Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against Petitioner based on his race and national origin.
Findings Of Fact Mr. Chery, a black male who was born in Haiti, began working for the School Board in August 2007 as a school bus driver. Beginning in August 2008, Mr. Chery’s bus schedule was 4:55 a.m. to 9:00 a.m. and 2:00 p.m. to 5:30 p.m. He was paid for eight hours of work. His early morning route started at 4:55 a.m., when he picked up students to take to the fuel pump in Haines City. The early morning route ended at 6:00 a.m. His next route began at 6:10 a.m. and ended at 7:15 a.m., when he delivered students to the high school. The last portion of the morning route began at 7:30 a.m. and ended at 9:00 a.m., when he delivered students to elementary and middle schools. Mr. Chery’s afternoon route began at 2:00 p.m., when he picked up high school students and took them home until 3:00 p.m. Beginning at 3:00 p.m., Mr. Chery picked up students at Eastside Elementary School and transported them until 4:15 p.m. At 4:15 p.m., Mr. Chery picked up students at Boone Middle School and transported them until 5:30 p.m. Mr. Chery’s pay was calculated based on the time that he picked up his first student in the morning until he reached the school to drop off the students and the time that he reached the school in the afternoon until the time the last student was dropped off. One and one-half hours were added to the travel time to compensate for cleaning the bus and doing paperwork. On August 26, 2008, Mr. Chery was arrested. The arrest was a case of mistaken identity and Mr. Chery was released. After he was released, Mr. Chery felt uncomfortable working his early morning route and asked his supervisor, Jeffery Davis, to relieve him of his duty to drive the early morning route from 4:55 a.m. to 6:10 a.m. Mr. Jeffery Davis thought that Mr. Chery meant that he needed a couple of weeks to get over being arrested, and he accommodated Mr. Chery by getting another driver to take the early morning route. Although Mr. Chery was not required to drive his early morning route, he continued to receive the same compensation that he received when he did drive the early morning route. A couple of weeks after the early morning route was removed, Mr. Chery advised Mr. Jeffery Davis that he did not want to resume the early morning route. Mr. Jeffery Davis told Mr. Chery that a new Verification of Assigned Route Time Form, referred to as a Golden Rod, would need to be completed to show the driving times of his various routes.2 Mr. Chery submitted a Golden Rod, which still reflected his early morning route that he was no longer driving. The Golden Rod which Mr. Chery submitted showed that his morning route ended at 9:00 a.m., when it actually ended at 8:45 a.m., and showed that his afternoon route ended at 5:00 p.m., when it actually ended at 4:45 p.m. Mr. Chery was requested to submit another Golden Rod, which he did. The second submittal also contained similar inaccuracies. In mid October 2008, Mr. Chery’s pay was cut to reflect the deletion of the early morning route. Mr. Jeffery Davis completed an accurate Golden Rod for Mr. Chery. The form reflected that Mr. Chery picked up his first student in the morning at 6:10 a.m. and dropped the students off at Ridge Community High School at 6:40 a.m. At 6:40 a.m., Mr. Chery picked up five students at Ridge Community High School and transported them to Haines City by 7:00 a.m. His next run began at 7:25 a.m., when he picked up students to transport to Horizon Elementary, where the students were delivered at 7:50 a.m. At 7:50 a.m, Mr. Chery started his Lake Alfred Middle School route. The first middle school student was picked up at 7:55 a.m., and the students were delivered to Lake Alfred Middle School by 8:45 a.m., at which time Mr. Chery went off the clock. The afternoon route began at 2:00 p.m. when Mr. Chery picked up students at Ridge Community High School. The last high school student was delivered by 2:40 p.m. The next route began at 3:00 p.m., when Mr. Chery picked up students at Horizon Elementary. The last student from Horizon Elementary was dropped off by 3:30 p.m. The last route for the afternoon began at Lake Alfred Middle School at 3:45 p.m., and the last student was dropped off at 4:45 p.m. An attendant rode the Lake Alfred Middle School bus, and Mr. Chery dropped the attendant off at Walgreen’s pharmacy, which is less than ten minutes away from the last student drop off. The amount of time that Mr. Chery worked was seven hours, which included the time for cleaning the bus and doing his paperwork. Mr. Chery was unhappy that his pay was cut, and he requested a meeting with Mr. Jeffrey Davis’ supervisor, Rob Davis, concerning the amount of pay he was receiving. Mr. Chery, Mr. Chery’s wife, Mr. Rob Davis, and Mr. Jeffery Davis met on December 10, 2008, to discuss the pay issue. Mr. Rob Davis asked Mr. Chery to complete a time verification form for five days, showing the time that he spent each day from the time he picked up the first student in the morning until the time he dropped off the last student. Mr. Chery and Mr. Rob Davis met again on December 18, 2008. Mr. Chery had not filled out a time verification form for five days. Mr. Rob Davis told Mr. Chery to complete a new Golden Rod, reflecting the time that he was currently driving. Mr. Chery failed to complete a new Golden Rod. Mr. Chery requested a meeting with Fred Lee Murphy, who was the assistant superintendent for Support Services and Facilities and Operations for the School Board. His duties included managing the transportation system for the School Board. In January 2009, Mr. Murphy met with Mr. Chery and requested that Mr. Chery complete a current and accurate Golden Rod. Mr. Chery refused to do so, and his employment was terminated for insubordination. Mr. Chery claims the School Board paid white bus drivers for eight hours, when the white bus drivers were working only seven hours, and that he was being treated differently because he was black and from Haiti. He bases his claim on hearsay conversations that he had with some white bus drivers. No non-hearsay evidence was presented to show that white bus drivers were being paid for eight hours of work, when they were working seven hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Chery’s Petition for Relief. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 3rd day of December, 2009.
The Issue The issue is whether Respondent's Educator's Certificate should be suspended..
