The Issue Whether Respondent, Franklin Lewis, inappropriately touched a student, and, if so, whether this misconduct violates Section 1012.33, Florida Statutes (2004),1/ and Florida Administrative Code Rules 6B-1.001 and 6B-4.009 and constitutes "just cause" for Respondent's dismissal.
Findings Of Fact Respondent has been employed by Petitioner as an instructional employee since August 20, 1996. At the time of his suspension, he taught reading and was the wrestling coach at Dunbar High School (Dunbar) in Fort Myers. Respondent is a member of the collective bargaining unit for instructional personnel. His employment is subject to the terms and conditions of the written agreement between Petitioner and the Teachers Association of Lee County. Prior to the February 7, 2005, incident2/ that is the subject of this case, Respondent was a well-liked and respected person that many students looked up to and turned to for help and support. Respondent is 43 years old. He is divorced and the father of four children. S.W. is 18 years old. He was a student at Dunbar and graduated in 2005. He was a member of the wrestling team during his sophomore, junior, and senior years at Dunbar. Prior to joining the wrestling team, S.W. was in a combined geography/history class taught by Respondent. Respondent encouraged S.W. to join the wrestling team because other students "called him a woman and stuff like that." Respondent believed that if S.W. joined the wrestling team, he would gain the respect of other students because they would know S.W. could defend himself. Mr. Dukes also encouraged S.W. to join the wrestling team. During the wrestling season, October through February, the team practiced every day after school until 5:15 p.m. or 5:30 p.m. Respondent and Mr. Dukes often gave students a ride home after wrestling practices. During the 2004-2005 school year, Respondent usually drove S.W. home after wrestling practices. Early in 2005, S.W. told Respondent that he was interested in becoming a massage therapist, but he did not want other students to know. Respondent agreed not to tell anyone. According to Respondent, he has chronic neck pain from an old injury and wanted to give S.W. an opportunity to practice massage. Respondent suggested that S.W. give Respondent massages, and Respondent would pay S.W. $20 for each massage. S.W. gave Respondent two or three massages before February 7, 2005, and Respondent paid S.W. for them. All the massages took place at Respondent's house. The record does not indicate in what room the earlier massages took place, but a reasonable inference from the record evidence is that the massages always took place in Respondent's bedroom. Respondent stated that during the massages, the door to the room was usually closed. S.W. owed money to Respondent. Although the size of the debt was disputed, S.W. was indebted to Respondent for money Respondent spent on food and drinks for S.W. At S.W.'s request, Respondent occasionally purchased food and drinks for S.W. at convenience stores when Respondent was driving S.W. home from wrestling practices. Sometimes Respondent gave money to S.W. to buy food and drinks on his own. Respondent gave or loaned money to other students. Mr. Dukes also gave small amounts of money to students from time to time, but he never asked to be paid back. Monday, February 7, 2005 On February 7, 2005, following wrestling practice, Respondent drove S.W. and two other members of the team, J.M. and P.L., to an apartment complex where Mr. Dukes lived. They went there to use the complex's sauna for the purpose of "sweating off" weight. Wrestlers compete in weight classifications, and it is important to a wrestler to keep his weight within the classification that is considered optimum for him. Following their use of the sauna, the three students got back in Respondent's car to be taken home. Respondent first dropped off P.L. at P.L.'s house and then dropped off J.M. at J.M.'s church. At S.W.'s urging, Respondent drove back to Dunbar so S.W. could use the scale at the school to check his weight. After S.W. checked his weight, Respondent and S.W. drove to Respondent's house. According to Respondent, they went to his house because S.W. wanted to give him a massage to "pay off" S.W.'s debt to Respondent. S.W. says Respondent suggested the massage. When Respondent and S.W. arrived at Respondent's house, Respondent's 10-year-old daughter and adult sister were in the house. Respondent and S.W. went into Respondent's bedroom. At first, the door to the bedroom remained open. They watched a video of Respondent competing in a wrestling match when he was in high school. When the video ended, Respondent closed the bedroom door. Respondent took off his shirt and lay on the bed to get a massage from S.W. According to Respondent, he was lying on his stomach with his head on a pillow at the bottom of the bed. S.W. was sitting on the bed, at Respondent's right side, with his feet on the floor. S.W. began to massage Respondent's shoulders. According to Respondent, his head was on the pillow at the beginning of the massage; but in order to see what S.W. was referring to on the video that was playing on the television located to Respondent's front and right, Respondent raised his head and held it in his right hand, propped up by his right elbow. Respondent said his body was also twisted to the right. It was from this position that Respondent claims his head accidentally slipped from his hand and landed in S.W.'s lap or on S.W.'s leg. Petitioner claims that, if Respondent's description of the relative positions of Respondent and S.W. on the bed were true, it would have been physically impossible for Respondent's head to have slipped from his hand and fallen against S.W.'s leg. The evidence is not sufficient to support a finding that it would have been impossible. The improbability of such an occurrence, however, is a factor that contributes to the overall finding that Respondent's account of the incident lacks credibility. According to Respondent, when his head slipped and fell against S.W.'s leg or lap, no part of his hands ever touched S.W. in "his private area." S.W.'s account of the incident in the bedroom is much different. He testified that during the massage, they were not watching a video. Respondent had his head in S.W.'s lap. As S.W. was massaging Respondent's shoulders, Respondent pulled S.W.'s pants outward. S.W. said that he "felt lips on [his] stomach." Then, he felt Respondent's hand go into his pants and touch the "top of [his] penis" and pubic hair. S.W. explained that he was referring to the base of his penis, where it attaches to his abdomen. Respondent and S.W. agree that S.W. pushed Respondent away, and S.W. asked Respondent to take him home. According to Respondent, he told S.W. it was an accident and that he was sorry. S.W. said he walked out of the bedroom and looked back to see Respondent with "his head down shaking it like when, you know, you can't believe you did something." While he was waiting for Respondent to put his shirt back on and take him home, S.W. stood for a few minutes near a pool table where Respondent's sister and daughter were playing pool. Respondent's sister, Marjorie Lewis, M.D., testified that S.W. looked "very calm." According to S.W., during the short drive to his house, Respondent "told me he was sorry, that this never happened before, and he didn't know what got into him." Tuesday, February 8, 2005 The next morning, S.W. got a ride to school from his friend and fellow Dunbar student, M.G. S.W. told M.G. that he was quitting the wrestling team, and M.G. pressed S.W. for the reason. According to M.G., S.W. told him that he was giving Respondent a massage when Respondent placed his head in S.W.'s lap and then put his hand in S.W.'s "pubic area." S.W. told M.G. he shoved Respondent away, and Respondent sat on the bed with his head in his hands, as if "he was ashamed of himself." S.W. did not tell M.G. that Respondent kissed his stomach. At the hearing, S.W. said he told M.G. that Respondent "started to pull his [S.W.'s] pants down," reached into his pubic area, and "tried" to grab his penis. In explaining why he told M.G. that Respondent "tried" to touch his penis, S.W. said he meant that Respondent only touched the top of his penis, but did not grab all of it. Other statements made by S.W. that Respondent "grabbed my penis," are not inconsistencies that show S.W. lacks credibility. In this case, the inconsistencies simply reflect the imprecision that is common when the circumstances of an event are repeated several times to both friends and strangers. S.W. was a credible witness, and he showed no doubt that Respondent touched his penis. When S.W. and M.G. got to Dunbar, M.G. accompanied S.W., at S.W.'s request, to Respondent's classroom to get some things belonging to S.W. Respondent was in the classroom, and M.G. approached and talked to him. M.G. and Respondent knew each other because M.G. had been on the wrestling team. During their conversation, Respondent never made eye contact with M.G., but kept his eyes on his computer screen. According to M.G., that was unusual behavior for Respondent. Later that same day, M.G. repeated what S.W. told him to S.W.'s friend and wrestling teammate, J.M. J.M. testified that M.G. told him that Respondent made S.W. give him a massage and Respondent "tried to touch his penis." J.M. talked to S.W. in the school cafeteria a short time later. S.W. said he quit the wrestling team because of what happened the day before at Respondent's house and that S.W. felt "degraded" and "like a four-year-old." J.M. testified that S.W. told him Respondent locked the bedroom door, "tried to reach into [S.W.'s] pants, like touching his pubic area." S.W. did not tell J.M. that Respondent kissed his stomach. Sometime during the school day, Respondent saw S.W. and urged him not to quit the wrestling team. According to Respondent, S.W. told Respondent he was not quitting the team because of the incident at Respondent's house, but because of other "personal reasons." Later that day, Respondent telephoned S.W. According to Respondent, he called to tell S.W. that S.W. was mistaken about Respondent's head hitting S.W.'s lap, that his head only hit S.W.'s leg. According to S.W., Respondent asked S.W. to keep the incident a secret and "he'd do anything." Respondent admits that he told S.W. during this telephone conversation not to report the incident, but did so "because I thought it was silly." Wednesday, February 9, 2005 The next evening, S.W. called Laurie Beaudry, his Big Sister from the Big Brother/Big Sister Program and told her he was quitting the wrestling team. According to Ms. Beaudry, S.W. told her of an "inappropriate touching" incident. Because he was upset, Ms. Beaudry offered to pick him up so they could talk. She picked S.W. up and returned to her house. On the way to pick up S.W., Ms. Beaudry called Respondent on her cellular telephone and asked Respondent whether he knew why S.W. was upset and wanted to quit the wrestling team. Respondent told her he did not know. After S.W. and Ms. Beaudry arrived at her house, S.W. told her that on Monday he was giving Respondent a massage, "then Mr. Lewis was kissing on his stomach, and then he pulled his pants and grabbed his thing." Later that evening, Respondent telephoned J.M. Respondent and J.M. had a close relationship, and J.M. said he thought of Respondent as a big brother. Respondent asked J.M. what S.W. was telling people about the incident. J.M. asked Respondent to tell his side of the story first. Respondent admitted at the hearing that what he then told J.M. was a lie. He told J.M. that he and S.W. had been practicing a wrestling move, and S.W. got upset when his pants came down. Respondent claims that what he described to J.M. actually happened at Dunbar, a week earlier. According to Respondent, J.M. told him S.W.'s account of the incident was that Respondent made S.W. give him a massage, and Respondent's head fell in S.W.'s lap. According to J.M., he told Respondent that S.W. accused Respondent of trying to touch S.W. in his pubic area. Respondent denies that J.M. said anything about S.W.'s accusing Respondent of touching S.W.'s "private area." According to J.M., he told Respondent he did not believe Respondent's account of the incident. Respondent began to cry during their telephone conversation and said, "this can't get out" and "this could ruin my life." Respondent asked J.M. to tell S.W. that Respondent would "do anything," such as leave Dunbar or the wrestling team, if S.W. did not report the incident. Respondent denies that he cried or made these statements to J.M. Immediately following his telephone conversation with Respondent, J.M. called Mr. Dukes to discuss the incident. Based on what J.M. told him, Mr. Dukes understood S.W.'s story to be that Respondent fondled S.W. J.M told Mr. Dukes he was also going to quit the wrestling team because of the incident. Shortly after the conversation between Mr. Dukes and J.M., Respondent and Mr. Dukes talked by telephone. Respondent denied J.M.'s account of the incident. Respondent admitted at the hearing that he told Mr. Dukes the same lie he told J.M., that he and S.W. had been practicing a wrestling move and S.W. got upset when his pants "came down" and Respondent's head "went towards his crotch." Respondent asked Mr. Dukes to accompany Respondent to Ms. Beaudry's house to see S.W. and "get to the bottom of what was going on." Respondent knew S.W. was at Ms. Beaudry's house because he had called for S.W. at S.W.'s house and had spoken to S.W.'s foster mother. During the drive to Ms. Beaudry's house, Respondent and Mr. Dukes discussed the allegations made by S.W. According to Mr. Dukes, Respondent said, "S.W.'s story is true." Mr. Dukes became upset and Respondent said "he didn't blame [Mr. Dukes] for being mad at him." Respondent denies that he told Mr. Dukes that S.W.'s account of the incident was true. When Respondent and Mr. Dukes arrived at Ms. Beaudry's house, Mr. Dukes suggested that Respondent remain in the car. Inside the house, Mr. Dukes talked with S.W. who was upset and did not want to see Respondent. According to Mr. Dukes, S.W. told him Respondent touched "his private area." At some point, Ms. Beaudry said she wanted to speak to Respondent, and Respondent was asked to come into the house. S.W. went into a bedroom, and S.W. and Respondent did not see or speak to each other. During the discussion between Respondent and Ms. Beaudry, Respondent began crying. Respondent says he was crying because he was thinking about how his children would be harassed when the matter got into the newspaper. According to Mr. Dukes, when Ms. Beaudry confronted Respondent with S.W.'s accusation that Respondent "grabbed his penis," Respondent's reaction was "mournful." Respondent "said he was sorry, you know, and he don't know why it happened and this has never happened before and things like that." According to Ms. Beaudry, Respondent sat in a chair, held his head in his hands, and rocked back and forth crying and saying, "I'm sorry. I'm sorry. Is [S.W.] OK? Is [S.W.] OK?" Respondent did not deny S.W.'s account of the incident or offer Ms. Beaudry a different account of the incident. Respondent asked Ms. Beaudry and Mr. Dukes not to report the incident and said, "I'll do anything. I'll move. I'll leave the school or whatever." About 11:30 that evening, after Respondent returned home, he told his sister, Dr. Lewis, that there had been a "misunderstanding" with S.W. According to Dr. Lewis, Respondent told her "he may have inadvertently touched [S.W.] near his private area." Dr. Lewis noted that Respondent showed signs of depression in the days that followed. Thursday, February 