The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2017),1/ and Florida Administrative Code Rule 6A-10.081(2)(a)1. and 8., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Uncontested Facts by the Parties Respondent holds a valid Florida Educator’s Certificate No. 1046827, covering the area of Biology, which is valid through June 30, 2020. At all times pertinent to this matter, Respondent was employed as a Biology teacher at Miami Palmetto Senior High School (“MPHS”) in the Miami-Dade County School District. Respondent knew A.T. was a student at MPHS during the 2015-2016 school year and had tried out for the school’s lacrosse team in late January 2016. Respondent sent a text message to A.T. on December 19, 2016, stating, “How are you?” Respondent sent and exchanged text messages with A.T. in March 2017. Respondent met and engaged in sexual intercourse with A.T. in late March 2017. Respondent resigned from his employment with Miami-Dade County Schools on May 3, 2017, citing “personal reasons.” Additional Findings of Fact Petitioner, as Commissioner of Education, is responsible for investigating and prosecuting complaints against individuals who hold Florida educator certificates, and are alleged to have violated provisions of section 1012.795. Respondent is a highly effective educator who, over the course of his ten-year career, has earned the respect of his former principal and science department head, as well as parents and students with whom he has come in contact. The allegations of misconduct in this case have not altered the high professional regard in which Respondent is held by Principal Victoria Dobbs; Science Department Head Pamela Shlachtman; parent and lacrosse team booster club president Nicola Rousseau; and former student, lacrosse player, and the daughter of Nicola Rousseau, Samantha Rousseau. Each of these witnesses testified that their knowledge, observations, and experience working with Respondent led them to believe that he never would have had any type of relationship with a woman he believed to be a high school student. Each of these witnesses testified that, to the best of their knowledge, they had never seen or heard reports of any inappropriate conduct between Respondent and a student. Principal Dobbs bragged in a letter about Respondent and the support of his peers in voting him Science Teacher of the Year. She testified that in her 12 years of service at MPHS, the last three of which she was principal, she had no concerns with Respondent regarding inappropriate relationships with students. To the contrary, she recalled him as a very good teacher, who participated in many school activities and field trips. He also served as coach for the girls’ lacrosse team. Principal Dobbs further testified that she was never informed that Respondent had been accused of having an inappropriate relationship with a student at her school. She was only made aware of a request by the school district for Respondent’s computer. She testified that if she had believed Respondent had an intimate relationship with a high school student, she would not have employed him. Ms. Shlachtman has been employed at MPHS since 2001 and has been a teacher since 1984. She affirmed her previously written statement supporting Respondent, and testified she had participated in the hiring and selection of Respondent ten years previously as a marine biology teacher. She stated that he had “the soul of an educator.” As a member of Ms. Shlachtman’s staff, Respondent had chaperoned multiple field trips, including extended travel with students and staff for the Enviro Team, and to state and national competitions in Montana and Toronto, Canada. Having seen Respondent react with both male and female students on seven- and ten-day trips, she never had a concern or received a complaint. She also knew girls on the lacrosse team and had never heard a concern reported from there. She noted that Respondent had the opportunity to be alone with students on multiple occasions, and no concerns or inappropriate behavior was ever reported. She would rehire Respondent on her staff again, if given the opportunity. Ms. Rousseau, the mother of three daughters who trained with Respondent at his CrossFit gym, also served as president of the girls’ lacrosse team booster club. She affirmed her previous letter of support for Respondent and testified about her commitment to Respondent as a trainer for her three daughters at his gym, which she said would continue. Additionally, Samantha Rousseau, Nicola’s daughter, and a full-time student at the University of Florida, confirmed her support for Respondent. While a student at MPHS, she had served as assistant captain of the girls’ lacrosse team during her senior year (2014), while Respondent was the team coach. She had known Respondent since she was a sophomore student in his Television Production class; she had traveled with Respondent to Los Angeles as part of his class; and had ridden numerous times on the team bus with Respondent. She testified that she believed Respondent would not have been involved with A.T. had he known she was a high school student. Respondent first encountered A.T. during MPHS lacrosse tryouts in late January 2016. A.T. was a junior at that time. Respondent had no further contact with A.T. until he sent her a December 12, 2016, text stating, “Hi! How was your weekend? You missed out on Saturday morning [referring to a workout designed for lacrosse players at CrossFit gym].” A.T., still a student at MPHS at the time of this text message, never replied to it. On March 15, 2017, Respondent sent another text message to A.T., stating, “Hey, what’s up? How have you been?” The remaining text messages sent by Respondent to A.T. were undated, but were sent between March 15 and their sexual encounter in late March. The text messages were sexually graphic. The messages sent by Respondent included explicit photographs, and while those sent by A.T. had explicit photographs, they were removed to protect her privacy. A.T. was a student at MPHS through December 2016. On January 12, 2017, the Miami-Dade School District conducted a conference to formulate an Individual Education Plan (IEP) for A.T. She was placed in a hospital/homebound program at that time and graduated from the virtual school in June 2017. She did not attend college during this time. Respondent never denied the one-time sexual encounter he had with A.T. On the day when the encounter took place, March 19, 2017, A.T. texted Respondent and asked if she could see him that night. A.T. was driven by a friend to Briar Bay Park where she met Respondent, who was already there and waiting for her in his car. She had sexual intercourse with him in his car. After their liaison, Respondent drove her home. A.T. and Respondent had no contact after that time. A great deal of testimony was elicited about whether Respondent texted or phoned A.T. and discussed her status as a student in March 2017. At different times during the investigation into the sexual encounter between A.T. and Respondent, he said he texted, instant messaged, or telephoned A.T. about her school. Respondent believed her to be taking courses at Miami Dade College (“MDC”) during the spring semester of 2017. In fact, she was a student at Brucie Ball Education Center (“Brucie Ball”), a virtual school where she took online courses to complete her high school education, graduating in June 2017. Respondent consistently believed, at the time of his interview by Detective Ochoa, during his deposition, and at hearing, that A.T. was in college and testified he was never told she was at Brucie Ball. A.T.’s memory is less clear. She testified she could not recall telling Respondent she was taking college courses, but there is no doubt she was enrolled at Brucie Ball during her final semester of high school and not at MDC. She remembers that she received a social media invite from Respondent to attend his CrossFit boot camp in December 2016. She recalls communicating back and forth via social media after that time, especially when Respondent texted her about missing her at boot camp. She and Respondent testified to multiple additional conversations via social media or texting, but many of those were not produced as evidence. When a three-month gap between their messaging occurred, Respondent testified that A.T. told him she had been backpacking in Africa with friends and, according to what he recalled she told him, she was taking courses at MDC. She did not recall having told him she was taking courses at MDC, but “guessed he knew” she was still a high school student because the previous year she had been a junior at MPHS. “It never came up,” she testified. While she could not recall having told Respondent she had been to Africa and was taking courses at MDC, A.T. testified she recalled many more text messages between Respondent and her that were not printed from her phone and introduced into evidence at hearing. According to A.T., she had not talked to Respondent about her upcoming 18th birthday on March 2, 2017. Yet, she invited him to the celebration at a club called “Do Not Sit on the Couch.” She also shared with him that she and her friends often visited another club called “Little Hoolies,” and invited Respondent to join them. Both of these clubs serve alcohol and are for adults over 21. Respondent did not join them at either club. A.T. did not recall any of these conversations at hearing. A.T. declined to be interviewed by Petitioner’s Professional Practices Services investigator. At hearing, she could not recall a request to be interviewed. Respondent assumed A.T. was older than 18 when they met at the park for sex, since he believed her to be taking classes at MDC; she hung out with her friends at two adult clubs; and she brought alcohol, a vapor pen, and THC oils with her when they met in the park. He did not believe this to be typical high school behavior. Respondent also believed A.T.’s absence from social media for three months before they had their encounter at the park was explained by her telling him she had been backpacking in Africa where he assumed she did not have readily available access to the Internet. He also believes this supported his understanding that A.T. was in college at that point, since three months of backpacking does not usually occur as part of a high school experience. Respondent consistently testified, from his statements to law enforcement to his appearance at hearing, that had he known A.T. was still a high school student, regardless of whether she was at the school where he taught, he would have never had an intimate relationship with her. Moreover, law enforcement never asked Respondent for his phone at the time of the investigation. After he learned A.T. had been a high school student in March 2017, when they had their one-time sexual relationship, on May 3 of that year he resigned his position as a teacher at MPHS for “personal reasons,” based upon advice he received from union representatives and an investigator, and to spare embarrassment to his school, colleagues, and family. At the time A.T. had entered into an IEP with Miami- Dade, her school was listed as South Miami Senior High School, not MPHS. This explains why Respondent never saw her again at MPHS in her final semester. There was no evidence presented that Respondent knew A.T. had not graduated from MPHS or that she had enrolled in either South Miami High School or Brucie Ball when she did not return to MPHS for the spring semester of 2017. Respondent’s assertion that he was unaware of A.T., an 18-year-old, still being in high school at the time of their March 2017 encounter, along with his cooperation with the investigation and admission at all times pertinent to it that he had a sexual relationship with A.T., renders his testimony more credible than A.T.’s concerning what Respondent knew about her status as a student. No evidence was produced that Respondent ever had an improper relationship with A.T. while she was under the age of 18. A.T.’s lack of candor and lack of cooperation with Detective Ochoa, the investigator on the case, as well as her incomplete memory of the various text messages with Respondent bring into question her truth and veracity when testifying against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the charges against Respondent in their entirety. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2018.
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 is whether Petitioner, the Nassau County School Board, has just cause to terminate the employment of Respondent, D. Lynn Owen, a teacher on a professional services contract.