Findings Of Fact Respondent has been in the education profession for 31 years. He holds a master’s degree in psychological counseling and a specialist certificate in educational leadership. He has taught, in chronological order, at Lake City Junior High School, Deland Senior High School, Edison Community College, and Cape Coral High School. He has served as an assistant principal at Cape Coral High School, Riverview High School, and Lehigh Senior High School, for a total of eight years. During his career in education, Respondent has not been disciplined and has generally received excellent evaluations. In August 1999, prior to the return of the students or faculty, Respondent was the assistant principal of curriculum at Lehigh Senior High School. This was a difficult period for the school district. It had spent more than it had received during the prior school year, and the superintendent, Dr. Bruce Harter, had had to recommend to the school board difficult cutbacks, including over 90 teaching positions. The school board had adopted these recommendations, and Dr. Harter had implemented them, starting the 1999-2000 school year. In mid August 1999, while working in the common area of the office in preparation for the return of the teachers to school, Respondent was talking with a couple of other school administrators while they were painting school colors in the office. In charge of preparing the master schedule of classes for the school, Respondent was especially upset at the teaching cutbacks. During a conversation among the three administrators, Respondent commented once or twice, “Who do you want to bet will shoot Dr. Harter?” The administrator who recounted this comment walked away to his office to terminate the conversation. He reported that Respondent was not ranting or raving when making the comment and that Respondent did not make these comments in a threatening manner. The administrator has known Respondent since 1988 and has never known him to be dangerous, threatening, or unprofessional. As all persons involved in this case were aware, this comment was especially distasteful because a distraught school teacher had murdered a superintendent a few years earlier. In a school district the size of Lee County, nearly everyone involved in this case had some personal involvement in the tragic loss of the superintendent. For instance, the administrator who recounted the conversation at the school office had known the teacher who had shot the superintendent. A day or two after the first comment, on August 19, 1999, Respondent attended a meeting at another school for the purpose of welcoming the new principals. Respondent was frustrated because he had applied over a dozen times in the past four years for the position of school principal, but had never even been interviewed. In the course of the presentation, a speaker said, “Let’s give Lynn Strong a round of applause.” Ms. Strong was in charge of personnel and had some involvement in the selection process for principals. In response to the speaker’s comment, Respondent muttered, “I’d rather give her a bullet.” This remark was heard only by two or three other administrators, also from Lehigh Senior High School, who were seated at the same table as Respondent. The administrators hearing Respondent’s remark were not so much alarmed, as they were concerned. The consensus among them was that someone should inform the principal of Respondent’s remarks, and the principal should talk to Respondent. On the same day as the latter statement, the principal visited Respondent in his office and told him that he had learned of these statements and that they were inappropriate. The principal warned Respondent that such statements could get him in a lot of trouble. Without denying having made the statements, Respondent said that he had not intended to act on them. Unsure what, if anything, to do next, the principal received a call from someone in the district office, who had heard about Respondent’s statements. Even though he had worked with Respondent for several years and had never known him to behave unprofessionally, the principal decided to report the threat to Ms. Strong and the superintendent. Ms. Strong became frightened by the report. She had known of the murder of the superintendent, as well as a murder of a teacher in the recent past. Ms. Strong stayed in her home all of the ensuing weekend, and her husband escorted her to work for a couple of weeks. She never contacted Respondent about the situation, largely because Ms. Strong’s professional responsibilities encompassed the investigation, but Respondent never contacted her and explained the situation to relieve her of her understandable anxiety. After an investigation, the school district removed Respondent from Lehigh Senior High School and suspended him with pay for nine weeks. After the completion of the suspension, the school district reassigned Respondent to a second-chance school, until his contract expired at the end of the school year. The next year, the principal of Fort Myers High School, who had known Respondent as an effective educational professional for many years, hired him as a teacher. Respondent’s work after the two incidents in August 1999 has earned him praise from his supervisors. The two comments made by Respondent were repulsive, especially given the tragic recent history of violence directed against Lee County education professionals. Assessed in the context of a long, effective career in education, these two incidents stand out as isolated and largely inexplicable. The only partial explanation appearing in the record was that Respondent had, in August 1997, completed counseling for the sudden death from an undetermined cause of his 22-year-old daughter, while she was attending the University of Florida. The question nevertheless remains why a mature professional educator, himself having recently undergone a tragic, recent loss, would choose to express his displeasure with policy and personnel decisions by oblique references to the death of the administrators making these policy and personnel decisions. Based on the prehearing stipulation, Petitioner abandoned its allegation that Respondent is guilty of a violation of the Principles of Professional Conduct for the Education Profession. In any event, Petitioner did not prove by clear and convincing evidence that Respondent is guilty of intimidating or harassing anyone. Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of gross immorality or moral turpitude. Evaluated in the context of his long professional career in education, these lapses in judgment, although serious departures from good judgment, do not constitute moral turpitude, especially in view of the fact that no one hearing the remarks believed that Respondent intended to do violence to Dr. Harter or Ms. Strong. Petitioner has failed to prove by clear and convincing evidence that Respondent has reduced his effectiveness as an employee of the school board. Absent the willingness of two administrators to work with Respondent following his August 1999 comments, this issue would be more difficult to resolve. However, these administrators have given Respondent the opportunity to demonstrate that he remains an effective educator and has lost none of his effectiveness as an employee of the school board. One’s sense of justice is not offended by Respondent’s removal from administrative duties, nor the likelihood that his resumption of administrative duties will, if ever, be long deferred; however, as a teacher, Respondent remains an effective and valuable employee of the school board, provided he guards carefully against a recurrence of this irresponsible behavior.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 9th day of March, 2001. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Florida Education Center, Room 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Department of Education Bureau of Educator Standards, Room 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 William R. Scherer III Conrad & Scherer Post Office Box 14723 Fort Lauderdale, Florida 33302 Harry A. Blair Harry A. Blair, P.A. 2180 West First Street, Suite 401 Fort Myers, Florida 33901