10, 2005 The next day, February 10, 2005, Mr. Dukes reported the incident to an employee in Dunbar's Office of Student Services. From that first contact, a series of contacts were made with Dunbar officials leading to a formal investigation and Petitioner's initiation of these termination proceedings against Respondent. Sometime that same day, Dr. Lewis called Ms. Beaudry to ask how S.W. was doing and to offer counseling to S.W. Ms. Beaudry declined the offer. A reasonable inference can be drawn from Dr. Lewis' offer of counseling for S.W. that she believed his emotional upset was genuine and not contrived. Credibility This is not just a case of S.W.'s word against Respondent's. Respondent's account of the events is also contradicted by J.M. (regarding what J.M. told Respondent about the incident, whether Respondent cried, and whether Respondent asked J.M. to keep the incident a secret) and Mr. Dukes (whether Respondent admitted that S.W. was telling the truth). Furthermore, Respondent admitted that his first explanation of the incident to J.M. and Mr. Dukes was a lie. The record evidence does not explain why S.W. would have become so upset if the only thing that happened was what Respondent claims -- an accidental, brief contact between Respondent's head and S.W.'s leg or lap. S.W. testified that he loved and respected Respondent like a brother or father. Respondent did not deny their close relationship. The record contains no credible evidence to establish a motive for S.W. to destroy his relationship with Respondent and jeopardize Respondent's career as a teacher by falsely accusing him. Respondent removed S.W. as one of the captains of the wrestling team sometime during the 2004-2005 wrestling season for using excessive profanity, but Respondent himself never said he believed this "demotion" was the reason for S.W.'s accusation against him. S.W.'s demotion from captain is not sufficient, standing alone, to support an inference that it caused S.W. to become so angry with Respondent that he fabricated the incident that occurred on February 7, 2005. Moreover, it would not account for the contradictions between Respondent's account of his conversations with J.M. and Mr. Dukes and their account of the same conversations. Respondent had an obvious motive to lie in order to avoid the adverse professional and financial consequences of S.W.'s accusation against him. The more persuasive and credible evidence supports a finding that Respondent's account of the incident is untrue. The truthfulness of S.W.'s account of the incident is corroborated by Respondent's behavior in the days that followed. Respondent exhibited remorse, fear, and shame. This behavior, while not always reliable as proof of guilt, was more consistent with S.W.'s account of the incident than with Respondent's account. Petitioner has met its burden to prove by a preponderance of the evidence its factual allegation that on February 7, 2005, while Respondent was receiving a massage from S.W. in the bedroom of Respondent's home, Respondent reached his hand into S.W.'s pants and touched S.W.'s penis. Ms. Beaudry and Mr. Dukes stated that the incident caused S.W. to become more introverted. Mr. Dukes said S.W. and J.M. performed poorly as wrestlers after the incident. The wrestlers, in general, and S.W., in particular, were teased and picked on by other students when the incident was reported in the news and became public knowledge. Respondent's misconduct undermines the foundation of the relationship between a teacher and his students, and thereby impairs his effectiveness in the Lee County school system. Respondent's dishonesty, which includes some of his testimony under oath in these proceedings, also impairs his effectiveness in the Lee County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Respondent, Franklin Lewis', misconduct constitutes "just cause" under Section 1012.33, Florida Statutes (2004), and Florida Administrative Code Rule 6B-4.009 to dismiss him from his employment as a teacher with Petitioner, the Lee County School Board. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2005.
The Issue The issue is whether Respondent violated Section 112.313(6), Florida Statutes (2007), by using her position as a member of the Duval County School Board to influence placement of her children in magnet schools without following proper procedures, and if so, what is an appropriate penalty.
Findings Of Fact At all times pertinent to these proceedings, Respondent has served as a member of the Duval County School Board (School Board). She was elected to the School Board in 2002 and represents District IV. Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for public officers and employees, for her acts and omissions during her tenure as a member of the School Board. Respondent and her husband, DeAndre Jackson, have four children, all of whom attend or attended public schools in Duval County. Mr. Jackson is a teacher at Jean Ribault Senior High School, which is the high school from which Respondent graduated. The Duval County School District (School District) offers a number of school-choice options. Of the 123,400 students in the School District, about 30,000 students participate in school-choice options, attending schools other than their neighborhood or zoned school. Magnet schools constitute one of the school-choice options in the School District. Magnet schools are schools that offer a specialized program or theme for students to participate in based on the student’s interests, skills, or talents. Parents of students may apply if they wish their child to attend a magnet school that is outside that student’s neighborhood or zoned school. School Board Policy 5.46 is entitled Magnet Schools and Programs (Policy). Pursuant to this Policy, parents wishing their children to enter a magnet program may apply in January or February for the upcoming school year. After the application deadline, the applications are processed and a computer lottery generates assignments based on student preference and space availability. The lottery typically occurs in early April, and students who are not selected are placed on waiting lists. Participants in the lottery have weighted entry points, which include the following “preferences” identified in the Policy as follows: (a) whether the student lives in the magnet school’s attendance area; (b) whether the student participated in the magnet program at a prior grade level; (c) whether the student has a sibling who attends the magnet school; and (d) whether the student’s address is in an attendance area of a Title I school. Dr. Sally Hague is the Director of School Choice and Pupil Assignment Operations for the School District. Her duties include oversight of most of the school-choice options in the School District. According to Dr. Hague, there are preferences outside of the Policy which are also recognized. Children of active- duty military personnel receive a priority imposed by statute. Dr. Hague also recognizes a preference for students who have toured the school with parents during the application period. Additionally, children of School Board employees who are members of collective bargaining units may be given a preference. Specifically, employees who are teachers and members of Duval Teachers United have the option under the collective bargaining agreement for their children to attend school at their work site or the nearest appropriate school, subject to consideration given to space and racial balance. When a parent chooses to exercise this contractual right to place his or her child at or near the school where the parent works, that parent would contact Dr. Hague.1/ The collective bargaining agreement does not set out a deadline regarding making such a request. Dr. Hague receives calls from many parents of students in the School District, including calls from parents who are teachers and parents who are School Board members. Respondent had the occasion to call Dr. Hague at times regarding her children. Shortly after Respondent was elected to the School Board in 2002, Respondent called Dr. Hague regarding her children’s school placements. Respondent again called Dr. Hague in 2005, requesting a transfer for one of her children from one school to another. In both instances, Dr. Hague considered Respondent to be calling as a mother, not as a School Board member. During the 2006-2007 school year, two of Respondent’s children, Ky. J. and Ka. J., attended John E. Ford K-8 Montessori School, a magnet school.2/ Late in the 2006-2007 school year, Respondent was informed by Ka.’s teacher that Ka. should skip a grade. Respondent believed that Ka. was not overly mature and wished to transfer him to a different magnet school. Additionally, Respondent was concerned that Ka.’s FCAT scores were “flat academically” compared to prior years. As a result of her concerns, Respondent began considering options for the next school year. One of the options Respondent was considering was transferring her children to another magnet school, Henry F. Kite. In late May 2007, Respondent again contacted Dr. Hague regarding a change in the placement of Ky. and Ka. Respondent’s telephone contact to Dr. Hague occurred after the application period for magnet schools placement in the 2007-2008 school year had passed. She did not contact Dr. Hague earlier in the school year because she was not aware of the relevant issues regarding Ka. (i.e., his teacher’s recommendation that he skip a grade and his FCAT scores). At the time she made the phone call to Dr. Hague, Respondent had a general understanding that there had been at least one individual on the Superintendent’s staff (the Superintendent prior to Dr. Wise) who had been permitted to have her child transferred to a different magnet program without going through the application process. The only other School Board member who testified, Nancy Bonner, was also aware of one such instance, as was Mr. Sundstrom, the Chief-of-Staff to the former Superintendent. The testimony regarding the content of this telephone conversation varies to some extent. Respondent has no recollection of making any reference to being a School Board member during her conversation with Dr. Hague. Dr. Hague’s recollection of any reference Respondent made to her position as a School Board member during this phone call is less than clear. When asked whether Respondent referred to herself as a School Board member during this conversation, Dr. Hague testified, “. . . she did refer to herself as a board member at one point. . . .Well, I mean, she did say, you know, as a board member, you know, if there was any way to place her children at Kite.” Dr. Hague acknowledged that Respondent was “search[ing] for other ways that we might be able to move the students to Henry F. Kite.” Moreover, the evidence is clear that Dr. Hague knew from the first conversation with Respondent in 2002 regarding her children that Respondent was a School Board member. Dr. Hague also testified that in each instance, Respondent called her as a mother and that Dr. Hague was not asked by Respondent to violate any rule or policy: Well, she [Respondent] has children in the school system and she was calling in reference to her children and their school assignment, not unlike any one of 300, 400 calls I would take during the course of a month from parents who call to inquire about placement with their children, or movement on a waiting list, or any number of things that the parents call me about regarding school assignments. When asked whether she felt intimidated by the phone call, Dr. Hague replied that she did not feel any intimidation during the phone call. When asked if she felt pressured, she replied, “Maybe pressure’s not the right word, some persistence, I think on her part to see if there were any options from moving the students to Kite.” Dr. Hague continues to perceive her working relationship with Respondent as a good one. There is no evidence to suggest that Respondent demanded that her children be placed at Kite. Respondent said nothing to indicate that she might take some sort of adverse action against Dr. Hague if Dr. Hague did not approve a transfer, and in fact, did not take any adverse action toward Dr. Hague. After informing Respondent that the application period had passed, Dr. Hague referred Respondent to then- Superintendent, Joseph Wise. After speaking with Dr. Hague, Respondent contacted Superintendent Wise via telephone and left a voicemail regarding the placement of her children in magnet schools for the 2007- 2008 school year. Respondent “loosely” recalled what she said in the voicemail, and stated that she told Superintendent Wise that Dr. Hague told her to contact him. Superintendent Wise delegated the task of communicating with Respondent regarding this matter to his then- Chief-of-Staff, David Sundstrom.3/ Mr. Sundstrom contacted Dr. Hague who explained the application process for magnet schools to him. Respondent was next contacted on June 5, 2007, via e-mail by Mr.Sundstrom regarding her children’s placement in magnet schools for the 2007-2008 school year. In the e-mail, Mr. Sundstrom advised her that the lottery period had passed, that she had not yet filled out any application to move her children to another magnet school, and that there was a waiting list at Kite for the grades she requested. Respondent replied in approximately an hour and copied Dr. Wise. While she alleged in the e-mail that she was aware of waivers provided to members of Dr. Wise’s staff, she stated that she would submit late applications to place her children on the waiting list. Respondent and Mr. Sundstrom exchanged additional e- mails on June 5, 2007. For some time prior to the June 5, 2007, e-mails, the relationship between Respondent and then- Superintendent Wise, and his Chief of Staff, had deteriorated. According to Mr. Sundstrom, Respondent’s working relationship with Superintendent Wise deteriorated within months of his arrival in Duval County and was “really an unhealthy arrangement or relationship” in the months preceding the June 2007 e-mails. Mr. Sundstrom very openly did not and does not like or respect Respondent. Similarly, Respondent distrusted Mr. Sundstrom and believed that he was trying to undermine her work as a board member. The e-mails exchanged between Respondent and Mr. Sundstrom in June 2007 reflect the high level of tension between the two which came about prior to the issue raised herein. After becoming aware of the e-mails concerning Respondent filling out applications late for her children, Dr. Hague asked a member of her staff to prepare applications for Respondent to sign to request placement of her children on the waiting list for Henry F. Kite. This was solely at Dr. Hague’s direction as a courtesy to Respondent, and was not requested by Respondent. On July 16, 2008, Respondent signed and submitted applications for placement of her children in magnet schools for the 2007-2008 school year. Her son, Ka., was placed on the waiting list. Only five students were on the waiting list for Henry F. Kite, substantially fewer than waiting lists for more highly competitive schools. Ka. was moved into an open spot at Kite when the waiting list was exhausted. The weight of the evidence does not establish the allegation that Respondent asserted a “School Board member privilege” in her communications with Dr. Hague or Superintendent Wise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That the Commission enter a final order finding that Respondent, Brenda Priestly-Jackson, did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. S Barbara J. Staros 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 20th day of July, 2009.
