Robert Chapman of the University of Charleston, South Carolina, is part of that "elite 100." As with any profession, networking is important to students' career paths. Anna Bass was never a UF student or a student of Respondent. However, she was directly employed by UF from March 1995 to the summer of 2000, as Respondent's lab manager. She worked for Respondent elsewhere prior to that period and has known him since approximately 1992 or 1993. As Assistant Professor, Respondent served as the Major Professor and Thesis Committee Advisor for UF graduate students Joel Carlin, Alicia Pearce, and Luiz Rocha. Currently, and at all times material, Joel Carlin was enrolled as an IFAS graduate student at UF. Alicia Pearce graduated from the UF-IFAS program in May 2001. Katherine Moore was never Respondent's student and never attended UF. However, Respondent had been on Ms. Moore's graduate thesis committee when she was a student at the University of Charleston. She graduated from that university approximately 1998-1999. Ms. Moore has been employed as a biologist at the National Ocean Service in Charleston, South Carolina, since 1990. The student-professor relationship is based on mutual trust and respect, with the student's best interest at heart, for either undergraduate or graduate students. As major professor and chair of thesis committees, Respondent has substantial power over the career paths of graduate students he has advised. Major professors are expected to serve as mentors to their students, providing guidance and acting as professional role models to assist and mold judgment. They are relied upon by students and former students for future educational, job, and research grant references. The graduate student-major professor relationship persists beyond graduation and often endures for a life-time. Graduates often continue original research in cooperation with their mentors and co-author professional research articles with them. Graduates frequently seek the counsel of their mentors for important professional post-graduate decisions. Among his students and colleagues, Respondent has a reputation for partying. His liquor of choice is tequila. He has held what are called "late night lab sessions" with his graduate students in off-campus Gainesville music clubs and bars. Student attendance at these "late night lab sessions" are not required, but it is understood they can be helpful for building both rapport and a career. Respondent also entertains, as do other professors, by serving food and alcohol in his home, so that students may meet and network with visiting speakers/ colleagues in their chosen field(s). During a party hosted by Respondent at his home in May of 1997, he served and consumed beer and tequila in the presence of adult IFAS students. He became inebriated at that party. Respondent, Mr. Carlin, and a visiting scientist, met at a music club in Gainesville and drank alcohol together on one occasion. In early June 2001, Respondent attended an informal going-away party for the same colleague at a Gainesville restaurant with Mr. Carlin and Mr. Carlin's undergraduate girlfriend. Alcohol was consumed and at the end of the evening, the three felt too inebriated to drive legally or safely. However, Respondent drove home and did nothing to prevent the others from driving home. Respondent's explanation for this last occasion was that he was under great emotional stress due to his wife's recent miscarriage. Respondent has consumed alcoholic beverages at off- campus locations at least 3-4 times per year with adult IFAS students whom he academically supervised. In 1998, when Mr. Carlin, an adult, was interviewing on the UF Campus at a morning appointment with Respondent for admission to the UF graduate program, Respondent invited him to meet that night, at approximately 11:00 p.m., with Respondent and his graduate students in a Gainesville establishment where they consumed alcohol. Attendance at the bar was not a quid pro quo for admission, and Mr. Carlin never thought it was. Mr. Carlin remained for the meeting and drinking and was ultimately admitted into the program. Respondent considered his invitation to be a friendly opportunity for Mr. Carlin to talk informally with other graduate degree candidates so that all concerned could determine if the fit was right for Mr. Carlin in the program he wanted to pursue at UF. Mr. Carlin did not object to the drinking, but he felt the late night hour was inconvenient, since he had expected to leave town after his morning interview, and unprofessional, since he never got to discuss dissertation ideas at that time with Respondent. Once, when Respondent had been in Charleston, South Carolina, helping Ms. Moore "finish up [her] Masters," they were at a post-reception party in Respondent's motel room. Other guests were drinking alcohol and smoking pot (marijuana). Dr. Robert Chapman was also present. Respondent and Dr. Chapman settled which of their names should appear first on a jointly- authored professional publication with a "tequila bottle toss." Each professor-author tossed an empty tequila bottle into the motel swimming pool from the motel room balcony. The man whose bottle hit closest to the pool's center, won. The date of this event is not clear, but apparently it occurred while Respondent was employed by UF. There is no reason to suppose UF students were present. Respondent has possessed liquor at off-campus professional conferences in the presence of adult UF students for whom he had some academic responsibility. Several years ago, at a professional reception held for Respondent, he autographed the closure strap at the back of the bra worn by a non-UF undergraduate female, approximately nineteen years old, who was flirting with him in the presence of Ms. Moore. Ms. Moore described the young woman as someone attending her first professional conference who was in awe of Respondent as a "star" in their field. Respondent admitted to making sexually suggestive witticisms to the undergraduate female at the time. No one took him seriously or was offended. Respondent has repeatedly possessed or smoked marijuana, a controlled substance under Florida law, in the presence of others with whom he was professionally associated.5 Use or possession of marijuana on campus offends UF's "drug-free policy." Use or possession of marijuana by a UF faculty member or student anywhere is considered "disruptive behavior" subject to UF discipline. See Rules 6C1-1.008(1)(m) and 6C1-7.048(1)(n), Florida Administrative Code, and the following Conclusions of Law. In June 2001, Respondent used marijuana at Mr. Carlin's house with Mr. Carlin and Mr. Carlin's live-in undergraduate girlfriend present. Respondent's explanation for this was that he was under great emotional stress due to his wife's recent miscarriage. Ms. Moore has observed Respondent smoke marijuana in the presence of students at most of the off-campus professional meetings they have attended over the years from 1992 to the present, but the students she referred-to probably attended universities other than UF. Ms. Pearce has observed Respondent smoke marijuana in the presence of UF students approximately 15 times. She did not specify the locations as on- or off-campus. While she was his student and in his UF office, on the UF campus, Respondent showed Ms. Pearce a "highlighter" pen that he carried in his pocket, which pen had a false bottom for hiding a stash of marijuana. Ms. Bass has smoked marijuana with Petitioner multiple times. She did not specify the location(s) as on- or off- the UF campus. In July 2001, Alicia Pearce was 29 years old. During her UF graduate studies, Respondent had been her major professor and thesis committee advisor. She had received her Master's Degree diploma from UF on May 5, 2001, and UF could not require her to complete any further requirements. (See Finding of Fact 8.) However, according to Dr. Richard Jones, UF Dean of Research, it was expected that after award of their degrees, former graduate students would place their theses in reviewed (preferably peer-reviewed) publications. Respondent had agreed that Ms. Pearce could present her thesis after graduation, due to her relocation to North Carolina. In order to present her paper after graduation, Ms. Pearce submitted her research paper abstract and her registration papers and fees for the American Society of Ichthyologists and Herpetologists (ASIH) Conference in February, 2001, before her graduation from UF. The conference was scheduled to be held on July 5-10, 2001, at State College, Pennsylvania (Penn State). Respondent also attended the July 5-10, 2001, ASIH Conference in the capacity of a UF-IFAS faculty member to, among other purposes, mentor his graduate students, Pearce, Carlin, and Rocha, all of whom were presenting papers at the conference. Respondent was not required to request leave, and did not request leave, from UF to attend the conference. He was on salary from UF while at the conference. Respondent was entitled to request a travel reimbursement from UF, as did Mr. Carlin, but elected not to do so. Respondent has attended the ASIH Conference approximately four times while employed by UF-IFAS. At the 2001 ASIH Conference, Ms. Pearce roomed in a dorm with Luiz Rocha. On July 6, 2001, Respondent used his credit card to purchase dinner and alcoholic drinks at a restaurant/bar in the Penn State Conference Center Hotel for a group of adult colleagues and adult students, including Carlin, Pearce, and Rocha. The ASIH Conference was being held in the hotel. The hotel was considered part of the Penn State campus. During dinner, Respondent made a sexually suggestive comment to Ms. Pearce, who was the only female present, and remarked that it could not be sexual harassment because she was no longer his student. Neither Ms. Pearce nor anyone else took him seriously or was offended. After dinner, Petitioner invited Ms. Pearce to his hotel room, along with another senior colleague, to discuss a tip Respondent had received several weeks earlier that a UF student had fabricated research. Respondent wanted the senior colleague's advice. He wanted Ms. Pearce's perspective because she had been in the lab during a relevant period of time. Their conversation in Respondent's hotel room lasted about an hour. During this period of time, marijuana was present in Respondent's hotel room. Respondent did not admit to bringing the drug with him to the conference, but the fact that marijuana was present in Respondent's hotel room means the contraband drug was in his constructive possession. Respondent admitted holding, sniffing, and/or smoking6 a "token toke" in the hotel during the dates of the 2001 ASIH Conference, and apparently in the presence of Ms. Pearce and the adult colleague. Marijuana use or possession is contrary to Penn State University's drug-free policy and rules. Respondent, his colleague, and Ms. Pearce next attended the official conference reception downstairs in the hotel. Alcohol was served and consumed. Later the same evening, Respondent and Ms. Pearce returned to his hotel room. Both had already drunk a great deal of alcohol and proceeded to drink more. They were observed alone together in the hotel room by Mr. Carlin, whom they sent away. Ms. Pearce became further inebriated during a long conversation with Respondent, which included discussion of her fear of doing the professional presentation coming up at the conference, past lab work, and intimate details of their respective married lives. She then passed out in the bathroom. Respondent knew Ms. Pearce was already partially inebriated and vulnerable before he took her to his hotel room, because she had begun to cause a scene at the conference's reception. Respondent also knew she had a history of irresponsible behavior with regard to alcohol because in May 2000, she and Mr. Carlin, high on alcohol, had telephoned Respondent's home repeatedly at approximately 2:00 a.m., in the morning. They then drove, in that condition, to Anna Bass's house, where they "crashed" for the night. Thereafter, Respondent had told them he was distancing himself from them; told them they should never call him again at that hour; and gave them extra lab work. On July 6, 2001, Respondent assisted Ms. Pearce from the hotel bathroom into one of his hotel room beds. It is undisputed that the couple then kissed and groped each other. Respondent's and Ms. Pearce's versions of what happened next, or how long it took, are fairly similar. Where they differ, the undersigned has balanced Ms. Pearce's candor and demeanor or lack thereof while testifying, her past experiences with marijuana and excessive use of alcohol, her expressed intent to go to the ASIH Conference with the purpose of indulging in heavy drinking, and her inability to recall the evening's events in sequence or in