Findings Of Fact The School Board employs Respondent D. Lynn Owen as a teacher. Dr. Owen holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.2/ During the 2011-2012 school year, Dr. Owen taught at West Nassau High School ("West Nassau") in Callahan. Fall 2011-2012 Debate 4 class During the 2011-2012 school year, West Nassau operated on a four-period block schedule rather than the six-period schedule followed by most Florida public schools. Under the block schedule, the school year consisted of two semesters, fall and spring. Students took four classes per day, each class lasting 90 minutes. Students received a full credit per semester for each of the four classes. In addition to her qualifications as an English teacher, Dr. Owen is a nationally ranked speech and debate coach. During the 2010-2011 school year, Dr. Owen started a debate team at West Nassau. She taught Debate 3 during the 2010-2011 school year with a class consisting largely of freshmen recruited from her honors English class. The debate team enjoyed some success in debate competitions and the students wanted to continue taking a debate class in the 2011-2012 school year. West Nassau Principal Ronald Booker was amenable to establishing a Debate 4 class, but was concerned that Dr. Owen's other duties would preclude her teaching the class given the limits of a four-period school day. After some discussion, Dr. Owen volunteered to teach Debate 4 class as a "fifth-period" class to be held after the close of the regular school day. The regular school day began at 9:05 a.m. and ended at 3:25 p.m. Thus, during the Fall Semester of the 2011-2012 school year, Dr. Owen taught Debate 4 as an elective honors class that convened daily from 3:30 until 4:15. In the block schedule system, this class was referred to as a "skinny" block. Unlike the regular block courses, a skinny block met every day for 45 minutes for the full 180 days of the school year. The skinny block class was graded in quarters rather than semesters, and a full credit was earned only if the student remained in the class for the entire school year. Because the Debate 4 class was taught outside of regular school hours, Dr. Owen was not paid to teach the course. West Nassau had several "zero-period" classes that met before the start of the regular school day. Mr. Booker testified that Debate 4 was the only fifth-period class he knew of at the start of the 2011-2012 school year. He testified that he only learned about another fifth-period class, Band 2, after the school year began. William Eason, the band director at West Nassau, testified that he taught Band 2 as a fifth period class during the Fall Semester of the 2011-2012 school year. Mr. Eason testified that Mr. Booker approved the class for credit during the summer before the start of the school year. Mr. Eason stated that he was paid for the class, receiving a stipend for after- school instruction. Mr. Eason's testimony regarding the provenance of the Band 2 class is credited. Both Mr. Eason and Mr. Booker appeared to be testifying honestly, but Mr. Booker's recollection on this point was imprecise. Mr. Booker clearly recalled his approval of Debate 4 but was fuzzy as to when Band 2 came about, though he recalled discussions about the need for the class. Mr. Eason taught the class and naturally had a more specific recollection of the approval process than did the principal. Band 2 met daily at 3:45 p.m. until roughly 5:00 p.m. This was the time during which the marching band rehearsed for its appearances at West Nassau football games and for band competitions. Mr. Eason testified that he had no attendance problems with his Band 2 students. He took regular attendance at the start of the class. Also, if a student were missing, the hole in the marching band formation would be obvious. Three students, A.H., L.C., and C.P., were enrolled in Dr. Owen's Debate 4 class and in Mr. Eason's Band 2 class. It fell to Dr. Owen to fashion a solution to this conflict because it was critical that these students attend band practice every day after school, particularly A.H., who was the band's drum major. No flexibility could come from the Band 2 side of the conflict. Mr. Booker asked Dr. Owen to "work with" these students to provide a way for them to make up missed class time in Debate 4. If they had to miss two days because of band, then Dr. Owen should meet with them for a longer class period on the remaining three days to make sure they met the seat time requirement.3/ Dr. Owen testified that she understood Mr. Booker's instruction to mean that she should be flexible regarding regular class attendance for her Debate 4 students, provided they put in the time required to receive credit for the course. Eight students were in the course at the start of the year, and three dropped out. Dr. Owen stated that the five who remained in Debate 4 met their seat time requirement for the 2011-2012 school year. C.P., now a tenth grader at West Nassau, was in the marching band during Fall Semester of the 2011-2012 school year. He was enrolled in Band 2 and stated that the marching band practiced every day at 4:00 p.m., except for Thursdays when band practice convened at 4:30. C.P. enrolled in Debate 4 during September 2011, on Dr. Owen's recommendation, creating a conflict with his attendance at Band 2. On a few occasions, C.P. split his time at Band 2 and Debate 4. On most days, he would attend Debate 4 from 3:30 until 4:00 p.m. and then go to band practice. If there was no band practice, he would stay in Debate 4 until 5:00 p.m. On Thursdays he was able to stay in Debate 4 for a full hour, but on Fridays during the football season he was not able to attend Debate 4 at all due to his band commitments. C.P. testified that Dr. Owen allowed him to make up the missed time by coming in early in the morning, before first- period began at 9:05 a.m. In this way, C.P. was able to put in at least 30 minutes daily on his Debate 4 assignments. C.P. estimated that 95 percent of his class time was spent performing research on debate topics with his debate partner, which facilitated working independently of the regular class period. C.P. testified that his grade in Debate 4 was based on class participation, including debate practice once a week, and that there were no term papers or written assignments in the conventional sense. Dr. Owen testified that sixty percent of the grade for Debate 4 was based on class work, twenty percent was based on writing, and twenty percent was based on her assessments of the students. She stated that C.P. was not doing things that he would normally do in an English class for "writing," but that she graded the students based on their research, their notes, and their debate outlines, all of which are components of "writing" under the Sunshine State Standards. Her assessments were based on weekly practice debates. C.P. stated that his classmates A.H. and L.C. eventually dropped out of Debate 4 because they were unable to keep up with the requirements of the class in addition to their Band 2 commitments. The School Board has alleged that although C.P., A.H., and L.C. attended fifth-period band practice virtually every day during the Fall Semester of the 2011-2012 school year, and although band practice directly conflicted with Dr. Owen's fifth period Debate 4, those students were marked "present" in the Debate 4 class when they were not present. In fact, the fifth-period classes overlapped but did not conflict at all points. Mr. Eason testified that the band class began at 3:45, but C.P. testified that in practice the class did not commence until 4:00 p.m. C.P. was able to attend debate for thirty minutes, from 3:30 until 4:00 p.m., and then attend the band class starting at 4:00 p.m. C.P.'s testimony was entirely credible on this point. The evidence establishes that it was possible for the three students enrolled in both classes to attend at least portions of both classes. Assuming that the "flexibility" urged by Mr. Booker included the ability for students to make up class time at other times of the day, it was possible for C.P., A.H., and L.C. to meet the seat time requirements for Debate 4 while also maintaining their attendance at the fifth-period Band 2 class. A.H. and L.C. dropped out of Debate 4 halfway through the school year, each receiving a half-credit for the class. C.P. remained in Debate 4 for the entire school year. C.P. testified that A.H. and L.C. dropped the debate class because they were unable to put in the time to meet the seat requirements for the class while maintaining their level of participation in band. Dr. Owen's handwritten attendance sheets for August 29 through October 13, 2011, indicate a total of 16 absences from Debate 4, including five absences for A.H., the band's drum major. However, the attendance records submitted by Dr. Owen for the school's official records show no absences at all from Debate 4 until October 19, 2011. Dr. Owen did not have an adequate explanation for this discrepancy. In response to a direct question as to whether she had marked the students absent on the official attendance sheet, Dr. Owen said, "I don't know. Probably not." Because Dr. Owen was teaching the Debate 4 class voluntarily, without pay, the school would not pay for a substitute teacher. Therefore, Dr. Owen did not have a substitute teacher to fill in for her when she missed Debate 4. Records produced at the hearing indicated that Dr. Owen was absent from the West Nassau campus on September 14 and 23, October 4, November 9, December 8 and 9, and December 14 through 16, 2011. However, Dr. Owen's handwritten attendance sheets show that on September 14, when Dr. Owen was at the hospital for her husband's surgery, four students spent the entire class period in Debate 4 and four others at least checked in with Dr. Owen. The attendance sheets show that on September 23, when Dr. Owen was attending a conference in Baltimore, three students spent the entire fifth-period in Debate 4, three other students checked in, and two were absent. Dr. Owen had no adequate explanation for these discrepancies. On October 4, Dr. Owen was out of school for AVID professional training. Dr. Owen was the AVID coordinator for West Nassau. AVID, or Advancement Via Individual Determination, is the curriculum component of GEAR UP (Gaining Early Awareness and Readiness for Undergraduate Programs), a grant program established by the U.S. Department of Education to increase the number of low income students who are prepared to enter and succeed in postsecondary education. West Nassau was part of a three-year GEAR UP grant. Dr. Owen's handwritten attendance sheets for October 4 indicate that six students were present for the entire class period and two others checked in with Dr. Owen. In this instance, Dr. Owen explained that the AVID training session in Jacksonville concluded at the end of the school day and that she immediately drove to Callahan to be there for the Debate 4 class. As to Dr. Owen's other listed absences, the record contains no handwritten attendance sheets with which to compare them. In her deposition, Dr. Owen testified that she kept handwritten attendance sheets for the entire school year, but that during its initial investigation the School Board asked only for her attendance sheets for the first quarter of the 2011-2012 school year. She was subsequently suspended and barred from the West Nassau campus and therefore unable to provide the rest of the attendance sheets in response to the School Board's discovery request. West Nassau also generated a daily "subsequent period absentee report." The first-period teacher would take the roll of the students in her class and send the results to the school office. The office would then generate a report of absent students that would be distributed the next day to teachers of subsequent classes. Those teachers would check their own attendance record against the report and mark whether the students were present or absent for their classes. The subsequent period absentee reports for November 9, and December 14 and 15, 2011, each indicate that A.H. was marked absent for her first period class but was marked "present" for Debate 4. On all three of these dates, Dr. Owen was not present at the school. West Nassau maintains a "teacher sign-in sheet for payroll" that is treated as the official record of when a teacher comes into and leaves the school every day. Several of these sheets for the 2011-2012 school year were submitted into evidence. The sheets indicate that on most days, Dr. Owen worked well in excess of eight hours, often well into the evening hours. However, the sheets also indicate several days during the Fall semester on which Dr. Owen signed out of the school at 3:30 p.m. or before, indicating that she could not have been present to teach Debate 4: August 16, September 1, October 26 and 27, and November 2, 2011. There were also a few dates on which Dr. Owen left school after 3:30 but before the 4:15 dismissal time for Debate 4: September 20, October 25, and November 3, 2011. The handwritten attendance sheets for Debate 4 indicate that the class convened on August 16 and September 1, 2011, despite the fact that Dr. Owen had signed out of the school at 3:30 p.m. The evidence indicated that on at least two occasions Dr. Owen chaired meetings of the West Nassau AVID teachers at 3:45 p.m., in conflict with Debate 4. Dr. Owen testified that the AVID meetings occurred 15 minutes