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to discipline Respondent for misconduct as alleged in the Administrative Complaint (“Complaint”) dated March 10, 2020.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At the time of the alleged incident, Respondent was employed as a testing coordinator at Dunnellon Middle, pursuant to a professional services contract with the Board. During the 2018-2019 school year, Respondent served as a dean of discipline at Dunnellon Middle. As dean, she had dealt with discipline of students possessing drugs on campus, as well as students suspected of smoking marijuana either on a school bus or at the school bus stop. Leah Grace is a guidance counselor at Dunnellon Middle. Michelle Reese is the guidance office clerk. On January 30, 2020, student L.L. came to the guidance office and told Ms. Reese he wanted to speak with Ms. Grace about enrollment in a magnet program for the following school year. However, when L.L. entered Ms. Grace’s office, he sat down and began crying. L.L. confided in Ms. Grace that he “had something he was not supposed to have at school.” L.L. stated that he did not know who to trust. L.L. was distraught and Ms. Grace was unable to calm him. She decided to contact his mother to pick him up from school. Aware that L.L.’s mother does not speak English, Ms. Grace sought help from someone at the school who spoke Spanish. Respondent speaks Spanish. Ms. Grace contacted Respondent and asked her to come to the guidance office to help her with a student. When Respondent arrived at Ms. Grace’s office, she observed L.L. visibly upset, sobbing with his face in his hands, rocking back and forth. Ms. Grace relayed to Respondent what L.L. had shared with her—that he “had something he was not supposed to have at school.” Respondent recognized L.L. and asked him three questions in quick succession: Do you have a weapon? L.L. shook his head “no” in response; Do you plan to hurt yourself or someone else? L.L. shook his head “no” in response; and Do you have weed? L.L. nodded his head in response to the third question, indicating that he did have marijuana. L.L. confided that another student, D.G., had given the marijuana to L.L. in the cafeteria that morning to “hold on to” for him. L.L. had grown anxious during the school day about having the drugs in his possession and had come to the guidance office for help. When L.L. nodded in the affirmative that he had weed on him, Respondent stated something to the effect of “that is no reason to go home.” Respondent suggested L.L. just flush the marijuana down the toilet. L.L. promptly went into a small restroom attached to Ms. Grace’s office, flushed the toilet, washed his face, and began to compose himself. Afterward, Respondent told L.L. he needed to find better friends. As Respondent was no longer needed for translation, she left the guidance office and returned to her duties in the testing lab. Ms. Grace allowed L.L. to go to his next class, a grade-recovery course for which he was already late. Julia Roof teaches the class and had been concerned that L.L. was not in class on time. L.L. arrived at the classroom toward the end of the class period, and Ms. Roof observed that L.L. was upset. L.L. initially insisted that he was “fine,” but Ms. Roof pressed him because he was visibly upset. L.L. confided in Ms. Roof about the incident. He admitted that he had marijuana in his possession at school that day, that another student had asked him to hold it, and that he had been to the guidance office where the marijuana had been “flushed.” Neither Ms. Grace nor Respondent reported the incident to the school resource officer or anyone in school administration. Nor did either of them notify L.L.’s mother. Ms. Roof reported the incident to Delbert Smallridge, principal at Dunnellon Middle, at the end of the school day. Principal Smallridge’s Investigation Mr. Smallridge has served as principal at Dunnellon Middle for nine years, and has worked in the Marion County school system in various positions for 31 years. Ms. Roof reported the incident to Mr. Smallridge after school at car pickup. Before he left the school for the day, Mr. Smallridge contacted the school resource officer to notify him that there was a situation with drugs on the school campus that day. He also notified Brent Carson, director of professional practices (i.e., human resources) for the Marion County School District (“the District”), with the limited information he had obtained. The following morning, Friday, January 31, 2020, Mr. Smallridge began an internal investigation into the incident. He first interviewed L.L., in the presence of Ms. Roof; took notes of the events L.L. related; reviewed the notes verbally with L.L.; as well as having L.L. read them to himself. Afterward, he asked L.L. to sign his name at the bottom of the page as his statement of the incident. The next person he interviewed, Ms. Reese, came to him directly. She reported to Mr. Smallridge that she had information she felt he should know. She told Mr. Smallridge that Ms. Grace had confided in her that morning that she had allowed a student to flush marijuana in plastic bags down the toilet in her office the prior day, and that she was concerned that they may come back up or otherwise cause a plumbing problem. Ms. Reese provided and signed a written statement to that effect. Mr. Smallridge also interviewed, and took a written statement from, Ms. Roof regarding the incident. Before the school day ended, he also spoke to Mr. Carson, who instructed him to complete the school-level investigation by interviewing and getting written statements from Respondent and all witnesses, and do his best to determine what had happened. Mr. Smallridge interviewed Ms. Grace the following Monday, February 3, 2020, in the presence of his confidential secretary. Mr. Smallridge took notes of his interview with Ms. Grace, and Ms. Grace provided a written statement of her own. During his interview with Ms. Grace, Mr. Smallridge noted that “both [Ms. Grace and Respondent] were aware [L.L.] had drugs.” In Ms. Grace’s written statement, she stated that she “couldn’t remember” whether it was she or Respondent who told L.L. to flush the marijuana, “but I think it was me.” She stated that L.L. went to the small bathroom attached to her office, “then came out and told me he flushed it, bag and all.” Ms. Grace’s statement also confirmed that both she and Respondent were in her office when L.L. went to the bathroom. Ms. Grace later resigned from Dunnellon Middle. On August 26, 2020, after her resignation, she gave a second written statement regarding the incident. In that statement, Ms. Grace claimed responsibility for telling L.L. to flush the marijuana and called it a “momentary lapse in judgement.” She felt sorry for L.L. and did not want him to get in trouble, either with the school or with law enforcement. Mr. Smallridge also interviewed Respondent, who stated that, when L.L. nodded his head in response to her question, “Do you have weed,” she understood L.L. to mean that he had marijuana in his system, not on his person. Further, she claimed to have left Ms. Grace’s office shortly after she asked those questions and was not aware that L.L. had drugs on his person or that he flushed drugs in Ms. Grace’s office. Respondent also gave Mr. Smallridge a written statement. In her written statement, Respondent described the events of January 31, 2020. She said that when she first observed L.L. in Ms. Grace’s office, “The kid seemed sick, rocking, sobbing and not speaking.” She continued, “I thought he might be intoxicated as to why he would want to go home and not to the nurse. I asked him if he had weed as if in smoked it, had it in his system. He nodded and continued to cry. I said, that is no reason to go home.” Mr. Smallridge gathered all the statements and notes from his investigation, scanned and sent them to Mr. Carson. Jaycee Oliver is the executive director of employee relations for the District and is responsible for disciplinary issues with District employees, including hearings, grievances, mediations, and arbitrations. Ms. Oliver reviewed the documents from Mr. Smallridge, and discussed the incident with Mr. Carson and Mr. Smallridge. Ms. Oliver determined that the incident warranted a District-level investigation. District Investigation and Discipline The District investigation was conducted by Dawana Gary, director of equities and ethics, who worked with Tyson Collins, an investigator in her department. Ms. Gary was present for the interviews of both Ms. Grace and Respondent. Mr. Collins interviewed the remaining witnesses. Their interviews were recorded. Following the investigation, Ms. Gary prepared an investigative report containing written findings and conclusions. Based on the investigation, Ms. Gary concluded that both Respondent and Ms. Grace violated Florida Administrative Code Rule 6A-10.081(2)(a)1., which provides that the educator’s obligation to the student requires that the educator “[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” She also concluded that both Respondent and Ms. Grace violated School Board Policy 6.27 I., which requires school board employees to comply with rule 6A-10.081. Ms. Gary sent her investigative report to Ms. Oliver, along with a recommendation that both Ms. Grace and Respondent receive a written reprimand, three-day suspension without pay, and mandatory training. Ms. Oliver reviewed the report and recommendation, and was surprised the recommendation was so lenient. Ms. Oliver characterized the violations as “egregious” and recommended to the superintendent that both Respondent and