detail, against Respondent's testimony, which is discredited in part by his prior inconsistent statements and admissions. Having assessed their respective versions, it is found that: Respondent removed or dislodged Ms. Pearce's shirt and bra. Their groping progressed to Respondent's massaging Ms. Pearce's breasts and the two of them mutually massaging each other's genitals. At that point, Respondent broke it off and removed himself from the bed. Ms. Pearce then turned over and passed out or went to sleep. Respondent then went to sleep in another bed. About 4:00 a.m., Ms. Pearce awoke, dressed, and left the room, but since the shuttle bus had left, she was unable to return to her dorm. Respondent followed her to the lobby. She wanted to know if they had had intercourse. Respondent felt he was very clear in stating that no intercourse had occurred. However, Respondent's answer seemed non-specific to Ms. Pearce and did not satisfy her that intercourse had not occurred. She was very concerned, because she and her husband had been trying to conceive a child. However, she allowed Respondent to persuade her to return to his room to talk until 7:00 a.m., when the shuttle began to run again, and she then left the hotel. Respondent explained the July 6, 2001, sexual incident with Ms. Pearce as his being emotionally unstable due to his wife's recent miscarriage. Ms. Pearce did not say anything more to Respondent about their sexual incident until later on July 7, 2001, when she asked him not to tell anybody. He agreed that there was "no use in other people getting hurt." They behaved normally to each other in public throughout the next several days and were not alone together. Respondent helped Ms. Pearce prepare to present her paper later that weekend, and she did well for her first presentation on July 10, 2001. She presented Respondent with an autographed copy of her completed thesis after her presentation. The dedication warmly expressed her thanks to him for his mentorship of her. On Tuesday, July 10, 2001, the last day of the conference, after her presentation, Ms. Pearce also filed a criminal complaint with the Penn State University Police Department, alleging Respondent had sexually assaulted her. Respondent was confronted by two police officers and questioned extensively. He cooperated and provided a statement and blood for a blood test. He was not arrested or charged. Back in Gainesville, Respondent spoke to Mr. Carlin by telephone on July 13, 2001. Upon Respondent's inquiry, Mr. Carlin stated that he had learned of the Penn State investigation from Ms. Pearce when he drove her to the airport on July 10, 2001. Both Respondent and Mr. Carlin agreed Mr. Carlin had no first-hand knowledge of the situation. Respondent advised Mr. Carlin to stay way clear of the situation. On Monday, July 16, 2001, Respondent again spoke with Mr. Carlin by telephone. On that date, Respondent told Mr. Carlin that Mr. Carlin's and Luiz Rocha's names had also been of interest to the Penn State Police. Because Respondent said, "How would you like to be accused of rape?" Mr. Carlin could have interpreted this conversation as a threat. He did not. On July 22, 2001, Dr. William Lindberg, Respondent's Department Chairman, submitted his evaluation of Respondent's academic performance for the 2000-2001 academic year, which rated Respondent as overall "exemplary." This was a precursor to Respondent's getting tenure. Dr. Lindberg did not know about the events of the 2001 ASIH Conference when he submitted the evaluation. It is undisputed that Respondent is a "star" in "the elite 100," has published widely, is a popular professor, and has obtained valuable research grants for UF. On July 23, 2001, Ms. Pearce filed a complaint regarding Respondent with UF-IFAS. It was categorized as "sexual harassment." The investigation was cloaked in confidentiality. At the time of his July 13 and 16, 2001, telephone conversations with Mr. Carlin, Respondent could not have known that UF would be investigating him. On August 6, 2001, Ms. Pearce was interviewed by the UF investigator. On or about August 6-8, 2001, Mr. Carlin was interviewed by, and/or provided chronological notes to, the UF investigator and Dr. Lindberg. On August 8, 2001, Ms. Moore was interviewed by the UF investigator and related the "signing of the bra strap" event. On August 16, 2001, Respondent met with Dean Cheek, Dean Jones, Chairman Lindberg, and the investigator. Respondent saw notes on, or was made aware of, all or some of the statements made by those interviewed. He was informed that he probably would be terminated. He also was instructed to be circumspect and respectful in dealing with the situation and potential witnesses. Respondent and Dr. Lindberg shared a car back to their department after this meeting. On the ride, Respondent asked Lindberg what he should do about the paper he was co- authoring with Pearce. Lindberg told him that if he did not have much invested in it, the high ground was to step away. Lindberg did not recall Respondent's also asking what he should do about papers he co-authored with Carlin and Moore. Mr. Carlin was interviewed by Dr. Lindberg and the investigator again after Respondent met with the Deans. At hearing, Ms. Pearce presented speculations, but no credible evidence, that Respondent had done, or planned to do, anything to her in retribution for her sexual harassment charge. As of the disputed-fact hearing, Respondent had not removed his name from their joint paper. On August 17, 2001, Respondent telephoned Ms. Moore and told her to remove his name from the publication they had recently co-authored and were preparing for publication. He asked her never to contact him again because it was painful for him to talk to someone who told stories about him and he was tired of her complaints about her employer, who was a friend of his. Ms. Moore considered Respondent's telephone call to constitute her "professional excommunication." Respondent's withdrawal of his authorship created an awkward situation for Ms. Moore that necessitated her sending a letter of explanation to the publisher to clarify that Respondent's withdrawal was not due to a disagreement regarding her research results. The paper will be published anyway. Ms. Moore contacted Chairman Lindberg on August 23, 2001, and complained about Respondent's action and expressed her fear of further professional reprisals from Respondent. Dr. Lindberg agreed that if the withdrawal of Respondent's name became an issue with the publisher, he would write to the publisher for Ms. Moore and explain the situation in general terms. On August 14, 2001, Anna Bass was interviewed by the UF investigator. On August 19, 2001, Ms. Bass sent an e-mail message to Mr. Carlin which amounted to a diatribe against him and Ms. Pearce for speaking to the UF investigator. On August 28, 2001, a Notice of Proposed Dismissal was issued against Respondent by UF. On September 14, 2001, after learning that Respondent's dismissal had been proposed, Ms. Bass contacted Chairman Lindberg and charged Mr. Carlin with sexual harassment against her which allegedly occurred more than a year previous, when he and Ms. Pearce "crashed" at her home. (See Finding of Fact 34.) Ms. Bass denied that Respondent put her up to filing these belated charges. Respondent denied asking anyone to retaliate against, or speak to, Mr. Carlin for the purpose of preventing or altering the information Mr. Carlin gave in interviews with the UF investigator or UF authorities or to discredit his information. Respondent further testified that he did not ask Dr. Robert Chapman to author any correspondence related to the investigation. However, he admitted discussing his situation under the sexual harassment charges with Dr. Chapman. Respondent had problems with Mr. Carlin previous to the current investigation. On one occasion, he had to request that Mr. Carlin not annoy his female lab assistant. Respondent had previously disciplined Mr. Carlin for making annoying late night telephone calls to Respondent's home. (See Finding of Fact 34.) At the 2001 ASIH Conference, Respondent had approached Mr. Carlin about whether Mr. Carlin wanted to remain in competition for the Stoye Award, because of some concerns over the eligibility of his research. Mr. Carlin and Respondent have different understandings of what was involved in this discussion, but Mr. Carlin did not remove his name and Respondent did not interfere with that choice. Mr. Carlin went on to win the prestigious award. Some other members of "the elite 100" had also had a problem with Mr. Carlin concerning access to a limited supply of endangered species samples he and another graduate student needed. Mr. Carlin and the other researcher were in a race to publish their respective dissertations first. Dr. Robert Chapman was aware of the controversy. On Friday, September 14, 2001, after hearing about Respondent's proposed dismissal from employment, Dr. Chapman and Respondent had a telephone conversation during which they discussed Mr. Carlin. Respondent expressed his frustration at the complaint filed by Ms. Pearce and accused her of "filing false claims" against him. Respondent stated that Ms. Moore had made an unflattering anecdote and "contributed a story that portrayed [Respondent] in a negative light." Respondent also stated that Mr. Carlin had alleged that Respondent had harassed him. Dr. Chapman was then critical of the "ethics" of Mr. Carlin and described him as "shiftless." On Friday, September 14, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin expressing anger and shame and stating in part that, "I fear that your career is in severe jeopardy. No one I have talked to will hire you after this." These comments of Dr. Chapman were directed to the rare species sample controversy but mixed in with a diatribe about Respondent's situation, as if they were part of the same complaint. On Saturday, September 15, 2001, Dr. Chapman sent an e-mail message to Jimmy Cheek, UF-IFAS Dean of Academic Programs, accusing Mr. Carlin of aiding and abetting a shameful assault upon Respondent and questioning Mr. Carlin's "honor and integrity," referring to Mr. Carlin as "a slimy worm." In this same e-mail, Dr. Chapman stated that "Ms. Moore is a thief," and a radical feminist who was out to get Respondent. Apparently, Dr. Chapman sent a similar missive to Dean Jones. Respondent had provided the deans' names to Dr. Chapman and did not dissuade him from writing them. On Sunday, September 16, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin, apologizing for writing him in anger but not for what he had written to him on September 14, 2001. He told Mr. Carlin that his "first allegiance is to the professor" and advised him that "[I]nterviews with administrators are not an obligation. You have the right to decline and only the courts can force it." Dr. Chapman also stated that Mr. Carlin should talk with Respondent "about whether he should continue to serve as your professor" and further advised him to "take a low profile." While stating he would not circulate rare species sample rumors beyond those persons who knew of the rare species sample controversy before, and that he would be professional if asked about Mr. Carlin's competence, Dr. Chapman also stated he would volunteer nothing for Mr. Carlin. Dr. Chapman is a former employment supervisor of Mr. Carlin who strongly recommended him for admission to UF's graduate school on December 16, 1997. Mr. Carlin now feels he is unable to list Dr. Chapman as a reference because he questions Mr. Carlin's intellect and moral character and will accordingly give Mr. Carlin bad references rather than good ones. Mr. Carlin has great concern that Respondent has ostracized and vilified him for his role in the UF complaint review process. Mr. Carlin informed Chairman Lindberg that he fears his career is over and he has lost his place in his chosen academic field. Mr. Carlin also speculates that Respondent will now attempt to have his Stoye Award revoked, but there is no evidence Respondent has made any move in that direction to date. After Mr. Carlin was interviewed in the complaint review process, Respondent substituted his name for Mr. Carlin's name as the "corresponding author" on one of their current joint research publications which had been pending since June. He did not remove Mr. Carlin's name as first author. Changing the name of the corresponding author is not an unusual occurrence with regard to academic publications. In this case, it may benefit Mr. Carlin in getting published, because Respondent is friends with the publisher. However, the effect of the name-switch is that Mr. Carlin has lost control over the correspondence, putting Respondent in a position to delay or take the publication out of sequence for printing, if he chooses to retaliate against Mr. Carlin. On September 18, 2001, a Predetermination Meeting was held at Respondent's request. On October 8, 2001, UF issued its decision to dismiss Respondent effective October 10, 2001. Even after termination, sometime in December, 2001, Respondent was cooperating with input for a second publication he and Mr. Carlin co-authored. He has, however, begun to investigate the data behind Ms. Pearce's and Mr. Carlin's papers presented at the 2001 ASIH Conference. According to Chairman Lindberg, who testified by deposition, Respondent breached his professional ethics and student mentoring responsibilities by his behavior at the ASIH conference with Ms. Pearce. According to Dean Jones, Respondent's conduct at the ASIH Conference was contrary to UF-IFAS expectations of a responsible faculty member's interactions with students and abused the faculty member-student relationship.