The Issue Whether the Petitioner, a teacher under contract with the School Board of Seminole County, should be terminated from his employment based on misconduct in office, gross insubordination, and immorality, based on conduct during the course of the school year 1989-90 and an incident occurring on April 11, 1990.
Findings Of Fact Petitioner has been employed by the School Board of Seminole County since 1983 as a classroom teacher. Petitioner is employed pursuant to a Professional Services Contract. Petitioner was assigned to Lake Brantley High School during the 1988-89 and 1989-90 school year. During the 1989-90 school year, Petitioner taught two classes of honors world history and three classes of humanities. By letter dated August 17, 1989, which was hand delivered to Petitioner and a copy was placed in his personnel file, Petitioner was cautioned by Darvin Boothe, Principal of Lake Brantley High School, that: Any recurrence of behavior of this nature will result in the most serious of consequences. You are strongly advised to take appropriate measures to resolve the confusion, which, by your account, caused you to behave in a way which was unprofessional and unsound. In the letter, it was alleged that in late Fall of 1988 Petitioner placed a personal ad in the Orlando Sentinel which said: "Male seeks male for friendship." A fifteen year old male answered the ad in writing, and Petitioner replied in writing. A telephone conversation then occurred, and this ended the transaction. There was concern expressed by Principal Boothe that the purpose of the correspondence was an attempt by Respondent to initiate a homosexual liaison. Petitioner did not respond in writing to this letter. The Petitioner was a close acquaintance of the Ahuvia family, Citizens of the State of Israel and living in Seminole County. The oldest son, Saar, had been a friend of the Petitioner's son who was killed in an accident while an exchange student in Spain in September 1989. Mrs. Rachel Ahuvia invited the Petitioner to her home on frequent occasions after the death of Petitioner's son and attempted to involve the Petitioner in activities with her children because of Petitioner's apparent emotional reaction to the loss of his son. Ahuvia invited Petitioner to her home for Hanukkah in 1989 and to Passover supper in April 1990. During Petitioner's visit at Passover, Ahuvia asked Petitioner if he would take three of her children, Saar, Ram and Mor on an outing during the Spring Break. Petitioner agreed. It was arranged that Petitioner would take the three children to Rock Springs Park on April 11, 1990. Petitioner suggested that Saar being a 10th grade teenager and the other two being 11 and 9, could invite a friend as company in the outing. One or more friends his age were contacted before Gil Montag (who was 15 at the time and a school mate of Saar's) was contacted and agreed to go on the outing. Petitioner arrived at the Ahuvia home between 12:30 to 1:00 p.m., on April 11, 1990. Saar, a musician, was sleeping after having been up late taping a musical arrangement; rather than wake him, Mrs. Ahuvia suggested that the Petitioner and the other children go without Saar. Petitioner drove to the home of Gil Montag. Montag's parents were away, however, Gil had a friend with him, Danny Terrill. Gil Montag was told that Saar was unable to come. Gil decided to come anyway, and it was agreed that he would also bring his friend, Danny Terrill. The Petitioner and the four children drove to Rock Springs in Petitioner's car. When they arrived, they found it was closed and proceeded to Wekiva Springs. The trip took approximately 20 minutes, and the group arrived at Wekiva Springs at approximately 2:00 p.m. Enroute the children discussed several subjects, including Gil Montag's new earring. Danny Terrill also used one or more Hebrew words he had been taught by Gil Montag, one of which was "zain omed", a Hebrew word meaning "penile erection". The Petitioner requested that this word not be used in the presence of the young children. When the party arrived at Wekiva Springs, they passed through a gate tended by a park ranger. Several hundred people attended the park for day use that day. During the time Petitioner and his party were in the swimming area, there were at least 50 people present at any one time. During the time that Petitioner and his party were at the park, they were in the swimming area or on the grounds immediately surrounding the swimming area. Virtually all of the area where Petitioner and his party were located was within plain view of other patrons of the park swimming or sunning on the immediately surrounding grounds. During the time Petitioner was in the park, he played with the two younger children in the water and engaged in horseplay with the two older boys, Gil Montag and Danny Terrill, both in the water and in the surrounding grounds. A student known to the Petitioner, Toni-Ann Mariani and her visiting cousin, Loretta Mariani, arrived in the park by canoe and saw Petitioner and his party in the swimming area when they arrived. They also saw the two younger children and two older boys, who were introduced by Petitioner, in the swimming area. During the entire period of time Toni-Ann was there, the Petitioner as well as the younger children and two older boys appeared to be engaging in activities typical for the occasion, and it did not appear that anyone in the party was upset, angry or frightened. During one episode of horseplay, Danny Terrill pulled the string out of Gil Montag's bathing suit, which annoyed Gil Montag. In addition, Petitioner and the two older boys wrestled. Petitioner had wrestled in college and was involved with the high school wrestling program. Gil Montag had wrestled for a time in high school, and Danny Terrill had earned several belts in karate. During the wrestling, Petitioner put Gil Montag briefly in a scissors hold around his waist, a legitimate maneuver in olympic style wrestling. During that time, Danny Terrill was a short distance away and did not see any evidence that Petitioner was sexually aroused, nor did Gil Montag make any utterance at the time that made it appear that he was in distress or otherwise upset by the horseplay. During another episode of horseplay, Petitioner, Gil Montag and Danny Terrill, chased each other in the grounds surrounding the swimming area. This activity was not hostile or engaged in by Petitioner for some improper purpose and lasted for a short period of time, approximately 2 to 5 minutes. At about 4:00 p.m., Petitioner and his party decided to leave the park and return home. All of the children were dropped off at their homes without incident. That evening, while Gil Montag's parents were still away, Gil Montag and Danny Terrill invited some friends over and had a party. Although under the legal drinking age, beer was served and consumed, Gil stating that he drank about 12 beers. Danny Terrill testified that 24 beers were shared among 8 boys and that each boy had 2 or 3. Upon returning home from the outing and during the party, no mention was made by Gil Montag to Danny Terrill or to anyone that he had been assaulted in any fashion by Petitioner. A comment was made by Danny Terrill to the effect that he thought Petitioner was a "faggot" because of his mannerisms, not because of any conduct by Petitioner toward Danny. Gil Montag did not, in response to that statement, indicate that he had experienced any overture or conduct by the Petitioner that would substantiate Danny Terrill's slur. The alleged victim, Gil Montag, testified that during the horseplay in the swimming area, that Petitioner pulled the string out of his bathing suit, and that during this episode, while Danny Terrill was in the area, Petitioner was sexually aroused. Montag further testified that during the period Petitioner and the two older boys were "playing chase" on the grounds, that this episode was done in a hostile manner and that, in fact, he had fallen down 10 to 30 concrete steps, and as a result was cut and bleeding in many places on his body. Gil Montag further asserts that during the visit to the park, he was led against his will by the hand to the water after the above-described chasing and then taken against his will by Petitioner to a secluded area of the swimming area where Petitioner wrapped his legs around Gil Montag's waist and moved around in an indecent fashion for the presumed purpose of sexual gratification. Montag asserts that this went on for 10 minutes and that he was unable to escape from the grasp of Petitioner during that time. On or about May 16, 1990, Petitioner notified Gil Montag and his parents that Gil was earning a failing grade in Petitioner's class. During a discussion with Gil's father, Mr. Montag requested that his son's grade be changed and that he be transferred to a different teacher for the last nine weeks of the school year. Petitioner declined and offered the opinion that Gil's mind was not on his work and that he was preoccupied with girls and having a good time. That same evening, Gil Montag told his parents that he was upset because of Petitioner's alleged conduct at Wekiva Springs on April 11. Prior to this occasion, Gil Montag had not made this accusation, but states that he did not do so because of fear. During the school year 1989-90, Petitioner would regularly touch or pat students, including Ryan Anderson, Hisham Aboulhoson and Gil Montag, on their back, butt or knee as a sign of positive reinforcement or approval of work completed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a Final Order finding, as follows: The Petition for Dismissal, filed by the Superintendent of Schools for the Seminole County School District, be DENIED. The Petitioner be reinstated to his position of employment under his professional services contract, and that he receive full back pay and benefits withheld from the date of suspension. DONE AND ENTERED this 27th day of March, 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 27th day of March, 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 A.1,2,3;B.1,2,3,4,5,6,7,8,9 (in part), 10,11,13,14 (in part), 15 (in part), 16 (in part), 18, 19 (in part), 20,21,22,23,24 (in part) Rejected as argument: paragraphs B.9 (in part), 12,14 (in part),15 (in part), 16 (in part), 17,19 (in part), 24 (in part),28 Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1,2,3,4,8,9,10 (in part),17,18 Rejected as irrelevant, excluded evidence of a previously resolved collateral matter: paragraphs 5,6,7 Rejected as against the greater weight of evidence: paragraphs 11,12,12 (#2),13,14,15,16,17 Copies furnished: John Chamblee, Esquire Chamblee, Miles & Grizzard 202 Cardy Street Tampa, FL 33606 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian Colbert, Whigham & Simmons 200 West First Street Sanford, FL 32772 Robert W. Hughes Superintendent Seminole County School Board 1211 Mellonville Avenue Sanford, FL 32771 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Should discipline be imposed on Respondent's Florida Educator's Certificate No. 611934, based upon the allegations in the Administrative Complaint, Case No. 990-1149-R, before the State of Florida, Education Practices Commission?
