The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-certified teacher authorized to teach mathematics. She holds Florida Educator's Certificate No. 801286, which covers the five-year period ending June 30, 2003. Respondent was a teacher for more than a decade in Michigan before moving to Florida. She began teaching in Florida in or around September of 1998, when she was hired to teach mathematics at Deerfield Beach High School (DBHS). Respondent taught at DBHS only into the early part of the second semester of the 1998-1999 school year, when she was removed from the classroom following her arrest, during the early morning hours on January 17, 2002, for lewd and lascivious conduct. The arrest occurred at Athena's Forum, a club that Respondent and her then fiancée, William Markowitz, had read about in a magazine article about "swing clubs." The article "peaked [their] interest to go in[to one of these clubs] and see what it was all about." Respondent and Mr. Markowitz entered Athena's Forum at approximately 9:30 p.m. on Saturday, January 16, 1999. Neither she nor Mr. Markowitz had been to the club before. They were stopped in the vestibule and asked to fill out and sign a membership application and to pay a membership fee of $75.00, which they did. They were then allowed to go into the interior of the building. There were signs posted in the vestibule and elsewhere in the club cautioning that those who might be offended by "sexual activity or nudity" should not enter the club. Upon entering the interior of the building, Respondent and Mr. Markowitz went to the bar and ordered drinks. They later went to the buffet area where food was being served to get dinner. They brought their dinner to a table "at the stage level," where they sat down and ate. It was "very dark" there. They spent the rest of the evening sitting at their table (next to each other) listening to music and watching "people coming and going throughout the club." On occasion, they got up to dance. There were at least 50 people in the club that evening, some of whom were in various states of undress, being "fondl[ed]" and "touch[ed]" by others. Respondent and Mr. Markowitz, however, both remained clothed throughout their stay at the club. Among the other people in the club that evening was Deputy John Duncan of the Broward County Sheriff's Office (BCSO). Deputy Duncan was there, along with eight to 12 other law enforcement officers, as part of a BCSO undercover operation. Deputy Duncan had been to the club on a prior occasion to conduct "surveillance." He had gone there at the direction of his supervisor, Sergeant Barbara Stewart. Sergeant Stewart had advised Deputy Duncan and the other participants in the undercover operation that a "tip" had been received that "lewd activity was supposedly going on inside the club" and that they "were going in there to look for" such activity and to see if "any narcotics [were] being sold." During that first visit, the club was "dead." The bartender, however, told Deputy Duncan that there were other times, including "certain nights [designated as] couples nights, that things [did] go on" at the club. Among these "things," according to the bartender, was "sexual activity." Deputy Duncan returned to the club at approximately 10:00 p.m. on January 16, 1999. He gained entry to the interior of the building after showing his "membership number" to a woman "at the front desk," giving the woman a "bottle of liquor" he had brought with him, and having his "cover charge" paid (by a fellow undercover officer). Deputy Duncan, along with Sergeant Stewart, who was part of the BCSO undercover operation at the club that evening, proceeded to the "northwest section of the bar," where they sat down. Next to the bar was a "dance floor." There were tables and chairs surrounding the "dance floor." Approximately 30 feet from where he was seated at the bar, in the area of the "dance floor," Deputy Duncan observed a "white female," 3/ standing up, straddling the right leg of a "gentleman" sitting on a chair. The "white female" was wearing a tight-fitting, black spandex dress. Deputy Duncan saw the "gentleman" "lift her dress up" above her vaginal area. It appeared to Deputy Duncan that the "white female" did not "have any underwear on." The "gentleman" then proceeded to fondle the "white female's" vaginal area. This went on for two to five minutes. At no time did the "white female" attempt to pull down her dress or otherwise cover her vaginal area. Neither she, nor the "gentleman," made any effort to hide what they were doing. Although Deputy Duncan considered the "white female's" and the "gentleman's" conduct to be lewd and lascivious, he did not immediately place them under arrest inasmuch as the undercover operation had not concluded. Before the club was "raided" later that evening and arrests were made, Deputy Duncan observed other instances of people in plain view engaging in activities of a sexual nature. He saw, among other things, "women with other women where they were fondling the breast," "women with men doing dirty dancing," and "men and women in corners." In the "back area" of the club, he saw "hot tubs with several naked individuals inside" and rooms where people were "engaging in open intercourse." There were approximately 38 people arrested as a result of the BCSO undercover operation at Athena's Forum that evening. Respondent and Mr. Markowitz were among those arrested. Respondent's and Markowitz's arrests