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the University of Florida enter a final order ratifying its termination of Respondent effective October 10, 2001. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 31st day of May, 2002.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract. At all times material hereto, Respondent has been assigned to Miami Southridge Senior High School where he taught advanced mathematics courses, such as trigonometry, calculus, and math analysis. At the request of a friend, on November 7, 1986, Respondent sent approximately two ounces of cocaine to his friend via United Parcel Service. He was subsequently indicted in the United States District Court for the Eastern District of Michigan. The indictment contained two counts alleging that Respondent was guilty of having committed a felony. The case was subsequently transferred to the United States District Court for the Southern District of Florida. Respondent pled guilty to Count 1 of that indictment and not guilty to Count 2. He was adjudicated guilty of Count 1, use of a communication facility for the commission of a felony in violation of Title 21, U.S.C., Section 843(b). Count 2 was dismissed. On August 8, 1990, he was sentenced to two years of probation, residency in a community treatment center with a work-release program for a period of three months, a fine in the amount of $1,000, and court costs in the amount of $50.00. The School Board of Dade County has demonstrated its concern for the problems created by drug abuse in the community. As a result of this concern, the School Board has established a drug-free work place policy, curricula for students, a trust counselor program, and an employee assistance program, all designed to combat drug abuse. Dismissal from employment is not an automatic consequence of a teacher's involvement with illegal drugs. Nor does a conviction of a felony automatically require that a teacher be terminated. Circumstances are taken into consideration. Teachers who use drugs are referred to the employee assistance program for help in overcoming their drug use. Teachers who attend the employee assistance program are not necessarily discharged from employment even though notoriety may have surrounded their drug usage. There is no allegation or evidence that Respondent has ever used illegal drugs. Similarly, there is no evidence or allegation that Respondent had any involvement with illegal drugs other than the occasion on which he mailed cocaine to his friend. Annual evaluations are performed on every teacher in the Dade County Public Schools. A teacher is rated either acceptable or unacceptable. Respondent has always been given an acceptable rating. On Respondent's 1984- 1985 annual evaluation, the principal of Miami Southridge Senior High School added the following comment: "Michael is a super teacher. Has outstanding relationships with students and peers. Contributes greatly to the school. Great!". On Respondent's 1985-1986 annual evaluation, his principal added the following comment: "Cooperative, positive and supportive. Encourages students to excel. Very competitive." On Respondent's 1986-1987 annual evaluation, which covered the time period when Respondent transmitted the cocaine to his friend, his principal wrote the following comment: "An outstanding teacher. Concerned and devoted." On Respondent's 1987-1988 annual evaluation, his principal wrote: "Displays confidence and poise in the classroom. Very devoted and conscientious." On Respondent's annual evaluation for 1988-1989 his principal wrote: "A very concerned and caring instructor. Contributes greatly to the overall operation of the school." Former students of Respondent testified in this proceeding. Some were his students subsequent to the date that he committed his criminal act. Respondent has inspired those students to study math, has helped them to learn to the extent that they receive "As" in their college math courses, and has taught them a love for math such that they are currently majoring in math on their way to becoming math teachers. Some of these students did poorly in math before having Respondent as a math teacher. These students have recommended to others that they take math from Respondent and hope that Respondent will still be available to teach math to their children. The principal at Miami Southridge Senior High School and the math department chairperson have no objection to Respondent being returned to that school to continue teaching math classes. The math department chairperson describes Respondent as a teacher who is excellent with children, far above the norm. She recognizes Respondent as having an unusual ability "to get difficult information across to the students" and have them enjoy it. No notoriety attached to Respondent's criminal act which occurred in November of 1986. He continued to teach until September 28, 1990, when Petitioner removed him from the classroom. All notoriety concerning Respondent's criminal act was caused by the Petitioner itself. Respondent's attorney advised Respondent's principal of the criminal conviction, and Respondent's principal then notified other employees of the Dade County Public Schools. As a result of the principal's notification, Respondent was removed from the classroom, at which time other School Board employees became aware of the problem. Thereafter, Petitioner determined to suspend Respondent and initiate dismissal proceedings, which determination then caused additional notoriety. Petitioner admits that any notoriety at the school site was not caused by Respondent's criminal act but rather was due to Respondent's removal from his classroom assignment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: finding that Respondent has been convicted of a crime involving moral turpitude; suspending Respondent without pay effective at the close of business on October 24, 1990, and continuing through the end of the 1990-1991 school year; and reinstating Respondent as a classroom teacher effective at the beginning of the 1991-1992 school year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of March, 1991. LINDA M. RIGOT 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 12th day of March, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 2-7, and 13 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 1, 8, 9, 12, and 14 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, recitation of the testimony, or argument of counsel. Petitioner's proposed finding of fact numbered 10 has been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Dade County, Florida 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 Jesse J. McCrary, Jr., Esquire 2800 Biscayne Boulevard, Suite 800 Miami, Florida 33137-4198 Octavio J. Visiedo, Superintendent Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the Respondent, Lissa Nappier, committed the violations alleged in the Notice of Specific Charges and, if so, whether such allegations are just cause for termination of her employment with the School Board.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Lissa Nappier, was an employee of School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. The Respondent’s employment relationship with the Petitioner began in 1984 when she was retained as a temporary instructor. In 1988 she was hired as a permanent teacher and was assigned to Homestead Senior High School where she has continued service until the instant issues emerged. From 2004 until the time of her recommended termination, the Respondent was employed as the Student Activities Director at the school. Prior to the instant matter, the Respondent has had no disciplinary issues or actions. As a condition of her employment with the Petitioner, the Respondent is subject to the terms and conditions of a contract between the School Board and the United Teachers of Dade (UTD contract). Article XXIV of the UTD contract provides for credential payment to encourage employees of the School Board to pursue further studies and expertise in their respective fields. Such pursuit enhances the quality of education for students in the school district. At all times material to this case, the credential payment increase for a teacher with a doctorate degree was $7000. The effective date for the implementation of the credential payment is computed “after completion of eligibility requirements, as indicated on the transcript by the issuing university.” The UTD contract further provides that: Completion of eligibility requirements shall be defined as: (a)filing an official M- DCPS/UTD application for credential payment with the Office of Human Resources (receipt acknowledged and dated by M-DCPS); and (b) completion of course work/degree requirements prior to the date of the quarter for which payment is requested, as indicated by the date on the transcript, or other appropriate evidence provided by the university. M-DCPS shall notify all new employees of the availability of the credential payment programs and the procedures for making application. Under the heading “Eligibility,” the UTD contract also states: To qualify as graduate level, credit must have been earned after the applicant was granted the Bachelor’s degree and must be clearly identified as such. Pursuant to the UTD contract, Applicants whose applications are disapproved shall be notified that they may appeal the decision to the committee by resubmitting and supplying such additional and germane information and/or documentation as will be helpful in reaching a decision regarding the appeal. The decision of the committee is final and not grievable or arbitrable. On or about April 8, 2004, the Respondent submitted a note to the Petitioner’s Office of Compensation Administration that stated: Enclosed please find my official transcript for my Doctorate Program. Along with the transcript is a verification form. My employee number is 152174. Thank you for your attention in this matter, and with the necessary adjustments with payroll. Attached to the note described above, was a document purportedly from Rochville University. The Rochville document contained the words “Official Transcript” and purported to indicate that the Respondent had completed the noted courses. The document represented the Respondent had obtained a “Doctor of Arts (Major: Education).” Also attached to the note described in paragraph 11 was a form purportedly executed by the Rochville University Registrar and President that stated: This is to verify that Lissa A. Nappier has successfully completed the Doctor’s Program from Rochville University in the year 2004. In order to obtain the “Doctor of Arts” from Rochville University, the Petitioner submitted her transcripts from Brenau College, Nova Southeastern University, the requisite fees required by the school, and a summary of her 18 years of teaching experience to Rochville. Rochville University is an “on line” institution. The Respondent did not complete additional course work, did not write a thesis, and did not attempt to verify that Rochville University was an acceptable, accredited school prior to paying her fees for the degree and submitting the documents to the Petitioner for credential payment. It is unlikely that Rochville is an accredited university. Its academic claims are related to its status as an accredited “on line” institution. For approximately $600.00 the Respondent received a doctorate degree. After reviewing the Respondent’s documentation, the Petitioner denied the credential payment increase. The Respondent did not challenge or seek additional review of that denial. The matter was referred to the Petitioner’s Office of the Inspector General because the Respondent had “submitted a transcript to obtain credential payment for an advanced degree using a transcript from an unaccredited university.” None of the courses depicted on the Rochville University transcript that was appended to the Respondent’s note were actually for course work completed