Findings Of Fact STIPULATED FACTS Respondent holds Florida Educator's Certificate No. 611934, covering the areas of History and Physical Education, which is valid through June 30, 2004. At all times pertinent hereto, the Respondent was employed as a social studies teacher at Sandalwood High School (Sandalwood) in the Duval County School District. ADDITIONAL FACTS Morgan King was a female student at Sandalwood at times relevant to the inquiry. Following her marriage she is known as Morgan Hall. Although Ms. Hall was not a student in Respondent's classes at Sandalwood, she became acquainted with Respondent. Ms. Hall's involvement with Respondent was principally during sixth period of the school day. At that time Ms. Hall would routinely leave her history class at the end of the period and go to Respondent's classroom where she had many friends. When Ms. Hall arrived at Respondent's classroom Respondent and the students, to include Ms. Hall would "hangout and talk." Some of the conversations that Ms. Hall participated in with Respondent and other students in his classroom were of a sexual nature. These conversations followed an earlier conversation in a prior year when Respondent told Ms. Hall a story about a girlfriend that he had when he was a young teenager. He explained that he and the girlfriend would stay up all night together. The girlfriend had kids. Respondent told Ms. Hall about the sexual relations which he had with the girlfriend while Respondent was a teenager. Beyond that conversation, while in his classroom at Sandalwood Respondent followed the theme in his discussion with Ms. Hall concerning sleeping with numerous women, so many women that he could not remember how many he had slept with. He went on to comment to Ms. Hall that when you are married you could not do that, but it was acceptable conduct before marriage. Respondent's comments to Ms. Hall about having sex with a girlfriend before marriage and about the number of women he had slept with before marriage were voluntarily remarks made to Ms. Hall. She did not begin the discussions. Respondent told Ms. Hall about another female student that had come to his classroom after other students had left and flipped up the backside of her skirt revealing the thong underwear she was wearing. While in this classroom in sixth period, friends of Ms. Hall would make fun of her by talking about her "backside," saying that she had a "big butt." Respondent would participate in the conversation, remarking in what Ms. Hall considered to be a joking manner, about Ms. Hall's "butt being big." This comment was made by Respondent a few times. Ms. Hall had conversations with Respondent that insinuated discussion about his penis. As Ms. Hall perceived it, part of what he said was something to the effect that Respondent "could suck his own penis." Ms. Hall in response to Respondent's remarks of a sexual nature would tell him that, "You are a sick old man. That's gross." She would make these comments in a joking manner, but at the same time recognizing that this was a serious matter. She did not want to be rude and offend Respondent, thus the lighter nature of her remarks. On one occasion while in Respondent's classroom, Ms. Hall was sitting on the floor next to his desk against a cabinet. Ms. Hall asked Respondent why it was so cold in the room. He replied, "You know why I like it to be cold, you know why I want it to be cold," while raising his eyebrows. Ms. Hall described how other girls would sit hanging over Respondent's desk with their "boobs are like right there in his face. And everybody's nipples are hard." That was the circumstance that caused Respondent to raise his eyebrows. On the subject of female students being around Respondent's desk in his classroom, Ms. Hall perceived that those students felt comfortable around Respondent. Respondent created the impression that he was like a friend to Ms. Hall and other female students. He was enjoyable company, according to Ms. Hall. She described his conduct as being disgusting a little of the time, but not all of the time. In these exchanges Respondent allowed the female students to act disgusting in their own right. The discussions of a sexual nature at times were promoted by Respondent, at other times they were promoted by the students. Ms. Hall discussed a computer website entitled "Banged Up.com" with Respondent in the classroom. That website contains subject matter with sexual connotations. Debra Coleman was another student at Sandalwood during the relevant time period. She was in Respondent's tenth grade world history class. She had conversations with Respondent of a sexual nature. Ms. Coleman went to Respondent to talk to him about her sex life. Other students talked to Respondent about sex in her presence. Respondent was open to those conversations. Respondent made a comment to Ms. Coleman and other female students, that if they did not do their work he was going to spank them and that they would like it. On one occasion Ms. Coleman was allowed to have an extended lunch period following a discussion in which Respondent asked her if he could bite her lip. She said, "No." Respondent then reached up and pinched her bottom lip. On another occasion when Ms. Coleman was in Respondent's class, Brandie Brinksma, a female student was sitting next to her. Respondent pulled out a money clip. In addressing the female students he said, "I'll give you $500 if you, Brandie, turn to your right and kiss Carrie on the cheek. And, Carrie, I want you to then turn around and act like you are going to kiss her on the cheek and instead of just kissing her on the cheek like, Brandie will turn her head." And beyond that point the students would "start making out." Ms. Coleman was offended by those remarks from Respondent. She got mad and walked out of class. She had never walked out of class before. What Respondent said to the two students was stated in front of the entire class. During one instance when Ms. Coleman was at Respondent's desk in the classroom, a Coke can was on the end of Respondent's desk. Respondent told Ms. Coleman to pick up the Coke can. Respondent placed a measuring ruler next to the Coke can and stated "Imagine 9 1/2 inches of that, going up you," while indicating the measurement on the ruler. Ms. Coleman turned red and responded something to the effect "O.K." and went back to her seat. That measurement was perceived by Ms. Coleman to refer to Respondent's penis. In classroom, in Ms. Coleman's presence, Respondent made a comment about his ability to "Suck his own penis" in the shower, to the effect that "He was able to go down on himself." Some of the male students in the class commented that this physical dexterity was not possible. Respondent commented that he was able to perform this act on himself, but that he had not done it in a while. In April 2000, Aron Muse was the affirmative action supervisor/equal employment opportunity coordinator for the Duval County School Board. He was assigned to investigate Respondent's conduct on the subject of Respondent's conversations with the students concerning sexually related topics. Respondent told Mr. Muse that he was a friend of the students and he was trying to assist them in life in discussing subjects of a sexual nature and that he intended to direct the students in a proper way. Respondent told Mr. Muse that some of his conversations involved sexual jokes. These discussions with students pertain to a bond which the students and Respondent had, according to Respondent. As Respondent told Mr. Muse, the discussions about sexual matters were "nothing personal." Brandie Brinksma was a student of Respondent's at Sandalwood. She is referred to in the Administrative Complaint as B.B. One of her friends was worried about her while she was attending school, concerning Ms. Brinksma's use of drugs and having sex. It is reported that the friend of Ms. Brinksma went to Respondent and asked that Respondent say something to Ms. Brinksma to let Ms. Brinksma know that those were not good choices on her part. Respondent took Ms. Brinksma aside and asked if he could talk to her. Respondent remarked that the other student was worried about Ms. Brinksma's conduct. Respondent advised Ms. Brinksma to think about the consequences of her acts. Although this discussion concerning drugs and sex was not at the instigation of Ms. Brinksma's parents or the school district, Ms. Brinksma was not offended by the discussion with the Respondent. More specifically, in the conversation between Respondent and Ms. Brinksma, Respondent mentioned that he had heard that Ms. Brinksma had been "trippin." This is a term attributable to the other student who had arranged the conversation between Respondent and Ms. Brinksma. Ms. Brinksma told Respondent that she had been having sex and that she had tried the drug Ecstasy once. At times relevant Susan Tidwell, formerly Susan Tabor, was a teacher at Sandalwood. She was acquainted with Respondent. Respondent said "a lot of sexual things" to Ms. Tidwell. One of the Respondent's actions would be to show his bicep by flexing it in Ms. Tidwell's presence. He would say, "If this is this big, guess what else is." This was perceived by Ms. Tidwell as an insinuation that was sexual in nature. Respondent said to Ms. Tidwell on more that one occasion that he wanted to "See Ms. Tidwell in black straddling . . . " and then he would pause for the effect, and add, "a Harley," referring to a motorcycle. Respondent told Ms. Tidwell that he wanted her to lose her "good girl image" and that black leather would be what he wanted to see her in. Respondent told Ms. Tidwell one time that he wanted her to advertise for his lawn service business and that all she had to do was to sit in the back of his pickup truck with a bikini top and that would drum up business. Respondent told Ms. Tidwell at school, "Hey Susan, do you know why God gave women vaginas." She responded that she did not want to hear his joke. As she left a workroom at the school when the bell rung, Respondent continued to insist that Ms. Tidwell listen to the punch line of the joke. While in the hall he delivered the punch line which was "So men would talk to them." Ms. Tidwell was not amenable to hearing the ending to the joke either. Respondent, while Ms. Tidwell and another female teacher Christie Allen were in a school workroom with him, told the two female teachers that he had a fantasy about being stranded on a desert island with the two of them, so that they could be on an island full of "little cookies." Ms. Tidwell was bothered by Respondent's remarks that have been reported and somewhat embarrassed to that point in time. Later in Respondent's classroom, Respondent told Ms. Tidwell that he had talked to the class about her pending divorce. In this conversation he said, "I guess it has been a long time since you had any, so let me know if you need something." Another part of the discussion at that time involved some reference by David E. McConnell, a former teacher at Sandalwood who was visiting the school and was in Respondent's room. Mr. McConnell brought up Respondent's lawn business and commented that Ms. Tidwell needed her lawn done. In response Respondent said to Ms. Tidwell "You know I have something you need, you have something I need." Then he grabbed his crotch. Ms. Tidwell considered the circumstances that took place in Respondent's room on that occasion to be intolerable. Ms. Tidwell reported Respondent's conduct to her school department head and to the assistant-principal at the school, which led to an investigation by the Duval County School District.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Counts 2 through 5, dismissing Count 1, and permanently revoking Respondent's educator's certificate. DONE AND ENTERED this 7th day of November, 2003, in Tallahassee, Leon County, Florida. S __ CHARLES C. ADAMS 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 7th day of November, 2003.
