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
The Issue The issue is whether respondent's educator's certificate should be disciplined for the reasons cited in the administrative complaint filed on November 7, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Richard T. Vaughn, Jr., is licensed as a teacher having been issued Florida Educator's Certificate 678116 by the Department of Education. The certificate covers the area of sociology and was valid through June 30, 1995. When the events herein occurred, respondent was employed as a mathematics teacher at the Marion Regional Juvenile Detention Center (MRJDC) and The Phoenix Center in the Marion County School District. Based on conduct which occurred during school year 1993-94, on May 19, 1994, respondent was suspended from his teaching position by the Marion County School Board (Board). After an administrative hearing was held in December 1994, a final order was entered by the Board on March 31, 1995, terminating respondent for misconduct in office, incompetency, and willful neglect of duty. After learning of the Board's action, and conducting a further inquiry, petitioner, Frank T. Brogan, as Commissioner of Education, issued an administrative complaint on November 7, 1995, alleging that respondent's conduct also constituted a sufficient ground to discipline his teacher's certificate. The charges stem from incidents which allegedly occurred while respondent taught at MRJDC from September 1993 until April 7, 1994, and at The Phoenix Center from April 8, 1994, until May 17, 1994. In his request for a hearing, respondent has denied all material allegations. During most of school year 1993-94, respondent taught at MRJDC, which is a detention facility for students who are awaiting trial on criminal charges. As might be expected, the students at MRJDC "are very difficult to work with." At hearing, respondent's supervisor established that respondent had "difficulty" with his work, he was "uncooperative" with other faculty and staff, and he had "problems" with his peers. His behavior was generally described by all witnesses as being "bizarre" and "irresponsible." On some occasions, he would become angry with his students and "storm" out of his classroom leaving the students unsupervised. While respondent was teaching at MRJDC, it was necessary for the principal of the school's education center to meet with respondent because he would not speak to any of his colleagues. Respondent took the position that speaking with his peers was not in his job description, and thus it was unnecessary for him to do so. Although admonished by the principal to communicate with his peers, respondent continued to be abrupt and uncommunicative. During his tenure at MRJDC, respondent exhibited irrational and explosive behavior while teaching his classes. For example, he frequently engaged in screaming tirades against students who failed to meet his disciplinary expectations. In addition, it was not unusual for respondent to be confrontational with his students, and if threatened by one, he would challenge the student to carry out the threat, or to meet him outside the classroom to resolve the matter. Respondent's pattern of explosive behavior at MRJDC culminated on April 7, 1994, when the MRJDC superintendent was called to respondent's classroom to resolve an "emergency" situation. As it turned out, a student had thrown some pencil lead, hitting respondent in his glasses. Respondent began yelling at the student and challenging him to come outside the classroom and "take him on" to settle the score. When the superintendent arrived, she asked respondent to leave campus for the remainder of the day. However, respondent became abrupt and confrontational with the superintendent, initially refused to leave, and continued yelling at the student for another five minutes. Because of respondent's pattern of irrational and explosive behavior throughout the school year, and his loss of effectiveness as a teacher at MRJDC with both his colleagues and his students, a decision was made to transfer respondent to The Phoenix Center, an alternative education school, in order to give him one final opportunity. Effective April 8, 1994, respondent was reassigned to The Phoenix Center as an exceptional student education teacher. His class consisted of no more than four or five students. Despite the small number of students, respondent continually called the dean of students to resolve disciplinary problems which arose in his classroom. It can be reasonably inferred that respondent lacked the necessary demeanor and temperament to effectively manage and control his classroom. On May 3, 1994, respondent was described as being "incoherent" and "in a rage" while engaged in an altercation with a student who had threatened him. While the student was being led from the classroom to the principal's office by the dean of students, respondent became "agitated" and followed the student down the hallway continuing to challenge him to carry out his threat. Although ordered by the dean to return to the classroom, respondent initially refused to do so. Respondent's explanation for his conduct was that he was trying to prove a point with the student. For at least the second time that school year, respondent was instructed by the principal not to challenge students who had made threats. By engaging in the conduct described in the previous finding of fact, and that described in findings of fact 6 and 7, respondent intentionally exposed his students to unnecessary embarrassment or disparagement. On May 6, 1994, while coaching a school softball team, respondent became outraged over a call by the umpire and left the campus without permission. During his absence, the students were unsupervised. On May 17, 1994, respondent was returning to campus in his automobile when he approached a group of students in the roadway. One female student ignored her teacher's request to move and intentionally remained in the middle of the road. As he approached the student, respondent gunned his engine and drove straight for the student but hit his brakes stopping just short of her. Respondent later explained that he was merely trying to prove the point that if a student remained in the road with a car approaching, she would "be in trouble." By engaging in this conduct, respondent failed to make a reasonable effort to protect a student's physical safety. By virtue of his personal conduct over the school year at both MRJDC and The Phoenix Center, respondent's effectiveness as a classroom teacher has been seriously reduced.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order finding respondent guilty of violating Sections 231.28(1)(f) and (i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code, revoking his certificate for one year, allowing him to reapply for an educator's certificate only upon certification by a mental health professional that he is competent and capable of performing his duties as an educator, and upon reemployment, placing him on probation for a period of three years. DONE AND ENTERED this 18th day of September, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1996. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Carl J. Zahner, II, Esquire Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Richard T. Vaughn, Jr. 1731 26th Street, South St. Petersburg, Florida 33712
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