by the Respondent while attending (even online) Rochville classes. None of the hours for the courses depicted on the Rochville University transcript were earned while attending (even online) Rochville classes. The Respondent knew or should have known that a credible doctor of arts degree requires more than the submission of prior coursework, life experience, and the payment of fees. Moreover, the Respondent did not present evidence of any “life experience” that would entitle her to a doctor of arts degree from any accredited university. That Rochville University accepted the Respondent’s experience and prior academic work as sufficient to award a doctorate degree dishonors the hours of work that are, in reality, required of post-graduate students who obtain doctorate degrees from reputable institutions. Although technically truthful in Respondent's representation to the Petitioner, the Respondent’s request for credential payment was clearly not supported by credible academic achievement. The Respondent attempted to obtain credential payment using a non-creditable source. This was a tremendous lapse of good judgment. The Respondent, did not, however represent that Rochville University is an accredited university. She only represented that she had obtained a doctorate degree from that entity. Her lapse of judgment was in attempting to parlay her worthless degree into a credential payment increase. Her effort failed due to the attentive review of her request. At the time the Respondent was going through a divorce and needed additional income. The online approach to obtaining the doctorate degree appeared to be an easy, affordable alternative. The Respondent did not verify that Rochville University was accredited by any national accreditation source or that the university was acceptable to the School Board for purposes of obtaining a post-graduate degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the Respondent’s suspension without pay for the amount of time it deems appropriate, but returning the Respondent to full employment thereafter. S DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of September, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Findings Of Fact Thomas Sundquist was a student enrolled in North Miami Junior High School, operated by the Petitioner, during the school years 1984-1985 and 1985- 1986. Respondent was a seventh grade student during those two school years. He was the subject of seven independent student case management referral forms initiated by school personnel for aberrant behavior. These included 3-1-85: Defiance of Authority; continuous disruptive behavior; failure to complete assignments; failure to bring assigned- materials; and leaving class without permission. 5-24-85: slapping the face of a female student and fighting with her in the classroom. 2-27-86: Assault on another student. 3-21-86: Late to school on test day; left holding area without permission, banged on classroom doors disturbing testees; and evading security and administrators. 5-29-86: Assault on another student; truancy; and defiance of authority. For the assaults on 2-27-86 and 5-29-86, Respondent was given 5 days outdoor suspension for the first and 10 days for the second, and for his misconduct on 4-29-86, was also suspended for 10 days. Counseling policy at this school calls for automatic counseling by the student's grade counselor as well as by a school administrator in the event of a case management referral and in each case, this policy was followed. Further, in each case referenced above except the first, parent contact was accomplished both verbally and in writing. No improvement was noted at any time. On May 30, 1986, Mr. W.G. Murray, a vice principal at the school, requested progress reports on the Respondent from each of his six teachers. These reports were, for the most part, uniformly uncomplimetary. They were: Science - Ms. Fernandez: "He does not do any work. Is never prepared for class. Is a discipline problem and exhibits unacceptable behavior." Music - Ms. Pena: "He has been absent so much he is very far behind on his instrument,but while in class, his conduct is good." P.E.- Ms. Jardine: Class work "F", conduct "D". Math - Mr. O'Keefe: "Was not seen in class after October 8, 1985. Class work "F", conduct "F". He is very disobedient, insultive [sic], and immature." English - Ms. Weber: " He usually sleeps in class. Occasionally will do a spelling list but is not in class long enough to do anything. His conduct is poor, challenging authority, answering back, bangs on door when not in class, and does not often show up for class." [This teacher indicated the student can do the work if he wants to.] Graphics - Mr. Machado: "Refuses to do any work, disruptive, will not stay in seat, talks out loud, hits and touches other students against their will." Mr. Machado and Ms. Fernandez amplified their written comments by testimony at the hearing and confirmed that he was always late for class, was never prepared when he came, and rarely did any work in class. He would chew gum, try to distract the other students, fail to follow instructions and class and safety rules, and would assault other students without provocation. He would try to hug or touch females or fight with males to the point that some students would leave class and go to the assistant principal's office just to get away from him. Both teachers repeatedly had to stop their classroom teaching, taking time away from other students, to attempt, most often unsuccessfully, to deal with the Respondent. Respondent's final report card for the 1985-1986 school year reflected a final grade of "F" for each of his subjects for the year. Out of 180 school days, he was absent: Science: 101 periods. Music: 97 periods. P.E.: 91 periods. Mathematics: 86 periods. English: 104 periods. Graphics: (second semester only) 65 periods. In the 3rd and 4th grading periods, his "effort" grades were uniformly "3" which signifies "insufficient." In the first two grading periods, he did earn 4 "C's" and 1 "D". His "conduct" grades are mostly "F" with some exceptions in Music, P.E., and, in the first grading period only, English, in which he got a "D" and Industrial Arts, in which he got a "C". All three witnesses who testified for Petitioner were of the opinion that Respondent's lack of interest and disruptive behavior cannot properly be handled within the regular class system where teachers have between 33 and 35 students per class. They do not have the time to devote to him and his behavior takes their attention away from other students whose education suffers thereby. They all agree, however, that in the opportunity school, where classes normally consist of 10 to 15 students, he would benefit from the more personalized attention he would receive and would undoubtedly do better. This seems to be a reasonable analysis of the situation and it is so found. Respondent is definitely not interested in school in the regular classroom setting and his behavior is decidedly disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT: Petitioner enter a Final Order affirming the assignment of Respondent to its Opportunity School Program. DONE and ORDERED this 31st day of October, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of October, 1986. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Ms. Sue Sundquist Stevens 11317 Northeast 11th Place Biscayne Park, Florida 33161 and 14155 West Dixie Highway North Miami, Florida 33161 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301
Findings Of Fact Respondent is a tenured language arts teacher within the Duval County School District of approximately 21 years service, 17 of those years as a senior high school teacher. At times relevant to this inquiry, the Respondent was a language arts teacher at the senior high school level in the Duval County School District. As such, she was responsible for carrying out the requirements of the Jack Gordon writing program set forth in Section 236.1223 Florida Statutes. The purpose of the Jack Gordon writing program is expressed at Sections 236.1223(2), 3 (a) and (4), Florida Statutes, where it states: Any school district which establishes a separate course for teaching writing skills, or which demonstrates that teaching writing skills is a primary emphasis in English courses included in its existing curriculum and required as a prerequisite for graduation, may receive categorical funds as provided in this section in addition to the funds it receives from the Florida Education Finance Program. To be eligible to receive funds under this section, a school district shall certify to the Department of Education: That instruction in writing skills is provided in classes which contain no more than 28 students per teacher and that no teacher who teaches writing skills as part of the instruction in an English class that is a class required by the school district as a prerequisite for graduation teaches more than 100 students per day; however, the Commissioner of Education may approve alternative staffing plans, on an annual basis, submitted by a local district for those schools wherein there is a demonstrated lack of classroom space or a showing is made that the total instructional program requires teaching to instruct classes in English and another subject or subjects; * * * The Commissioner of Education shall establish criteria for determining whether the teaching of writing skills is a primary emphasis in an existing English course which a school district has required to be a prerequisite for graduation. Included in the criteria shall be a requirement that a student in such course write not less than one essay, report, story, or other work product each week of class. Having opted to participate in the Jack Gordon writing program, the Duval County School District has established its own guidelines and expectations of those teachers including Respondent who are responsible for the implementation of the program. Petitioner's Exhibit No. 32 admitted into evidence describes the duties of the Duval teachers who participate in the program. It reiterates the requirement of the one essay, report, story or work product for each week of class found in the statute. It makes it incumbent upon the teacher to design a lesson plan for each of the writing assignments and suggests ideas for those writing assignments. It requires the teacher to evaluate the product in a constructive manner and provide substantial assistance in developing writing confidence. It speaks in terms of a master log of writing assignments kept by the teacher or the requirement for students to keep a log. The system that was employed in this case was one in which the student maintained the writing log. The teacher is expected to keep records of the assigned products and methods of evaluation. The teacher is called upon to retain one student folder developed in the year as well as class papers written during the first quarter and fourth quarter and to be prepared to submit for audit purposes sample student folders and two sets of class papers. Under the category of guidelines more specific discussion is made concerning writing assignments. In addition, Respondent and other language arts teachers involved in the program were expected to ensure that the student logs were maintained reflecting the writing assignments and updated to coincide with the requirement for one writing assignment for each school week. The teachers were to identify the writing assignments in their lesson plans and were called upon to record the grades which the students received on the individual writing assignments in their grade books. Under the circumstances, it is inferred that contemporaneous provision of assignment to the students, preparation of the writing paper by the student, grading of the student paper, placement of the grade on the student log and grade book and placement of the paper in the student folder was anticipated. In this connection at times relevant to the inquiry the Duval County School District used a quarter system with nine weeks in each grading period for a total of 36 weeks. Consequently, 36 writing assignments were to be prepared under the auspices of the program. As identified by Carlotta Ray, Director of Language Arts for the Duval County School Board, and the person responsible for monitoring the Jack Gordon writing program in that system, custom and practice allows the language arts teachers as much as two weeks time beyond the week of an assignment to grade and return the student paper. Beyond that time efforts on the part of the teacher are considered to be out of compliance with the requirements of routine assignments and grading contemplated by the program. Respondent was aware of her obligations as a language arts teacher carrying forth the Jack Gordon writing program. The