Ms. Grace be terminated. At the final hearing, Ms. Oliver testified that Respondent’s behavior was egregious because, not only did she fail to report the incident or take other measures to protect L.L., but also that allowing the student to dispose of the drugs prevented a proper investigation into distribution of drugs on campus. She maintained that Respondent’s behavior allowed both D.G., who was allegedly selling drugs on campus, and students who may purchase or otherwise obtain drugs from him, to remain in harm’s way. Without the drugs themselves as evidence, any potential investigation was jeopardized. Ms. Oliver discussed the recommendations for discipline at length with the superintendent. The superintendent made the final decision to impose a written reprimand and a five-day suspension, and require Respondent to take a course on “Reasonable Suspicion Drug Training” upon her return to work. L.L.’s statement that Respondent told him to flush the drugs is the only credible evidence on which to base a finding that Respondent did in fact do so.1 Respondent attempted to discredit L.L.’s testimony by introducing evidence (all of which was hearsay) that L.L. had previously been untruthful to teachers and had a penchant for drama. This evidence was neither credible nor reliable. L.L.’s testimony was clear: he acknowledged he had “weed;” he showed Respondent and Ms. Grace the weed; Respondent instructed him to 1 L.L.’s statement is an exception to the hearsay rule as an admission of a party opponent. See § 90.803(18), Fla. Stat. flush the weed; and he flushed the weed down the toilet in Ms. Grace’s private restroom. Ms. Grace’s testimony that she was the one who instructed L.L. to flush the marijuana is also not accepted as credible. Ms. Grace’s original statement to Mr. Smallridge (repeated in her first written statement) that she could not remember whether it was she or Respondent who told L.L. to flush the marijuana, was simply not credible. A middle school guidance counselor in her situation would have a clear memory of instructing a student to flush drugs down the toilet. Likewise, her memory that a teacher instructed the student to do so in her presence would likewise be significant enough to remember clearly. Further, Ms. Grace and Respondent were close colleagues, frequently having lunch together, and socializing outside of school on at least one occasion. Ms. Grace’s subsequent statement accepting responsibility for telling L.L. to flush the drugs was likely an attempt to protect Respondent. When she gave her second statement, Ms. Grace had already resigned from Dunnellon Middle; therefore, she could not be disciplined for falsely accepting responsibility for instructing L.L. to flush the marijuana. Finally, Ms. Grace’s testimony at the final hearing was too well- rehearsed to be credible. Notably, Ms. Grace had a well-rehearsed explanation for why Respondent would not have heard her tell L.L. to flush the drugs while they were sitting in her very small office, and she inserted that explanation in answer to a wholly-unrelated question. She attempted to explain Respondent’s state of mind, which she could not have known. In sum, Ms. Grace’s testimony was unreliable and was insufficient to establish that she, rather than Respondent, instructed L.L. to flush the marijuana down the toilet. Respondent’s testimony that she understood L.L. to mean he had marijuana in his system, rather than on his person, was not credible. L.L. had stated that he “had something he wasn’t supposed to have at school.” Respondent asked him if he “had weed” after asking him if he “had a weapon,” clearly seeking knowledge of what he possessed at school that he knew was off limits. Further, L.L.’s testimony that he showed Ms. Grace and Respondent the weed is accepted as true. Even if Respondent’s testimony that she understood L.L. to mean that he had marijuana in his system was accepted as true, that fact, coupled with her description of him as appearing ill, and possibly intoxicated,2 created a responsibility to take some step to protect the student’s health and well- being. If she understood L.L. to mean that he had ingested marijuana, and he appeared to her to be ill, her statement “that is no reason to go home,” was completely unprofessional. L.L.’s mother should have been contacted to pick him up from school, and administration should have been notified so that the situation could be avoided in the future to secure L.L.’s health and safety, as well as other students potentially involved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding both the charges and the discipline imposed against Respondent, Maria Acosta. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 18th day of November, 2020. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Eric J. Lindstrom, Esquire Egan, Lev, Lindstrom & Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627 (eServed) Heidi S. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times relevant hereto, respondent, Erron L. Evans, was a student at Miami Norland Senior High School (MNSHS) in Dade County, Florida during school year 1986-87. The school is under the jurisdiction of petitioner, School Board of Dade County (Board). During the first half of school year 1986-87, Erron was a thirteen year old ninth grade student. He turned fourteen on January 1, 1987. Between September 17, 1986 and January 6, 1987 Erron was the subject of at least five student case management referral forms for disruptive conduct in class or on the school premises. These forms are used whenever a student is referred to the principal's office for disciplinary action. They are used sparingly and only when the conduct is so "extreme" as to warrant their use. Such forms related to incidents occurring on September 17, October 3 and 27 and December 4, 1986 and January 6, 1987. On September 17, Erron and R. W., another male student, became embroiled in a fight after Erron provoked R. W. by calling him names. The encounter was eventually broken up by a teacher, and Erron earned a ten-day suspension from school for his misconduct. On October 3, or the day when Erron returned from his suspension, Louis Allen, a teacher and football coach at MNSHS, was in his classroom during lunch hour when three students entered the class and placed their books on empty desks. When Allen told them they could not leave their books in the classroom during lunch hour, one student responded they did it regularly. Allen said that was not true for he had never seen them do it before. The same student responded "You're a Goddamned liar." Not knowing the identity of any of the students, Allen took the three to the assistant principal's office where he learned from one of the three that Erron was the student who had used the profanity. Erron then became hysterical, began screaming, and made physical threats upon Allen. Erron briefly left the office, but returned a few minutes later shouting obscenities. It should be noted that this entire episode took place in front of several teachers, students and school employees and had the effect of undermining the authority of Erron's superiors. After leaving the office once again, Erron went to the classroom where the student who had identified him was sitting. He "stormed" into the classroom and backed the student against the wall. The teacher was forced to call another teacher to remove Erron from the classroom. Erron received a ten-day suspension for this misconduct. On December 4, 1986, Erron was written up again on a student case management referral form for disruptive behavior while in the classroom. For this, he received punishment in the form of a work detail at school. The final incident occurred on January 6, 1987 when Erron attempted to start a fight with a female student but ended up fighting with another male student. After Erron was brought to the administrative assistant's office to discuss the incident, the assistant telephoned Erron's mother. Erron briefly spoke with his mother, started screaming on the telephone, and slammed the telephone down. He then told the assistant "Fuck you assholes, I'm leaving the whole damn school," and departed the premises. Erron was thereafter given a ten-day suspension from school beginning on January 7. During the fall of 1986, Erron's academic record was also poor. For the grading period ending November 6, 1986 he received four F's and two D's in his courses, and his conduct and effort were rated very poor. During this same period, he was absent from school at least fourteen days, many of which were due to disciplinary suspensions. It was further established that in one class (mathematics) Erron was generally unprepared and did not bring class materials. He was also argumentative with his teacher and interrupted the normal workings of the class. This interfered with the other students receiving an educational benefit from the instruction. On October 17, 1986, a child study team at MNSHS convened to discuss Erron's situation. After reviewing his performance, behavior and attendance, the team recommended that Erron be reassigned to an opportunity school. Erron and his mother were invited to attend this conference. Whether they did so was not disclosed. In any event, Erron was given notice of transfer by letter dated October 30, 1986. That prompted the instant hearing. It is presumed (but not known) that Erron is now attending Douglas MacArthur Senior High School-North, an opportunity school in Miami. 