The Issue At issue herein is whether or not the Respondent School Board of Dade County's reassignment of the Petitioner based on an alleged pattern of disruptive behavior in the educational program should be sustained.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. During September, 1978, Victor John Cecchi was transferred from Miami Springs Junior High School to the Jan Mann Opportunity School North. Charles W. Bales, the principal of Miami Springs Junior High School appeared at the hearing and testified that the Petitioner was transferred based on an extensive pattern of "disruptive behavior in the educational program which deprived other students in the program of the full benefits of the educational system." According to principal Bales, the transfer to the Jan Mann Opportunity School North is one where the Opportunity School provides a more controlled atmosphere, smaller classes, more direct supervision which enables a "problem child" to get the benefits of the Dade County educational program. It is eventually the goal of the Opportunity School to reintegrate the "problem child" back into the regular school system so that he is mainstreamed back into the full academic process. During the period October 4, 1977 through the assignment in September of 1978, Petitioner had been referred to the principal's office 35 times for referrals due to disruptive behavior. Principal Bales testified in detail respecting the various incidences by the Petitioner wherein he had been involved in an extended pattern of disrupting classes, leaving the school campus without permission, engaging in altercations with other students and destroying the personal property of others. During these incidences, petitioner was at times returned to the school campus by truant officers and officers from the Miami Springs Police Department While the Petitioner, through his father, does not dispute the fact that he was referred to the principal`s office based on a pattern of disruptive behavior, Petitioner requested that his son be reconsidered for reassignment back in the normal school program at Miami Springs Junior High School. In this regard, testimony reveals that the Petitioner has attended the Jan Mann Opportunity School for a total of only three days since his reassignment to the center. Testimony reveals further that the school system through its Opportunity School affords "problem or disruptive students" opportunity to reacclimate themselves through the process by attending the Opportunity School which provides a different setting. For example, the classroom setting is very individualistic and the number of students range from eight to twelve. Special vocational programs are offered and the pupil to counselor ratio is greater in the Opportunity School. For these reasons, and based on the fact that the Respondent has afforded Petitioner numerous occasions within which he was allowed to correct his disruptive pattern while attending the Miami Springs Junior High School, I shall recommend that the Respondent's reassignment of him to the Jan Mann Opportunity School be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the petition filed herein be dismissed. DONE and ORDERED this 27th day of August, 1979, in Tallahassee, Florida. COPIES FURNISHED: Richard Cecchi 331 Swallow Drive Apartment 17 Miami Springs, Florida 33166 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33013 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent held a Florida Teaching Certificate number 541001, covering the areas of Physical Education and Driver's Education. Respondent was employed by the Dixie County School District at Dixie County High School in Cross City, Florida, from the spring of 1983 through late November, 1985. During the period of time Respondent was employed by the Dixie County School Board (Board), he was married to Tina Bailey, with whom he had two children. He was divorced from Tina Bailey in July, 1986. Respondent was employed in the positions of athletic director, head football coach, and also had some duties teaching physical education. During the fall semester of 1985, respondent spent his mornings at Anderson Elementary School and was on the high school campus at Dixie County High School from 11:15 a.m. through the remainder of the day. During the Respondent's fifth hour he taught physical education, and during his sixth period he was involved in being the varsity coach for boys' football. Dixie County High School, which is located in Cross City, is the only public high school in the County. The population of Cross City is 3,000. The position of head football coach at Dixie County High School is a "spotlight figure," a visible position with a great deal of influence or contact with young people. A valid teaching certificate is necessary to hold the position of football coach at a public high school. During the late summer of 1985, Respondent attempted to use his influence as head football coach to intercede and possibly prevent an impasse in the contract negotiation between the teachers and the Board. Respondent's action resulted in members of the football team, and possibly some of their parents, putting pressure on the Superintendent of Schools to call a Board meeting. The student aides assigned to the Physical Education Department for fifth period of the 1985-1986 school year were Mary Cravey and Trina Fletcher. Trina was a senior during the 1985-1986 school year and head cheerleader. She had been a cheerleader since the seventh grade. Due to Trina's head cheerleading responsibilities and being a teacher's aide in the same period Respondent taught physical education, she had more contact than usual with the head football coach in her senior year. During the fall semester of 1985, toward the end of October, School Principal Kenneth Baumer was advised by Cynthia Wells, an English teacher, that Trina was romantically involved with Respondent. Upon Baumer questioning the Respondent and Trina, both denied any improper conduct and there was insufficient evidence to show any improper conduct prior to this date. However, in effort to quiet any rumors, Baumer transferred Trina across campus under the supervisor of her aunt, Cherie Norton. Sometime after Trina was placed under the supervision of her aunt, Trina became attracted to Respondent, and Respondent later became attracted to Trina, and they began to discuss their personal problems with each other. Later on, subsequent to the discussion with Baumer but before Respondent resigned his position, their relationship became more personal and progressed to the point of physical contact such as hugging and kissing on possibly one or two occasions off campus and out of Dixie County. After Respondent resigned in late November, 1985, his relationship with Trina continued, but it was not until after her eighteenth birthday that the relationship progressed to the point of being physical and sexual. Also, they dated more openly after Trina's eighteenth birthday. It was not until Respondent resigned that Trina's parents became fully aware of the relationship. Trina's parents were bitterly opposed to Trina dating or seeing Respondent and, as a result, on her 18th birthday, January 23, 1986, Trina moved in with her Aunt, Cherie Norton. After moving out of her parents' home, Trina received very little financial support from her parents. The relationship between Trina and her parents was very poor during the spring of 1986. Trina did not go to the senior prom, although she did go for pictures, nor did she go on the senior trip. Trina decided against going to these events because she was dating Respondent. There was no evidence that Respondent encouraged Trina not to attend these events. Trina was a straight "A" student which did not change as a result of her relationship with Respondent. Trina had a standing academic scholarship to attend Lake City Junior College. Trina did not attend college, although she was encouraged by Respondent to attend college, and, in fact, offered financial assistance through his uncle. In a small community such as Cross City, rumors, whether true or untrue, affect an individual's reputation and could damage the effectiveness of teachers in a classroom. However, there was insufficient evidence to show that Respondent's effectiveness as a classroom teacher was adversely affected by any rumors before or after he had resigned. Respondent was aware after the discussion with Baumer that getting involved with a female student, particularly while employed by the Board, was inappropriate. There was insufficient evidence that Trina suffered any damaging consequences as a result of her relationship with