Findings Of Fact The Respondent has been employed as a teacher within the Brevard County School System since 1969. He was employed on the instructional staff at Creel Elementary School during the 1969-70 school year. In 1970, he was transferred to Melbourne High School where he served as a physical education teacher through the 1977-78 school year. At the end of that year, he was involuntarily transferred to University Park Elementary School. He was employed as a physical education instructor at University Park from September, 1978, until March 25, 1981. Respondent's employment with the Brevard County School System was based on a continuing contract. On March 24, 1981, the School Board approved a recommendation of its Superintendent, the Petitioner, that the Respondent's employment be terminated. Respondent requested a formal hearing, and he has been under suspension without pay pending the resolution of this proceeding. From 1969 through the 1978-79 school year, the Respondent received consistently satisfactory evaluations of his job performance. This includes the first year of his employment as a physical education teacher at University Park Elementary School. It was not until the 1979-80 school year, under a new principal at University Park, that the Respondent's performance was evaluated as unsatisfactory. The Respondent's job performance for the 1979-80 school year and for the 1980-81 school year up to the date of his suspension was evaluated as unsatisfactory. Unsatisfactory evaluations of the Respondent's performance for these past two school years accurately reflect the quality of his work. His general job performance was poor, and he was guilty of several specific instances of misconduct. The Respondent was responsible for conducting several one-half hour physical education classes during the course of the school day at University Park. His classes typically had fifty students. The Respondent did not adequately supervise his students. Rather than teaching fundamental skills, and skills which would lead into group activities, the Respondent typically had his classes run a lap, perform exercises, then engage in "free play." The Respondent would only infrequently organize his classes into group sports activities, and he did not properly teach his students skills which would provide a proper background for group sports activities. In administering physical fitness tests, the Respondent did not keep adequate records of his students' performance. This resulted in his students not being able to participate in awards programs, and, for the 1980-81 school year, resulted in his students having to be retested. While other physical education classes would have "free play" for only a portion of one class weekly, the Respondent had a pattern of allowing more "free play" activity than organized activity. This is contrary to the purposes of the physical education program and resulted in a lack of uniformity among the skill level achievement of students at University Park Elementary School. The Respondent did not prepare adequate plans for his classes. Despite constant criticism of the regular weekly plans that he prepared, his plans improved only in isolated instances. Generally, they reflected no effort to plan class activities. Respondent's inadequate plans made it difficult for other physical education teachers to coordinate their schedules with the Respondent's, made evaluation of the Respondent's performance difficult, made it difficult for substitute teachers to take over the Respondent's classes, and contributed to the Respondent's classes being disorganized. The Respondent did not adequately cooperate with other physical education teachers at University Park. On occasion, the disorganization of his classes would impede the orderly conduct of other classes. The Respondent did not adequately supervise his students' use of equipment, and he improperly allowed students access to the equipment room. In several specific instances, the Respondent engaged in conduct that constitutes misconduct. The Respondent struck one of his students, Tuan Luong, in such a manner that the student was hurt and humiliated. The incident was not an intentional effort on the Respondent's part to injure or punish the student. Instead, the Respondent and the student had had a relationship which included feigned roughhousing. Late in April, 1980, after the Respondent and the student had engaged in such activity, the Respondent struck the student in the stomach. It does not appear that the Respondent's intention was other than playful; however, he clearly injured the student more than he intended. The incident caused the student to transfer out of the Respondent's class. On another occasion, the Respondent struck a student, Randy Vernon, with a whistle strap. The striking was severe enough to raise welts on the student's wrist and to cause the student to be sent to the infirmary. It appears that this also developed as the result of playful roughhousing; however, the severity of the injury establishes that it was inappropriate. On the last day of classes at the conclusion of the 1979-80 school year, the Respondent washed his car on school property using school facilities. While the Respondent did not have any specific assignments to perform while he was washing his car, there were record keeping and inventory activities that he could have performed. Furthermore, he was on duty, not free to engage in activities for his own benefit, and the use of school facilities for his private purposes was inappropriate. On one occasion, the Respondent used two sixth grade students to assist him in straightening out the physical education office. At his request, and with the permission of their teacher, the students stayed beyond their recess class to assist him. It was contrary to school policy to use students in this manner without first obtaining permission from the administration. The Respondent failed to obtain such permission. During December, 1980, there was a new student in one of the Respondent's first grade physical education classes. The student had not had physical education classes before, and he became upset during the class for reasons that do not reflect upon the Respondent. The student ran away from the class. Rather than taking immediate steps to find the student and return him to the class, Respondent sent other students to the administrative offices to advise them that the child had run away from the class. The student was later found by a parent off of the school grounds, and he was returned to the school. The Respondent was in a position, if he had taken immediate action, to have intercepted the student and prevented him from leaving the school grounds. The Respondent testified that he was concerned for the continued smooth operation of his classes. This latter concern is commendable; however, under the circumstances that confronted him, the Respondent was in a position of having to act immediately to prevent potential harm to the student. He failed to act as circumstances required. The Respondent would typically have students run laps, or do push-ups as punishment for misbehavior. Such measures are inappropriate, especially in elementary schools, because one of the purposes of the physical education program is to encourage students to engage in physical activities. Using physical activities as punishment runs counter to this goal. The Respondent ceased utilizing laps as punishment when he was so instructed, but continued to utilize push-ups. When advised to stop using push-ups as punishment, he ceased that. Respondent's use of running laps and push-ups as punishment reflects a lack of understanding of the proper role of a physical education program in an elementary school. The Respondent's supervisors, including the Principal and Curriculum Coordinator, made efforts to work with the Respondent in order to improve his job performance. There were periods of time when his performance improved, but generally the quality of his work was inadequate during the entire 1979-80 and 1980-81 school years. The Respondent has been charged with insubordination. It does not appear, however, that the Respondent intentionally disobeyed any instructions. Rather, his performance simply did not measure up to instructions given him. It does appear that when specifically instructed to cease activities such as using laps and push-ups as punishment, the Respondent complied. There was considerable testimony offered with respect to other specific instances of misconduct on the Respondent's part. This testimony has been rejected, and the only instances of misconduct found to have occurred are those set out herein. Much of the testimony as to these other instances was of a hearsay nature, and cannot serve as the basis for a finding of fact. For example, there was testimony that the Respondent struck a first grade student. This testimony came from the student's mother, who heard it from the student. The alleged incident was not observed by any witness who testified, and the Respondent was utterly without an opportunity to cross-examine with respect to it. The Respondent was not totally unpopular as a teacher at University Park Elementary School. He is well liked by many fellow faculty members and students. Students would frequently request the Respondent to join them at class parties, and many of his students missed him and were resentful of his suspension.
The Issue The issues in this case are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2018), and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Amended Administrative Complaint; and, if so, what discipline should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted at the hearing, and the parties' stipulations, the following Findings of Fact are made: Petitioner is the agency head of the Florida Department of Education. Petitioner is responsible for investigating allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is responsible for filing an administrative complaint, and prosecuting the case in an administrative hearing pursuant to chapter 120, Florida Statutes, if the educator disputes the allegations. Respondent holds Florida Educator's Certificate 631669, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2025. Respondent has been a teacher for at least 25 years; quite a few of those years were in other states. She has not been previously disciplined by the Education Practices Commission in connection with her Florida certificate. No evidence was offered to show any prior discipline against Respondent's educator license or certificate in another state.5 At the time of the allegations in the Amended Administrative Complaint, Respondent was employed by the OCSB as a mathematics teacher at Howard Middle School, part of the Orange County Public Schools (OCPS) system. Respondent began working at Howard Middle School on August 6, 2018, for the pre-planning week for teachers prior to the arrival of students for the start of the school year. Kimberly Beckler was the new principal for Howard Middle School that year, although she had been employed by the OCSB since 2004, most recently as a senior administrator in the District's office. She started work as 5 Respondent was disciplined by the OCSB for the incident at issue in this proceeding, receiving a written reprimand. It appears that this is the only disciplinary blemish on an otherwise clean record during her 25-year teaching career; no evidence was offered to prove any other discipline imposed against Respondent. principal at Howard Middle School shortly before the teachers' pre-planning week. The Amended Administrative Complaint at issue in this proceeding is predicated on the following allegations of fact: On or about September 6, 2018, during an active assailant drill at Howard Middle School, Respondent directed several of her students to go into her classroom closet. Respondent went into the closet with the students, turned the closet light off, and closed the closet door. Respondent's remaining students were left inside the classroom for a period of time without direct adult supervision. Some of the students who remained in the classroom were confused by what Respondent did, and at least one student was "scared" because she did not know what would happen if the drill were real and the Respondent left her and the other students in the classroom alone. The parties stipulated that on September 6, 2018, the Howard Middle School administration conducted an active assailant drill. Before the drill, in August 2018, Respondent and other teachers at Howard Middle School were instructed to complete safety training regarding how to proceed during an active assailant drill. The training included two online video modules and a six-question test. Teachers were reminded several times in August that they were required to complete the training and certify having done so before the end of August. Respondent testified she did not remember this training or watching the videos, but is sure that if she was required to view them, she would have done so. As a "reminder" of the instructions detailed in the training videos, a written summary was provided to Howard Middle School teachers at some point prior to the September 6, 2018, drill. Respondent acknowledged that she received the summary written instructions prior to September 6, 2018, when the first drill of the new school year was conducted. The same summary information was provided on posters in each classroom. The summary instructions included various steps for teachers to take in their classrooms. The step at issue in this case requires teachers to move all classroom occupants out of the line(s) of sight through windows. To comply with this "out of sight" instruction, teachers had to consider the lines of sight through narrow windowpanes in the classroom doors. In addition, for classrooms on the ground floor with exterior windows, lines of sight from outside the building also had to be considered. Respondent taught different math classes in six or seven class periods, but all of her classes were held in the same classroom, which was not on the ground floor. According to Principal Beckler, Respondent's classroom was on the second floor. Respondent could not remember whether her classroom was on the second or third floor. All witnesses agreed that for purposes of conducting an active assailant drill, the line of sight through the exterior windows did not have to be considered, because classroom occupants could not be seen through the exterior windows by someone outside the building. For Respondent, then, the only line of sight she had to address was through the narrow window panel in the classroom door. Principal Beckler testified that instructions for active assailant drills were the subject of much discussion during the teachers' pre-planning week and at administrative meetings. Principal Beckler said that teachers were instructed to identify the lines of sight applicable to their particular classrooms and then identify areas in their classrooms where they could safely move occupants out of the lines of sight. It would have made sense, as part of general teacher training in preparation for lockdown active assailant drills, to provide those instructions to teachers. At the hearing, Respondent heard Principal Beckler's testimony; she did not deny being given this instruction, nor was she asked about it. There was no clear proof that the verbal instructions described by Principal Beckler were provided to or discussed with Respondent as part of a group of teachers in August 2018. Nonetheless, even without such instruction, identifying lines of sight through windows into one's own classroom, so as to know where to move classroom occupants so they are out of view, would have been a reasonable, prudent step to prepare to apply the written instructions that were admittedly provided to Respondent. Stated differently, it would be unreasonable for a teacher, knowing that he or she would be expected to