were for lewd and lascivious conduct. The arrests occurred at 1:30 a.m. on January 17, 1999 (after the club had been "raided"). Deputy Duncan was the arresting officer. He believed that Respondent and Mr. Markowitz were the "white female" and "gentleman," respectively (referred to above) whom he had observed earlier that evening in the area of the "dance floor" engaging in conduct that he considered to be lewd and lascivious. Deputy Duncan, however, was mistaken. Respondent was not the "white female" 4/ and Mr. Markowitz was not the "gentleman" 5/ Deputy Duncan had seen. At no time that evening at the club had Mr. Markowitz pulled Respondent's dress up or fondled Respondent's vaginal area. Respondent's and Mr. Markowitz's arrests were two of the "many" arrests Deputy Duncan made at "swing clubs" in the county. Respondent's arrest was reported in the media. It was common knowledge at DBHS that she had been arrested for lewd and lascivious conduct at a "swing club." The Broward County School Board initiated disciplinary proceedings against Respondent. It removed her from the classroom and reassigned her to a "security guard" position pending the outcome of the disciplinary proceedings. Respondent thereafter submitted a letter of resignation, dated January 24, 2000, to the Broward County School Board. In her letter, she stated, among other things, the following: Broward County showed me a warm welcome by taking away my civil rights to privacy and making my entire ordeal a Nationwide joke. No one, except my attorney and my future husband knew of my arrest on January 17, 1999, until the School Board . . . gave information to the local and national media. . . . . The Broward County School Board showed an excellent, motivated and experienced educator that they are more interested in what teachers do after hours than the students' well-being. I was wrongfully arrested on January 17, 1999 in a private club where no children were present. It was not near or on any school grounds and it did not impair my ability to teach. As of this letter, it seems that the criminal charges against me will be dismissed. On February 17, 1999, I was handed a letter that will forever change my life, when I was pulled and submitted to complete ridicule in front of my 4th Period class with only forty minutes to the end of the day. I successfully taught for four weeks and would have continued to successfully teach if the Board had not release[d] my name to the media. After a national debate on the right to privacy my career was destroyed, as well as my life. . . . In August 1999 I was placed on administrative reassignment with pay. I was informed that I would receive a "meaningful" job that would justify my paycheck while we awaited the Administrative Hearing. Once assigned a position, displayed for the world to see, as a security guard for the main School Board Building, I reported my health issues and repeated harassment from the media, school board employees, teachers, and parents. I was informed by Carmen Rodriguez, attorney for the School Board, that the position I was assigned would involve "little or no participation." I asked for a different position but the request was denied. . . . At this point I am unable to return to work due to illness . . . . Therefore, due to the cost to my personal health, lack of financial resources, lack of union support, the fact that I am only an annual contract teacher, being refused a position change, and being denied a Leave of Absence, and the pride to not submit myself to the degrading way you treated my fellow educator, I must with great hesitation resign as an educator in Broward County. I am giving up the battle in the administrative courts to win the war of public opinion. The criminal charges that had been filed against Respondent following her arrest were "dropped by the court" on or about July 18, 2000. Respondent married Mr. Markowitz, but they were later divorced. They still keep in touch with one another, however. Mr. Markowitz tried to help Respondent make the necessary arrangements to attend the final hearing in the instant case, but due to the expense involved and the fact that Respondent had an examination to take, she was unable to be at either of the hearing sites. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 14th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of October, 2002.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant Principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as Principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an Intern Principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time Intern Principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and (5) accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, a fact which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract. Employment Requiring a Teaching Certificate At the time of hearing, Ms. Maynard had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board on or about March 18, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order: Finding that Doreen Maynard committed Counts 2 (only as to gross immorality), 3, 4, 5, 7, 10, 12, 15, and 16; Dismissing Counts 1, 6, 8, 9, 11, 13, 14, and 17; and Suspending Doreen Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the Commissioner of Education. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 21st day of July, 2011.