after the start of Debate 4, and that she was able to take roll and get the class started on independent work before the AVID meeting started. The AVID meetings were in the same connected suite of classrooms in which Dr. Owen conducted her classes, so that she was at all times within earshot of the Debate 4 class. She could not, however, state with certainty that the students were in the class and working during the class period. The School Board has also alleged that Dr. Owen did not establish or follow any discernible academic standards for the Debate 4 class. The School Board offered little evidence to support this allegation.4/ Dr. Owen provided a detailed course syllabus that included cognitive and behavioral objectives, targets for subject matter mastery, and the specific Sunshine State Standards met by the course. She also provided the students with a classroom management plan with clear rules for the functioning of the classroom and a set of student, parent and teacher expectations requiring the signatures of all parties. Regarding the lack of traditional writing assignments in the Debate 4 class, Dr. Owen testified as follows: If I had any less experience, maybe I would have to have a piece of paper for every single thing that they did. But I didn’t have to have that because I have been trained to assess everything a student has learned in ten minutes or less. And the minute they start talking, whether it's a national competition or in my classroom, in ten minutes or less I can tell you whether they've done any or all of the work that they have been given to do. It's part of knowing how to judge and coach debate. Dr. Owen's testimony on this point is credible. Debate 4 was a performing arts class, and as such did not fit the profile of a standard academic classroom course. To prepare for debates, students were required to perform extensive research and to demonstrate complete mastery of the materials they compiled. At the suggestion of the West Nassau principal, Dr. Owen provided the students some flexibility in making up their seat time due to the recognized conflict during the fifth-period. C.P., for example, made up his seat time by coming in early in the mornings and staying past 4:15 on afternoons when he could be in the class. Dr. Owen estimated that C.P. put in 130 hours of seat time during fourth quarter alone as he prepared for a national competition, when only 135 hours were required to obtain credit for the entire school year. Dr. Owen's clear mastery of the subject matter entitled her to some deference as to the extent to which the students were able to work independently of her. However, on this point, Superintendent of Schools John Ruis testified persuasively that regardless of how much independent study the student is responsible for, there is an expectation that instruction will occur in the classroom and that the students will be under the supervision of the teacher who is responsible for them. Dr. Ruis believed that some arrangement should have been made for supervision of the class in Dr. Owen's absence, regardless of the time the class convened. In summary, as to the allegations regarding the Debate 4 class, the School Board failed to demonstrate that Dr. Owen did not establish or follow any discernible academic standards for the class during the Fall Semester of the 2011-2012 school year. The School Board did demonstrate that Dr. Owen falsified records pertaining to the fifth-period Debate 4 class. It is understood that "falsification" carries a connotation of intentional action. Based on all the evidence, there is simply no way to find that Dr. Owen's actions constituted anything other than an intentional misreporting of student attendance in her Debate 4 class. Dr. Owen submitted attendance reports that were clearly incorrect, showing students present for classes that could not have taken place because Dr. Owen was not present on the West Nassau campus at the time in question.5/ When she filled out the attendance reports, Dr. Owen had to know that she was submitting inaccurate records. Spring 2011-2012 Speech 1 class During the Spring Semester of the 2011-2012 school year, Dr. Owen taught an AVID Speech 1 class at West Nassau. As noted above, AVID is the curriculum component of the federal GEAR UP grant program, the purpose of which is to increase the number of low-income students who are prepared to succeed in postsecondary education. The program's emphasis is on students who show the potential to do college work but who lack the financial and family resources to prepare in the manner available to their more well-to-do classmates. The elective AVID program aims to nurture these students and inculcate in them a desire to succeed in college.6/ The final exam for the Spring Semester AVID Speech 1 class consisted of four parts, each worth 200 points. The 800-point final exam counted for roughly one quarter of the student's grade for the nine-week period.7/ One of the 200-point segments of the final exam was a written essay test. The exam's instructions provided as follows: Please choose ONE (1) essay question. Your essay response should be a minimum of three (3) pages, and a maximum of four (4) pages. Please include an introduction, body, and conclusion. Your response is based off of your own experiences, not just the class's as a whole. Write your responses on a separate sheet of notebook paper. There followed a list of five essay questions: Compare and contrast your 1st semester at WNHS to your 2nd semester. What has changed? How have you improved, and what can you do to continue to improve? What recommendations would you give to the freshman class next year to prepare them for high school? Describe your experience with your first AP/Honors class. What do you think you could have done differently to help your grade? How do you think you could have been prepared in 8th grade, to be ready to go, when the class started? Describe what you think your life is to be like in 15 years. Where do you see yourself? Be as descriptive as possible. Do you believe that a person is born with individual determination, or is it acquired over time? What makes individual determination such a good thing but also a very bad thing? Give examples. Twenty-two students took the essay test. Twenty-one of the students received the same grade, 186 points out of a possible 200. The remaining student received a grade of 160.8/ Dr. Owen made no marks on any of the exams, most of which were replete with spelling errors, grammatical errors and sentence fragments. Three of the essays did not meet the three page minimum, and one of the essays was five and one-half pages long, in excess of the four-page maximum. In explaining her actions, Dr. Owen testified that some of the students were very concerned about their grades as they approached the written essay portion of the exam. Two parts of the final exam had been completed and were "non-negotiable as far as AVID was concerned," in Dr. Owen's words. One of these was the Tutorial Request Form, which Dr. Owen described as a "very stylized Socratic methodology form that they have to use Costa's higher-level order of thinking in order to put together.9/ And that is a killer sheet that they had to do twice a week all year." The second "non-negotiable" part of the final exam was a grade for the binders that the students were required to keep all year. Dr. Owen testified that some of the students had not done well on these two portions of the final exam, for which the AVID program allowed her no leeway to adjust the grades. She testified that these students "needed something to mitigate the damage that had been done in . . . the other two parts of the exam." Some of the students were further concerned that they could not write three pages on the essay test. Therefore, she orally amended the exam instructions, telling the class, "I will look at your essays to determine if you have addressed the prompt and if you have reflected on what you're doing. And if you've worked the whole period and you're working hard and I can tell, then I don't think anyone will be disappointed with their grades." Dr. Owen testified that she had taken this essay test, including the instructions, from an AVID website. She stated that she had never written an exam that called for a minimum or maximum number of pages, and that she did not believe that such a requirement should be strictly enforced. Dr. Owen noted that she had one student whose handwriting became larger and larger as she became more nervous, which caused her to fill more than four pages on the essay test. Another student's primary language was Spanish, but he managed to write a page and a half in English that addressed the prompt. In both of these instances, Dr. Owen declined to discount the students' grades for failure to meet the three-page minimum or four-page maximum. Dr. Owen testified that she has been trained as a professional test scorer and did not need to place marks on the papers. She stated that she took notes on a separate note pad to assist her in grading the papers, though she was unable to produce these notes at the hearing. She also knew that this was the last exam before summer break and that the students would not be coming back for the tests. She intended to place the exams in the students' permanent AVID folders to use as part of their first project for the next school year. The project was to involve peer editing, and she did not want the students to be influenced by marks she had placed on the papers. The essay exam was not intended to be "punitive." It was meant to be "reflective," something she could use at the beginning of the next year as a starting point for further study of the students' personal growth. Dr. Owen noted that the essay test was only one-fourth of the AVID Speech 1 final exam. This part of the exam did not change anyone's grade average because it amounted to so little of the total grade. Dr. Owen testified that it is appropriate to give all the students the same grade provided they "put into it what I ask them to put into it." In her deposition, when asked why 21 out of 22 students received the same score, Dr. Owen replied, "Probably because I liked what they wrote and they maintained the rubric."10/ She testified that she read every word of every essay. The fourth part of the final exam, also worth 200 points, was a "mandala autobiography" project. Each student was required to draw a mandala, or circle, containing five symbols that represent unique and varied aspects of the student and/or his life. According to the written rubric for the project, a "very effective" mandala would demonstrate its symbolic purpose, would be visually appealing, and would have a purposeful and unifying connecting design. Accompanying the mandala would be an essay that "thoroughly describes and explains the symbols contained in the mandala. The essay would use "strong sensory details to bring each symbol to life." The "very effective" essay should be well-organized, use "well-crafted transitions to propel the reader forward," contain varied sentence structure and have "few, if any, mechanical errors." All 22 students in the AVID Speech 1 class received a grade of 190 out of 200 on the mandala autobiography project. Dr. Owen made no marks of any kind on any of the project materials submitted by the students. Dr. Owen explained that this project was the culmination of "an entire year's worth of reflection through AVID." As well as writing explanatory essays, the students were required to present the mandalas to the class and explain each symbol and color used in the drawings. Dr. Owen testified that the mandala autobiography was something of a group project, with all of the students working on the rubric together. Again, she did not make marks on the papers because the mandalas were going to be used during the next school year. Dr. Owen testified: [A]t the beginning of this year, we were going to take those mandalas, and we were going to turn that into the second project, which was: over the summer, how have you changed? How have your collages changed? How did the symbols change? Are they still valid? And so I wasn't going to mark on anybody's artwork, and I didn't need to mark on any of them because the students' rubrics and things . . . I had them all together in one place. Dr. Owen conceded that some students produced more materials than others and that some projects appeared to have had more effort put into them, based on the detail of the written materials. Nonetheless, Dr. Owen testified that each one of the students in the class "absolutely" earned the grade he or she received. Dr. Cynthia Grooms, the assistant principal at West Nassau who conducted the initial investigation into the allegations against Dr. Owen, testified that she found it unusual that so many students received the same grades on the essay test and the mandala project, especially because there were no marks on the papers. These facts raised concerns as to whether Dr. Owen reviewed the exams, graded them properly, documented her grading process, and provided feedback to the students. Dr. Ruis also found it "highly irregular" for 22 students in a class to receive an identical grade on a written assignment. Dr. Ruis believed the probability of such an occurrence "would normally be very slim." As to the essay test in particular, Dr. Ruis stated: It would be difficult not to read these essays and make some distinctions