act quickly in an active assailant drill to move students out of the lines of sight of windows, to not prepare for that drill by identifying the reaches of that line of sight for their own classroom. Respondent testified that the September 6, 2018, active assailant drill was the first such drill ever conducted by OCPS. Her testimony was refuted by the more credible adamant testimony by Principal Beckler and by Respondent's witness Altamont Coley, who was an administrative dean at Howard Middle School in charge of the active assailant drill on September 6, 2018.6 Several student witnesses also confirmed that they had participated in the same type of lockdown active assailant drill previously, although their other teachers conducted the drills differently, not in a way that left students feeling unprotected. Respondent's testimony reflected some confusion on her part regarding the various type of drills conducted by OCPS. For example, she testified that she had participated in "lockdown" drills before at an OCPS school, and that in at least some prior lockdown drills, the instructions were 6 Principal Beckler's clear, credible testimony was elicited in the following question and answer sequence: Q: "And the September 6, 2018, drill was the first ever active assailant drill in Orange County Public Schools, correct?" A: "That is absolutely false." Q: "Okay. But it was Ms. Carty's first, correct?" A: "No, that is false. Ms. Carty was employed by OCPS the year prior." (Tr. 150-151). Equally clear and credible was Altamont Coley's testimony given in the following question and answer sequence: Q: "And was the September 6, 2018, drill the first ever active assailant drill in Orange County Public Schools?" A. "Oh. No, sir. No, sir. I have participated in drills before that. Even at previous schools. On my previous school before coming to Howard." Q: "Were they specifically active assailant drills? The ones that you're – the previous ones?" A: "Yes, sir." (Tr. 208-209). to lock the door and "hide" in the classroom. She also testified that in some "lockdown" drills, she only had to lock the door, did not have to hide, and could continue teaching. Based on the evidence, Respondent confused different types of drills and the requirements for each type of drill.7 Contrary to Respondent's claim that the September 6, 2018, drill was a completely new procedure, the clear and credible evidence established that the drill was a "lockdown" active assailant drill that was not new to OCPS, had been conducted in prior school years, and was not new to Respondent, who had prior experience in "lockdown" drills in which she was required to move the classroom occupants out of view through windows. Howard Middle School teachers were informed before the drill that a drill was going to take place sometime on September 6, 2018, but they were not told specifically when during the school day. That would simulate the "surprise" element of an actual active assailant situation. Respondent's classroom where she taught her math classes on September 6, 2018, was large. It was one of the larger-sized classrooms at Howard Middle School. Without knowing the class period during which the drill would occur, Respondent could not know exactly the number of classroom occupants she would have to move out of view, but she would know the approximate number. For example, the geometry class Respondent was teaching when the drill was held was capped by state law at 25 students. However, only 23 students were enrolled in that class. And at least one student was confirmed to have been absent that day. 7 Respondent testified that "there's a difference between a lockdown and an assailant drill. An assailant drill was, you know, first time for me and I believe first time, you know, issued in the school. So that's a completely different type of drill." (Tr. 225). Without delving into confidential material, suffice it to say that the claim that a "lockdown" drill is different from the active assailant drill conducted on September 6, 2018, is contrary to the nomenclature used by OCPS. See Respondent's Exhibits 10 (in effect since before September 6, 2018) and 11 (similar to prior versions in effect since before September 6, 2018). The only window through which someone could see into Respondent's classroom was a very narrow vertical windowpane, set into part of the upper half of the classroom door. The door itself was recessed from the classroom wall, with a little entry alcove formed by side walls that appear to be ten to twelve inches in width.8 The narrow width of the window combined with the recessed design of the doorway left only a very restricted line of sight into the classroom from the hallway. Respondent's classroom was rectangular. The two longer walls were: the exterior wall on the opposite side of the classroom from the door; and the wall separating the classroom from the hallway (hallway wall). The long hallway wall was broken up by the recessed classroom door, with about one-third of the hallway wall to the left of the door (facing the door from inside the class) and about two-thirds of the hallway wall to the right of the door. The two side walls appear to be somewhat shorter than the hallway and exterior walls. For someone in the hallway peering into the classroom through the classroom door window, the exterior wall across the classroom would most likely be completely visible; the two side walls would be partially visible (those parts closest to the exterior wall), and both parts of the hallway wall, on either side of the recessed door, would be completely hidden from sight. Although Respondent did not say that she ever tried to identify the reaches of the lines of sight through her classroom door window, she testified that she believed one wall was completely out of the line of sight, and the two side walls were partially hidden from view through the door window—the parts of the side walls closer to the exterior wall would be within the line of sight. Respondent's classroom had an interior walk-in closet. The closet door was off one of the side walls, close to the hallway wall. Principal Beckler 8 Petitioner's Exhibit 17B (Bates-stamped 022) shows one side wall forming the classroom door's entry alcove. A landscape-oriented (horizontal) chart is hanging on the alcove side wall, close to the top. The chart appears to be on standard letter-sized paper, with the 11- and-one-half inch side easily fitting across the side wall. testified credibly that she examined the line of sight through Respondent's classroom window door, and the closet door could not be seen from the hallway. The classroom pictures in evidence provide visual corroboration. At the time of the drill, there were no more than 22 students in Respondent's class. Including Respondent, there were, at most, 23 occupants. When the announcement was made over the public address system for the drill, Respondent said she instructed her students to hide along the longer part of the hallway wall (to the right of the door, from inside the class, facing the door). She had the students sit down in a single row along that wall from the classroom door alcove, under the smart board, to the far corner. She then quickly proceeded to turn off the classroom lights and computer monitors. When Respondent finished these steps, she saw that approximately five or six students had not yet found a place to hide. Respondent testified that they were all standing directly in front of the classroom door window. That was the one spot in the classroom where the students could not be. Respondent testified that she did not think it was possible to hide another five or six (or seven, including herself) people along the hallway wall. She said the rest of the students were sitting on the floor up against the hallway wall under the smart board, and that to add any more people would have required that they sit on top of each other. Respondent testified that she had never been unable to hide all of her students in her classrooms before: "When we had lockdowns and things of that nature, I never had that issue. So that, you know, it shocked me. That was the very first time in my entire career that happened to me." (Tr. 248). Respondent decided the remaining students should hide inside the large walk-in closet. She gave this step some thought. First, she thought that, to comply with the drill instructions, she would have to turn off the closet light. Then her thought process continued beyond the drill instructions, imagining that someone in the hallway might be able to see the open closet door, and even if the closet light was out, that person might suspect from the open closet door that there were people in the closet. Therefore, Respondent decided that she would have to not only turn off the closet light, but also close the closet door completely. But this decision gave rise to another line of thought. Respondent testified she became concerned that if she left students alone in the dark in a closed closet, they could act inappropriately, such as by touching each other inappropriately, because there were both males and females. To address this concern, she joined the five or six students in the closet, turned off the light, and closed the door. Respondent's concern for leaving five or six students in the closet unsupervised apparently did not provoke a similar concern for the other 16 or 17 students left unsupervised in the classroom. However, as Principal Beckler credibly stated, a teacher's number one responsibility is to supervise her students. That means having eyes on all students in the classroom at all times, because things can otherwise get out of control very quickly. Respondent acknowledged that as a classroom teacher, she was responsible for supervising all her students. She understood "supervise" to mean "observe and direct." Her duty to supervise the students in her classroom did not stop during the lockdown active assailant drill. If Respondent had focused her thoughts on finding places in her large classroom for all students to hide out of sight, rather than on the unreasonable solution she seized on to separate the class by hiding a few students—then joining them—in the closet, she would have easily found a reasonable solution that did not require leaving most of her class unsupervised. Respondent had several reasonable options to meet the requirements of the drill while also continuing to supervise all her students. Respondent could have kept the closet door open or partially open so that natural light would have kept the closet from being dark. The closet door opened out into the classroom, with the door opening on the side away from the classroom door, towards the exterior windows. Accepting Principal Beckler's testimony, borne out by the pictures, that the closet door could not be seen from the hallway through the narrow window in the recessed classroom door, Respondent could have remained in the classroom while being able to see the students in the closet and the students lined up along the hallway wall under the smart board. Rather than resorting to hiding students in the closet, though, Respondent had several clear options within the classroom itself. There was ample room in the classroom for all 22 students and Respondent to have sat on the floor out of view of the classroom door window. The line of sight through the door window would have been a cone-shaped area, narrow at the window and widening out to the exterior wall. That left substantial portions of the classroom's floor space hidden from view. Inexplicably, Respondent apparently only considered having students sit on the floor in a single row, with their backs against the hallway wall under the smart board to the corner, with possibly a few students sitting in the space around the corner against part of the side wall. These 16 or 17 students apparently sat shoulder-to-shoulder against those walls. It would have been very easy for the remaining five or six students, plus Respondent, to sit on the floor in a second row facing the row of students sitting against the wall. It is clear from the pictures in evidence that there was ample floor space to allow students to sit two-deep along the smart-board wall and, if necessary, around the corner along the side wall. There was more space still in the area along the hallway wall on the other side of the classroom door, and around the corner to the partial side wall where the closet door is located. Respondent could have directed the five or six students standing in front of the classroom door to sit on the floor along the hallway wall to the left of the door, and around the corner to the closet door. Respondent could have had all the students sit on the floor in a triangular area (fitting for a geometry class), with two sides formed by the smart-board hallway wall where she said most of them were sitting and the part of the side wall furthest from the classroom door, filling in the floor space outward from both of those walls. Any number of different configurations were not only possible, but were obvious and clearly reasonable. There was more than enough floor space in Respondent's large classroom for 23 occupants (including Respondent) to hide out of the limited line of sight through that very narrow windowpane in the recessed classroom door. Respondent's claim that she could not hide a maximum of 23 occupants out of the limited sight line through the door window somewhere in her large classroom is simply not credible. Respondent's claim is contradicted by the visual evidence. It is also contradicted by the credible testimony of Principal Beckler, who said that although Respondent's classroom was one of the larger classrooms, no other teacher has had to hide students in classroom closets; no other teacher has ever had a problem moving all classroom occupants to places within the classroom itself that were not within the lines of sight of windows. Finally, Respondent's claim is contradicted by Respondent's own testimony. When she was asked in her deposition how many students were in her class during the drill, she gave this candid response: "It had to have been a large class for us not to fit in the two sides of the classroom. Maybe 28 to 30. I'm not certain. But they should have that record at the school, I would think." (Pet. Ex. 20 at 34). As it turns out, though, there were no more than 22 students in the class. Respondent's testimony stands as an admission that she could have (and therefore should have) fit the smaller number of students out of window view in her classroom. The drill lasted for approximately five minutes—including several minutes after Respondent secreted herself away with five or six students in the closet. Respondent could not see the 16 or 17 students in the classroom for at least several minutes. In fact, Respondent acknowledged that she could not even see the five or six students in the closet with her, because they were not near her and it was completely dark. Respondent claimed that she would be able to hear any noise made by the 16 or 17 students in the classroom but admitted that she heard nothing. C.K., one of the students who went into the closet with Respondent because she thought it was safer than staying out in the classroom, testified that they could not hear what students outside in the classroom were saying through the closed closet door. C.K.'s testimony was more credible than Respondent's contrary testimony. Respondent did not offer any basis for her belief that she could hear through the closed closet door (such as if she reported having closed herself in the closet to test whether sounds made in the classroom would be audible). For at least several minutes, the 16 or 17 students in the classroom were completely unsupervised. After the public address announcement that the drill was completed, Respondent and her students returned to regular classroom activities. No student voiced concern at the time regarding how the drill was conducted. Although not expressed directly to Respondent that day, several students did, in fact, have concerns. Since this was an active assailant drill, when the class was supposed to practice what to do in an actual active assailant situation, Respondent's separation of the students, leaving three- quarters of the class unsupervised in the classroom, left several students confused and apprehensive. On the day of the drill, one student, N.S., went home upset, told parent J.S. about the drill, and expressed confusion and fear. As N.S. explained: [Ms. Carty] left the rest of the class out in the classroom while she was in the closet. She did not tell the class where to go or hide during the drill. I was very confused and did not know where to go. I was also scared because I did not know what would happen if the lockdown was real and if Ms. Carty would leave us alone in a real lockdown. (Tr. 51-52; Pet. Ex. 8).