2/ For disruptive behavior, Erron was previously assigned to an opportunity school for the last few months of school year 1985-86. While there, he showed remarkable progress over his prior performance in the regular school program. Indeed, his grades were better than a B average during the final grading period, and his effort and conduct were very good. This record prompted the team and ultimately the Board to reassign Erron back to MNSHS for school year 1986-87. Erron's mother has been personally contacted by MNSHS personnel on a number of occasions regarding his conduct. In addition, several teacher-parent conferences have been held. Despite this parental contact, no improvement in Erron's grades or deportment has occurred.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Erron L. Evans be reassigned to Douglas MacArthur Senior High School-North. DONE and ORDERED this 13th day of February, 1987, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of February, 1987.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged misconduct which is set forth in an Administrative Complaint. The misconduct alleged consists primarily of allegations that the Respondent engaged in inappropriate physical touching of a female student.
Findings Of Fact M. A. is a thirteen year old student at West Miami Middle School. At the time of the alleged incident, she was twelve years of age, was approximately five feet, three inches, tall, and weighed about one hundred sixty pounds. She had gained about twenty or thirty pounds more as of the time of the formal hearing in this case. The School Trust Counselor, Diana De Cardenas, had been seeing M. A. and M. A.'s sister for eating disorder problems because both girls were somewhat overweight. The counsellor had seen M. A. on several occasions because of allegations that M. A.'s mother and M. A.'s brother were hitting her at home. Her brother did not want her to eat and when he saw her eating he would beat her. M. A. saw the counsellor because of these facts and was often upset and crying. The Respondent, Millard Lightburn, is forty-two years old and has been a teacher for over fifteen years. The Respondent is Hispanic. He previously taught school in Nicaragua and speaks both English and Spanish. The accusing child, M. A., is also Hispanic. The Respondent taught a computer application course and from time to time he would use students to help file papers and keep records. Shortly before the time of the alleged incident, the Respondent asked two students, M. A. and a male student named L. D., to help him file papers and perform other similar paperwork tasks. The student named L. D. did not come to help the Respondent on the day in question because L. D. was asked by another teacher to help with a problem in the cafeteria. On the day in question, the Respondent was having lunch while working in his classroom. M. A. was in the class alone with him helping him file papers and perform other similar paperwork tasks. This was the second day that M. A. had assisted the Respondent with the paperwork. As the work was finished, the Respondent said to M. A., "Thank you very much; thank you for your help." He put his hand on her shoulder and put his cheek next to hers and gave her a peck on the cheek in a manner that is customary and traditional among Hispanics in Dade County, Florida. The Respondent demonstrated this gesture at the hearing. This same gesture was also demonstrated by two other witnesses, Shirley B. Johnson and Assistant Principal Eldon Padgett. West Miami Middle School is about 93 percent or 94 percent Hispanic. In that school and in the Hispanic community served by the school, it is customary for people to hug and to touch one another on the cheek or to give one another a peck on the cheek. Such conduct is common at all Hispanic schools in Dade County, Florida. The gesture demonstrated by the Respondent and by two other witnesses is a customary Hispanic gesture in Dade County, Florida, and is not considered to be offensive or inappropriate by other members of the Hispanic community. The Respondent, Millard E. Lightburn, did not at any time touch the student, M. A., in an inappropriate or offensive way.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 11th day of October, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-06174 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, and 5: Accepted in substance. Paragraph 6: Accepted in substance, but with the additional findings to the effect that another student had been invited to be present at the same time as the student, M. A. Paragraph 7: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 8: Rejected as constituting subordinate and unnecessary details, or as irrelevant. Paragraph 9: Rejected in part as subordinate and unnecessary details and in part as contrary to the greater weight of the persuasive evidence. Paragraph 10: Accepted in substance. Paragraphs 11 and 12: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 13: First line rejected for reasons stated immediately above. The remainder of this paragraph is accepted in substance. Paragraphs 14, 15, 16, 17, and 18: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraphs 19, 20, 21, 22, 23, 24, and 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted in substance. Paragraphs 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details. Paragraph 32: The first three full lines and the first four words of the fourth line are accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the persuasive evidence. Paragraph 33: Rejected as contrary to the greater weight of the persuasive evidence. Findings submitted by Respondent: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as subordinate and unnecessary details and as also irrelevant. Paragraph 12: Accepted in substance. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues is this case are: (1) whether a letter written by an attorney for Respondent, Department of Education (Respondent or Department), is an unpromulgated rule; whether Petitioner, Harid Conservatory of Music, Inc. (Petitioner or Harid), is substantially affected by the letter it seeks to challenge as an unpromulgated rule; and (3) whether, if Petitioner prevails, it is entitled to attorney's fees and costs pursuant to section 120.595(4), Florida Statutes (2010).1/
Findings Of Fact Harid is a not-for-profit corporation that provides training for ballet dancers at its campus in Palm Beach County, Florida. Harid recruits ballet dancers not only from Florida, but, also, from other states and other countries. Ballet students are admitted to Harid based primarily on their artistic talent, and once admitted, attend tuition-free. Harid is highly selective, with an average enrollment of only 40 students. Harid students reside at Harid for all but approximately two and one-half months each year. Harid receives funding from benefactors and also engages in fundraising to carry out its training program. Harid generates more than enough from these funding sources to cover the costs of ballet training. Therefore, Harid is able to make additional financial assistance available to those of its students whose parents otherwise would be unable to afford the additional cost of room and board. Harid students are all high-school aged. As a result, while these students are enrolled at Harid, in addition to their intensive ballet training, arrangements must also be made for the dancers to receive a high school education. Harid students are required to attend high school, meet and maintain high academic standards, and remain on track for high school graduation. While Harid enrollees are in residence at Harid, they are under the supervision of a number of different Harid staff and faculty, including Harid's director, registrar, residence hall managers and supervisors, and other Harid staff and faculty. The residence hall supervisors reside in Harid's residence hall. Harid staff and faculty oversee all aspects of the dancers' lives, both on campus and off, during the time that Harid dancers are in training. The evidence did not establish that a specific staff person is assigned the responsibility for individual supervision of each individual Harid dancer; rather, the description given by Harid's director was that of multiple staff members in different roles, who cumulatively serve as the dancers' supervisors. The oversight