problems which she encountered in performing those tasks, which will be discussed, were not associated with a lack of understanding of the requirements nor an inability to perform at an acceptable level in carrying out her duties of preparing an assignment, grading an assignment, and the affiliated functions of records keeping by her students and the Respondent. Her difficulties were based upon a failure to perform the duties assigned in the program. In defending her recalcitrance in meeting her responsibilities, Respondent attributes her performance to health problems both mental and physical and to a lack of sensitivity and cooperation by administrators in the school system in helping her to redress her inadequate performance. For reasons that will be described, her performance was gravely below that of what was expected of her in carrying out the Jack Gordon writing program and her attempts to explain these inadequacies are not redeeming. Until the school year 1986-87, Respondent had performed satisfactorily as a language arts teacher. In that school year Respondent was teaching at Ribault Senior High School. On March 13, 1987 Pat Cascone, a resource teacher who was assigned as a program representative for language arts and reading made a spot check of the Jack Gordon writing program student folders at Ribault. Ms. Cascone was accompanied by Ms. Ray as part of the school district's activities in monitoring the Jack Gordon program. On the date in question Ms. Ray had requested that all student folders be placed in a single room to allow Ms. Cascone and Ms. Ray to examine them. All language arts teachers complied, save two. One of the teachers who did not comply was the Respondent. When the principal at Ribault, James Williams, Jr., learned that the Respondent had not provided the student folders for examination by Ms. Cascone and Ms. Ray, he inquired of the Respondent where the folders might be found. Upon learning that the folders were at home, according to Respondent, he told the Respondent to go home and retrieve those folders. Inexplicably Respondent refused to honor his instruction. She would have had ample time to go to her home and return with the folders before Ms. Ray and Ms. Cascone departed the school. Rather than provide the folders for examination, Respondent went to the room where Ms. Ray and Ms. Cascone were checking the student folders and made some attempt at explaining herself. At this time she became very emotional and made some remarks concerning incompetency in her personal and professional life which she was trying to correct. She wrote a note, a copy of which may be found as Petitioner's Exhibit No. 33, describing what she said was incompetency in her personal life as well as "here", taken to mean at school. In the note she talked about trying very hard to correct "all" and the idea that she would have things ready for the auditors. In the final analysis, Respondent did not present any information concerning students within the Jack Gordon writing program for whom she was responsible, thereby denying Ms. Ray and Ms. Cascone the ability to ascertain the progress of those students and Respondent's compliance with the requirements of the program. Respondent's explanation concerning her situation at about the time that the March 13, 1987 spot check of the Jack Gordon writing materials was made at Ribault High School does not suffice as an excuse for her noncompliance with the requests of the district officials who monitor the program and the instructions of her principal to bring those materials to the room were the inspection was taking place. Respondent also missed a meeting on March 16, 1987, called to discuss the problems that had been encountered at the time of the March 13, 1987 spot check performed by Ms. Cascone and Ms. Ray concerning the program. As a consequence of the problems that were encountered on March 13, 1987, Respondent received diminished scores on her annual evaluation as compared with the two prior years. Nonetheless, she was rated as satisfactory in the evaluation performed on March 17, 1987. A comparison of evaluations for March, 1985; March, 1986 and March, 1987 may be made by examining Petitioner's Exhibit Nos. 34, 35 and 37 respectively. The former two evaluations depicted satisfactory in each category whereas the latter evaluation had four deficiency areas. In presenting the evaluation of March 17, 1987, Mr. Williams reminded Respondent of the serious nature of the Jack Gordon writing program and the need to comply with all applicable rules and regulations. The problems experienced in the annual evaluation of March 17, 1987, constituted the first occasion at which Respondent had been criticized in her annual evaluation in any category. Within the school year 1986-87, Respondent acknowledged that all student work may not have been in the sequence that was contemplated by the Jack Gordon Program; however, she testified that the materials had been caught up and submitted by the end of that year. On a related topic, she acknowledged that contrary to school policy she had taken the Jack Gordon student folders home. Respondent's teaching assignment for the school year 1987-88 was to Ribault Senior High as a language arts teacher. On November 12, 1987, Ms. Ray did a further spot check at Ribault High School. She discovered that the same two teachers who had had problems before in the March 13, 1987 evaluation presented problems on this occasion. Those persons were the Respondent and Elaine Dealing. Unlike Respondent, Ms. Dealing had an excuse for noncompliance in that she had been on leave for the quarter and the failure to meet requirements of the Jack Gordon Program were attributable to one or more substitute teachers taking over her classes. As seen in Respondent's Exhibit No. 1, a monitoring form used by Ms. Ray, Respondent did not present any folders for examination. The only items which were available were eight personal letters as part of a writing assignment. The grading which was done by Respondent concerning those papers was sufficient. The unavailability of folders was not acceptable and Ms. Ray commented on that problem reminding the Respondent to make completion of those folders a priority. Respondent in her testimony says that when she was made aware of the request by Ms. Ray to audit Jack Gordon program materials, all she had available to her, that she could put her hands on real fast, were the personal letters. She turned these materials over to a Ms. McAfee to present to Ms. Ray. No contact was made between the Respondent and Ms. Ray on the occasion of this inspection. Mr. Williams memorialized the November 12, 1987 incident with Ms. Ray through a memorandum of November 17, 1987 directed to Respondent and signed as received by Respondent. A copy of that memorandum may be found as Petitioner's Exhibit No. 2. It comments to the Respondent that she did not have any folders available on November 12, 1987 and reminds her that this was the second straight year in which she was not in compliance with Jack Gordon requirements. The memorandum refers to the idea that further noncompliance would be reflected in the annual evaluation. On January 29, 1988, Mr. Williams wrote the Respondent and advised her of his intentions to rate her less than satisfactory in the upcoming March 15, 1988 annual evaluation. The reason for this decision was principally related to Respondent's problems in the Jack Gordon writing program. Contrary to the requirements of maintaining the Jack Gordon writing program student folders at school, between January 29, 1988 and the date of the annual evaluation of that year, on any occasion of a visit by Mr. Williams to examine the folders, the folders were not present at school. Mr. Williams attributed the failure to maintain the folders at school as a matter of personal stubbornness on the part of the Respondent. Having considered the explanations by Respondent at hearing, the failure to maintain the folders at school as required certainly can be characterized as stubbornness. Consequently on March 21, 1988, Respondent received an unsatisfactory annual evaluation form Mr. Williams as may be seen in a copy of that evaluation, Petitioner's Exhibit No. 39. Respondent was rated less than satisfactory because of problems with her compliance with the Jack Gordon writing program. Respondent offered no specific contest to the finding of unsatisfactory in her 1988 evaluation. Respondent's suggestion concerning the 1987-88 school year in which she says that her Jack Gordon writing program work was current through the end of that school year is not accepted. Following the finding of unsatisfactory performance in March, 1988, Mr. Williams did not see any of the student folders of Respondent. He had required that all Jack Gordon teachers turn in those folders as part of their year end checkout from school. Respondent did not submit her folders at the time of checkout and had her salary payment delayed as a consequence. Contrary to policy she had taken those folders home with her at the end of the school year and did not turn them in until late July or early August, much beyond the end of the 1987-88 school year. Although Respondent did not request reassignment, she was transferred to Andrew Jackson High School for the school year 1988-89. Following that assignment she did not contest the decision of the school board to place her in that position. Her principal for the 1988-89 school year was Jack Shanklin. He was aware of the prior less than satisfactory rating Respondent had received in the school year 1987-88 related to noncompliance with the requirements of the Jack Gordon writing program. Mr. Shanklin met with the Respondent in preplanning at the beginning of that school year and discussed those prior circumstances and offered help to her if she felt it was needed. In reply, Respondent stated that she understood what the problem was, without specifically mentioning what she meant by that remark and indicated that she would not allow it to happen again. Mr. Shanklin reminded Respondent that if she would comply with the Jack Gordon program requirements she would not have a problem in getting along with Mr. Shanklin. Respondent gave her further assurance to Mr. Shanklin that she was going to comply with that program and would let him know if she was having any difficulties and that she just wanted to get a fresh start. To monitor Respondent's performance Mr. Shanklin appointed Barbara Short, Assistant Principal for Curriculum at Andrew Jackson High School, to act as supervisor of the Respondent related to compliance with the Jack Gordon writing program. In November, 1988, Ms. Ray made a limited check of Jack Gordon student folders at Andrew Jackson High School. This representative sampling included five folders from the Respondent and they were in compliance with requirements. Ms. Ray made Mr. Shanklin aware that the folders submitted were satisfactory and how pleased she was with Respondent's improvement compared to previous surveys. Mr. Shanklin followed this up by making Respondent aware of his pleasure with her apparent performance. As is contemplated with a teacher who has been found unsatisfactory in a previous academic year, a midyear evaluation was made in December, 1988. In preparing this evaluation Mr. Shanklin observed Respondent's classroom performance as well as being aware of the apparent compliance with the Jack Gordon writing program as evidenced in the November, 1988 spot check by Ms. Ray. Respondent was found to be progressing satisfactorily. The school district scheduled and performed a full audit of the Jack Gordon writing program at Andrew Jackson High School on February 21, 1989. Respondent had been made aware of the pending audit approximately a week before. Leading up to the audit Respondent had told Ms. Short, Ms. Cascone and Mark Nichols, the Language Arts Department Chairman at Andrew Jackson High School, that she would be prepared for the audit. At a Saturday morning meeting with Mr. Nichols three days before the scheduled audit Respondent assured him that she would be ready. Prior to the audit Respondent had never told anyone that she was having any difficulty getting ready for the audit or that she needed any assistance in preparing for the audit or had experienced any difficulty with compliance with the Jack Gordon writing program since coming to her new school. On the day of the audit Respondent's folders were not ready. Respondent acknowledges that her folders were out of compliance at that time. She did not present her folders to the auditor at the designated time and place. When Ms. Short inquired of Respondent at Respondent's room concerning the student folders Respondent told her that she only needed 10 to 15 minutes to have them ready for the auditors. Respondent then went to the