[9] Other students who testified at the hearing expressed at least some of the same confusion and concern with the unusual procedure employed by Respondent to separate the class and leave most of the class alone in the classroom. Student M.P. testified to having felt "a little unprotected" being left out in the classroom. M.P. explained feeling unprotected this way: "[A]ccording to my other teachers I've been with, they've done it a lot differently, which is supposed to better protect the students and I felt like she did it a little differently." (Tr. 34). Student C.S., one of the students in the closet, credibly testified: "I was feeling a little afraid for my classmates if this was a real active assailant. After the drill we came out of the closet. Everything went kind of back to normal. Most of the students that were left outside didn't seem upset, but I could kind of tell they were." (Tr. 69-70). Prior to giving the all-clear announcement, several administrators checked all hallways to make sure they were empty and checked all classroom doors to make sure they were locked. There was no classroom-by- classroom assessment to determine how each teacher fared in carrying out the drill instructions within each classroom—that would have taken a very long time. Immediately after the drill, Dean Coley sent an email to all staff 9 Counsel for Respondent attempted to undermine N.S.'s testimony about being scared, but he did not succeed. He suggested that N.S. was afraid because it felt like an actual assailant situation. N.S. disagreed: "No. Because I've done active shooter drills before." Counsel then tried to get N.S. to agree that the fear was only of the idea of an active assailant in the building, but N.S. made it clear that the fear was also caused by the way Ms. Carty carried out the drill, leaving N.S. and others alone in the classroom. Ultimately, in the following exchange, counsel conceded that N.S. was actually harmed by being scared from the way the drill was conducted: Q: "Okay. So apart from being scared, you were not actually harmed by the active assailant drill on September 6, 2018, correct?" A: "Correct." Q: "And you did not – and did you quickly recover from being scared on September 6, 2018?" A: "I guess, yeah." (Tr. 56, emphasis added). Respondent's PRO mischaracterized N.S.'s testimony, claiming N.S. admitted to suffering no actual harm. N.S. answered the question as posed, agreeing that "apart from being scared," N.S. was not actually harmed. pronouncing the drill a success, while providing teachers with another "reminder," repeating the summary instructions for active assailant drills. Respondent did not report any concerns to the administration about how the drill was carried out in her classroom, either immediately after the drill or at any subsequent point. She did not report that she had been "shocked" to discover there was not enough space in her large classroom to move all occupants out of the line of sight through the classroom door window. She did not request assistance from an administrator to help plan for future drills by identifying the window's sight line so as to identify all the space within the classroom out of the window's line of sight. Instead, as of the hearing in June 2021, Respondent testified that she would like Principal Beckler to show her where in the classroom she could have hidden everyone. It is troubling that, if Respondent had been truly "shocked" on September 6, 2018, by an inability to hide everyone in the classroom as she claimed, she did not immediately bring this shocking discovery to the administration's attention and worked to address the problem. Shortly after student N.S. told parent J.S. about being scared by how Respondent carried out the drill in her classroom, J.S. sent an email to the administration voicing their concern. Upon receiving this email, the administration at Howard Middle School launched an investigation into the incident. The students who were in Respondent's class during the incident were asked to write brief statements about the incident. Several of those students testified at the hearing. Respondent also wrote a brief statement, which she signed and dated on September 24, 2018. Her statement was as follows: During the last drill where we had to hide and turn off the lights. I stayed in the closet with several students because I told them I cannot turn on the lights. The other students hid under a desk in the main classroom with the lights off. They did have sunlight from the windows. I asked them to remain quiet during the drill. When the drill was over we all took our seats and resumed class. No one indicated being frightened to me. Respondent made no mention in her written statement of her "shocking" discovery during the drill that there was not enough space within the classroom to hide all students out of sight. On October 22, 2018, after the investigation was completed and a predetermination meeting was held, Respondent was given a disciplinary letter of reprimand for misconduct by failing to properly supervise her students during the September 6, 2018, drill. She was also given non- disciplinary written directives to: (1) establish a safe, caring, and nurturing environment conducive to learning and the physical and psychological well- being of students; and (2) maintain proper supervision of her students at all times; students are not to be left alone unsupervised. Respondent refused to sign either document, despite the statement in both documents that "[m]y signature indicates only that I have received a copy of this [reprimand/directive]." At the hearing, Respondent did not deny having received the letter of reprimand and the directives. In December 2018, Respondent requested a transfer to another OCPS school. Respondent's request was granted, and she taught at Memorial Middle School in Orange County during the spring 2020 semester. At the end of the spring 2020 semester at Memorial Middle School, Respondent was informed that her teaching contract was not going to be renewed for the upcoming school year. No explanation was given for the nonrenewal. Respondent testified that she is having trouble finding another regular teaching position, but is working as a substitute teacher. She speculated that the reason why she is having difficulty finding a regular position is the pendency of this disciplinary proceeding, but had no non- hearsay evidence on which to base her speculation. It would be fair to say, however, that Respondent's ability to work in her chosen career and in the job of her choice may be impacted by the outcome of this proceeding, although the opposite may also be true once the outcome is no longer an uncertainty. Respondent raised as an "affirmative defense" to the Amended Administrative Complaint "that the allegations in this case underlie anti- black racism and/or animus directed against her as an African-American teacher." See Answer With Affirmative Defenses at 2, ¶ 2. However, Respondent offered no evidence to prove that any non-African American teachers acted similarly during an active assailant drill but were not charged with the violation alleged in this case. Instead, the unrefuted testimony by Principal Beckler was that no other teacher ever had a problem hiding all students within the classroom, and no other teacher ever separated his or her class to hide with some students in the closet while leaving other students unsupervised in the classroom. The allegations and charge at issue here are narrowly focused on Respondent's admitted conduct during the September 6, 2018, lockdown active assailant drill. The claim of racism as a defense to the allegations and charge at issue in this proceeding is wholly unwarranted. Ultimate Findings of Fact Respondent failed to make reasonable effort to protect her students from conditions harmful to learning and/or to their physical health, mental health and/or safety. She could not see three-quarters of her class for at least several minutes during an active assailant drill when she was in the closet with five or six students. Indeed, she could not see the five or six students who were in the closet with her. Nor could Respondent hear the unsupervised students out in the classroom from behind the closed closet door. Several students—most notably N.S. who went home upset that day to report what happened to parent J.S.—reasonably were concerned about what would happen if an active assailant actually entered the school, and whether they and their classmates would be protected. While there was no evidence of significant or lasting effects on the students' mental health and no student were physically harmed, the conditions created by Respondent during the drill were harmful to students' mental health in the short-term, and to students' safety. Indeed, the whole point of the active assailant drill is to appropriately prepare everyone in the school for an active assailant situation so that if they ever had to respond to an actual active assailant, they would have practiced and could respond automatically, knowing exactly what they needed to do to take the appropriate precautions for their safety and their physical and mental health. Respondent failed to make reasonable effort to protect her students by supervising and leading all her students through the proper drill steps. Instead, she undermined the goal of creating conditions to protect students, by leaving most of her students to fend for themselves— unsupervised, unprotected, and anxious about what would happen in an actual active assailant situation.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Peter Caldwell, Esquire Florida Education Association Legal Department 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order finding Respondent guilty of violating section 1012.795(1)(j), Florida Statutes (2018), through a violation of Florida Administrative Code Rule 6A- 10.081(2)(a)1., imposing a six-month probation on terms established by the Education Practices Commission, including a required Continuing Education course in professional standards for Educators, and issuing a letter of reprimand to Respondent as discipline for her violation. DONE AND ENTERED this 30th day of September, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2021. COPIES FURNISHED: Peter Caldwell, Esquire Florida Education Association Legal Department 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
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.
The Issue The issues in the case are whether Respondent committed the offenses enumerated in the Administrative Complaint filed by Petitioner and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Respondent holds a valid Florida Educator’s Certificate No. 514964, covering the area of elementary education, which is valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher at Moton Elementary School in the Hernando County School District. She is admired and respected within Moton Elementary and is considered by her principal to be an excellent teacher. Her performance evaluations consistently reflect that she exceeds expected performances levels in every category. Her honesty and integrity are unquestioned. Respondent is viewed as the quintessential teacher who teaches simply because she loves working with children, watching them learn and grow. Students in the State of Florida are administered a standardized test known as the FCAT. A portion of that test is known as the norm referenced test, or NRT. The NRT is used to compare students in Florida with the achievement of students in other states. It can also be used, as a secondary tool, in the placement of individual students. Teachers are forbidden to give direct assistance to students on the FCAT and the NRT portion of the FCAT, although they can give general encouragement to a group of students. Respondent’s practice, during normal testing in the course of the school year, is to circulate throughout the classroom. If she sees a student that has incorrectly dealt with a problem, she will direct the student to review the problem, and to think about the answer. Respondent was trained in how to administer the FCAT, including the NRT portion. Specifically, she was told she was not to give assistance to students as they were taking the test. On the afternoon of the day in March of 2002 when concerns were raised about Respondent having assisted at least three students on the NRT portion of the exam, Principal Donnie Moen summoned Respondent to his office to ask her if anything unusual had happened during the test. Respondent told him nothing unusual had happened. Later that evening, Respondent wondered out loud to her husband whether she had provided any assistance during the test. The next day, Respondent got the class together and asked the students whether she had provided any directions or assistance on any specific questions. Three students raised their hands and told Respondent she had provided assistance on a specific question. Respondent then realized and now concedes that during the test, while circulating throughout the class, she told K.M. to check her answer to a certain question; told S.H. to go back to a certain question she had skipped over and check the answers to the questions that followed; and told F.M. he needed to check the aquarium problem. When she realized she had given these students assistance on specific questions, she told the students she had to go to the principal to report what she had done. The students asked whether she would get in trouble. She reminded the students she had always thought that honesty was the best policy, no matter what happened. Respondent then reported to the principal to tell him she had provided some assistance to three different students on specific questions. While Respondent avows she did not intentionally provide assistance to any students, Respondent did fail to distinguish between normal classroom testing procedures and standardized testing procedures. Respondent’s effectiveness as a teacher has not been diminished by her actions. She continues to enjoy widespread support from staff, parents and school administration, although, as a result of the incidents in the NRT portion of the FCAT, Respondent accepted a "last chance agreement" with the local school district. Part of that agreement was a 10-working day suspension without pay, and probation for a period of one year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order retroactively suspending Respondent's certificate for a 10-working day period, coupled with probation for a period of one year. Such recommended penalty should run concurrently with discipline imposed by the Hernando County School District upon Respondent in April of 2002. DONE AND ENTERED this 29th day of July, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2003. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Bruce Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Should Petitioner suspend Respondent without pay for three (3) days for inappropriately physically restraining a student in mid-December, 1996, while Respondent was employed at Tate High School?