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 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.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue Whether Respondent violated section 1012.795(1)(d) or (1)(f), Florida Statutes (2019), and, if so, what penalty should be imposed.1 1 Unless otherwise noted, all references to the Florida Statutes herein are to the 2019 version, which was in effect when the actions alleged in the Administrative Complaint took place.
Findings Of Fact Petitioner is the chief educational officer of the state, who recommends members for appointment to the Education Practices Commission—the statewide commission with the authority to discipline Florida educators. See §§ 1001.10(1), 1012.79(1), and 1012.795(1), Fla. Stat. (2021). Respondent, Calvin Chin, holds State of Florida Educator’s Certificate 737639, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2026. Respondent has served as an educator for 27 years, primarily with the Marion County School District (“District”). He was first employed by the District as a math teacher at Dunnellon High School (“Dunnellon”) in 1994, where he continued for 12 years. Respondent was promoted to dean of students at Dunnellon in 2002 and served in that capacity through 2012. During that time-frame, Respondent was also a part-time math instructor at a local community college. Respondent served as dean of students for College Park Elementary School from 2012 through 2016, when he returned to Dunnellon to continue teaching math for college readiness and dual enrollment math for students enrolled for college-level credit math instruction. Respondent also had a 19-year career with the U.S. Marine Corps. He originally enlisted in 1978 after graduating from high school, then joined the Marine Reserves while he pursued his college education. Respondent graduated from the University of Florida in 1983 and became a commissioned officer through the Reserve Officer Training Corps (“ROTC”) program in December of that year. Respondent served in the Marine Corps through 1994. In 1996, Respondent established the Young Marines at Dunnellon, a program similar to ROTC that teaches discipline and military structure to youth. Respondent is passionate about teaching and shaping the lives of young people. Respondent has never had any disciplinary action taken against his license or against him by either the District or any school at which he has taught. Relationship with Joanne Mandic Respondent and Joanne Mandic are not married, but have been in a relationship for 19 years. Respondent and Ms. Mandic have lived together as a couple for over 18 years. The couple has one child together, C.C., who lives with her parents. C.C. was 13 years old and home-schooled by Ms. Mandic at all times relevant hereto. Ms. Mandic has another child, Nyasha Mandic-Mandaza, from a prior relationship. Ms. Mandic-Mandaza was 22 years old at all times relevant hereto. She does not live with her mother and Respondent; however, on the date of the incident, Ms. Mandic-Mandaza was staying at their home. October 25, 2019, Incident On Friday, October 25, 2019, Respondent came home from Dunnellon and prepared himself an alcoholic drink. At some point during the evening, he asked Ms. Mandic what she was preparing for dinner and she responded that she was too tired to cook. Respondent became upset that Ms. Mandic was not preparing dinner. By this time, Respondent had consumed several alcoholic drinks, and he and Ms. Mandic got into a verbal altercation about dinner. During the verbal altercation, Respondent came out of his bedroom holding his handgun. He said to Ms. Mandic, “Don’t piss me off. I am a Marine and I know how to shoot,” or similar words. Respondent “racked” the gun, which made a distinctive sound audible to Ms. Mandic. Afterward, Respondent returned to his bedroom. Ms. Mandic is familiar with the gun and familiar with Respondent’s habit of storing the gun and ammunition separately. According to Ms. Mandic, the gun was unloaded when Respondent brought it out of the bedroom. Ms. Mandic testified that she knew the gun was unloaded and that she was not in fear of Respondent. Ms. Mandic testified that this incident was not indicative of her relationship with Respondent and that he has never been violent toward either her or the children. She further testified that there has been no similar incident since that date. C.C. was home in her bedroom and heard, but did not see, the altercation between her parents. No evidence was introduced regarding C.C.’s reaction to the incident or its effect on her. Ms. Mandic-Mandaza both heard and saw the altercation between Respondent and her mother. Ms. Mandic-Mandaza had come to the house after work and was preparing to leave for the evening, when she stepped into the hallway in response to the verbal altercation. She saw Respondent walking down the hallway with his handgun. Ms. Mandic-Mandaza was in fear as Respondent appeared to be approaching her in the hallway; however, Respondent passed by her and moved towards her mother, who was in the kitchen. Ms. Mandic-Mandaza retreated to a bedroom where she called the police to report the incident, then left the house shortly thereafter. Respondent’s Arrest In response to the 911 call, Marion County Deputy Sheriffs Joseph Diaz and Christopher White, as well as Sergeant Moore, were dispatched to the Chin home. Both Respondent and Ms. Mandic were interviewed by the officers. During his interview with the officers, Respondent was forthcoming about his actions. He