auditors without her folders and as she describes it, "fell apart with them." On the day following the audit, Mr. Shanklin met with the Respondent and asked her if there was a reason why she was unable to provide the student folders to the auditors and why she was not ready for the audit, especially since she had told other personnel prior to the audit that she would be ready. Respondent had no explanation. She did say that she had her Jack Gordon writing program assignments at home. Mr. Shanklin advised her to bring them to school on the following day. On February 23, 1989, Respondent produced for her principal a disorganized stack of classroom papers for her five periods of Jack Gordon writing program classes. The detailed examination of these materials made by Ms. Short revealed that with the exception of one class period that had been reviewed in November, 1988 by Ms. Ray, the Respondent's Jack Gordon materials were not in compliance with requirements. Some of the class assignments in the Jack Gordon writing program had not been graded since the beginning of the school year. Respondent acknowledges that between November 1988 and February 1989 a number of student folders were at her home on a rotating basis. Again this is contrary to school district policy. While Respondent and others have identified the fact that a certain amount of time outside the school day was necessary to comply with the dictates of the Jack Gordon writing program, this did not justify carrying the student folders home. The folders could have been left at school and the individual papers graded at home and returned to the folders. Having been made aware of the extent of the problems, Mr. Shanklin gave Respondent until April 5, 1989, to bring her classes into compliance with the Jack Gordon writing program requirements. He placed her on a specific schedule for updating her folders as described in Petitioner's Exhibit No. 9 which is a memorandum to Ms. Thompson concerning the schedule. In addition, he extended the date of her annual evaluation until April 14, 1989 and advised her that if she failed to adhere to the compliance schedule which he was establishing he would find her to be unsatisfactory in the annual evaluation. Ms. Short was assigned to follow Respondent's progress in carrying out the requirements for gaining compliance. In an attempt to assist the Respondent in bringing her work into compliance, she was released from her cafeteria duty in one of the time blocks in the daily schedule. This was an opportunity unique to the Respondent compared to other teachers. Under the schedule for achieving compliance with the updates contemplated by Mr. Shanklin, Respondent was to have concluded those items related to her first period class on or before March 3, 1989. Her success in that endeavor is commented on in the Petitioner's Exhibit No. 12, a memorandum from Ms. Short to Mr. Shanklin. Leading into those comments, Ms. Short established that in her review of the Respondent's materials it was discovered that although the school year was in its third quarter at the time of the February 21, 1989 audit, Respondent had not graded any first period assignments since the end of the first quarter. Between February 23, 1989 and March 3, 1989, Respondent did catch up with some of the materials; however, folders for Wanda Massey and Katrina McClain were empty and no work had been graded for the year for those students and no student logs maintained. Sharon Batson and Jack Morris had been given credit in the grade book for completing two assignments, although their folders were devoid of any evidence of that. Nothing had been graded for 10 of the students in that class for the third nine weeks. For those 10 students, out of the 24 assigned to the class, at least four assignments should have been graded in the third quarter, even taking into account a two week leeway for grading as referred to before by Ms. Ray and as described in the facts. Concerning the second period class of the Jack Gordon Program, 14 students were enrolled in the program and Respondent had until March 10, 1989 to upgrade the work. Having considered the criticisms directed to Respondent's attempt at compliance with Mr. Shanklin's deadline for period two, as mentioned in Petitioner's Exhibit No. 14, a memorandum from Ms. Short to Mr. Shanklin, in the context of Respondent's explanations, only the remark concerning the fact that one student had two assignments missing from his folder is found to be an item for which Respondent is answerable. As contemplated by the schedule, Respondent was to have updated materials for her third period class on or before March 17, 1989. She was unable to turn in those materials on March 17, 1989, because of automobile problems and the work was subsequently submitted on March 20, 1989. This allowed the Respondent an additional opportunity over the intervening weekend to do work on that class. Fifteen students were enrolled in that class and none of the folders were found out of compliance when submitted on March 20, 1989. The schedule called for submission of information concerning the sixth period by March 23, 1989. This was a class in which 26 students were enrolled at the time of the attempt at remediation of Respondent's performance. At the due date this class continued to have a substantial number of problems concerning Respondent's performance in the Jack Gordon writing program. Respondent had not done a great deal between February 21, 1989 and March 23, 1989 to catch this class up. Related to the student Joseph Adams, no assignments or log could be found for his work in the second semester. For the student John Arwood the grade book showed credits given for assignment no. 17, but the assignment was missing from the folder and no assignments or log could be found for the second semester. For the students Anthony Barreras, Rollins Burk and Sherria Gadsden the folders contained graded work in the first semester; however, the grades were not posted in the grade book and no assignments or logs were found for the second semester. The student Denise Coakley was shown as being enrolled in the third nine weeks roll; however, no assignments or log were available for this student. Where the student Michelle Cook is shown in Petitioner's Exhibit No. 17, the report from Ms. Short to Mr. Shanklin concerning compliance with the deadlines for updating the six period class, that reference should be to Michael Cook. That student did not have grades posted for the first semester. The student Kelly Cone appeared in the second nine weeks roll; however, no folder or grades were posted in that period nor was any information found concerning this student in the second semester. Concerning the students Zachray Evans and Diana Stallworth, there was work from the first semester in the folders but no grades had been posted. For the students Michael Howard, Jerris Johnson, and Jason Kent, the student folders were empty, no grades were posted and no logs were found. For the student Arquilla McCoy, there was no student log or assignments for the first semester. For the student Cheree Odom, whom Ms. Short said was on the roll for the entire year, nothing had been placed in her folder for the first semester. Respondent explained that the first three or four weeks of the first semester Cheree Odom had been in the wrong class; however, this does not explain the lack of entries beyond that first three or four weeks. Respondent had until April 5, 1989 to bring her work into compliance related to the Jack Gordon Program for the seventh period. Petitioner's Exhibit No. 18 is a report from Ms. Short to Mr. Shanklin concerning Respondent's success in that attempt. Twenty students were enrolled in period seven at the time of the memorandum. For the students Roger Bearden, Katra Davis, Bo Browning, Micheal Liddell and Ted Myer there was no log or work in the folders for the second semester. For the student Richard Jenkins there was no log in the folder and he was missing 12 assignments; however, Respondent indicated that the student was often suspended. The students Charlie Johnson and Ron Morris had nothing in their folders for the second semester and were missing one or more assignments related to the first semester. Sonia Price, James O'Quinn, Charles Toliver, Erskin Townsend, Douglas Tyus and Anthony Wade had no assignments for one or more of the required assignments. Tonya Simmons was missing a student log for her assignments. Athena Snipes and Sabrina Souls had no work in their folders for the first semester, although grades were posted in the grade book in that semester. Having concluded the check of the individual class periods, Ms. Short made a further overall assessment of Respondent's compliance with the requirement to keep current with the work in the Jack Gordon Program beyond the deadlines imposed for checking the individual classrooms. A memorandum of her findings concerning this further evaluation may be found as Petitioner's Exhibit No. 20 which was prepared on April 12, 1989 and submitted from Ms. Short to Mr. Shanklin. What it finds is that Respondent, associated with the first period class after the folders had been checked on March 3, 1989, had not kept them current beyond that date. As of April 12, 1989, none of Respondent's first period Jack Gordon folders contained any assignment or log entry subsequent to writing assignment no. 24. Effective April 12, 1989, assignment 29 should have already been given and the next day assignment no. 30 would have been given. Using the two-week grace period identified by Ms. Ray, all activities in the program assignments should have been completed through assignment no. 27. In a similar vein, Respondent's second period folders which were checked a week later than the first period folders contain assignments up through no. 25 and the third and sixth periods had assignments up through no. 26 while the seventh period had assignments through no. 27. Therefore, period seven is the only one of the class periods which could said to be in compliance. In the memorandum which is Petitioner's Exhibit No. 20, Ms. Short noted that in reference to earlier reports made to Mr. Shanklin concerning individual class periods some of the folders still remained incomplete regarding logs and missing assignments. Respondent's testimony, to the effect that the observations in Petitioner's Exhibit No. 20 are questionable because Respondent was unable to place information into the folders due to Ms. Short's comment that the folders could not be touched unless Mr. Shanklin gave his permission, is not credited. Petitioner's Exhibit No. 20 describes the fact that between April 5, 1989 and April 12, 1989 Respondent had not taken advantage of the use of all folders in her free periods at school to do work in the folders. As evidenced in a memorandum from Respondent to Ms. Short a request was made to work on the folders at school on the weekend following April 14, 1989. This request was denied because of the lack of security control at the school over the weekend. On April 20, 1989, Mr. Shanklin wrote to the Respondent to advise her that the folders which had been maintained in Ms. Short's office during the monitoring activities following the February 23, 1989 schedule of compliance directed by Mr. Shanklin could be removed from Ms. Short's office during the day. This did not allow the Respondent to take the folders home over night or on the weekend. The memorandum advised the Respondent that, as had been case in the entire episode, Respondent was at liberty to take home sets of assignments for purposes of grading. Nothing in any of the arrangements made by Mr. Shanklin following his decision to order specific compliance after February 23, 1989, were so inhibiting that they did not allow Respondent to honor Mr. Shanklin's instructions. In a more general sense, nothing done by any of the administrators in the relevant period of discussion kept the Respondent from performing her duties related to the Jack Gordon writing program. Other teachers were able to comply and Respondent should have been able to do so as well. Petitioner's Exhibit No. 25 is the memorandum of April 20, 1989. It was entered in response to Respondent's request to have the opportunity to take the folders out and work on them. On April 13, 1989, Respondent sent a memorandum to Mr. Shanklin asking that he make arrangements to have Ms. Ray and Ms. Cascone review her Jack Gordon materials. She also requested that Mr. Nichols be in attendance in this review. Mr. Shanklin was unwilling to allow Mr. Nichols to leave his duties to attend a review. He did honor the request to contact Ms. Ray and Ms. Cascone. In this matter, Mr. Shanklin did not encourage the Respondent to have this assessment made by Ms. Ray and Ms. Cascone. In fact, he told Respondent that