Respondent, particularly prior to his resignation. Trina was a "loner"; her friends were limited and she did not mix well with her peers. This was true before and after she became involved with Respondent, and there is insufficient evidence to show that Trina was treated any differently by her peers or the public at large in Dixie County after she became involved with Respondent, particularly before his resignation. Although, as a rule, high school students may be sensitive to what is said about them by their classmates, there was insufficient evidence to show that any derogatory remarks were made to or about Trina, directly or "behind her back," concerning her relationship with Respondent that resulted in Trina being embarrassed or hurt, being isolated from, or treated differently by her peers or suffering any damaging consequences. There was insufficient evidence to show that Respondent's relationship adversely affected or seriously reduced his effectiveness as a teacher and an employee of the Board, notwithstanding the testimony of Principal Baumer and Superintendent Hardin in this regard, particularly their concern about the political implication of any Board member's thinking or theories in recommending Respondent for re-employment as a teacher in Dixie County, Florida. It is clear that there was a strong mutual affection between Respondent and Trina, in spite of the age difference, that lasted for a period approximately 1 1/2 years, long after Respondent had resigned and Trina had graduated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED that the Education Practice Commission enter a Final Order finding Respondent in violation of Section 231.28(1)(c), Florida Statutes, for conduct constituting "gross immorality" and suspending Respondent's teaching certificate for a period of (1) year, subject to reinstatement in accordance with Section 231.28(4)(6), Florida Statutes. It is further Recommended that Petitioner's Final Order dismiss all other charges relating to a violation of Section 231.28(1)(f) and (h), Florida Statutes, and Rule 6D-1.006(3)(e) and (h) and Rule 6B-1.006(4)(c), Florida Administrative Code. RESPECTFULLY SUBMITTED AND ENTERED this 14th day of March, 1989 in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4782 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-13. Adopted in Findings of Fact 1-12, respectfully. The first sentence is immaterial. The second sentence is adopted in Finding of Fact 14. The first sentence is immaterial. The second sentence is adopted in Finding of Fact 15. 16.-17. Adopted Findings of Fact 15 and 16, respectively. 18.-23. Adopted in Findings of Fact 16, 16, 17, 18, 19 and 17, respectively. 24.-26. Adopted in Findings of Fact 20, 20 and 22, respectively. Adopted in Findings of Fact 14, 15 and 16. Adopted in Findings of Fact 15 and 16. Adopted in Findings of Fact 14 and 16. Rejected as being argument rather than a finding of fact. Rejected as being argument rather than a finding of fact. Rejected as not supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 26. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 16. Adopted in Finding of Fact 22. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: Betty J. Steffens, Esquire Nabors, Giblin, Steffens & Nickerson, P.A. 106 South Monroe Street Post Office Box 11008 Tallahassee, Florida 32302 Thomas Bailey, Pro Se Post Office Box 1482 Cross City, Florida 32628 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde, Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 =================================================================
Findings Of Fact At all times relevant hereto, respondent, James Mickey, Jr., was an occupational placement specialist at Homestead Senior High School (HSHS) in Homestead, Florida. He has taught there since 1979 and has been an employee of petitioner, School Board of Dade County (Board), since 1970. On April 23, 1987, and as set forth in greater detail on June 1, 1987, petitioner issued proposed agency action alleging that Mickey had (a) wrongfully converted $200 in cash to his own use which belonged to another person, (b) accepted a $715 coaching supplement for services that he did not perform, and (c) falsified or failed to keep adequate records for a Work Study Program of which he was in charge. For this, the Board has proposed to suspend Mickey for ten working days, and if he failed to repay $990, to suspend him for an additional twenty working days. The threat of this disciplinary action prompted Mickey to institute this proceeding. Conversion of Funds - This charge stems from an allegation made by a former student at HSHS who claims she was required to give Mickey $200 of her proceeds derived from working in the Work Study Program in the spring of 1985. As might be expected, the validity of this charge turns on the credibility of the testimony of the "victim" and the accused. The former student, who is now twenty-one years old and will be identified by her initials, L. D., worked part-time in school year 1984-85 in a work study program at the HSHS "slush house," so named because slush drinks and other munchies were sold there during lunch hour, and from 2:30 p.m. to 6:30 p.m. each school day. Profits were used for such laudable purposes as purchasing uniforms for the boys and girls school track teams. Sometime in the spring of 1985, Mickey noticed a shortage of funds at the house and suspected foul play, particularly since only he, L. D. and the custodian had keys to the house. Mickey stated he mentioned this to L. D., who denied any impropriety, but who eventually resigned from her job on May 15. Because of the accusations, Mickey contends permanent animosity between him and L. D. was engendered. Whether another student was hired to replace L. D., and if so whom, is not of record. While employed in the program, L. D. kept track of the hours she worked by recording this information on a piece of paper. This was then given to Mickey who placed the information on a time card to calculate her wages. L. D. could not recall what her hourly rate of pay was, or the amount of wages to which she was entitled. Because of paperwork delays, checks for the work study program participants, such as L. D., were not issued and distributed until August, 1985. L. D.'s proceeds totaled in excess of $200 for the semester but she could not recall the specific amount. According to L. D., Mickey brought her check to her house one day and told her to cash it and give him back $200 for payment due another student who had replaced her. He later telephoned her to remind her about the money. After cashing the check on August 28, L. D. went to the school office looking for Mickey. She carried a bank envelope with an undisclosed amount of cash. She first went to the principal's office and related to his secretary that she was going to give Mickey the cash in the envelope because Mickey had told her it was needed to pay another student. Finding this to be somewhat unusual, the secretary took L. D. to the library where they met the assistant principal (Bernstein). The secretary told Bernstein that the "young lady has money" for Mickey. L. D. repeated her story that she had $200 for Mickey that was to be paid to another student. When Mickey could not be found, L. D. departed. Neither the secretary or Bernstein saw any cash change hands, and neither knew whether the envelope actually contained $200. Later on, L. D. found Mickey in his office and gave him the $200. There is no evidence that Mickey then gave the money to another student, or returned it to the program. Word of this alleged transaction reached the principal who asked L. D. to write a statement. She did so that day although she wrote portions of it at two separate times. The statement generally corroborates L. D.'s testimony given at hearing. Respondent does not deny meeting with L. D. in his office on the morning of August 28 but denies receiving any money. However, L. D.'s testimony is deemed to be the most credible and persuasive, is corroborated by other independent