demonstrated to the officers how he held and racked the gun, and repeated the statements he made as he held the gun. Ms. Mandic downplayed the incident when she was interviewed, describing Respondent’s actions as simply “showing us his handgun.” Deputy White also contacted Ms. Mandic-Mandaza via telephone and interviewed her, as well as meeting with her to take her statement. She was reticent to discuss the incident with Deputy White and expressed that she did not want to get Respondent in trouble. Respondent was arrested for Aggravated Assault with a Deadly Weapon Without the Intent to Kill and Possession of a Firearm During the Commission of a Felony, and was incarcerated from October 25 to November 2, 2019. On November 21, 2019, the State Attorney for the Fifth Judicial Circuit filed an “Announcement of No Information” on the allegation of Use of a Firearm During the Commission of a Felony and charged Respondent solely with Aggravated Assault with a Deadly Weapon (without Intent to Kill). On March 11, 2020, Respondent plead nolo contendere to the lesser charge of Improper Exhibition of a Firearm, which is a misdemeanor defined in section 790.10, Florida Statutes, and adjudication was withheld. Respondent received credit for eight days served, was placed on a year of probation, assessed court and prosecution costs of $350, and was required to submit to random alcohol screens at least two times per month during probation. Subsequent Events Following his incarceration, Respondent voluntarily participated in mental health counseling and alcohol evaluation. Respondent testified that he “talked about drinking” with the counselor. Respondent further testified that, since the incident, he has “not been drunk like that.” The District placed Respondent on administrative leave with pay through December 2020. Respondent was placed on administrative leave without pay in December 2020, but returned to teach at Dunnellon in March 2021 just before spring break. Following spring break, due to the COVID-19 pandemic, the school moved classes to an online format and Respondent continued teaching in that format throughout the remainder of the 2020-2021 school year. Respondent remains employed by the District and is currently teaching at Dunnellon. Neither Dunnellon nor the District imposed any disciplinary action against Respondent due to the incident and his subsequent arrest. Respondent testified that neither any student nor any fellow teacher has questioned him or made any remark about the incident or his arrest. Petitioner introduced no evidence of any press coverage or community concern regarding the incident. Character Witnesses Stephen Ayers is the director of student assignment and school choice for the District. Mr. Ayers has worked in various educational capacities with the District for 27 years, including as a math teacher, dean, assistant principal, principal, and coordinator for the District. Mr. Ayers met Respondent in 1994 when they were both pursuing their graduate degrees. Mr. Ayers later worked at Dunnellon as assistant principal, then principal, while Respondent served as dean of students. In those capacities, Mr. Ayers was Respondent’s supervisor at Dunnellon. Mr. Ayers described Respondent as “an exemplary dean” and “a mentor with … youngsters.” Mr. Ayers was aware of Respondent’s October 25, 2019 arrest and “the basis and reason for that arrest.” Mr. Ayers testified that he has no doubt Respondent can continue to perform his duties effectively and does not consider Respondent’s effectiveness in the community to be diminished by that arrest. Bobby James retired from the District in 2018 after serving the District for 47 years as a teacher, coach, principal, school board member, and school board chairman for three terms. Mr. James was the principal at Dunnellon in 1994 and hired Respondent as a math teacher. Mr. James remained principal for 12 years and moved Respondent into the dean of student’s position. Mr. James initiated the Young Marines program at Dunnellon and chose Respondent as the first instructor in the program. After leaving Dunnellon for a position with the school board, Dunnellon remained a school in which Mr. James, as a school board member, exercised oversight authority. Mr. James frequently visited Dunnellon and met Respondent and administrative leaders there. Mr. James described Respondent’s performance as an educator and leader of young people as “exceptional,” especially in working with youth who have difficult life challenges. Mr. James was familiar with Respondent’s arrest and “had heard” that a firearm was involved in the October 25, 2019 incident. He was not aware of the specific statements alleged to have been made by Respondent to Ms. Mandic. During cross-examination, Mr. James admitted that, if Respondent had said, “Don’t piss me off, I have a gun and I know how to use it,” that would not be appropriate conduct for an educator, or for that matter, “for any person.” However, Mr. James testified that, given his 25 years of experience with Respondent in service to the District, even knowing the specifics of the incident, he believes Respondent can remain an effective educator. Mr. James testified that Respondent’s character with students and District employees is proven, and indicated that, if he were in a position to do so, Mr. James would rehire Respondent. Ryan Malloy met Respondent through the Young Marines program in middle school when Respondent was the commanding officer