it would not help and more than likely would be adverse to her position. Respondent persisted in her request. This arrangement came about at a time when the annual evaluation of April 14, 1989 was imminent. Prior to the visit by Ms. Ray and Ms. Cascone Respondent received her annual evaluation of April 14, 1989. A copy may be found as Petitioner's Exhibit No. 41. It was unsatisfactory based upon the problems that had occurred in Respondent's performance related to the Jack Gordon writing program. This was a performance for which she had no reasonable explanation. The evaluation was correct in the portrayal of the unsatisfactory performance. On April 25, 1989, Ms. Ray and Ms. Cascone reviewed the Respondent's Jack Gordon student folders. The review showed that the Respondent's folders were not in compliance with the requirements of that program. At the time of the review assignment no. 31 should have already been given. Allowing the two assignment leeway for compliance, assignment no. 29 should have been completed. Ms. Ray rendered a report to Mr. Shanklin on April 27, 1989 concerning her findings in the evaluation of Respondent's Jack Gordon program materials. A copy of that report may be found as Petitioner's Exhibit No. 26. She found graded student papers through assignment 30 in two periods, assignment 29 in one period and assignment 26 in two periods. She found student logs through April 13, 1989 in one period, through March 17, 1989 in one period, through March 6, 1989 in two periods and through March 2, 1989 in one period. Obviously, Ms. Ray's comment that the folders as of April 25, 1989 should contain a minimum of 31 writing assignments do not take into account the two-week leeway that Ms. Ray identified at hearing. This would also have an affect on her opinion that the student logs should have been updated through April 21, 1989. The actual date of updating which was incumbent upon Respondent was April 7, 1989. This is the most recent date using the two-week leeway. Ms. Ray noted that the written comments that Respondent had provided to the students were thoughtful and in many cases thorough, a further indication that the problems the Respondent had were not related to her lack of understanding of the requirements of the program. In her remarks in the memorandum and in her testimony at hearing Ms. Ray expressed her concern that the lack of timeliness in returning the papers to the students had caused Respondent's comments to lose their intended instructional effectiveness and a concern that the problem with timeliness had possibly led to an alarming number of student folders where assignments were not completed. Ms. Ray also remarked on her concern about the lack of integration of writing assignments into the total program of language arts instruction. All these observations are valid. On May 17, 1989, as reflected in Petitioner's Exhibit No. 27, a copy of a memorandum from Ms. Short to Mr. Shanklin, where Ms. Short observed that Respondent was still not in compliance as exemplified by the fact that in the grade book there were grades posted through assignment no. 32; however, there was no proof that any work had been done. The folders and logs were still in the same state that they had been at the time of the April 25, 1989 inspection by Ms. Ray and Ms. Cascone. The Ray and Cascone inspection and the report of Ms. Short of May 17, 1989, took place on dates succeeding the date upon which Respondent was able to retrieve folders from Ms. Short's office. On May 19, 1989, Mr. Shanklin wrote a memorandum to the Respondent attaching a copy of the May 17, 1989 memorandum from Ms. Short. Mr. Shanklin, through his memorandum, directed the Respondent to make use of her two-hour block of free time in bringing the materials current by May 26, 1989. At the end of this school year as reflected in Respondent's Exhibit No. 1, certain materials were to be turned over from Respondent to Mr. Nichols, her department chairman. These items were select papers from periods one, two or three for the first nine weeks and from period six for the fourth nine weeks, together with one complete student folder. Petitioner's Exhibit No. 45 is a box of materials which Respondent indicates were given to Mr. Nichols in conformance with this requirement. A further indication of this arrangement is found in a note from Ms. Short to Respondent dated June 12, 1989, Petitioner's Exhibit No. 29, which says that all materials not given to Mr. Nichols should be given to Ms. Short. The student folders, devoid of the materials that had been given to Mr. Nichols are said to be found as Petitioner's Exhibit No. 46. Evidence of these latter abridged materials being turned over is found in Petitioner's Exhibit No. 30, indicating that a check was issued by Ms. Hodge, the vice- principal, in return for the receipt of the folders for the various periods. Respondent's Exhibit No. 2 is a further checkout list that shows that Jack Gordon program materials had been turned in as evidenced by the signature of Mr. Nichols. Petitioner's Exhibit No. 45 appears to contain more than what was requested in Respondent's Exhibit No. 1. In addition to the materials that had been submitted to Mr. Nichols and Ms. Short, found in Petitioner's Exhibit Nos. 45 and 46 respectively, there was a folder of ungraded materials, Petitioner's Exhibit No. 44, which Respondent has no explanation for other than a vague reference that someone must have removed them from her control without permission. Upon reflection, it is found that these items were papers which Respondent was responsible for and failed to take appropriate action on. These papers have been compared to the grade books which are part of Petitioner's Composite Exhibit No. 47 and to the materials, Petitioner's Exhibit Nos. 45 and 46. This examination points out the continuing disarray in the materials beyond the point at which Respondent claims to have brought all student folders into compliance. Petitioner's Exhibit No. 44 exemplifies the fact that papers were not graded and no grades were received or the papers were not graded and grades were received. In comparing the papers found within the Petitioner's Exhibit No. 44 to Petitioner's Exhibit Nos. 45, 46 and 47, it also revealed that there were instances of noncompliance forms sometimes signed by the students and sometimes not and dated beyond the appropriate date for the assignment where Petitioner's Exhibit No. 44 demonstrated that the assignments had been carried out. Although there was no obligation by the Respondent to maintain noncompliance forms as a mandatory requirement from the school district, the appearance of the noncompliance forms which is designed to evidence the student's refusal to carry out the assignment when the student has actually completed assignment is an indication of Respondent's confusion if not outright duplicity. The pattern of this series of noncompliance forms containing the assignment number, the name of the assignment and incorrect date, appears to be written by one person with a signature being provided by another person, and in one instance no signature where the form contemplates the student signing his or her refusal to complete the paper. By a June 23, 1989 memorandum, a copy of which is Petitioner's Exhibit No. 31 from Ms. Short to Mr. Shanklin, Respondent remarks about the existence of a folder of ungraded work left with Mr. Nichols which is most likely the folder which is Petitioner's Exhibit No. 44. For Val Custis, a student in period one, Petitioner's Exhibit No. 44 contains ungraded assignments 28, 30, 33, 34 and 35. These papers were dated March 23, 1989; April 13, 1989; May 4, 1989; May 11, 1989 and May 25, 1989 respectively. In Petitioner's Exhibit No. 46, the student folder with log, this student received zeros in the log and the folder had noncompliance forms apparently signed by the student with the dates April 6, 1989 for assignment 28; April 18, 1989 for assignment 30; May 8, 1989 for assignment 33; May 15, 1989 for assignment 34 and May 22, 1989 for assignment 35 written with a different pen than the signature. The expected dates for those assignments respectively were March 23, 1989; April 13, 1989; May 4, 1989; and May 11, 1989 and May 18, 1989. In Petitioner's Composite Exhibit No. 47 the student did not receive a grade in the grade book for these assignments. For the student Heather Allen who was in the first period, Petitioner's Exhibit No. 44 showed assignments being prepared for numbers 33 and 34 dated May 4 and 10, 1989. Those assignments were not graded. In Petitioner's Exhibit No. 47, the grade book, it looks as if certain entries had been made assigning the grade as zero and erased. In Petitioner's Exhibit No. 46 noncompliance forms were shown as having been signed by the student and dated on May 8, 1989 and May 15, 1989 respectively, with the grades of zero being shown in the student log. Joseph Adams, who was in the sixth period class and who had an ungraded assignment 17 found within Petitioner's Exhibit No. 44, received a zero in the grade book, Petitioner's Composite Exhibit No. 47. The expected date of the assignment was December 15, 1988. In Petitioner's Exhibit No. 46 Adams received a zero on his student log and there is a noncompliance form with his signature and a date January 12, 1989. By contrast, Rollins Burks has an ungraded assignment no. 17 in Petitioner's Exhibit No. 44. In the grade book he received the maximum score of 50, Petitioner's Exhibit No. 47. In his folder, Petitioner's Exhibit No. 46, the student log reflects the same grade. The folder contains no other information about this assignment. Anthony Barreras was a student in the sixth period class. He has ungraded assignments no. 17, 32 and 34 found within Petitioner's Exhibit No. 44. They are dated April 26, 1989; June 8, 1989 and June 8, 1989. He received a 50 in the grade book, for assignment no. 17. Within Petitioner's Exhibit No. 46, his folder, his student log shows a grade of 50. There is no other information in the folder about the assignment. Related to assignment 32 he received a 38 in the grade book for a paper which was supposed to have been assigned April 27, 1989, and was shown as being completed June 8, 1989. For this assignment, in Petitioner's Exhibit No. 46, his student log shows that he received a zero and there is a signed noncompliance form with a date of May 1, 1989. For assignment no. 34 there is a zero in the grade book. In Petitioner's Exhibit No. 46, there is a log entry of zero and a noncompliance form signed by the student with a date May 15, 1989. Dee Douberly was a student in the third period class who has an ungraded assignment no. 31 in Petitioner's Exhibit No. 44. The expected date of that assignment was April 20, 1989 and it was prepared on May 25, 1989. Petitioner's Exhibit No. 47, the grade book, does not contain a grade for this assignment. It appears that an entry was made and then erased. In the student log it says that the assignment was turned in, and in the log, which is part of Petitioner's Exhibit No. 45, it shows that the student received 46 out of a maximum of 50 points. The student log contains a noncompliance form which is unlike the other noncompliance forms which have been described in that it does not contain the student's signature. It does reflect a date of April 25, 1989. A review of the log associated with the student Douberly reflects that this student was a solid performer. In addition to the students whose names have been mentioned as having ungraded work in Petitioner's Exhibit No. 44, there are others as well. These examples point out the confusion in this process caused by Respondent's inattention to her duties and the possibility that Respondent was acting fraudulently, all at the expense of the students' opportunity to receive meaningful instruction. Respondent in her testimony acknowledged the effect of a student receiving a zero for work that they had done as having an influence on the grade he or she received. As mentioned, Respondent never explained herself concerning her failures in the Jack Gordon writing program when the administrators in her two schools were attempting to confront these problems. As it turned out, she did not need assistance in having someone explain the methods to be employed in carrying out the program and did not request permission to absent herself from her duties if she believed that she was either physically or mentally unable to continue. At hearing she attempted to justify her inadequate performance by the use of depositions of Mr. Richard A. Fridemann, a clinical social worker, and Dr. David T. Murray, a medical doctor who specializes in internal medicine. Mr. Fridemann identified Respondent's emotional difficulties associated with depression. Having considered his remarks they do not adequately explain nor excuse her performance associated with the Jack Gordon writing program. Likewise, Dr. Murray, who has treated the Respondent for hypothyroid condition, a condition which she has experienced for a considerable length of time, was unable to explain Respondent's inadequate performance associated with the Jack Gordon writing program. While it is clear based upon Dr. Murray's remarks that the hypothyroid condition can impair functioning, the reported period in which Respondent suffered that condition, within the experience of Dr. Murray was September 30, 1986 through November 18, 1986 at which time she was undergoing treatment. From that latter date until May 16, 1989 Respondent had not presented herself to Dr. Murray for treatment concerning the hypothyroid condition. The period November 18, 1986 through May 16, 1989 encompassed the period in which her performance as a teacher was substandard. In this connection Respondent testified that, at the end of the school year 1988-89, medication which she was taking for hypothyroid was controlling that problem. Another health related problem associated with kidney and urinary track infection is not found to have influenced Respondent to the extent that she was unable to perform her duties at critical points in time and to be an excuse for her inadequate performance.