between them with regard to quality of the product that the students produced. However, that was not reflected in the scores that they were assigned . . . It suggested that they were not reviewed objectively, that they were not graded in accordance with the guidelines that were issued, and done haphazardly. Even Mr. Booker, the former West Nassau principal who testified on behalf of Dr. Owen, stated that it would be unusual for all 22 students in a class to receive the same grade on a written project. If he were shown 22 written essays, all of which received the identical grade and none of which had a mark on them, Mr. Booker would conclude that the teacher had not graded them. The School Board's allegation is that Dr. Owen "falsified and/or negligently failed to maintain accurate grading records for her fourth period Speech I class." It is found that Dr. Owen did not "falsify" records for the class because there is no evidence that Dr. Owen intended to create inaccurate or misleading grading records. The undersigned finds Dr. Owen to be a dedicated teacher and a sympathetic witness, and has attempted to give her the benefit of every doubt in this proceeding. The AVID Speech 1 class was an elective class designed to encourage potential first-generation college students to pursue higher education. The class was designed more to encourage reflection and self- examination than to exert academic pressure on the students. It is found that, given the nature and goals of the class, Dr. Owen had some measure of discretion to apply a more relaxed grading standard. However, by her own admission, Dr. Owen negotiated with her students the terms of the AVID Speech 1 essay test after the students saw the written instructions to the test, essentially telling them to disregard the instructions and promising them a good grade if she believed they were working hard. She then proceeded to give 21 of 22 students a score of 186 out of 200, or a solid "A," without apparent regard to the manifest differences in quality among the essays. She made no marks on any of the papers, failing to correct for spelling and grammatical errors. Dr. Owen testified that she took notes in a separate note pad that she was unable to produce at the hearing. She stated that the students received the same score because they all wrote according to her undisclosed personal "rubric." The undersigned credits Dr. Owen's testimony that she read every word of every essay, but cannot credit her conclusion that all of these essays were of precisely the same quality meriting precisely the same grade. Based on these facts, it is found that Dr. Owen negligently failed to maintain accurate grading records for her fourth-period Speech I class as to the essay portion of the final exam. As to the mandala autobiography, there are factors apart from those discussed as to the essay test that incline the decision toward Dr. Owen. The mandala project had an objective rubric against which the finished product could be judged. Though each student produced an individual mandala, the overall project was visualized as a group effort, providing some justification for Dr. Owen's decision to award all 22 students with a grade of 190. A reasonable person could disagree with Dr. Owen's method of grading the mandala autobiography project, but her grading decision cannot be found to constitute a negligent failure to maintain accurate grading records. Evidence as to Dr. Owen's fitness and effectiveness Mr. Booker was the principal of West Nassau and Dr. Owen's direct supervisor throughout her tenure at the school. He described Dr. Owen as a "fabulous teacher," a "master" at keeping her students "highly engaged and involved in the educational process." Mr. Booker stated that he had no concerns about Dr. Owen's professionalism and had never known her to neglect any of her duties. His only concern was as follows: I've had concerns about her work ethic, because she works, you know, nonstop pretty much every day, every day, every night, weekends. She's a very dedicated teacher, puts in more hours as one teacher probably than three or four other teachers do. I used to have to try to kick her out of the building. Dr. Owen received the highest score possible on her annual evaluation for the 2011-2012 school year. She received an overall score of 97 out of 100 possible points on her 2010-2011 annual evaluation. She was subject to two evaluations during the 2009-2010 school year, for which she received scores of 94 and 100 out of a possible 100 points. Iris Coleman is a retired teacher and administrator for the School Board. In the 2008-2009 school year, Ms. Coleman was acting principal at the Student Educational Alternative School ("SEAS") at which Dr. Owen was a teacher. Ms. Coleman testified that her performance evaluations of Dr. Owen were very good, and that Dr. Owen was "one of the most competent teachers that I have ever observed." Ms. Coleman never knew Dr. Owen to neglect her duty, stating that, "I have never seen anything but the finest of performance academically, professionally, and socially." Melody Spruell, the former English department head and AP coordinator at West Nassau, testified that she had observed Dr. Owen's Debate 4 class 15 or 16 times and her AVID Speech 1 class about a dozen times. She noted that Dr. Owen's students posted "stellar" scores on the FCAT exam. Dr. Spruell stated that Dr. Owen "makes the rest of us kind of look like, you know, chopped liver." Dr. Spruell testified that if she had ninth- grade children, "my kids would be in her class." Maureen Lullo is an English teacher who shared the same suite of classrooms with Dr. Owen and worked closely with her in the AVID program. Ms. Lullo described Dr. Owen as "a brilliant mind and really one of the best teachers that I have been exposed to in my 24 years of teaching." Dr. Ruis testified as to the factors that led him to recommend Dr. Owen's dismissal: Well, I think to go back to the Code of Ethics of the teaching profession of the State of Florida, teachers have an obligation to present information honestly; they have an obligation to the profession and to the students and to the parents to not produce information that would misrepresent the facts or be submitted fraudulently. I think that's a very serious breach of the Code of Ethics. And my expectation for all of our teachers would be that they perform and that they act in a manner that's of the highest character, as exemplifying the Code of Ethics, because that is certainly something that we need to model for our students. And when that does not happen, I think it -- you know, it reduces the effectiveness of someone in the instructional position with students under their supervision. Dr. Ruis concluded that it would be "very, very difficult" for Dr. Owen to remedy her impaired effectiveness at West Nassau or in the Nassau County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Nassau County School Board enter a final order finding D. Lynn Owen guilty of incompetency and misconduct in office and imposing the sanction of suspension without pay for the 2012-2013 school year. DONE AND ENTERED this 5th day of February, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 5th day of February, 2013.
Findings Of Fact The Respondent, Robert Ressler, holds Florida Teaching Certificate No. 396920 covering the areas of social studies, history, physical education, administration and supervision, which is valid through June 30, 1991. The Respondent was employed as a teacher at the Land O'Lakes High School in the Pasco County School District from 1984 until April, 1990. The Respondent is currently 43 years of age and weighs 215 pounds. During the years of the '88-89, and '89-90 school year, he taught three mainstream classes and two alternative education classes as a part of the Alternative Education Program at Land O'Lakes High School. There were approximately 80 students in his combined classes. The Alternative Education Program was a program at Land O'Lakes High School for students that lacked motivation, were poor in attendance, were failing courses, and had low self-esteem. One evening, in February of 1989, a mainstream class student, Wes Harden, and others, vandalized the Respondent's home and van by throwing eggs at it. Subsequently, the Respondent heard rumors that Harden was the individual who vandalized his home and van. Later, when Harden came into the Respondent's class, he took him in the hallway and angrily told him that he did not ever want to see him on his property again. After class, the student, Harden, went to an administrator, Mr. Broadbelt, and reported the incident. He initially lied about his involvement in the vandalism, and alleged that Respondent threatened to break every bone in his body, and would kill him if he ever saw him around Respondent's neighborhood again. The next day, Respondent discussed the incident with Assistant Principal Broadbelt, and no disciplinary action was taken against Respondent following this event. In August, 1989, just prior to the beginning of the school year, teacher, Viginia Lupo, complained that she had a disagreement with Respondent, and that Ressler showed disapproval toward her and the school administrators. Ressler went to Ms. Lupo's classroom to retrieve some world history textbooks. Lupo first denied that she had the textbooks, but after searching, she found them. Lupo admitted that she had mixed up Mr. Ressler with Mr. Russell, and thought that she had already given the books away. During this episode, Respondent became angry, loud, and excited, but did not degrade her. In October, 1989 at an open house for Alternative Education parents, Ressler became angry and raised his voice toward Virginia Lupo for allowing students to sit on the desks and the floor in his classroom. Lupo was upset by Respondent's conduct. Lupo complained to two school administrators regarding Respondent's conduct, but no disciplinary action was initiated against Respondent. On October 17, 1989, Respondent brought a student, Michael Moore, into Assistant Principal Carolyn Fabal's office, for extreme misbehavior, including spitting, throwing food, and making obscene gestures toward him. Respondent had written up disciplinary referrals several times on Michael Moore prior to this incident, and the student had previously been suspended, and otherwise disciplined on grounds of defiance of authority and misconduct. While in Carolyn Fabal's office, Michael Moore raised his voice, and was extremely angry. Respondent was also angry, and raised his voice in order to be heard over the student and inform Fabal about what happened. During the course of this incident, Respondent demonstrated the obscene gesture which was made by Michael Moore toward him by grabbing his crotch. This was inappropriate behavior on the part of Respondent when attempting to discipline a student. Robert Ressler did not fill out disciplinary forms in connection with the Michael Moore incident on the day in question. Respondent had also complained regarding his perceived lack of support from the administration, and that he had asked for support from Ms. Fabal regarding policies in school suspensions. Shortly thereafter, Ms. Fabal wrote an informal "letter of clarification" regarding these incidents directed to Respondent which was not placed in his file. During that same school year on December 5, 1989, the Respondent attended a Land O'Lakes High School varsity girls basketball game as an assistant coach. During the game, two technical fouls were called on the opponent's head coach, and one technical on his team's head coach. At the conclusion of the game, the Respondent expressed his dissent concerning the calls made during a game by approaching one of the officials and stating that he had done a really poor job, and that both head coaches from each school felt that way. He asked the official to make sure he put his name in the score book. As a result of this exchange with the official, the principal of the school, Albert Bashaw, received a letter from Fred Rozelle, the Executive Secretary for the Florida High School Athletic Association. This letter reproached the Respondent for acts unbecoming a coach. The letter charged that, "the Respondent's conduct tended to incite the spectators and players, and showed a poor example of good sportsmanship." The letter went on to state, "under no circumstance shall a coach attempt to publicly criticize, berate, or intimidate the official which should be shown the utmost courtesy, dignity, and respect." Upon receipt of the letter, the principal discussed its contents with Mrs. Marion Ressler, the girls varsity coach. He did not talk with Respondent or give him a copy of the letter. There was no competent evidence to support these allegatoins. During the 1988-89 and 1989-90 school year, the Respondent frequently allowed the students in his Alternative Education classroom to use inappropriate language; to-wit, cursing between themselves and occasionally between himself and his students. Respondent did not encourage inappropriate language in his classroom, and did reprimand and write-up students who swore excessively. Respondent tried to handle the problem himself by either talking it through, or by using humor. The Administrator at Land O'Lakes High School received some complaints from parents and students regarding the Respondent's use of vulgar language in the classroom. During the 1988-89 school year, an