of the program (for both high school and middle school). Mr. Malloy left the Young Marines program before high school but has maintained a mentoring relationship with Respondent through his recent graduation from the University of Florida. Respondent taught Mr. Malloy the game of golf and the two play golf regularly. Mr. Malloy testified that Respondent has served as a constant mentor in his life; that when he is really struggling with something, he talks to Respondent. He related that Respondent encourages him to consider both sides of a situation and avoid quick judgments. Mr. Malloy was generally familiar with Respondent’s arrest and the circumstances surrounding the arrest. Mr. Malloy testified that Respondent’s effectiveness as a mentor has not been diminished by the incident. He testified that Respondent has helped him acknowledge his own mistakes and learn from them. Mr. Malloy stated that Respondent taught Mr. Malloy that true character is built by taking ownership of one’s mistakes and using them for self-improvement. Mr. Malloy believes that is an important trait for all teachers to be effective role models. Linda Malloy, Mr. Malloy’s mother, retired from the District in May 2019, was a fellow teacher with Respondent at Dunnellon for 24 years, and second in command of the Young Marines with Respondent for 10 years. She described Respondent as strict, honest, and fair. She admired his ability to reach students through Young Marines and help them turn their lives around when they were headed “down the wrong path.” Ms. Malloy was familiar with Respondent’s arrest and the fact that a gun was involved in the October 25, 2019 incident. Ms. Malloy testified that Respondent can remain an effective educator because she “believe[s] in his core values.” She trusted him with her own child and still would to this day. Ms. Malloy has not heard anyone in the education community suggest that Respondent should not continue to teach. Sharon Lambert has taught at Dunnellon for 22 years and currently teaches business technology and serves as the teachers’ union representative. Respondent was in charge of the Young Marines when Ms. Lambert began teaching at Dunnellon. Her impressions of Respondent as an educator are that he cares about his students, wants to help them succeed, and “would do anything to help them learn what he’s supposed to teach.” Ms. Lambert was familiar with Respondent’s arrest. She testified that the incident has not had any negative affect on his ability to teach his students. To her knowledge, since Respondent returned to the classroom, there has been “no talk amongst the students or the teachers” concerning the incident or Respondent’s ability to teach. Respondent also introduced a letter from Jay Easom, who served as president of the Dunnellon School Advisory Council (“SAC”) from 2007-2010 and is familiar with Respondent in that capacity, as well personal conversations with him. The letter relates as follows: I am writing on behalf of “Captain Chin.” I am acquainted with him for more than ten (10) years. I’ve had the opportunity to know him in his capacity of leadership at our local high school as well as our personal conversations detailing his desire to be responsible to his family. He always plans well and stands firmly in his commitment to reach his personal goals for the benefit of his family. I can’t tell you how surprised I was when [Respondent] shared with me the events of October 25, 2019 that resulted in him being charged. I instantly detected his regret and disappointment. The idea of [Respondent] bringing harm to anyone escapes my consideration especially in the handling of a firearm. My children attended and graduated from [Dunnellon]. I know [Respondent] in this period during my participation as president of the [SAC] from 2007-10. I learned more about [Respondent] when as a part of our meetings, he introduced proud young men and women to share their outlook for the future that had joined Young Marines. He provided a path of personal development for them and I am sure that his peers will tell you that his hard work, dedication, and friends in the community supported the program because of his commitment. I expect that [Respondent] has a plan to be sure that there will never again be such an event in his life as this. I hope that you may have the opportunity to give him further consideration as his employer, students, peers, and friends have over a very difficult year and a half. Thank you. Respondent also introduced the following letter from Jeffery Daniel Ratliff: To whom it may concern, Captain Calvin Chin has been, and still is, one of my largest influences throughout my life. I still remember the very first time I met him, and that was over 20 years ago. It was my first day in a new school, an entirely new state, at [Dunnellon]. While waiting with my parents in the front office to get registered for classes, in walks this Marine wearing freshly starched cammies with flickering silver and gold on his uniform, and it was at that moment that I decided to become a Marine. Over my high school career Captain Chin shaped and guided me in a way that only a true leader can. When my temper or overzealousness got the best of me, he did not hesitate to punish me but always ensured that a lesson was learned. When I was unable to understand the mathematic teachings of Mr. Gaitanis’ overeducated ramblings, Captain Chin would break it down simply for me and insist that I already