testimony, and is hereby accepted. Coaching Supplement - Mickey has been a coach of various athletic teams at HSHS for a number of years. Under school policy, a coach was given a salary supplement as compensation for the additional hours devoted to coaching a team. Prior to school year 1984-85, Mickey had served as head coach of both the men and women track teams and had received two supplements for his services. However, his request to coach both teams in 1984-85 was eventually turned down since school policy did not permit a person to serve as head coach for two teams at the same time. While the record suggests that Mickey may have actually performed head coaching services for the two teams during the first part of school year 1984-85, he was compensated only as head coach of the boys cross- country track team. Its season began in August, 1984, and required his services until around 7:00 p.m. or later each school day. To Mickey's credit, his team won the state championship that year. For these services, Mickey received a salary supplement. After learning that his request to coach the two track teams (and receive two supplements) had been rejected, Mickey met with the HSHS principal, Percy Oliver, in early January, 1985, to see if he could earn the supplement in another manner. He was told of an opening for an assistant coach on the wrestling team that would pay a $715 supplement. Although the wrestling season had already begun in November, and would end in February, Oliver approved Mickey's request to serve as assistant coach for the wrestling team. To earn the supplement, Oliver stated it was necessary for Mickey to "go out and assist the kids' wrestling coach" and attend practices and meets. In an interview prior to hearing, Mickey acknowledged receiving the $715 even though he failed to attend any practices or meets. The only duty he could recall performing was advising the head coach on unspecified "rules and procedures." He also stated he did not deserve the supplement for wrestling duties, but was entitled to the extra compensation for his other school activities. At hearing, Board witness Gray described what he considered to be the normal duties of an assistant wrestling coach in an effort to show that Mickey did not earn his supplemental pay. However, Gray's testimony was drawn from his own coaching experience in the late 1960s, and is deemed to be too remote to be relevant to this proceeding. Even so, it is found Mickey was not entitled to compensation for serving as an assistant wrestling coach in school year 1984-85 since he did not perform the duties expected of an assistant coach. Recordkeeping - During school years 1983-84 and 1984-85, Mickey was in charge of a "work study program" at HSHS. As such, he had the responsibility of keeping records for the program and authorizing payment to students. This program is designed to provide on-the-job training to students enrolled in vocational educational programs who are otherwise qualified. Students were then compensated at the rate of $3.25 per hour for their services which could not exceed twenty hours per week. Mickey acknowledged he was familiar with the recordkeeping requirements of the program, since he had been involved with work study programs for some fifteen years. To be eligible for the program, a student must have been enrolled in a vocational educational program at HSHS, and be a member of a family meeting certain income criteria. In this regard, the program is funded by a federal grant, and income criteria are published annually by the federal government. As a prerequisite to enrollment students are obliged to fill out a form entitled Vocational Work Study Student Income Determination. The form must be signed by the parent or guardian, and reflect the number of members in the family as well as the annualized family income. The form itself does not require additional income verification by the parents but Mickey stated they sometimes attached additional income verification to the form, such as a W-2 form. Although it was Mickey's responsibility to verify the students' eligibility, he indicated that if the information submitted facially complied with the eligibility requirements, he made no further inquiry. Students enrolled in the program were to be paid every two weeks. Before payment could be made, it was necessary for the supervising teacher (Mickey) to submit paperwork to the Board's county-wide coordinator (Joseph Zaher) where the program payroll was processed. Through testimony from another work-study program supervisor, it was established that preparation of paperwork was sometimes "delayed," but never more than for a few weeks. In Mickey's case, the completed paperwork was not submitted until at least June, 1985, or after the regular school year had ended, and checks were not issued until July or August. Therefore, the students were not paid biweekly as they should have been. It is also noted that the actual paperwork was prepared by a former student, D. M., rather than by Mickey himself. Mickey blamed the delay on the "downtown office," saying one set of paperwork sent in March had been lost, and this forced him to send a second set to Zaher in June or July. Even if this is true, Mickey did not timely supply the first set of paperwork, and he was negligent in not following up on the matter to ensure that the students were promptly paid. The notice of charges alleges that certain students were paid for work not performed. The pertinent program "write-in roster" and attendance cards reflect that student K. M. attended an out of town track meet on May 9 and 10, 1985 but was also paid for working in the work study program on the same days. Even though K. M. was assisting Mickey at the track meet, she was not eligible for payment in the program. In the case of student T. M., Mickey relied upon a time sheet approved by another teacher and cannot be held accountable for that teacher's error. The student was also paid for working for the registrar on March 7, 8 and 20, 1985, even though he was absent from school on those days. This was improper. Mickey gave no explanation for this error except to say that he had no "guidelines" for administering the program. As to student L. D., payroll records reflect she worked after May 15, 1985, when, in fact, she quit on that date. No explanation for this variance was given by Mickey except to say he believes she received pay only for actual work performed. The notice also alleges several students were allowed to enroll in the program even though they were ineligible. At hearing, Mickey stated that although he knew he had an obligation to verify eligibility, he accepted without further checking the information given by the parents on the enrollment form. The pertinent records reflect that students T. M., K. M., L. D., M. W. and T. C. did not provide proof that they were either income eligible or enrolled in a vocational program. They also reflect that one person, D. M., was allowed to work in the program from February through April, 1984, even though she had graduated from HSHS in January, 1984. Although there are a number of mistakes, errors and omissions in the work study program records, and they failed to comply with Board recordkeeping requirements, there is no evidence that Mickey intentionally violated any program rule or regulation, or applicable state recordkeeping requirements. Miscellaneous - The Board investigated the charges against Mickey, and the results of its audit were published in a local newspaper. As a result of such notoriety, it was established that Mickey's effectiveness as a teacher had been impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding respondent guilty of those charges set forth in the conclusions of law, and that he be suspended from his position for ten days without pay. Petitioner should also dispose of the $990 in a manner consistent with paragraph 8 of the conclusions of law. DONE AND ORDERED this 9th day of December, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1987.