Administrator, Peter Kennedy, at Land O'Lakes gave him a written warning which the Respondent signed regarding his inappropriate use of language when he brought a student to the office for discipline. The administration of Land O'Lakes High School never made any mention of these allegations concerning the use of profanity or inappropriate language in Respondent's evaluations. An Alternative Education class requires informality. Foul language may sometimes be overlooked, since the goal is to get these students, who are disinterested and disruptive, to stay in school and learn. Behavior, not language, is the appropriate focus of the Alternative Education classroom. During the 1988-89 school year, Respondent became angry and began shouting when he caught two EH students using the back of the school to go back and forth between classes. An EH teacher, Ms. Monique Vinski, had received permission for her students to pass behind the school. Because the Administration had a general rule which prohibited students from going in this area between classes, Respondent did not accept her statement that the students had permission to use that route and was visibly angry. Ms. Vinski was subsequently told by the Administration to take her students through the hallway. Respondent was never formally or informally disciplined for this event, nor was there any record of the event in his personnel file. During the same period of time, Respondent stopped another emotionally handicapped student for being in an inappropriate area. Respondent became very angry, and was shouting at the student. During the '89-90 school year at Land O'Lakes, the Respondent had in his class an Alternative Education student by the name of Billy Eviston. During a discussion on racism and abortion, in American History class, Eviston expressed an opinion that was opposed by the Respondent. Whereupon the student felt that Respondent had demeaned him, and he reported his recollection of the event to the Administration. No disciplinary action was taken for this incident. During the 1989-90 school year, Sgt. Richard Thiel, who was a recruiter in the National Guard, taught employability skills classes at the different high schools in Pasco County. Sgt. Thiel had scheduled months in advance a classroom presentation to several classes, including Respondent's class, through the Occupational Specialist, Woody Wall. Thiel and his assistant walked into Respondent's class in civilian clothes, pushing a cart with a movie projector on it. He did not identify himself. Upon the Sgt.'s entry into the classroom, the Respondent said he did not know who Sgt. Thiel was, and that he was expecting Woody Wall to teach the class. Whereupon Respondent exited the classroom in a futile search to find Wall. Thiel felt that Respondent's attitude toward him was very arrogant and he decided he would not teach the class that day. He and his assistant left Respondent's classroom prior to the return of Respondent. There was no altercation between Respondent and the Sgt. and his assistant. No disciplinary action was taken in connection with this incident. In March of 1990, an Alternative Education student, Terekita Brown, date of birth, 9/2/72, was in the Respondent's 10th grade class. She was a disruptive student, who had a history of poor grades, high absenteeism, and disruptive and rude behavior. Brown came late to class with an admit slip for readmittance into the ecology class which she gave to the Respondent, who questioned it's authenticity. Miss Brown became angry and responded by saying "fuck you." When other students became agitated with her, she swore at the other students as well, and made vulgar comments to Respondent about his wife, and continued to repeat "fuck you" in a loud and angry manner. Finally, to diffuse the situation, Respondent tried to use humor and said to Brown, "right here in front of the class?". Respondent did not return profanity toward Brown, or the students that day. The mood in the room was laughter, and Brown was also laughing concerning the interchange. When the class quieted down, Respondent taught the remainder of the class, and Terekita Brown finished out the remainder of the class without incident. The entire incident lasted between two to five minutes. Following the class, the incident was reported to the Administration who assigned James Davis, Director of Instructional Employees Relations to investigate. Davis concluded the Respondent did not call Brown a prostitute directly, but did so by implication, and should be disciplined. The method used by Respondent to diffuse the Brown situation was an acceptable technique in alternative education. Each assessment evaluation for the period of 1984 to 1990 rated Respondent as a very satisfactory teacher. The March 7, 1990 evaluation, performed by an assistant principal and signed by the principal, classified Respondent "as a very fine teacher and a credit to Land O'Lakes High." On or about April 4, 1990, the Respondent was suspended without pay by the District School Board of Pasco County. On or about May 2, 1990, the Respondent's employment contract with the District was terminated as a result of their finding of misconduct in office, gross insubordination, and neglect of duty.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Robert Ressler did not violate the provisions of Sections 231.262(6) and 231.28(1), Florida Statutes, and Rule 6B-1.006(5), Florida Administrative Code, but did violate Rule 6B-1.006(3), Florida Administrative Code, due to his loss of temper. It is further RECOMMENDED that a Final Order be issued reprimanding Respondent for the above violations. DONE AND ENTERED this 20th day of November, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 20th day of November, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7 (in part), 8 (in part), 9 (in part), 10, 11, 13 (in part), 18, 19 (in part), 20, 22 (in part), 23 ( in part), 24, 25, 26, 28 (in part), 29, 30, 31, 32, 33 (in part), 34, 35, 37, 38, 42, 43, 46, 47, 49, 54, 56 Rejected as against the greater weight of evidence or irrelevant: paragraphs 7(in part), 8(in part), 9(in part), 12, 13(in part), 14, 15, 16, 17, 21, 22 (in part), 23 (in part), 27, 28 (in part), 33 (in part), 36, 39, 40, 41, 44, 45, 48, 50, 51, 52, 53, 55 Rejected as subsumed or conclusions of law: paragraphs 57, 58, 59, 60, 61, 62, 63, 64, 65 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,9 (in part), 11, 12, 13, 14, 16, 18, 20, 21, 22, 23, 24, 25, 27 (in part), 29, 30, 32, 33 (in part), 34 (in part), 36, 37 (in part), 39, 41, 42 (in part), 43, 44, 45 46 (in part), 47, 48, 56, 58, 59, 60, 61 (in part), 62, 63 Rejected as subsumed, irrelevant or argument: paragraphs 7, 8, 9 (in part), 10, 15, 17, 19, 26, 27 (in part), 28, 31, 33 (in part), 34 (in part), 35, 38, 40, 46 (in part), 49, 50, 51, 52, 53, 54, 55, 57, 61 (in part), 64, 65 Copies furnished: Lane Burnett, Esquire 331 E. Union Street, Ste #2 Jacksonville, Florida 32203 Lorna Sills Katica, Esquire 1950 NCNB Plaza 400 N. Ashley Drive Tampa, Florida 33602 Karen Barr Wilde Executive Director 301 Florida Education Center 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
Findings Of Fact Introduction At all times relevant hereto, respondent, Jack E. Ferrell, was a teacher at Parkway Junior High School (PJHS) in Miami, Florida. He holds Florida Teacher's certificate Number 107694 issued by petitioner, Department of Education, Education Practices Commission (Commission). The certificate was reissued in 1987 and covers the areas of health education, physical education and mathematics. With the exception of a short break in the 1960s, respondent has been a teacher in Dade County, Florida since 1959. He taught at PJHS from school year 1967-68 until January 10, 1986 when he was reassigned to administrative duties at a Dade County School Board area office. The school has a racial composition of at least ninety percent black students. On February 18, 1986, Ferrell retired rather than face disciplinary action by the Dade County School Board which might have culminated in his dismissal and loss of retirement benefits. As a condition of accepting his resignation, the School Board stipulated that Ferrell would not be rehired by that school district. At the same time, the charges which prompted his retirement were referred to the Commission. On November 10, 1987, or some twenty-one months later, an administrative complaint was issued against Ferrell charging him with various violations of general law and agency rules. As amended on March 8, 1988, the complaint alleges that Ferrell, who is white, (a) used excessive corporal punishment on a black student and called that student a "nigger" on December 20, 1985, (b) called a black student a "dummy, gorilla and nigger" on December 18, 1985, (c) showed unprofessional conduct at a parent-teacher conference on December 19, 1985, (d) failed to follow school policies and procedures, used unprofessional conduct and defied school personnel, all of which resulted in a letter of reprimand on April 15, 1985, (e) argued with a fellow teacher on June 5, 1984, (f) was guilty of direct insubordination by refusing to accept a student into his classroom on December 14, 1984, and (g) committed battery upon another teacher on April 23, 1982. 1/ These charges will be discussed separately hereinafter. The December 20 Incident On December 20, 1985 Ferrell was teaching a mathematics class when J.W., then a fourteen year old black student, was brought to his classroom by Mr. Robertson, a school security guard. The student had been caught skipping class earlier and was sent to Roy Scott, an administrative assistant, who gave a "shot" (paddling) to J.W. and several other students. When J.W. entered Ferrell's class, Ferrell asked him "What happened to you?" J.W., who was upset and teary eyed from his paddling, responded "I just got a shot." Ferrell replied "You should have been suspended." J.W. then said words to the effect "Don't worry about me," and went to his desk which was in the back corner of the classroom. Ferrell, who did not hear J.W.'s last remark, asked "What did you say?" When J.W. did not respond Ferrell went to the student's desk and lifted it slightly once or twice and again asked him to repeat his comment. J.W. would not respond and told Ferrell to leave him alone. Using both hands, Ferrell picked up J.W. by his shirt and asked him to repeat his comment. During the process of picking up J.W., Ferrell's hands ended up around the upper chest area or lower part of J.W.'s neck. J.W., who by now was angry and even more upset, tried to break loose but Ferrell pushed him against the wall resulting in J.W. accidentally bumping his head. After Ferrell asked J.W. what he intended to do, J.W. threatened to tell his mother but Ferrell replied that he didn't care. When J.W. again attempted to break away, Ferrell pushed him against the wall a second time. At that point, Ferrell thought he heard J.W.'s shirt tear and released the student. He told a security guard to take J.W. to the principal's office. He later gave J.W. a detention for coming to class without a book. Although at hearing J.W. claimed that Ferrell had called him a "nigger" and "boy," this contention is rejected since J.W. did not allege this in his initial statements and interviews, and nearby students who witnessed the event did not hear Ferrell use those words. 2/ After J.W. related the event to the school administrators, the administrators concluded that J.W. was "okay," and he was sent to his next class, a physical education class. During the interview, one of the school officials noted a small bump on the back of J.W.'s head where it had struck the wall and accordingly reported Ferrell to the Department of Health and Rehabilitative Services for child abuse (excessive corporal punishment) However there is no evidence that formal charges were ever filed against Ferrell by the agency or state attorney. According to J.W., the bump "hurt" and stayed on his head for "about a week." However, he did not ask for nor was he given medical assistance for his injury. In a meeting later that day, Ferrell admitted to the assistant principal in charge of administration, Kenneth Jaworski, that he had pushed J.W. against the wall, that the child may have bumped his head, and that his hands may have slid up around J.W.'s throat area. At that time, Ferrell blamed the incident on a "wise" statement made by the student. In early January, 1986, or some two to three weeks later, school officials contacted J.W.'s mother and told her of the incident. According to school policy, a teacher should never place his hands on a student unless he is in fear of bodily harm from a student or unless a student is about to inflict bodily harm on another student. Since neither situation was present, Ferrell violated school policy. Had Ferrell considered J.W.'s conduct to be disruptive or defiant, Ferrell should have either referred him to the principal's office or contacted a security guard who would escort J.W. to the principal's office. These procedures are outlined in the faculty handbook, and Ferrell was aware of such policies. Finally, under School Board Rule 6Gx13-5D- 1.08 appropriate corporal punishment was considered to be paddling. If corporal punishment was justified, only two persons designated by the principal at PJHS were authorized to administer such punishment and then only under certain conditions prescribed within the rule. Ferrell