knew how to do it. And he was right! When I left for Marine Corps bootcamp, he gave me some last-minute advice, but insisted that I would do fine … as long as I didn’t ask too many questions. He was right about that too. When I got back from Iraq and needed another Marine to vent to about what I saw, he was there for me. He wasn’t judgmental at all. After the Young Marines program was removed from the high school, he chose to keep it active and open it up for all ages from 8 to eighteen. He even encouraged me to come volunteer after I had gotten out of the Marines. I did not have the patience or understanding to deal with such young children at the time, but Captain Chin did. Even though I have two loving parents who are still together, and love me very much, I still refer to Captain Chin as my Adopted Asian Dad. I have seen this man motivate, influence and inspire so many young minds over the years that I lose count. As Dean at the high school, the kids who he had to punish still respected him and find him years later to tell him that they are doing so much better now, because he showed them respect first. It is impossible to fit everything that Captain Chin has done to help me, influence me on one page. Just know that this is one of the most selfless human beings I have ever met, that has committed his entire life to serving and helping others, and will continue to do so until he is no longer physically able. Respondent also introduced his final evaluation from the District for the 2020-2021 school year on which he received the rating of “Effective” on all four instructional practice domains in which he was assessed. Respondent became emotional during his testimony at the final hearing. Petitioner introduced, and played for the undersigned, body-camera footage from the responding officers on October 25, 2019. Respondent was ashamed and remorseful of his behavior on the night of the incident. Respondent was dismayed by his own behavior and it obviously pained him to watch the video footage.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526
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 that Respondent violated section 1012.795(1)(f), but, based on the Findings of Fact herein, including substantial factors in mitigation, take no action against Respondent’s certificate. DONE AND ENTERED this 29th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact I. Respondent has worked as a custodian at Lake Worth High School since January, 1980. During the 1983-84 school year, he was assigned to work the 3:00 p.m. 11:30 p.m. shift. His duties included cleaning the top floors of the administration building, the old gymnasium, and the fieldhouse. His immediate supervisor was Edward Jerkins, Head Custodian at Lake Worth High School. Sometime in April, 1983, Mr. Jerkins received information that respondent and another custodian, Sam Kelly, were allegedly using marijuana while at work. Mr. Jerkins decided to investigate. On May 26, 1983, at approximately 9:45 p.m. -from the upper level of the administration building which overlooks the old gym area -Mr. Jerkins saw Sam Kelly enter the gym. Mr. Kelly was not assigned to work in this area, and it was not yet break time. Mr. Jerkins then saw respondent, who was sweeping the sidewalk outside of the old gym, enter the gym several minutes later. Mr. Jerkins waited for approximately one half hour, then proceeded to the old gym. On his way to the gym, he noticed that no one else was in the area. The doors to the gym were locked. He unlocked the doors with his key and entered the gym. He observed respondent and Sam Kelly sitting in the bleachers, and detected a strong odor of marijuana. Smoke was visible. Mr. Jerkins accused both men of smoking marijuana. The next day, he reported the incident to David D. Cant1ey, Principal of Lake Worth High School. After receiving Mr. Jerkins' report, Mr. Cantley warned both men that if they were found using marijuana on the school campus he would recommend to the Superintendent that their employment be terminated. II. On August 10, 1983, Kurt W. Auwaerter, Detective for the Lake Worth Police Department, was assigned to road patrol duties on the midnight 8:00 a.m. shift. He patrolled the southwest section of Lake Worth which includes the Lake Worth High School campus. On this date, Detective Auwaerter made his first routine check at Lake Worth High School at approximately 12:30 a.m. He dr9ve his police car to the rear of the school where the cafeteria was located. At that point he observed an unidentified man standing by a car. Since no one else was in the area and it was late at night, Detective Auwaerter became suspicious. He approached the man and asked for identification. The man produced a Florida drivers license, which indicated that he was the respondent. During this exchange, respondent was standing next to the door on the driver's side of the car. The detective, while speaking to respondent, looked into respondent's car with his flashlight. In plain view on the front seat of the car was a tray which held a cigarette "rolling" paper containing a brownish-green vegetable material. The detective recognized this material as marijuana. In addition, when the detective reached into the front seat of the car, he found a small manila envelope containing more of the same substance. He then arrested respondent for possession f marijuana, and transported him to the Lake Worth Police Station. The detective weighed the substance believed to be marijuana and determined that it weighed less than 20 grams. The substance was field tested and the test showed that it was, in fact, marijuana. 