Findings Of Fact At all times material to these proceedings, the Respondent Ivory Scott, held Teaching Certificate Number 460227, issued by the Department of Education for the State of Florida. The Respondent was employed with the School Board of Lee County Florida, and was assigned to Mariner High School. In addition to his duties as a health teacher and drivers' education instructor during the 1987-1988 school year, the Respondent coached the boy's varsity basketball team. M. C., a fifteen-year old female minor student at Mariner High School, participated in after school sports activities as the head statistician for the boy's varsity basketball team and as a player for the girl's basketball team. The Respondent first became acquainted with M.C. when she attended his health class during the first semester of the school year. Before the basketball season began, the student approached the Respondent and told him that she kept statistics for the boy's basketball team at her former high school the year before. The student volunteered to be one of the statisticians for the Respondent's team. She was interviewed by Respondent regarding her recordkeeping abilities and knowledge of the game. Based upon the interview and the student's display of knowledge, she was made the team's head statistician. Prior to granting permission to allow M.C. to participate in the boy's basketball program as a student athletic assistant, her mother voiced concern to the Respondent about transportation problems which could occur when a family member was occasionally unable to meet the student at the school after a game. The Respondent solved this problem with an offer to provide the student with a ride home whenever the family was unable to pick up the student. This potential solution to the problem was accepted by the mother, and the Respondent did give the student a ride home after a few games during the basketball season. On February 9, 1988, the student M.C. wanted to go home before she played in a basketball game at school at 4:00 p.m. The student asked the Respondent for a ride, and he agreed to give her a ride after school ended at 2:20 p.m. When the Respondent left the school grounds with the student, no one else was in the vehicle. The Respondent drove in a direction away from the student's home. Once an isolated area was located, the Respondent engaged in sexual intercourse with M.C. The Respondent then drove M.C. home, and told her not to tell anyone about the incident. During the following week, but before February 19, 1988, the Respondent again left the school grounds alone with the student M.C. They traveled to another isolated area and the Respondent again had sexual intercourse with the student. When the student was driven home, she was instructed not to tell anyone about the incident. On February 19, 1988, the student M.C. was crying in an hysterical manner in the courtyard area of the school grounds. The child's schoolfriend, A.F., tried to comfort the child, but was unable to calm her. The assistant principal who observed the scene, took the girls to the guidance area so that they could deal with M.C.'s loss of control in a more private area. A female guidance counselor was asked to keep an eye on the students because of M.C.'s unusual behavior. In an attempt to assist the student, the guidance counselor asked M.C. if she would like to go to the counselor's private office. The student accepted the offer, but did not discuss why she was upset. On Monday, February 22, 1988, M.C. returned to the guidance counselor's office. She implied that her problem was of a sexual nature, but was unwilling to discuss the matter further. A few days later, the counselor gave the student the Abuse Counseling Center telephone number. On Friday, February 26, 1988, the child M.C. contacted the guidance counselor and revealed that she had seen the man involved in her problems the evening before. The police officer on campus was contacted. The student revealed to the counselor and the officer that she was in a relationship with a man who was twenty-five years old, married, and the father of a child. Although the Respondent was married and had a child, he was older than twenty-five years of age. The evening before the limited revelations to the counselor and officer occurred, M.C. had attended the school district's boy's basketball tournament. The Respondent was present at the tournament. The following week, the counselor and the police officer urged M.C. to tell her parents about her relationship with the man. When the student did not tell her parents, the police officer called the student's mother and told her what the student had told him. The student was taken for a medical examination by her mother on March 3, 1988, and it was determined that her hymen was no longer intact. The student would not tell her mother the name of the man involved, but she agreed to tell the guidance counselor on Friday, March 4, 1988. On the appointed date, the student told the counselor the man involved was the Respondent, Ivory Scott. The guidance counselor informed the assistant principal who brought the student into the guidance office on February 19, 1988, about the allegations. The assistant principal advised the principal. When the principal was informed of the student's accusations, he sent for the Respondent immediately to prevent him from hearing the news from less reliable sources. After the principal notified the Respondent of the student's accusations, the Respondent admitted to having the student M.C. alone with him in his vehicle on several occasions. The Respondent denied that any sexual activity took place during these times, and he was unable to speculate why the child might be motivated to make the accusations against him. During the hearing, the Respondent denied that the student M.C. had ever been alone in his vehicle with him, or that the events testified to by the student regarding sexual intercourse had ever occurred. It was his testimony that M.C. had once confided to him that her stepbrother had intercourse with her. The Respondent did not report this purported confidence to the authorities, and there was no evidence in the record to substantiate that the student had a stepbrother. A number of students from the high school testified at hearing. Members of the basketball team and a student athletic assistant testified that on Thursday, February 25, 1988, M.C. was behaving in a flirtatious, sexually aggressive manner with a member of the boy's basketball team in the back of the bus. The basketball player and his mother testified as to M.C.'s persistent need to seek attention from the player. A former boyfriend of M.C.'s testified that, contrary to her statements that she had not kissed with boys prior to the sexual incidents with Respondent, he had engaged in kissing activity with her. The former boyfriend also testified that M.C. told him that nothing has happened between her and the Respondent. She told him this after a newspaper article related her accusations and the Respondent's arrest. The former boyfriend had telephoned her to discuss the matter after his grandparents mentioned that they read about the accusations in the newspaper. Diane Goldberg, a licensed clinical social worker who was accepted as an expert in the area of child sexual abuse counseling, opined that M.C.'s behavior after the alleged incidents of sexual intercourse with the Respondent was congruent, and consistent with behavioral indicators which reflect that sexual molestation has occurred.