Findings Of Fact At all times relevant to the inquiry, Respondent was an instructional employee of the Escambia County School Board. In this capacity he served as a physical education teacher. He also coached football and track. Respondent has been in the teaching profession for more than 21 years. The majority of that service has been in the states of Alabama and Georgia. Respondent has been employed in the Escambia County School District for approximately two years. On March 14, 1996, Respondent received a reprimand from Jim May, Principal of Tate High School. Tate High School is in Gonzalez, Florida, and is part of the Escambia County School District. The letter of reprimand stated: I am writing this letter of reprimand in regards to an incident that occurred at Tate High School on March 12, 1996. It is my findings [sic] that you put your hands on a student and physically forced him in a chair by grabbing him by the elbow. You should never put hands on a student unless to prevent bodily harm to himself or to others. These actions were inappropriate and must not reoccur. Any further actions of this sort on your part will result in serious disciplinary action to you, including possible suspension or termination. In the fall term 1996 Mr. May met with coaches, to include Respondent, and reminded the coaches not to put their hands on students for any reason in relation to involvement between the coaches and student athletes. This meeting was occasioned by an incident between another coach and a student. The policy which prohibits a teacher from putting his or her hands on a student except to prevent harm to the teacher or to others, is a policy that has application throughout the Escambia County School District. When Respondent was reprimanded on March 14, 1996, Carolyn Spooner, the present Principal at Tate High School, told the Respondent, that he should have allowed the student whom he forced into a chair to walk out of the classroom, as opposed to forcing the student into the desk chair. It was the student's intention to leave the classroom before Respondent forced the student into the chair. If the student had been allowed to leave, Respondent was advised by Ms. Spooner, that the Respondent could have sent a referral to the Dean or sent for a Dean to offer assistance. The referral practice, as contrasted with physical restraint, is the policy for the Escambia County School District. While the Student Handbook describing rights and responsibilities for students in the School District of Escambia County in the 1996-97 School Year contemplates possible corporal punishment, the school district does not impose corporal punishment for high school students. In any event the imposition of corporal punishment is not conducted ad hoc through the instructional staff. It may only be conducted through means established by guidelines for administering such punishment, which establish the nature of the punishment to be administered, under what conditions, and by whom. Notwithstanding the admonitions to Respondent to refrain from placing his hands on students other than in the limited circumstances described, Respondent violated those instructions and acted contrary to the school district policy. This incident occurred on December 10, 1996, at Tate High School while Respondent was teaching a physical education class. On that date a student was less than cooperative in his participation in the physical education class. Basically, the student was unwilling to participate. There was some question about the student's ability to participate. This circumstance followed a history of the student not participating and having provided written excuses from his mother relieving him of the responsibility to participate in the physical education class. Nonetheless, on this date, Respondent felt that the student should walk, while other students played softball. At some point during this episode the student sat on some bleachers at the athletic field and refused to walk as he had been instructed to do by the Respondent. Respondent took the student by the elbow and "helped" the student down from the bleachers. They then commenced to walk around the practice field with Respondent holding the student by the arm. The student pulled away from the Respondent and stated words to the effect that he was not going to do anything on the field that he did not want to do. Respondent sent the student to the "office" to be punished, but the Respondent did not write a referral as required by school district policy. As a result of the Respondent placing his hands on the student's arm, the student received bruises on the underside of his left arm that left dark spots. That injury was reported by the student's mother. The marks that were left on the underside of the student's arm were still visible the following day. The incident was investigated by Ms. Spooner and Roy Ikner, Assistant Principal at Tate High School. On December 13, 1996 Ms. Spooner, as Principal for Tate High School, gave notice to Respondent that disciplinary action was being considered for "grabbing the student by the arm." Ms. Spooner met with the Respondent on December 16, 1996. In that meeting Respondent did not, and does not now, deny putting his hands on the student. Eventually Jim May, who had been elected superintendent of schools, gave notice to Respondent on January 22, 1997, that the superintendent was recommending the imposition of a three-day suspension without pay for the incident with the student that took place on December 10, 1996. The nature of the alleged misconduct was inappropriate physical restraint of the student. The facts reveal that Respondent inappropriately physically restrained the student on December 10, 1996, in violation of earlier instructions from his supervisor to refrain from that conduct. Other than the letter of reprimand and the incident at issue in this case, no other proof has been offered concerning prior discipline of the Respondent. The Respondent in his defense presented assessment system evaluations for the school years 1995-96 and 1996-97, in which he has been found to be a satisfactory teacher overall and has exceeded expected performance in parts of the performance evaluations.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which finds Respondent guilty of misconduct by the inappropriate physical contact with a student on December 10, 1996, and suspends Respondent without pay for three days. DONE AND ENTERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997. COPIES FURNISHED: John L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 John Benavidez 10141 Vixen Place Pensacola, Florida 32514 Jim May, Superintendent School District of Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470
Findings Of Fact Respondent, Otis J. Fells, has been an employee of the Petitioner, School Board of Dade County, since 1975. At all times material hereto, he was a teacher and basketball coach at American Senior High School. On September 8, 1981, Paulette Brown was fifteen years of age, a student at American Senior High School, and a student in Respondent's sixth period physical education class. Monday, September 7, 1981, was Labor Day. Since classes for the 1981- 82 school year had commenced the week prior to Labor Day, American Senior High School was closed on Monday and reopened on Tuesday, September 8, 1981. On September 8, Respondent reported to American Senior High School to carry out his teaching and coaching duties. Since the floor of the gym was being painted, and since the school year had just begun so that not all physical education students had their gym clothes, the physical education classes were held in either the auditorium or the gym as study-halls, and the students wore their regular clothing. Between 9:30 and 10:30 the morning of September 8, Norman Blanco, a volunteer assistant basketball coach, came to American High to talk to Respondent about holding tryouts for the basketball team for the new school year. Since Respondent was with a class, Blanco told Respondent he would return after school to discuss that matter. Both the sixth period classes and the school day ended at 2:15 P.M. Respondent's sixth period physical education class had been held in the auditorium. James Lee, one of Respondent's sixth period students, asked Respondent for a ride home after school, and Respondent agreed to give Lee a ride home. Respondent left the auditorium and went to the main office to sign out and check his mail. He started to walk toward the boys' locker room, but stopped to speak to the art teacher about the eagle emblem to be placed on the gym floor by the art students. He then went to the gym to get the paint for the floor and took the paint to the art teacher's room, where he left it, although the art teacher was no longer there. Respondent then went to the coaches' office, where Blanco was waiting. From past experience, Blanco knows that if he arrives at American High at 2:15, he cannot find a place to park. He usually arrives about fifteen minutes after school lets out so that all the cars are gone and he can park wherever he wishes. On September 8, he arrived at American High at approximately 2:20 P.M. He went to the coaches' office to talk to Respondent. By the conclusion of their ten-to-fifteen minute meeting in the coaches' office, Blanco had talked Respondent into holding tryouts for the basketball team rather than simply using last year's team, as Respondent had intended to do. Blanco left Respondent in the coaches' office at approximately 2:35 P.M. There are two doors in the coaches' office: one opening into a hallway, and one opening into the boys' locker room. During Respondent's meeting with Blanco, the doors were open. After school on September 8 in the hallway outside the coaches' office, band members were going out to the football field, members of the flag corps were assembling for practice, and the cheerleaders were practicing approximately fifteen yards from the door into the coaches' office. In the boys' locker room, members of the cross-country team, the football team, and the soccer team were using their lockers or changing their clothes for practice. Additionally, the coaches' office is not Respondent's private office; rather, it is also used by the cross-country coach, the baseball coach, and the soccer coach, who are also involved with their students, their team members, aides, and managers. Inside the boys' locker room is a small room used for storing basketball equipment. The door to that room is kept locked. There are only three keys for that room: Respondent possessed one, Assistant Coach Jones possessed the second key, and the third key which traditionally was kept in the main office had never been returned after the girls' basketball team borrowed it one night the previous school year. After his meeting with Blanco, Respondent went to the main office, where he left his handwritten announcement concerning tryouts for the basketball team on the public address system. He then saw James Lee out in front of the school, directly in front of the main office. At approximately 2:45, from the main office, Respondent went to his car and left school with James Lee. When Lee arrived at his home, he told his mother that it was 3:00 and that Coach Fells had given him a ride home. After dropping off James Lee, Respondent went to Mr. B's Package Store and Lounge to see A. J. (Arnold) Johnson, one of the owners. Over the Labor Day holiday, Bobby Hunter, Assistant Basketball Coach from Boston College, visited Respondent and left sneakers for A. J. Johnson at Respondent's house. Respondent took the sneakers into Mr. B's and gave them to Johnson, who was waiting for the bank to open at 3:00 so he could transact some business at the bank. Johnson left Mr. B's to go to the bank at approximately 3:05, and when he returned from the bank, Respondent was still there. While Johnson was gone from Mr. B's, Respondent visited with Roscoe Large, the sales representative from Southern Wine and Spirits, and several other persons whom he also knew. After Respondent had been at Mr. B's for approximately thirty minutes, he left and drove to Coconut Grove to pick up his son at the baby-sitter's. On the following day, Respondent went to school and spent a normal day. After he arrived home on Wednesday, his wife told him that someone had been calling on the telephone accusing Respondent of raping Paulette Brown. The next morning, Respondent called the principal of American Senior High, and the principal advised him to stay home. On September 8, 1981, Paulette Brown stayed after school rather than leaving the school grounds when school adjourned for the day at 2:15. Between 2:30 and 2:45, she visited with Agnes Pitts and William Hopkins in the vicinity of the coaches' office and boys' locker room. When Agnes Pitts again saw Paulette Brown, it was approximately 3:00, and Brown was walking toward the front of the school. Brown told Pitts that she was going home. At approximately 3:00, Brown called her father and asked him to pick her up at school. After he picked her up and pursuant to her suggestions, they first picked up fried chicken for dinner and then picked up Paulette's brother when he got out of school at 3:30. Mr. Brown then took Paulette and her brother home and then went to pick up Paulette's mother, Pauline Brown, at 4:00 at her place of employment. Between 5:00 and 6:00 P.M. on September 8, 1981, Paulette Brown called her godsister, April Clark, and told Clark that Respondent had raped her. She also told her story to George Richberg that same evening. She also told her story twice to Jeffrey Clark. During her second relating of the story to Jeffrey Clark, she included mention of a janitor with a key to the boys' locker room. On Wednesday, September 9, Paulette Brown stayed home from school. After taking a nap, she called her boyfriend's sister and told her that Coach Fells had raped her. When the boyfriend's sister threatened to tell someone in a position of authority if Paulette refused to, Paulette told a neighbor, who told Mrs. Brown. Paulette Brown was tested at the Rape Treatment Center on September 9, and the investigators for the police department examined the equipment room on September 12. To gain entry to the room, the police drilled through the deadbolt lock. Five non-mobile sperm were found within Paulette Brown by the Rape Treatment Center. Testing by the Miami-Dade Police Department Crime Lab established that the sperm came from an individual that was an "O-positive secreter." This is the most common blood type. Forty percent of the American population falls in this category. Respondent is a member of this category, that is, Respondent is an "O-positive secreter." The Miami-Dade Police Department's fingerprint experts examined and dusted the equipment room at American Senior High School and found identifiable fingerprints of the Respondent. They found no identifiable fingerprints of Paulette Brown. The parties have stipulated that simply because one touches an object, one does not necessarily leave fingerprints. The sheet, which Paulette Brown claims she lay upon while having sexual intercourse with Respondent, was impounded from the equipment room and examined. Nothing of serological value was found. Respondent, Otis J. Fells, did not commit sexual battery upon Paulette Brown on September 8, 1981, and Respondent, Otis J. Fells, did not engage in any sexual activity with Paulette Brown on September 8, 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent not guilty of immorality and misconduct in office, as set forth in the Amended Notice of Charges filed in this cause, and reinstating Respondent as an employee of the School Board of Dade County with back pay. RECOMMENDED this 16th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 16th day of July, 1982. COPIES FURNISHED: Jose E. Martinez, Esquire Leib I Martinez, P.A. 201 Alhambra Circle, Suite 1200 Ponce de Leon Plaza Coral Gables, Florida 33134 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132 Elizabeth J. du Fresne, Esquire du Fresne & du Fresne, P.A. 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton Superintendent of Schools Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132