1/ On August 29, 1983, W. Paul LaChance, a schools board investigator, met with respondent and Principal Cantley. Because respondent spoke and understood little English, Carmen Chereza, an Hispanic native and substitute teacher at Lake Worth High School, was asked to interpret. Ms. Chereza translated Mr. LaChance's questions into Spanish and directed them to respondent. When he answered the questions, she repeated his answer in Spanish. If he agreed that it was correct, she translated it into English for Mr. LaChance and Principal Cantley. Respondent indicated that, sometime after midnight on August 10, 1983, he left work at Lake Worth High School. He approached his vehicle in the school parking lot and saw a small bag on the ground containing what he thought was marijuana. He picked it up and hid it in his car -intending to use it later. A few minutes later, Detective Auwaerter arrested him for possession of marijuana and took him to the Lake Worth Police Department. Respondent is familiar with marijuana and testified, at hearing, that he believed the substance in the bag to be marijuana. If a student is caught in possession of illicit drugs on school grounds, disciplinary action is taken. This rule should apply, with equal firmness, to employees of the school system. Due to the prior warning he received in May, 1983, respondent understood that if he was caught with marijuana on the school campus he would be recommended for termination.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be terminated from his employment for misconduct in office. DONE and ENTERED this percent percentay of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1984.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should be granted.
Findings Of Fact Petitioner is a Black West-Indian male. Respondent is a political subdivision of the State of Florida responsible for operating the public schools in Broward County. Petitioner obtained a temporary teaching certificate from the Florida Department of Education in 2017. In October 2017, Petitioner was hired by Respondent as a teacher at Walker Elementary School. As a new teacher, Petitioner was a contract employee subject to a probationary period of one school year. During the probationary period, Petitioner could be dismissed without cause or resign without breach of contract. Petitioner worked at Walker Elementary School, where he did not have his own classroom, but worked with special-needs children in different classrooms, until the end of the 2017-2018 school year. There were no teaching positions available at that school for the 2018-2019 school year. In August of 2018, Petitioner was transferred by Respondent to Mirror Lake, where he filled a first-grade teaching vacancy. Andrea Gresham was the team leader for first-grade teachers at Mirror Lake. As a new teacher, Petitioner was assigned a mentor to assist him in acclimating to the duties of his position. In addition to being the team leader for all first-grade teachers at Mirror Lake, Ms. Gresham was also Petitioner’s designated mentor. Petitioner reported for work at Mirror Lake on August 7, 2018. At that time, Ms. Gresham took Petitioner on a tour of the campus. She also provided Petitioner with sample lesson plans and homework for the students. Throughout the week, Petitioner prepared for the first day of school for students with Ms. Gresham’s help. These preparations included Ms. Gresham reviewing procedures related to beginning-of-year testing, student homework, teacher planning, and student dismissal at the end of the school day. It was Ms. Gresham’s habit to keep dated notes relevant to her duties as a mentor and team leader. As a best practice, she regularly met with Principal Veliz to discuss the progress of new teachers. Ms. Gresham kept contemporaneous notes of her interactions with Petitioner and kept Principal Veliz advised of her observations. Ms. Gresham observed that Petitioner was not engaged within the team of first-grade teachers and had a difficult time grasping school procedures despite her attempts to guide him. The typical first-grade student is six years old at the beginning of the school year. Given how young these students are, the protocol at Mirror Lake requires teachers to take extra care to ensure that the students are directed to the correct mode of transportation during dismissal. Ms. Gresham explained the dismissal procedures and emphasized their importance to Petitioner on more than one occasion leading up to the students’ first day of school. Each first-grade student is given a lanyard that is color-coded to correspond to that student’s teacher. Teachers are responsible for writing each child’s mode of transportation, as provided to the teacher by the child’s parents, on his or her lanyard every day. At the end of the school day, the children are sorted by their mode of transportation and escorted by a designated teacher or paraprofessional. The students are categorized as: car riders, bus riders, walkers, or attendees of the on-site after-school program. August 15, 2018, was the first day of the school year for students at Mirror Lake. At the end of the school day, Petitioner, along with all of the other first-grade teachers, was responsible for assisting his students in reporting to the appropriate location for their