was not one of the two designated hitters. At hearing, Ferrell contended that he was simply "restraining" J.W. when the student attempted to leave the room and that he did not physically pull the student up with his hands or deliberately shove his head against the wall. He did concede it was possible that J.W.'s head could have accidentally hit the wall during the confrontation. Ferrell strongly disagreed with the contention that his actions equated to excessive corporal punishment and characterized it instead as an effort on his part to restrain the student from leaving class. It was his contention that the definition of corporal punishment was vague but was generally interpreted only to be paddling. He also said his actions were necessary in order to maintain control and discipline in his classroom. The December 18 Incident During the first semester of school year 1985-86, N.W. was a twelve year old black student at PJHS enrolled in Ferrell's sixth period mathematics class. Around 7:00 a.m. on the morning of December 18, N.W. was standing with two other black female students outside the school building when Ferrell walked by on the way into his classroom. There may have been as many as ten or twenty other black students who were within hearing distance of Ferrell but the exact number, if any, is unknown. One of the students, S.W., called out to Ferrell "Do you have a brother named Fred?" Ferrell replied "No, do you have a brother named Dummy?" He also asked S.W. if she was in his class. The student then retorted "No, but you remind me of Fred Flintstone." Ferrell replied "You remind me of a nigger." The evidence is conflicting as to whether Ferrell used the word "gorilla" during the incident, but it is found he did not. N.W. told her mother of the incident that day. Even though she was extremely upset with Ferrell, the mother chose not to bring the matter up until after the Christmas holidays. On January 9, 1986 N.W.'s mother met with Ferrell and a counselor, who was also black, to discuss her daughter's poor grades and the name-calling incident that occurred on December 18, and to request that her daughter be transferred out of Ferrell's classroom. At the conference, Ferrell acknowledged to both N.W. and the counselor that he had used the word "nigger." However, he explained that he was from North Carolina, that the word was always used to describe blacks and that the term was not used in a derogatory sense. In a conference with the principal, Fred Damianos, Ferrell freely admitted he had used the word "nigger" in his exchange with the three black students but, as he had told the mother, stated the word was a common one in North Carolina and was not meant to be derogatory. The principal did not consider this to be justification for his conduct and had a letter of reprimand placed in Ferrell's file. At hearing, Ferrell agreed his use of the word showed a lack of good judgment and could have offended the students in question. Direct Insubordination On December 14, 1984 Ferrell sent N.C., a female student, to Jaworski's office for using profanity in class. She had already been sent out of class on several prior occasions for disciplinary reasons. Ferrell did not want her back in class until after a parent-teacher conference had been held. However, Jaworski was "extremely busy" at the time and sent her back to the classroom with a note requesting that Ferrell take her, and they would talk about the student's situation later on. When N.C. returned to his class, Ferrell refused to accept her and sent her back to Jaworski's office with a note saying he would not admit her. Jaworski considered Ferrell's refusal to accept N.C. to be in defiance of his authority and therefore direct insubordination. Jaworski explained that, under then-existing school procedures, if the student continued to be a disciplinary problem, Ferrell should have prepared another referral slip rather than simply refusing to accept her. Jaworski discussed the incident with Ferrell that afternoon and later placed a memorandum describing the matter in Ferrell's file. However, the memorandum did not constitute disciplinary action since Jaworski had no authority to discipline Ferrell. Ferrell considered N.C. to be a persistently disruptive student who had to be removed from the classroom. He also felt his conduct in the matter was consistent with the school's Code of Student Conduct which authorized a teacher to temporarily remove that type of student from the classroom, request a parent-teacher conference, and to send the student to a predesignated area determined by the school principal. In Ferrell's view, Jaworski overreacted to the situation and had failed to give consideration to all the facts before the memorandum was written. Angry Parent-Teacher Conference On December 19, 1985, Ferrell held a parent-teacher conference with a Mr. and Mrs. Sterling and a school counselor. The conference concerned the Sterlings' son, R.S., who had been a disciplinary problem in one of Ferrell's classes. The mother carried a small baby with her to the conference. The four (plus baby) met in the counselor's 8'x 10' office which was approximately twenty feet from Jaworski's office. After the meeting had been underway for some time, another administrator asked Jaworski to check out the loud voices emanating from the counselor's office. When Jaworski went over to see what was happening, he found what he considered to be a "heated" meeting taking place. He described Ferrell's tone of voice as being loud and aggressive. After a few minutes had passed, Ferrell stood up and, in an irritated manner, said words to the effect "I can't add anything else, I don't know what else to say" and departed the meeting. As Ferrell left, Mr. Sterling said he had heard that Ferrell was "prejudiced." Upon hearing this comment, Ferrell returned to the doorway and said "If you believe that, you're as immature as that baby." At that point Jaworski, who was still standing near the office, felt that there was going to be a physical confrontation between Ferrell and Mr. Sterling and placed his arm across the doorway to prevent Ferrell from entering the room. Ferrell then left the area. However, Ferrell did not "physically push" Jaworski as alleged in the complaint. At hearing Ferrell admitted the conference "did not go well" and that, at one point, he and Mr. Sterling may have been "trying to out talk the other." Ferrell's contention that he did not use "threatening" words at any time was corroborated by Jaworski. Ferrell also pointed out that between September 5, 1985 and January 10, 1986, he had twenty-six parent-teacher conferences and only this conference drew a complaint from administrators. Even so, Ferrell was cited for unprofessional conduct in a memorandum prepared by Damianos on January 9, 1986. Battery on a Teacher On April 23, 1982 Ferrell was involved in an altercation with another teacher named Bellis. The incident occurred around 9:00 a.m. that day when some students left Bellis' classroom and congregated in the hallway outside of Ferrell's classroom. Because this disturbed his class, Ferrell first complained to Bellis, who did nothing about the matter. Ferrell then complained to the principal (Mr. Hanna) A short time later, the three men met in the hallway in front of Ferrell's classroom and, when Bellis turned and began walking away, Ferrell grabbed his upper bicep and told Bellis to turn around and tell Hanna the truth about the situation. Because Ferrell had touched him, Bellis filed criminal battery charges against Ferrell. However, there is no evidence that Ferrell was ever prosecuted for this crime. Even so, Ferrell was administratively charged with battery by school administrators and was suspended from school without pay for ten days. Ferrell contends he accepted the punishment only because he was promised a reassignment to another school. The promised reassignment did not materialize. Failure to Follow School Policy, Etc. The complaint alleges that Ferrell was guilty of "tearing up three discipline referrals in front of (Damianos) during a fit of anger." In the spring of 1985, a new countywide school policy was implemented requiring teachers to contact the student's parents before referring the student to the principal's office for "minor infractions." This policy was explained to all PJHS teachers, including Ferrell, at a faculty meeting on March 26, 1983. However, Ferrell had referred three students to the principal's office during the week preceding the meeting without first making such parent contact. By March 27, Ferrell had contacted the three sets of parents, albeit after the referrals had already been sent to the principal's office. On March 27, Ferrell and Damianos met in the school cafeteria to discuss the three referrals and the need to follow the new procedure. When the meeting ended, Ferrell was "upset," but not in "a fit of anger," and as he walked out of the cafeteria, he tore up the referrals and threw them in the wastebasket. Damianos considered this to be "unprofessional conduct" and "immature" and Ferrell's way of showing the administration that he was "upset." Ferrell justified his tearing up the forms on the ground the forms were no longer necessary since they failed to comply with the new school directive. He added that he meant no disrespect towards Damianos. Ferrell admitted being late to his classroom a few times in the spring of 1985 due to heavy traffic and parent- teacher conferences that lasted beyond the school starting hour. He also acknowledged that he had told another teacher (Scott) that Jaworski was "fat and lazy." In hindsight, Ferrell realizes he may have been "a little off base" for doing so. Unfortunately for Ferrell, his comments were relayed to Jaworski. Ferrell was charged with having received a letter of reprimand dated April 15, 1985 for various matters, including those discussed in findings of fact 17-19. He was also placed on two weeks' prescription in May, 1985 and satisfactorily completed all conditions by the prescribed time. Other than Ferrell's admission of being late, calling Jaworski certain names, and tearing up the three referral forms, there was insufficient evidence to support findings concerning any other incidents which form the basis for the reprimand and prescription. Incident on May 4, 1984 The complaint charges that Ferrell and Bellis supposedly had another altercation on June 4, 1984 albeit one of a purely verbal nature. No specifics are of record, and Ferrell's contention that he was completely exonerated was not contradicted. Indeed, the assistant principal did not dispute this contention and admitted that Bellis was an "unusual" person who had a tendency to lie. Loss of Teacher Effectiveness According to the testimony of various administrators, Ferrell's conduct in its totality, if shown to be true, has resulted in the loss of his effectiveness as a teacher in the public school system. Ferrell's Case Ferrell contended that all allegations were either untrue or exaggerated. He suggested the School Board of Dade County began compiling a paper trail in 1984 in an effort to dismiss him. According to Ferrell, this began when Ferrell met with the area superintendent in July, 1984 after the second Bellis incident. The superintendent told him that if one more incident occurred, Ferrell was "through as a teacher in Dade County." Ferrell also attributed many of his problems to a personality conflict with Jaworski and Damianos. Ferrell admits that he is a strict disciplinarian in class and assigns a great deal of homework. As a result, he is unpopular with many students. Ferrell's reputation as a strict disciplinarian was corroborated by one administrator who described Ferrell's class discipline as "extremely good." Ferrell also describes himself as "blunt," "frank," "to the point," and "very firm" in dealing with students, parents and teachers. However, these characteristics have tended to cause strained relations with his counterparts. Except for the December 18, 1985 incident, Ferrell denies ever using derogatory terms during his lengthy school tenure. This was corroborated by Jaworski and Damianos to the extent that they had contact with Ferrell while they were at PJHS. Indeed, they stated that Ferrell never gave any prior hint of racial bias. Ferrell was also described as an adequate teacher in terms of teaching skills as evidenced by his continuous receipt of satisfactory annual evaluations during his tenure with the school system. Further attributes included his never being absent and a willingness to stay after regular school hours to tutor students. Finally, Ferrell was offered the opportunity by Damianos in both 1984 and 1985 to teach extra classes because of the principal's confidence in his capabilities. Ferrell has not taught since his retirement in February, 1986 but wishes to retain his teacher's certificate. He thinks revocation of his certificate is too harsh a penalty given his otherwise satisfactory twenty-five year tenure as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Jack E. Ferrell be found guilty of violating Subsections 231.28(1)(c), (f) and (h), Florida Statutes (1987), as more specifically discussed in the conclusions of law, and that his teaching certificate be suspended for three years retroactive to his date of retirement in February 1, 1986. DONE AND ORDERED this 4th day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 4th day of May, 1988.