role collectively played by numerous individual staff members at Harid was not shown, nor alleged to actually displace the parents of these students from their parental roles while their children are at Harid. In addition, presumably, during the two and one-half months that the Harid dancers are not in residence at Harid, they return to their homes and remain under the supervision of their parents. In other words, Harid staff and faculty oversee the students' lives while they are in residence at Harid to the extent necessitated by the remoteness of the students' parents. Since 1992, Harid students have attended Spanish River Community High School (Spanish River), a public school within the District, in order to earn credits in academic core subjects. The oversight role Harid staff members play with regard to Harid students includes acting as their "parents" for purposes of providing consents and executing other forms needed by Spanish River and the District, serving as contacts for notifications regarding the students, and communicating with Spanish River and the District on matters relating to Harid students. The record does not reflect whether one individual, or multiple individuals, at Harid perform these functions of signing consents, executing forms, serving as the contact for notifications, and communicating with the school and the District regarding Harid students. No evidence was presented regarding the history of how exactly Harid students came to be allowed to attend Spanish River; what, if any, documentation has been provided to Spanish River to support requests to enroll Harid students in the high school; or whether that process has changed over the years. However, the record shows that in July 2007, the District promulgated new policies on student residence enrollment requirements that are now in effect for the District's public schools. The District has had, for many years, a promulgated policy, Policy 5.01, which provides general criteria for student assignment to District schools. According to the history notes for this rule, Policy 5.01 was originally adopted in 1972 and was amended numerous times since then, as recently as December 12, 2008. The prior versions of the general criteria rule are not in the record. In its current form, which has been in effect since December 2008, Policy 5.01(1)(b) includes the following as general criteria for student assignment: Students shall be assigned to schools based on residence of the student/parent/guardian as stated below . . . The residence of a minor student shall be the domicile of his/her parent, as defined in Fla. Stat. § 1000.21(5) (which includes a legal guardian). . . The residence of a student who is married or above the age of majority shall be his/her domicile. The Superintendent/Designee may, in unique and hardship cases, determine residence based upon approval of the use of a notarized statement executed by the parent or legal guardian granting a general power of attorney and general custody of a student to a resident of Palm Beach County consistent with Policy 5.011.[3/] (Emphasis added). Policy 5.011, entitled, "Student Residence Enrollment Requirements," was more recently promulgated, first taking effect on July 11, 2007, according to the history note. This policy reiterates the general rule in Policy 5.01 that students must attend the school in the attendance zone where their parents or legal guardians are domiciled, or for students who are married or not minors, where the students are domiciled. The first five sections of Policy 5.011 specify in great detail the documentation that is required to prove domicile, the penalties for submission of false information, and the special provisions that apply to enrollment of homeless students and students in foster care. Policy 5.011-6 applies to "Persons Acting as Parent," and provides in pertinent part: For purposes of establishing student residency, a "parent" is defined as either or both natural or adoptive parent(s) of the student, the student's legal guardian, a person in a parental relationship to the student, or a person exercising supervisory authority over the student in place of the parent, pursuant to Fla. Stat. A. § 1000.21(5). The student must actually reside with the parent or Person Acting as Parent as the student's primary residence. . . . A Person Acting as Parent must complete form PBSD 1543, which is incorporated herein by reference and is available on the District's web site at www.palmbeach. k12.fl.us/Records/FormSearch.asp. Form PBSD 1543, incorporated by reference in the District's rule, is an Affidavit of Person Acting as Parent. The stated purpose of the affidavit "is to verify the status of a person acting as parent." The instructions on the form require that the form be completed and submitted to the school where the student is seeking to enroll. In pertinent part, the affidavit form provides: I, (name of guardian/person acting as parent) , am acting as parent for the following named child or children (print name of child or children): I, (person acting as parent/guardian) am currently residing with the above-named child(ren) at the residential address address below in Palm Beach County, and this is the child(ren)'s primary residence . . . * * * Pursuant to Florida Statutes § 1000.21, I qualify as a person acting as "Parent" under the following circumstances (check one only) Guardian of a student (legal guardianship papers are required) Person in a parental relationship (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) Person exercising supervisory authority over a student in place of a parent (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) (Emphasis added). As with the penalty warnings for falsification set forth in Policy 5.011, the form Affidavit of Person Acting as Parent warns of the statutory penalties for making false declarations. In addition, by signing the affidavit, a person acting as parent acknowledges the following: "I understand that falsification of this information may result in the withdrawal of my child(ren) from this school and that falsifying my residence when enrolling my child(ren), may be referred to law enforcement for prosecution." The controversy in this proceeding arose according to Robert Glassman, a senior counsel in the District's Office of Chief Counsel, "when the administration at [Boca Raton High School] requested authorization to register a number of students at Boca Raton H.S., who are enrolled at the Bucky Dent Baseball Academy" (Bucky Dent Baseball) in Boca Raton, Florida. Mr. Glassman elaborated on the Bucky Dent Baseball request: On February 24, 2011, our office received a request for information on the procedure to enroll students at [Boca Raton High School] who were participating in the Bucky Dent Baseball Academy in Boca Raton. In support of the School's position, reference was made to a similar program which was operated by the Harid conservatory in conjunction with Spanish River H.S. The program at Spanish River has been in existence for quite some time. This is the first time a request has been made for students associated with the Bucky Dent baseball academy. Both schools were relying on provisions of School Board Policy 5.011, which does permit schools to accept for enrollment those children from other persons acting as parents under limited circumstances. (see Sch. Bd. Policy 5.011-6) . . . [It was] agreed that we should contact the State DOE to determine their position on the issue. As a result I did contact the General Counsel's Office for FDOE, and spoke with [assistant general counsel] Mari M. Presley, on March 2, 2011. (Emphasis added). Ms. Presley confirmed that she received Mr. Glassman's telephone call on March 2, 2011. That same day, Ms. Presley repeated the question posed to her by Mr. Glassman in the following email to two colleagues at the Department: I have an FTE residency issue that I was hoping you could help me resolve. In Palm Beach county, there are two private "academies" (one for baseball and one for dance) that recruits [sic] from anywhere, including out of state. They have some students who live on campus, and some who live off campus. The students who do not live in Florida have their parents sign a form that purports to give someone (apparently a staff member at the academy) "guardianship for purposes of education." Once that is signed, the "guardian" enrolls the student in public school in Palm Beach County. (As an aside, the tuition is $20,000 to $30,000). Palm Beach County does not believe this is right, but they want to know from us whether they can deny enrollment under these circumstances. They note that their policies adopt the definition of parent that is found in [section] 1000.21(5) [Florida Statutes], "either or both parents of a student, any guardian of a student, any person in a parental relationship to a student, or any person exercising supervisory authority over