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent's Florida teaching certificate be revoked for violating Section 231.28(1)(c) and (h), Florida Statutes and Rule 6B-1.006(3)(a) and (h), Florida Administrative Code, of the State Board of Education. That the allegation that Respondent violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, be dismissed. DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4544 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3. Rejected as to the finding that the student relied on Respondent for rides home after her basketball practices prior to the alleged incidents. Accept that she occasionally relied on Respondent for rides home after games. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Reject as to two week time period. See HO #7. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #7. Accepted. See HO #7. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. See HO #11. Accepted. See HO #15. Accepted. See HO #16. Accepted. See HO #17. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #17. Rejected. Witness incompetent to render legal conclusion. Rejected. Improper summary, Accepted. See HO #21. Respondent's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #8-#10, #11, #13 and #15. Reject the first sentence. Contrary to fact. M.C. referred only to rides home, not rides home after games. See HO #6 and #7. Reject the second sentence as contrary to fact. See HO #6 and #7. The rest of paragraph 3 is rejected as contrary to fact. See HO #6 and #7. Accept first sentence. See HO #6. All but the last sentence in the first paragraph are accepted as facts presented. Although probative, these facts were not determinative. See Conclusions of Law. The last sentence is rejected as contrary to fact. See HO #6 and #7. The first two sentences in the second paragraph of proposed finding of fact number 4 is accepted. See HO #6 and #7. The third sentence is accepted as testimony. The finding of fact based on the evidence is found in HO #7. The last paragraph in proposed finding of fact number 4 is rejected as it is argument as opposed to a proposed factual finding. See Conclusions of Law. Rejected. Improper summary. See HO #19 and Conclusions of Law. Accept the first paragraph of proposed finding of fact number 6. See HO #14 and #15. The second paragraph is rejected as it is argument as opposed to a proposed finding of fact. See Conclusions of Law. Accept the first sentence. See HO #13 and #15. The rest of proposed finding of fact number 7 is rejected as irrelevant to these proceedings. Rejected. Dr. Seitz's testimony was not filed in Case NO. 88-4544. COPIES FURNISHED: Wilbur C. Smith, III, Esquire Post Office Drawer 8 Fort Myers, Florida 33902-0008 Craig R. Wilson, Esquire 1201 U.S. Highway One, Suite 315 North Palm Beach, Florida 33408-3581 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
The Issue Whether Respondent's teacher's certificate should be revoked or otherwise disciplined.
Findings Of Fact Respondent held Florida Educator's Certificate No. 609670, covering the areas of Physical Education, General Science, and Education Leadership. The certificate expired on June 30, 2000. However, Respondent has the option to ministerially renew his certificate. In 1989, Respondent was a teacher at Pensacola High School. During the summer of 1989, Dona Snyder, then 18 years old, was a student at Pensacola High School. Respondent would often speak with Dona at school and telephone her at home to ask her to go out with him. She turned him down. However, the day before summer school ended Dona and Respondent engaged in romantic hugging and kissing. The last day of school they went to eat at a local restaurant. Later in the year, after Ms. Snyder had graduated, Dona and Respondent engaged in sexual intercourse, which resulted in the birth of a child. From 1994-1998, Respondent was employed as a Physical Education teacher at Pine Forest High School, in Escambia County. In 1994, M.M., aged 14, was a ninth-grade student at Pine Forest High School. She met Respondent during that year. When M.M. was in the tenth grade, Respondent chaperoned M.M's. ROTC class to Seattle, Washington. M.M. and Respondent became more familiar with each other during the trip. They became very comfortable with each other and Respondent began making comments of a sexual nature about M.M's. appearance. M.M. developed a crush on Respondent. When Respondent and M.M. returned from the Seattle trip, they visited each other at various locations at Pine Forest High School. In April 1996, towards the end of M.M.'s tenth grade year, Respondent told M.M. that he would like to see her away from school. Respondent made it clear that he was interested in a sexual relationship with M.M. M.M. was around 16 years old at the time. Respondent encouraged M.M. to either lie to her mother or sneak out of her home at night in order to meet him. At first, M.M. refused Respondent's suggestions. She did not think sneaking out was right. Later in 1996, Respondent and M.M. saw each other at a football jamboree. Respondent gave M.M. his telephone number. M.M. later telephoned Respondent and they decided to meet at the University Mall. It was agreed that M.M. would concoct a pretextual reason to go to the mall which she would tell her mother. After they met at the mall, Respondent took M.M. to his home. They went to his bedroom and had sex. After this first sexual encounter, Respondent and M.M. started meeting each other and having sex almost every weekend for more than a year. M.M., with Respondent's encouragement and complicity, would sneak out of her mother's home from her bedroom window at approximately 2:00 a.m. Respondent would pick her up several blocks away from her house. They would go to Respondent's house and have sex. Afterwards, Respondent would take M.M. back to the place where he picked her up. M.M. would then walk back to her house and enter through her bedroom window. Clearly, Respondent placed M.M. in a dangerous situation by encouraging and facilitating these late-night excursions. Respondent and M.M. had sex in various places, such as Respondent's home, Respondent's car, Belleview ball park, the school baseball field, and the baseball locker room. On one occasion, Respondent took M.M. and another female high school student to a local hotel for group sex. Respondent provided alcohol to the girls. He directed the girls to have sex with each other. While the girls had sex with each other, Respondent watched. Respondent had sex with the other student and then had sex with M.M. During their relationship, Respondent told M.M. not to tell anyone about their affair because he could lose his job and go to prison. Respondent also talked M.M. into foregoing her desire to pursue college and ROTC. Through this relationship, he directly contributed to M.M.'s grades deteriorating and a loss of self-esteem. The good relationship she had with her mother