Findings Of Fact Otis J. Clayton was a student at Nautilus Junior High School during the 1983-84 and 1984-85 school years. He attended Miami Beach Senior High School during the 1985-86 school year until his assignment to the alternative school. While at Nautilus, Clayton had an extensive history of disruptive behavior in class. During the 1983-84 school year, Clayton consistently, regularly and persistently disrupted class by yelling, using abusive language to others including teachers and students, hitting other students, talking and playing in class, and defying authority. He was counseled and disciplined and conferences were held with his mother. Despite constant assistance by the school, Clayton did not change his disruptive behavior. He was finally suspended on June 6, 1984. In addition to his disruptive behavior, Clayton was disinterested and unsuccessful as evidenced by his excessive absences and skipping class. His absences in various classes ranged from 16 to 26 for the 1983-84 school year. During the 1984-85 school year, Clayton's disruptive behavior continued. On February 21, 1985, Clayton was suspended for five days as a result of his disruptive behavior, defiance of school authority and fighting. Again on March 1, 1985, Clayton was disciplined for fighting. Clayton was disciplined and counseled regarding his continuous disruption and defiance in class on March 20, 1885. On March 29, 1985, Clayton was placed on indoor suspension for five days for his repeated disruption, defiance and use of provocative language. Clayton was disciplined on April 2, 1985, for his disruptive behavior and for picking on other students. He was placed on a five day outdoor suspension on April 23, 1985, for his repeated disruption of class, defiance of school authority and assault. Finally, Clayton was again suspended for five days on May 13, 1985, for his repeated disruptive behavior and defiance. Clayton had been hitting other students. During the 1984-85 school year Clayton's absences and skipping class had also increased. He had a cumulative absence total of 34 and a record of absences in various classes ranging from 22 to 71. Clayton began attending Miami Beach Senior High School for the 1985-86 school year. His misbehavior and absenteeism continued. On October 17, 1985, Clayton was disciplined for excessive tardiness. On October 23, 1985, he was again disciplined for excessive tardiness and excessive absences. He was suspended for five days on October 25, 1985 for his general disruptive behavior, defiance, excessive tardiness, refusal to serve detention and refusal to serve an indoor suspension. Finally, on November 4, 1985, Clayton was suspended for 10 days for disruptive behavior, defiance, and excessive tardiness and absences. He had been absent 25 days during the first grading period and he had received grades of F in all classes. On November 5, 1985, the parent was informed by letter that Clayton was being referred to the alternative school program. Because Clayton is an exceptional student, an educational placement staffing conference was held on November 8, 1985. During that staffing a new Individual Educational Plan (IEP) was developed which included placement in the opportunity school at Douglas MacArthur Senior High School-North. Clayton's mother was present at the staffing and signed the IEP approving Clayton's placement at MacArthur.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Otis J. Clayton to the alternative school program at Douglas MacArthur Senior High School-North. DONE AND ENTERED, this 7th day of March, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1986. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mrs. Martha C. Donalds 1558 Northwest 1st Avenue Miami, Florida 33139 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132
The Issue Whether there is just cause to terminate the Respondent, Ronnie Bell (Respondent), from his employment with the Petitioner, Miami-Dade County School Board (Petitioner or School Board).
Findings Of Fact The Petitioner is the authorized entity charged with the responsibility to operate, control and supervise the public schools within the Miami-Dade County school district. Such authority includes the discipline of employees of the School Board. At all times material to the allegations of this case, the Respondent was an employee of the School Board. As an employee of the School Board, the Respondent was subject to the laws, rules, and terms of the union contract pertinent to employment with the Petitioner. Nick JacAngelo is the principal of Miami Coral Park Senior High School. Mr. JacAngelo was directly responsible for the employees at the school and personally knows the Respondent. The Respondent began work at Miami Coral Park Senior High School on October 11, 2004. Employed as a custodian at the school, the Respondent was responsible for cleaning the areas assigned to him. According to Mr. JacAngelo, it came to his attention that the Respondent’s work area was not being properly cleaned and maintained. On November 19, 2004, Mr. JacAngelo informed the Respondent that his work was substandard and unacceptable. Mr. JacAngelo informed the Respondent that his work would need to improve. Additionally, the Respondent was advised as to the standard of work that would be required and expected of him in fulfilling his custodial responsibilities including job attendance. A second conference was conducted with the Respondent on December 7, 2004, to again reiterate the duties and expectations for him. The Respondent did not improve his job performance. In addition to his failure to maintain his assigned area, the Respondent was excessively absent from the work site. On January 13, 2005, the Respondent was again informed of a need to improve his job attendance and work performance. Moreover, the Respondent was advised that he could not leave the work site without authorization prior to the termination of his workday. It was expected that the Respondent perform his duties and attend to his assigned area for the entire workday. The Respondent’s work performance and attendance did not improve. On January 28, 2005, the Respondent was cited for poor job performance and insubordination in his continued refusal to improve his effort. On February 14, 2005, Mr. JacAngelo met with the Respondent to address his insubordination, defiance of authority, failure to complete assigned areas of custodial responsibility, and his unauthorized departure from the work site. Because the Respondent wanted to have his union representative present during the discussion the meeting was rescheduled. The parties met on February 15, 2005, to review the items noted above. At that time, the Respondent was reminded that his workday departure time was 11:30 p.m. He was to present for work at 2:00 p.m., take no more than half an hour break for his meal, and remain onsite the entire time. The Respondent’s work performance did not improve over time. On May 12, 2005, he was observed to be in his vehicle the majority of the work shift. He did not perform his work assignment and made no explanation for his failure to clean his area. This incident was memorialized in a memorandum dated May 18, 2005. As to this and other previous incidents, the Respondent did not deny the conduct complained. Based upon the Respondent’s failure to improve, his continued poor work performance, his numerous opportunities to correct the deficiencies, and his insubordination, Mr. JacAngelo recommended that the Respondent be terminated from his employment with the school district. Mr. JacAngelo had attempted verbal counseling, written memorandums, and official conferences with the Respondent. None of the efforts to remediate Respondent’s work performance proved successful. Mr. Carrera is the principal at South Hialeah Elementary School. Mr. Carrera was the Respondent’s supervisor at a work assignment prior to his reassignment to Miami Coral Park Senior High School. According to Mr. Carrera, the Respondent constantly left his work site early, failed to clean his assigned area, and admitted to stealing a police surveillance camera (there had been 70 cases of theft in the area the Respondent was responsible for so the police set up a camera). In short, the Respondent’s work performance at South Hialeah Elementary School was unacceptable. The Respondent was warned during his tenure at South Hialeah Elementary School that continued failure to perform his work appropriately would lead to disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing the Respondent from his employment with the school district. S DONE AND ENTERED this 5th day of June, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronnie R. Bell 16220 Northwest 28th Court Miami, Florida 33054 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: Curtis Stephen Pope, a 12-year-old student, attends seventh grade in the public schools of Dade County. He lives with his grandmother, Mrs. Joyce Robinson, at 11352 Southwest 214 Street, Goulds, Florida. Until January, 1981, he attended seventh grade at nearby Mays Junior High School. (Testimony of J. Robinson, McPhaul.) In December, 1980, the vice principal of Mays Junior High recommended that Curtis be administratively reassigned to the Opportunity School South because of repeated disruptive behavior affecting the learning opportunity of others creating an unsafe learning environment. The school principal subsequently joined in that recommendation and on January 26, 1981, Curtis was reassigned to an educational alternative program at Youth Opportunity School South, 6135 Southwest 66th Street, Miami, Florida--a school located approximately 15 miles from Curtis' residence. It is that reassignment which is the subject of this proceeding. (Testimony of McPhaul; P-3). From September, 1980, through January 1981, Curtis repeatedly disrupted classes at Mays Junior High. His behavior adversely affected the learning environment and interfered with the educational process of other students, as well as his own. He was frequently referred to the assistant principal for disciplinary action. Twice he was suspended from school for ten-day periods: on October 20, 1980, for disrespect and defiance to the assistant principal and principal, and on November 12, 1980, for fighting with another student. Mrs. Robinson was contacted by Curtis' teachers as well as the school's administrators in an attempt to define the nature of Curtis' problem and take remedial action. However, despite these good-faith efforts, his classroom behavioral difficulties continued. (Testimony of McPhaul, J. Robinson; P-2). Specifically, Curtis' disruptive classroom behavior is described below: 2/ CLASS CURTIS' BEHAVIOR Reading Highly disruptive; fails to bring classroom materials or pay attention; easily distracted; plays during class and frequently tardy or absent. Math Disturbs class by talking, walking, and bothering other students; beats on desk, makes loud noises, and runs in and out of classroom; frequently tardy or absent. Intuitive Math Plays and walks about class; fails to follow directions; disturbs class and leaves without permission. Physical Education Disinterested n class; fails to participate in activities with other children. Science Rarely cooperates; fails to remain in seat, and leaves room without permission; unprepared for class; excessive tardiness. Civics Engages in fights and horse- play with other students; makes loud noises and refuses to stop; leaves room without permission; excessive absences. (Testimony of Herrman, Smith, Delvalle, Nicholson, Rochfort, Fields; P-2). At this time, Curtis requires individualized and special educational instruction which is unavailable at Mays Junior High--where classroom enrollment ranges from 25 to 30 students. On the few occasions when Curtis has received individualized instruction at Mays, his interest increased and his academic performance improved. Such individualized attention is available, on a routine basis, at the Youth Opportunity School South's educational alternative program-- where there is one teacher for every ten students. If Curtis makes the progress which can reasonably be expected of him in such a learning environment, he should eventually be able to return to regular school programs. Whether Curtis profits from and takes advantage of the greater instructional opportunities at Youth Opportunity School--and eventually returns to regular school programs--is wholly dependent on his own attitude and choice. (Testimony of J. Robinson, C. Robinson, Smith, Herrman, Delvalle, Nicholson, Rochfort, Fields; P-4). Mrs. Robinson opposes Curtis' reassignment primarily because of her belief that several neighborhood boys who attended the school later became involved in crime. But the fact that some students' behavioral problems persisted despite the educational opportunities offered at the Youth Opportunity School do not negate those opportunities or make them less real. Given positive support and encouragement at home--coupled with the educational environment available at the Youth Opportunity School South--Curtis will be given the opportunity to learn and achieve his potential; whether he--in--fact--does so will depend on him. (Testimony of J. Robinson, C. Robinson, McPhaul).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Superintendent's action in placing Curtis Stephen Pope in the educational alternative program offered at Youth Opportunity School South be upheld and confirmed. DONE and RECOMMENDED this 20th day of May, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1981.