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is, recommended that a Final Order be entered which dismisses the Respondent from her employment with the Duval County School Board. RECOMMENDED this 21st day of August, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 21st day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4131 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-35 are subordinate to facts found. The sub-parts A and B to Paragraph 36 are contrary to facts found. Paragraphs 37-39 are subordinate to facts found. Paragraph 40 is contrary to facts found in the suggestion that the current assignment should be no. 29. Paragraph 41 is contrary to facts found. Paragraph 42 is subordinate to facts found. Paragraph 43 is incorrect in the statement that the date is March 23, 1989 as opposed to February 23, 1989. Paragraph 44 is subordinate to facts found. Paragraph 45 is contrary to facts found. Paragraphs 46-49 are subordinate to facts found. Paragraph 50 is not necessary to the resolution of the dispute. Paragraphs 51-54 are subordinate to facts found. Respondent's Facts Paragraphs 1-6 are subordinate to facts found. Paragraph 7 is contrary to facts found. Paragraph 8 sets out claims made by the Respondent as to her condition and the inability to carry out her duties; however, these explanations are not corroborated by any medical evidence and having considered these contentions by Respondent in the context of the overall case are not accepted. The comments in Paragraph 9 concerning Respondent's medical condition although accepted as correct do not promote a contrary result in the recommended order but excusing Respondent's performance. Paragraph 10 is contrary to facts found. As to Paragraph 11 while it is accepted that Respondent was grief stricken about the death of students and co-workers, the dimensions of this grief as it might explain her performance was not sufficiently identified to form a justification for her performance. As to Paragraph 12 see the explanation related to Paragraph 11. Paragraph 13 is subordinate to facts found. Concerning Paragraph 14 and 15, while Respondent may have experienced problems with Mr. Williams her principal, this does not excuse nor justify her performance in the 1987-88 school year. Paragraph 16 is contrary to facts found. Paragraphs 17 and 18 are subordinate to facts found. As to Paragraph 19, this representation does not indicate that the transfer from Ribault High School to Andrew Jackson High School was inappropriate. As to Paragraph 20, although there may be some possibility of a transfer to a junior high school level where Jack Gordon writing requirements are not required, that topic was not sufficiently developed in this record to allow a recommendation to that affect. On balance, based upon record that was established dismissal as a teacher is the appropriate disposition. As to Paragraph 21, while it is accepted that the Respondent was a traveling teacher, this did not excuse her from carrying out her Jack Gordon Writing Program responsibilities. As to Paragraph 22, it is not accepted that the Respondent's problems in November, 1988 and February, 1989 were attributable to her illness. As to Paragraph 23 that Mr. Shanklin and Ms. Short were not aware of Respondent's health problems sufficient to allow Respondent to take leave and turn the duties of the Jack Gordon writing program over to another teacher. It would have been an inappropriate form of assistance or relief to allow Respondent to be at her duty assignment and have others responsible for conducting her work. Moreover, the way Respondent presented herself concerning these problems was such that she did not explain her difficulties with the program in answering inquiries about the reasons why she had not performed at an adequate level and she did not ask for relief from her duties at a time that may have saved her the embarrassment and protected the students against her substandard performance. As to Paragraph 24, while the folders were maintained in Ms. Short's office this did not preclude the Respondent from being able to carry out necessary updating. As to Paragraph 25, it is not accepted that the use of the noncompliance form aggravated Respondent's attempt at complying with the February 23, 1989 instructions of Mr. Shanklin. As to Paragraph 26, it is accepted that work was turned in at the end of the school year 1988-89, but as described in the recommended order the materials were not in an acceptable state. As to Paragraph 27, to the extent this is intended as an explanation for not grading the materials set out in Petitioner's Exhibit No. 44, it is not accepted. COPIES FURNISHED: Lee S. Carlin, Esquire Assistant Counsel Office of General Counsel 421 West Church Street 715 Towncentre Jacksonville, FL 32202 Albert S. Millar, Esquire 2721 Park Street Jacksonville, FL 32205 Larry L. Zenke, Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, FL 32207 Stan Jordan, Chairman Duval County Public Schools 1701 Prudential Drive Jacksonville, FL 32207 Betty Castor, Commissioner Department of Education 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue Whether Respondent's conduct in recruiting, selecting, and hiring Robert Denson as Associate University Attorney was improper and justifies imposition of University discipline pursuant to Rule 6C-5.27, Florida Administrative Code.
Findings Of Fact Ultimate facts are conclusions reached by applying inference and logic to evidentiary facts. See, Feldman v. Department of Transportation, 389 So.2d 692, 694 (Fla. 4th DCA 1980). The following conclusions address the charges brought against Biggs by the University. XII. Preselection A preponderance of evidence does not establish that Biggs preselected or decided to hire Robert Denson prior to recruiting and evaluating other applicants for the job of Associate University Attorney. Although Biggs was impressed with Denson's performance as an Assistant Dean and, no doubt, felt Denson could be an effective Associate University Attorney, such facts, in themselves, do not establish preselection. There is no evidence that Biggs ever encouraged Denson to seek employment as an Associate University Attorney; at the time of the alleged preselection, Biggs believed Denson planned to enter private practice. 16/ With such a belief, it would have been improbable that Biggs decided, in advance, that Denson would be his choice. Prior to learning of Denson's interest in the position, Biggs engaged in conduct designed to broaden the applicant search and open the position to increased numbers of out-of-state female and black applicants. 17/ Denson's ultimate selection and employment under those broadened search criteria does not provide a sufficient basis to conclude that the criteria were originally devised with Denson in mind. Out of over 70 applicants, the Search Committee independently selected Denson as its number two choice. It was not until after his justifiable rejection of the Committee's number one choice that Biggs decided that Denson was the most qualified applicant and should be selected. His tenacious efforts to defend that decision are consistent with his conviction that his decision was correct. XIII. Service on the Search Committee Biggs did not know and was not reasonably on notice that his service on the Search Committee was contrary to University Search and Screen Procedures. At the time, the published procedures did not expressly prohibit a hiring authority from serving on a Search Committee which he or she appoints; neither did the guidelines infer or give reasonable notice that such action was proscribed. Although Biggs served on the Search Committee, the weight of evidence indicates the Committee functioned in an independent manner: its discussions were free and open, its decisions were made by consensus. Biggs neither manipulated its decisions nor unduly influenced its discussions. XIV. Hiring "Unqualified Applicant for the Position Biggs reasonably believed that the SUS requirement of Florida Bar membership had been "waived" by the University's Personnel Office. This conclusion is based on Personnel's action in advertising the position and subsequently screening and approving applicants; on Biggs' prior experience in obtaining waivers of the Florida Bar membership requirement; and on Personnel's inconsistent decisions and interpretations regarding waivers. When Biggs announced his decision to hire Denson, Willits protested that the SUS Florida Bar membership requirement had not, in fact, been "waived"; however, the final decision was then placed before the University Personnel Director, Robert Button. Biggs asked Button whether Denson met the minimum job qualifications and could be hired. (P-27.) Button answered that exceptions (a term seemingly synonymous with waivers) were allowed only for affirmative action purposes, that he did not see how an exception could be applied to hire a white male when there were qualified blacks and women who exceeded the minimum qualifications but that the decision on whether or not to hire Denson must be made by Biggs. Button did not say that Denson could not be hired, or that such a hiring would be disapproved by Personnel. Biggs reasonably construed this to mean that Personnel questioned the wisdom of his hiring Denson but that the decision was a permissible one which was his, and his alone, to make. If Denson could not be hired without violating University fair hiring practices, he had a right to expect that Button would have told him so. Biggs also had reasonable cause to believe that he could successfully justify hiring Denson on his merits--an impressive applicant with unique experience and demonstrated competence. XV. Compliance with the Affirmative Action Policy Biggs' hiring of Denson was not proscribed by any provision of the University's Affirmative Action Plan, a fact seemingly admitted by the University's personnel officer--the person charged with monitoring compliance with the Plan. (Tr. 320-321.) No showing was made that the Plan placed a mandatory duty upon Biggs to hire a black or female applicant who he reasonably concluded was less qualified than a white male. Search Committees were created, in part, to ensure affirmative action and equal employment opportunity; Biggs hired the second choice of his Committee after reasonably rejecting its first choice. Due process requires that charges against an accused be specific in nature. Care must be taken when accusing persons of violating affirmative action policies which are often couched in vague or general terms. XVI. Discrimination in Employment By his recruitment and selection of Denson, Biggs did not discriminate against female or black applicants on the basis of sex or race. His action was not motivated by discriminatory intent; any inference to the contrary is effectively negated by his prior nondiscriminatory hiring decisions and his effort to increase the number of female and black applicants for Carole Taylor's vacant position. His overriding objective was to select the best and most qualified applicant. His failure to select a black or female applicant who he reasonably considered less qualified than a white male cannot and should not be considered impermissible discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the University of Florida enter a Final Order dismissing its charges against Thomas S. Biggs, Jr. DONE AND RECOMMENDED this 17th day of April, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 17th day of April, 1981.