deteriorated. M.M. was known as Coach Bragg's girlfriend. He encouraged her to lie to her mother. None of these behaviors should be encouraged or promoted by a teacher. The relationship between Respondent and M.M. came to light when M.M's. mother woke one night and discovered her daughter missing. She confronted M.M. when M.M. was attempting to get back into her bedroom through the window. M.M's. mother telephoned the police. Later, Respondent lost his effectiveness as a teacher when he was removed from his teaching position. Respondent was arrested and charged with unlawful sexual activity with a minor. On or about July 7, 1998, the case against Respondent was nolle prosequi by the court because Respondent had instructed M.M. to lie about their relationship. During the time of the prosecution, Respondent also caused M.M. to ignore her subpoena to testify at Respondent's trial and go into hiding until the prosecution was dismissed. However, a bench warrant was issued for M.M. Once it became clear that the prosecution would be pursued, M.M. returned to Escambia County and was arrested and jailed on a bench warrant which had been issued for her failure to appear at trial. Respondent concocted a story for M.M. to tell to the prosecution. He talked her into marrying a best friend of Respondent's so that she could say she was seeing this friend instead of seeing Respondent. Respondent's lack of moral character is apparent. As a teacher, Respondent held a position of trust towards M.M. and Dona Snyder. Clearly by engaging in a sexual relationship with them he breached that trust and violated both the Florida Statutes and Florida Administrative Code. Respondent has repeated this predatory behavior over the course of his teaching career and cannot be trusted to protect female students from his amorous intentions. Clearly, Respondent does not have the moral character to be a teacher and should not be permitted to hold or renew his teaching certificate.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 609670. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 15th day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire 528 East Park Avenue Tallahassee, Florida 32301 Michael D. Tidwell, Esquire 811 North Spring Street Pensacola, Florida 32501 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Education Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issues for determination are whether Petitioner has just cause to terminate the Professional Services Contract of each of the respondents because each respondent allegedly engaged in immorality and misconduct in office in violation of Subsection 1012.33(6)(a), Florida Statutes (2007),1 and the Rules of Professional Conduct in Florida Administrative Code Rules 6B- 4.009(2) and (3), 6B-1.001, and 6B-1.006(3)(a), (4)(b) and (c), and (5)(a) and (h).
Findings Of Fact Petitioner is the agency responsible for the employment and dismissal of instructional staff (teachers) in Brevard County, Florida (the school district). During the 2007-2008 school year, Petitioner employed each of the respondents as teachers and wrestling coaches. Petitioner employed John M. Hackney as a teacher and the varsity wrestling coach at Astronaut High School (Astronaut). Petitioner employed James Michael Murray as a teacher at Space Coast Junior Senior High School (Space Coast) and as the junior varsity wrestling coach at Astronaut.2 Mr. Hackney and Mr. Murray have extensive experience in competitive wrestling. Mr. Hackney has coached high school wrestling for more than 20 years and has been the head coach of the Astronaut varsity wrestling team for approximately 15 years. For the last 15 years, Mr. Hackney has also coached competitive wrestling in the Amateur Athletic Union (AAU). Mr. Hackney has also served as the head of AAU wrestling in Florida. Mr. Murray began wrestling competitively in 1967 for the wrestling team at Cocoa High School (Cocoa), a high school located within the school district. Mr. Murray wrestled for Cocoa for three years, wrestled for Brevard Community College for two years, and was a member of wrestling team at the University of Florida for one year, although he did not compete in any event for the university. Mr. Murray completed law school and practiced law as a licensed attorney in Florida. While in private practice, Mr. Murray was a wrestling referee for the Florida High School Athletic Association (FHSAA). The FHSAA is the officiating body for all high school athletic programs in the state, including wrestling. Mr. Murray authored some parts of the FHSAA officiating exam. He also taught classes to prepare candidates for the FHSAA exam. In 2000, Mr. Murray left his law practice to become a high school teacher and a wrestling coach. Mr. Murray became the head coach of the Space Coast varsity wrestling team in the 2003-2004 school year. When the principal at Space Coast removed Mr. Murray as head coach, Mr. Murray remained as a teacher at Space Coast, but became a junior varsity wrestling coach at Astronaut. Mr. Murray also has extensive experience as a coach in AAU wrestling. On December 1, 2007, the Astronaut varsity wrestling team competed in a multi-team tournament at Poinciana High School (Poinciana). A regular member of the Astronaut team, identified in the record as W.P., was injured and unavailable to compete in the Poinciana tournament. Mr. Hackney substituted a student, identified in the record as T.G., for W.P. T.G. was a seventh-grade middle school student. He was not enrolled in Astronaut and was not eligible to compete for Astronaut in the Poinciana tournament, because the Poinciana tournament was a high school event sanctioned by the FHSAA. T.G. was at the Poinciana tournament because Mr. Hackney and Mr. Murray coached T.G. in AAU wrestling events. T.G. was a very good wrestler for his age group and very interested in wrestling. Mr. Hackney allowed T.G. to ride on the team bus with the Astronaut varsity team and attend the tournament with the Astronaut team.3 Mr. Murray also attended the Poinciana tournament. The Poinciana tournament was a varsity tournament, and Mr. Murray was a junior varsity coach. Mr. Murray was not present at the varsity tournament in any official capacity. Mr. Murray attended the varsity tournament to help Mr. Hackney. While the Astronaut team members were weighing in prior to the Poinciana tournament, the father of T.G., identified in the record as Mr. G., approached Mr. Hackney and asked Mr. Hackney if Mr. Hackney would substitute T.G. for W.P. and allow T.G. to wrestle a high school student from another school who was at the tournament. The student was ranked number one in the nation in the AAU, and Mr. G. wanted T.G. to get experience wrestling at that level of competition. T.G. welcomed the opportunity to wrestle such a highly-ranked opponent. Mr. Hackney agreed to the request by Mr. G. Mr. Hackney discussed the matter with Space Coast coaches Mr. Toni McCormick and Mr. Richard Jones, and the coaches for Space Coast agreed to T.G. wrestling as W.P.4 Mr. Murray was not present during the discussions between Mr. Hackney, Mr. G., and the Space Coast coaches. When Mr. Hackney informed Mr. Murray of the decision to allow T.G. to compete as W.P., Mr. Murray advised