The Issue Whether Petitioner has just cause to suspend Respondent’s employment for thirty days without pay based on the allegations in the Notice of Specific Charges.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Petitioner has continuously employed Respondent since 1984 as the band director at Nautilus. The band curriculum taught by Respondent consists of beginning band, concert band, jazz band, beginning guitar, guitar ensemble, and classical guitar ensemble. Respondent runs a very good band program at Nautilus. Ms. Bernstein, the current principal at Nautilus, opined that Respondent has done a remarkable job with his band students. Throughout his 24 years at Nautilus, Respondent has taken hundreds of field trips both in-state and out-of-state with band students. As a result of these trips, Respondent is fully aware of the paperwork required by the School Board to authorize band students to go on field trips. With the exceptions to be discussed below, Respondent has correctly filled out the required paperwork and has otherwise complied with School Board policies pertaining to field trips. The School Board has developed specific field trip procedures that have been adopted as School Board Rule 6Gx13-6A- 1.22 (Field Trips). The rule provides, in relevant part, as follows: Trips for students are permitted which have value in meeting educational objectives, are directly related to the curriculum . . . In the planning of field trips, absences from school should be restricted to the least number of school days possible. The educational purpose and length of the filed trip must be approved by the principal. Provisions for students to make up assignments for classes missed due to participation in field trips must be in accordance with procedures outlined in Board Rule 6Gx-5A-1.04 - - Student Attendance. A signed parental permission form must be on file at the school prior to student’s participation. . . . A roster is to be submitted along with the field trip application request that includes the names, addresses and telephone numbers of all students who are eligible to participate in the field trip regardless of the student’s decision to participate in said trip. . . . The School Board has also adopted a Field Trip Handbook, which sets forth the responsibilities of the field trip sponsor under the heading “Sponsor’s Responsibilities” (Petitioner’s Exhibit 25, at Bates stamp page 168). Among the delineated Sponsor’s Responsibilities, the sponsor is to secure completed and signed parent permission form from each student who will participate in the field. The sponsor is to place emphasis on complete medical information. The sponsor is to ensure that all chaperones have available and accessible to them during the trip a copy of all parental permission forms with emergency contact information. 2005 Field Trip Matthew Welker served as principal of Nautilus during the 2004-2005 school year. During the Spring term of the 2004- 2005 school year, Respondent sponsored a field trip for the Nautilus band to attend a music festival in Tennessee. Prior to the field trip, Mr. Welker was informed by parents of band students that Respondent intended to take one or more high school students on the field trip. Mr. Welker met with Respondent prior to the field trip to remind him of the field trip procedures and further advised him that he should arrange to ensure that only Nautilus students attend the festival. While the field trip was in progress, Mr. Welker learned that Respondent had permitted a former Nautilus band student to participate in the festival with the Nautilus band. The former Nautilus student was in high school when he was permitted to participate in the festival with the Nautilus band. Prior to seeing him at the festival, Respondent did not know that the former Nautilus student, who had traveled to the festival independently of the Nautilus band, would be at the festival. Respondent did not violate the festival rules by permitting the former student to participate in the festival. On or about May 31, 2005, following Respondent’s return to Nautilus, Mr. Welker conducted a “Conference for the Record” with Respondent, which was memorialized by a Memorandum (Petitioner’s exhibit 1).3 The Memorandum provides, in relevant part, as follows: . . . On Friday, August 13, 2004, you received documentation and in-service training regarding District and school site Field Trip procedures. On Friday, April 15, 2005, I conducted a personal conversation in my office with you regarding information that I received regarding the possibility that two former Nautilus Middle School students who are currently enrolled at Miami Beach High School would be participating with our students at the Smokey Mountain Music Festival in Tennessee. You indicated that you needed their presence to fill out the band. I stated to you that these students were not authorized to participate in the field trip nor were they eligible to participate in the festival as representatives of Nautilus Middle School. I further stated to you that no student or person who is not enrolled or directly affiliated with Nautilus Middle School may attend or participate in the festival. You stated that you understood. On April 29, 2005, I received information regarding the presence of a Miami Beach Senior High School student who was allowed by you to participate in the festival competition representing Nautilus Middle School. The student was also allowed to represent the school in both the ensemble and solo musical performances. On Wednesday, May 11, 2005, I questioned you regarding the participation of the students and you confirmed the fact the student was present at the festival and participated in performances representing Nautilus Middle School. I asked why you permitted the student to attend and perform after I gave you specific directions to the contrary. You responded that you needed the student to fill out the band. * * * Action Taken You were advised that this incident represents a violation of School Board Rule 6Gx-4A-1.21 Responsibilities and Duties. You were directed to follow all School Board and school-site rules and policies regarding field trips. You were directed that no student who is not enrolled as a seventh or eighth grade student at Nautilus Middle School may participate in any extra-curricular activity, co-curricular activity, performance, or field trip. These directives remain in effect as of the date of the conference and are restated to prevent adverse impact to the operation of the work unit and the services provided to students. Any non-compliance by you with respect to these directives will necessitate further review and the possible imposition of disciplinary measures. . . . Copies of the following documents were given to you and discussed at the conference: Miami-Dade County School Board Rule 6Gx- 4A-1.21 Responsibilities and Duties The Code of Ethics of the Education Profession in Florida Field Trip Procedures Common sense suggestion for instructional personnel . . . The Memorandum also contained the following statement: You were advised that the information presented in the conference is confidential and you were directed not to disclose or discuss the information presented with students and staff. The Memorandum contains no statement that the Respondent had been reprimanded or otherwise disciplined because of the 2005 field trip. 2008 Field Trip Respondent sponsored the subject Field Trip for certain members of the Nautilus band to the Fiesta Val National Festival in Gatlinburg, Tennessee, in April 2008. The subject Field Trip left on Wednesday, April 23, 2008, and returned on Sunday, April 27, 2008. The Nautilus band participants consisted of members of the following: the concert band, jazz band, guitar ensemble, and classical guitar ensemble. The participants included Respondent, the band students, and volunteer, adult chaperones. Respondent, his students, and parents of band members began planning for the trip in October 2007. Fund raisers were held to help defray the costs of the trip. Respondent and the band members worked hard to prepare for the trip. As the sponsor of the subject Field Trip, Respondent was required to complete several forms, including a Field Trip Request Form, a Field Trip Chaperone List, Field Trip Permission Request Form, Travel Expense Report, and a Field Trip Roster. The Field Trip Permission Request Form (School Board’s Exhibit 7) includes the following statement: PARENT PERMISSION SLIPS for participating students must be on file in the Office of the Principal prior to the field trip. [Emphasis is in the original.] Both the School Board Rule on field trips and the Field Trip Handbook clearly require a signed parental permission form for each participating student prior to the field trip. The parental permission forms for the subject Field Trip required the parent or guardian to give permission for the student to participate in the subject Field Trip, provide emergency contact information, and authorize medical treatment for the student in the event of accident or illness.4 The Field Trip Roster, which identifies all student participants, is used to excuse the days the students are absent from school because of the field trip. As of the afternoon of April 22, 2008, Respondent had completed or otherwise secured all appropriate paperwork. The subject Field Trip had been approved by Dr. Bernstein as the principal of Nautilus and by the appropriate Regional Director. At approximately 3:00 p.m. on April 22, 2008, Respondent heard that a drummer who had been scheduled to go on the subject Field Trip may have gotten into trouble. Because he was packing musical instruments and equipment for the trip, Respondent did not further investigate. Between 4:30 p.m. and 5:15 p.m. on April 22,5 Dr. Bernstein reached Respondent on his cell phone and informed him that a band member who played drum for the jazz band and the guitar ensemble had been suspended from school (the suspended drummer) and would not be permitted to go on the subject Field Trip, which was scheduled to leave early the next day. Dr. Bernstein stated that Respondent would have to find one of his other students to fill in. The jazz band and the guitar ensemble could not have performed without a replacement for the suspended drummer. The concert band and the classical guitar ensemble could have performed without the suspended drummer. Shortly after his conversation with Dr. Bernstein on the afternoon of April 22, 2008, Respondent began receiving calls from parents of band students who were worried that the subject Field Trip would be cancelled. Rueben Coto, a band parent and volunteer chaperon for the subject Field Trip, called Respondent between 5:30 and 6:00 p.m. on April 22. Respondent was uncertain as to what would happen and stated to Mr. Coto: “Look, I don’t think we’re going to be able to pull this off because we don’t have a drummer. We can’t perform without a drummer.” (Transcript, page 157, beginning at line 14). Mr. Coto located a replacement drummer for the suspended drummer. The replacement drummer (a male) was an ex- Nautilus band member who in April 2008 was a senior at Miami Beach Senior High School. Respondent told Mr. Coto to get something in writing from the replacement drummer’s parents giving permission for the replacement drummer to go on the subject Field Trip. The replacement drummer’s mother never gave written permission for her son to go on the subject Field Trip. Mr. Coto did not follow up on Respondent’s request to obtain written permission from the replacement drummer’s mother. On the morning of April 23, 2008, Respondent knew that the replacement drummer’s mother had not signed a written parental permission form.6 Respondent did not attempt to contact Dr. Bernstein or any other administrator after learning that the replacement drummer did not have written permission to participate in the subject Field Trip. Respondent permitted the replacement drummer to travel with the other students on the bus to and from Tennessee and to participate in certain of the activities of the Fiesta Val. While the subject Field Trip was in progress, Dr. Sidener, principal of Miami Beach Senior High, received a complaint from the band director at her school that the replacement drummer was absent from school and did not attend band rehearsal because he was on the subject Field Trip. Dr. Sidener immediately called Dr. Bernstein to determine whether she knew that the replacement drummer was participating in the subject Field Trip. Dr. Sidener did not excuse the replacement drummer’s absences from Miami Beach Senior High for the school days on which the replacement drummer participated in the subject Field Trip. The subject Field Trip was unrelated to the replacement drummer’s curriculum at Miami Beach Senior High. The subject Field Trip participants returned to Miami as scheduled on April 27, 2008. Prior to Dr. Sidener’s call, Dr. Bernstein was unaware that the replacement drummer was on the subject Field Trip. Respondent did not inform Dr. Bernstein before or during the subject Field Trip that the replacement drummer would be participating in the subject Field Trip. Immediately after Dr. Sidener’s call, Dr. Bernstein requested that the School Board’s Civilian Investigation Unit (CIU) conduct an investigation as to the replacement drummer’s participation in the subject Field Trip.7 The CIU investigation report was forwarded to the School Board’s Office of Professional Standards (OPS) for a CFR with Respondent. After the CFR, OPS sought input as to the appropriate discipline from Dr. Bernstein and Mr. Greenfield (the Administrative Director for the North Regional Center). OPS convened a disciplinary review team, which reviewed all available information. The disciplinary review team recommended to the Superintendent that Respondent’s employment by suspended without pay for 30 days. Following his review, the Superintendent adopted the recommendation from the disciplinary review team and forwarded the recommendation to the School Board. At its meeting of October 15, 2008, the School Board voted to suspend Respondent’s employment for a period of 30 days without pay. The School Board followed all relevant procedures leading up to its vote to discipline Respondent by suspending his employment for 30 days. Although Respondent has served his 30-day suspension without pay, Respondent timely requested a formal administrative hearing to challenge the suspension.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order uphold the suspension of Respondent's employment without pay for 30 days. DONE AND ENTERED this 2nd day of June, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of June, 2009.