a student in place of the parent." I'm inclined to say that a parent cannot create residency through what is essentially a sham "guardianship" form. What are your thoughts? Do we have any history with this topic? Do you know of any [Technical Assistance Papers] or guidance we have issued in the past on this? Do you know what the auditors would advise on this? (Emphasis added). Ms. Presley prepared a written response to Mr. Glassman's query in the Letter challenged by Harid in this proceeding. In that letter, Ms. Presley followed her inclination as described to her colleagues five days earlier and drew support from an "analogous" situation. The text of the Letter is set forth in full below: Re: Florida Residency for Public School Enrollment Dear Mr. Glassman: You have brought to our attention an issue relating to whether certain students are residents of the State of Florida for purposes of enrolling in Florida public schools. You indicated that one or more private academies recruit students from out of state to attend their academies at which they receive instruction in an extracurricular field of endeavor (e.g., baseball or dance). The parents of the out-of-state students do not live in Florida, but the students themselves live in Florida during the period of enrollment in the academy, either on or off of the academy's campus. In an apparent effort to establish Florida residency, the parents of these students sign a document purporting to give someone associated with the private academy "guardianship over the education" of the student. Utilizing this "guardianship," the academy then attempts to enroll the student in Florida public schools, claiming the student is a Florida resident. This letter is to advise you that the Florida Department of Education would not consider such a student a resident of the state for purposes of enrollment in Florida public schools. As I am sure you are aware, the residence of a minor ordinarily follows the residence of his or her parents. In the event that a child has been entrusted to a guardian who sits in loco parentis, the residence of the child may follow the residence of the guardian. However, in the circumstances described above, the parents remain the true guardians of the student. Allowing resident status based on the "guardianship" described above would elevate form over substance, and we therefore conclude it is not sufficient to establish residency in this state for purposes of enrolling in public schools. This situation is analogous to the circumstances that prompted an OPPAGA[4/] report dated October 2003, a copy of which is attached hereto. In that report, OPPAGA examined whether an out-of-state exceptional student education (ESE) student was a "resident" of Florida for purposes of public school FTE if the student came to Florida to attend a residential care facility. As in the situation described above, the students "lived" in Florida at the private facility but the parents lived out of state. OPPAGA concluded that since the residency of the student followed that of his/her parents, such a student would not be a resident of the State of Florida and would not be eligible to attend public school in this state. Such a student could not be reported for FTE funding. That position was codified in section 1003.57(2)(a), Florida Statutes. The same conclusion applies to the situation described above. (Emphasis added). The Department does not dispute the fact that it has not promulgated the Letter as a rule in accordance with section 120.54. The specific question posed by Mr. Glassman, as summarized in Ms. Presley's email to her colleagues and again in the Letter, is whether having a child's out-of-state parent(s) execute a form "guardianship over the education," granting such a "guardianship" to a staff person at one of the two extra- curricular training academies in Palm Beach County, Florida, qualifies that staff person as a "guardian." Mr. Glassman apparently was under the misimpression, when he asked his question, that both Bucky Dent Baseball and Harid used a form "guardianship over the education" in order to attempt to establish Palm Beach County residency for their enrollees. Mr. Glassman's description was based on a specific inquiry from Bucky Dent Baseball; apparently, it was the Bucky Dent Baseball program that described Harid's operations as similar in an effort to obtain approval for enrollment of its baseball students. Regardless of how Mr. Glassman got his impression that the programs were similar, the facts assumed in the Letter were not shown to fit the Harid program. There were no allegations in the petition, nor was any documentation offered to establish, that Harid uses a form "guardianship over the education" as described in the Letter. Harid's counsel acknowledged at the oral argument that Harid does not utilize a form "guardianship over the education." Harid does not ask parents of enrolling ballet dancers to execute a form "guardianship over the education" that gives a Harid staff person "guardianship over the education" of the Harid enrollee. Upon receiving Ms. Presley's letter, Mr. Glassman set forth his suggested approach for the District to follow in dealing with the request for authorization to register students from Bucky Dent Baseball. His analysis provided in pertinent part: Registration of Students from Bucky Dent BB Academy . . . I received Ms. Presley's written response to my inquiry on March 11, 2011. . . . Essentially, it is the opinion of the FDOE that under the circumstances of both the dance and baseball programs at issue here, the residency of the student follows that of the natural parent. Thus it would be improper to allow a student who does not live with his or her parent(s) with in [sic] the School's boundaries to enroll in such school. The DOE Counsel's opinion is based upon the OPPAGA report dated October, 2003. * * * While the [OPPAGA] report . . . [applies] to exceptional students' instruction, the logic of the placement issue would be the same for any student. The provision of [District Policy] 5.011(6), would apply in the unique circumstance such as where the natural parent(s) could not provide for the care of their child and had to designate someone to be the child's guardian for all purposes. In the two situations here the parents are simply electing to send their children to a private school for enrichment on certain extracurricular activities (dance or baseball) and then asking the School Board of Palm Beach County to provide the educational component of the program to those students whose parent(s) do not live within the boundaries of that particular school. Allowing such students to be enrolled would be contrary to the opinion of the FDOE and the intent of School Board Policy 5.011-6. However, since the program at Spanish River has students already enrolled, who are near the end of their high school career, it may be considered unjust to penalize those students. Consequently, the District may consider whether those students who are currently enrolled at Spanish River in grade 11 and 12, through the Harid Conservatory, will be allowed to complete their registration at that school if they desire to do so. All other existing students and any new students seeking registration for the next school year (2011/2012) from either program will not be accepted. It should be understood that there is no certainty that those students that are registered next year will be eligible for FTE funding. This is a risk the District would need to accept if it allows those students identified above to be registered. (Emphasis added). The District apparently accepted Mr. Glassman's suggested approach. On March 28, 2011, the District's assistant superintendent sent the following email to two District school principals: Dear Principals: Based on a legal opinion from the Florida Department of Education, dated March 7, 2011, the DOE would not consider an out of state student attending a private academy (i.e. Bucky Dent Baseball Academy or Harid Dance Conservatory [sic]) "a resident of the state for purposes of enrollment in Florida public schools." Therefore, these students cannot be enrolled in Spanish River High School nor Boca Raton High School, and those that are currently enrolled must be made aware of the need to find other options for graduation. The exception will be at Spanish River High School, where current Seniors and next year's Senior class will be allowed to graduate from Spanish River. No other students can be enrolled, and grade 9 and 10 Harid Dance Conservatory [sic] students will not be allowed to attend after this year. The District's decision regarding enrollment of Harid students was also conveyed to Harid, according to the affidavit of Harid's director. Neither the substance, nor the means of the District's communication of its decision to Harid are of record. Harid describes the injury it believes it will suffer because