Mr. Hackney not to proceed. T.G. competed as W.P. in three matches at the Poinciana tournament. One of the matches was against the number one ranked AAU wrestler. On December 5, 2007, Mr. Hackney allowed T.G. to compete as W.P. for Astronaut in a dual meet with the Eau Gallie High School (Eau Gallie) wrestling team. Mr. G. approved the entry of his son as W.P. Mr. Murray was not present at the Eau Gallie dual meet. Petitioner knew, or should have known, that Mr. Hackney allowed T.G. to compete as W.P. in the Poinciana tournament and dual meet at Eau Gallie. Mr. Hackney informed the coaches of the opposing teams of his intent to allow T.G. to compete as W.P. Mr. Jones also discussed the situation with Ms. Sharon Travis, the athletic director at Space Coast. Within days of the Eau Gallie match, the area newspaper published a picture of T.G. wrestling with a caption identifying T.G. as W.P. Parents and spectators at both the Poinciana tournament and the Eau Gallie dual meet knew that T.G. was competing as W.P. The principal at Space Coast, Mr. Bob Spinner, knew that T.G. had competed as W.P. in the Poinciana tournament and the Eau Gallie dual meet. In preparation for an arbitration hearing in April of 2008 concerning Mr. Murray’s grievance against the principal for removing Mr. Murray as head wrestling coach at Space Coast, Mr. Spinner learned that Mr. Hackney had allowed T.G. to compete as W.P. in the Poinciana tournament and Eau Gallie dual meet. The principal called a student, identified in the record as W.C., to his office approximately four times to interview the student concerning the involvement of Mr. Hackney, Mr. Murray, and T.G. in the Poinciana tournament and Eau Gallie dual meet. Other employees and agents of Petitioner also knew of the competition of T.G. in the Poinciana tournament and the Eau Gallie dual meet. Prior to the arbitration, Mr. Terry Humphrey, the principal at Astronaut, and Ms. Joy Salamone, the director of Human Resource Services and Labor Relations, learned of the actions of Mr. Hackney and Mr. Murray involving T.G. The actions of the respondents did not impair their service in the community as teachers or their effectiveness as teachers in the classroom. Each of the respondents continued to teach in the classroom and receive favorable evaluations as classroom teachers after the Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney and Mr. Murray received the highest marks available on all of their evaluations, including the evaluations completed after the Poinciana tournament and Eau Gallie dual meet. Petitioner selected Mr. Hackney as the Teacher of the Year for the 2006-2007 school year. After Mr. Murray prevailed in the arbitration proceeding, he was scheduled to be reinstated as head coach for the Space Coast varsity wrestling team. Mr. Jones, a community coach at Space Coast, met with several parents, and they decided to raise the ineligible competition by T.G. as a ground to prevent the reinstatement of Mr. Murray at Space Coast. One of the parents reported the ineligible competition by T.G. to the FHSAA. The FHSAA imposed a fine of $2,500.00 against Astronaut. Sometime in July 2008, the school district superintendent asked Ms. Salamone to conduct an investigation. On or about August 4, 2008, the investigation concluded that Mr. Hackney and Mr. Murray should be removed as wrestling coaches, but retained as classroom teachers. The superintendent convened a meeting to reconsider the recommendation. The recommendation was changed, and the superintendent recommended that Petitioner terminate the respondents as classroom teachers.5 Mr. Hackney and Mr. Murray cooperated fully in the investigation. Neither of the respondents ever attempted to conceal their actions. Mr. Hackney was motivated solely by his desire and the desire of Mr. G. for T.G. to gain experience T.G. would not otherwise enjoy. Neither of the respondents sought personal gain, either direct monetary gain or indirect gain through a winning season. Astronaut would have gained nothing in season standings by winning the Poinciana tournament and Eau Gallie dual meet. There is no evidence that T.G. was successful in the matches with older competitors, and the number one ranked AAU wrestler pinned T.G. in their match. The competition of T.G. in the Poinciana tournament and Eau Gallie dual meet did not expose the school district to increased liability. Mr. G. paid an additional premium for AAU insurance that covered his son in any competition, including the Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney knew that T.G. was insured for both events. The entry of T.G. in the Poinciana tournament and Eau Gallie dual meet did not cause harm to T.G. The FHSAA suspended T.G. from varsity competition for one year, but T.G. was ineligible for varsity competition before the suspension. The competition by T.G. in each event was not a violation of AAU rules and regulations. T.G. did not suffer any physical harm from his competition with older, more experienced wrestlers. There is no evidence that T.G. suffered any academic or personal harm. The testimony of T.G. at the hearing demonstrated his appreciation for the experience he gained in the Poinciana tournament and Eau Gallie dual meet.6 The termination of the respondents from their classroom teaching positions deviates from Petitioner’s progressive discipline policy. Petitioner has never terminated a coach from his or her teaching position for any reason other than an improper relationship with a student. Petitioner has refused to terminate other teachers for conduct more egregious than that of Mr. Hackney and Mr. Murray. For example, a teacher who provided alcohol to a student and allowed her to drink until she became incapacitated was suspended for 30 days from June 12 through July 12, 2008; was reprimanded; and was subjected to a salary freeze for one year. In another incident, three assistant principals conspired over a two-year period to move 52 special education students into different grades so they would not have to take the Florida Comprehensive Assessment Test (FCAT). The goal was to raise the school’s overall performance and receive higher funding from the state. Both administrators and teachers may receive financial benefits from increased FCAT scores. Petitioner did not terminate any of the employees. One assistant principal was demoted to teacher, and another was subjected to a salary freeze for one year. The assistant principal, who knew of the plan and failed to report it, was promoted to the position of elementary school principal. In 2005, two coaches punished two players, who missed practice, by subjecting the two players to tackling by fellow players during practice. The coaches instructed the other players to hurt the two players who missed practice and allowed tackling after blowing the whistle to end the session. The incidents received publicity in the local media after the investigation. Petitioner issued letters of reprimand to each of the coaches.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order and reinstating each of the respondents to their positions as classroom teachers with back pay and benefits. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 17th day of June, 2009.