of the Department's Letter, as follows: The impact of the Letter on Harid is direct and not speculative. As a not-for-profit entity, Harid's ability to operate its programs and to offer talented young dancers professional training without sacrifice to their academic education will be impaired. Harid's efforts to attract and enroll new students -- as well as retain its current student body -- will be significantly impaired if Harid is unable to offer access to the public schools of Florida, is required to charge students tuition for private high school, or must incur the expense of private school tuition on top of the expenses already incurred for the professional ballet dance training provided to Harid students. (Emphasis added). Harid alleges that this described impact is the type that the Florida Education Code is designed to protect, because the definition of "parent" in section 1000.21(5), Florida Statutes, includes "a person exercising supervisory authority over a student in place of the parent." Harid claims to meet this description and, as such, claims that it has a legally recognized right to be a "parent" under the Florida Education Code. Harid's petition and motion for summary final order request the following relief: (1) a determination that the Letter is an invalid unadopted rule; (2) an order that the Department immediately discontinue reliance upon the Letter; and that the Department pay Harid's attorney's fees and costs incurred in this proceeding. In contrast, Harid's cross-motion for summary final order and Proposed Summary Final Order both revise the second category of requested relief to provide: "All reliance upon the [Letter] shall immediately be discontinued." No evidence was presented to support a Finding of Fact that at least 30 days before Harid filed its petition initiating this proceeding on May 2, 2011, the Department received notice that its Letter may constitute an unpromulgated rule. The petition itself does not allege that such 30-day advance notice was provided.
The Issue Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida. At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS). At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes. Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years. During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average. Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983. On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS. During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year. By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications. As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing. As a result of the investigation and hearing, John V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file; Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year. By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High School. This letter also advised Respondent of his right to contest the Superintendent's decision. By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter. Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment. When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School. On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days. Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment. On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination. McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?" McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet." On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong. Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr. Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999. None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system. Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks. After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated. Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine. After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School. Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's remarks or behavior caused fear or disruption in the work environment within the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent. DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Harry A. Blair, Esquire 2180 West First Street, Suite 401 Fort Myers, Florida 33901
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact: The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education. The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978. Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986. 1980-81 SCHOOL YEAR During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class. For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences. 1981-82 SCHOOL YEAR The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility. The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships. Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing. During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students. During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints. On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students. In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status. 1982-83 SCHOOL YEAR On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year. During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program. 1983-84 SCHOOL YEAR During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required. A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints. As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable. On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner. A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics. For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom. 1984-85 SCHOOL YEAR At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment. 1985-86 SCHOOL YEAR On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected. On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control. After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription. On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence. Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences. In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital. Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes. During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days. At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility. Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation. It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida. DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274 The following constitutes my specific rulings pursuant to Section 120.59 (2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 3. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 11 8. Adopted in Finding of Fact 11. 9. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 15. 17. Adopted in Finding of Fact 16. 18. Adopted in Finding of Fact 17. 19. Adopted in Finding of Fact 18. 20. Adopted in Finding of Fact 19. 21. Adopted in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 25. Rejected as a recitation of testimony. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/orsubordinate. Rejected as a recitation of testimony and/orsubordinate. COPIES FURNISHED: Johnny Brown, Esquire Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132
Findings Of Fact At the administrative hearing which was scheduled for the time and place shown above, Mr. Carlos Viciedo, Sr., father of the minor student named as Respondent herein, announced that his son, Carlos Viciedo, Jr., had been moved to Los Angeles, California, by his Mother. The student, Carlos Viciedo, Jr., has been enrolled in the school system of Los Angeles, and removed from the Dade County School system. The principal at South Miami Junior High School where Carlos Viciedo, Jr., was enrolled prior to the transfer to Douglas MacArthur Senior High School -- South, verified that papers have been received from the Los Angeles, California, school system to demonstrate that the student has requested a transfer from the schools in Dade County to the schools in Los Angeles. Mr. Carlos Viciedo, Sr., plans to join his family in Los Angeles, and the enrollment of his son in the school system there is permanent.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County dismiss the proceeding it initiated to effect a transfer of the Respondent, Carlos Viciedo, Jr., from South Miami Junior High School to the Alternative Education Program at Douglas MacArthur Senior High School -- South. THIS RECOMMENDED ORDER entered on this 17th day of February, 1983. WILLIAM B. THOMAS, 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 February, 1983. COPIES FURNISHED: Michael J. Neimand, Esquire Suite 300 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Carlos Viciedo, Sr. 1122 Southwest 134th Place Miami, Florida 33183 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public School 1410 Northeast 2nd Avenue Miami, Florida 33132 Dade County School Board 1410 Northeast 2nd Avenue Miami, Florida 33132