respective modes of transportation. On August 15, 2018, Petitioner and Ms. Gresham were both assigned to the car-rider group. While Petitioner and Ms. Gresham were in the car-rider pickup area, Ms. Gresham became aware that a student was missing when a visibly upset parent exited his vehicle having learned that his child was not present for pick-up. Ms. Gresham sought help from the school resource officer and other teachers in an effort to locate the missing student. Principal Veliz testified credibly that this was the first and last time a student was unaccounted for at dismissal at Mirror Lake. Ms. Gresham asked to see the transportation log that Petitioner had compiled for his students to determine how the child was supposed to go home and where the mistake may have occurred. In reviewing Petitioner’s transportation log, Ms. Gresham noticed that the log had some children’s names listed under two different modes of transportation for the same day. As a result, Petitioner’s transportation log did not add any clarity to the situation. Meanwhile, teachers continued to search the campus for the missing student and the school resource officer escorted the father of the missing student to the office to speak with Principal Veliz. Once the student dismissal process was complete for the day, Principal Veliz convened a faculty meeting. During the meeting, the faculty learned that a second student from Petitioner’s class was missing. Principal Veliz adjourned the faculty meeting and assembled the team leaders in the office to assist in locating the two missing students. Petitioner returned to his classroom and did not join the effort to locate the missing students. The team leaders proceeded to call private daycares to ask if the missing students may have been transported to such a facility by mistake. Through these phone calls, both of the missing students were located at the same daycare. Thereafter, the children were reunited with their parents. Principal Veliz met with the parents of the children who had been mistakenly sent to the wrong location on August 15, 2018. Principal Veliz personally paid for the daycare center’s charges with respect to one of the students who had been inadvertently sent there. Principal Veliz testified that the parents were upset that their children had been misplaced and that the parents of one of the children requested a transfer to another first-grade teacher. Ms. Gresham had the opportunity to examine the lanyard belonging to one of the students who had gone missing during dismissal. She observed that Petitioner had written on the lanyard that the student was to ride the bus that day, although the parents had previously informed Petitioner that the student was to be picked up by car. In conducting a routine observational visit to Petitioner’s classroom during the first week of school, Principal Veliz observed conditions that she considered of urgent concern with respect to Petitioner’s academic practices and overall classroom management. She observed a lack of structure, including students in Petitioner’s class wandering around the room and playing with pencils as though they were swords without any redirection. Principal Veliz also observed that Petitioner was using obsolete and ineffective teaching methods. Principal Veliz contacted the school district’s employee relations and talent acquisition office to discuss Petitioner’s employment status. Principal Veliz was notified that Petitioner was still within his one-year probationary term, and that his employment could be terminated without a formal hearing or progressive disciplinary measures. Principal Veliz made the decision to terminate Petitioner’s employment prior to the end of his probationary status based on his unsatisfactory performance. Principal Veliz obtained a form letter from the school district’s human resources department, which she modified to fit Petitioner’s circumstances. The letter was dated August 23, 2018. The letter stated that Petitioner’s name would be submitted to the next School Board meeting for termination of employment during a probationary period and that Petitioner could choose to resign in lieu of termination. Petitioner chose not to sign the document. Petitioner’s employment was terminated at the next meeting of the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Rudyard Julius 19101 Northwest 11th Street Pembroke Pines, Florida 33029 (eServed) Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact Ms. Osteen is employed by the School Board as a content staffing specialist in the Exceptional Student Education (E.S.E.) program. Her duties include the placement and monitoring of students in the Leesburg area that are identified as exceptional students. Ms. Osteen is responsible for declaring she student's eligibility for the program and for effectuating placement of those students. At times, in her duties as a staffing specialist, Ms. Osteen determines the number of hours of instructions that E.S.E. students are to receive and prepares individual educational plans (IEPs). As an additional duty, Ms. Osteen is employed as a homebound teacher, carrying out those tasks after the completion of her normal work day which is from 8:00 a.m. until 3:30 p.m. She was the homebound teacher assigned to William (Billy) Vickery during February and March, 1988. Homebound teachers in the Lake County School System are compensated by submitting a monthly time sheet to the Exceptional Student Education Office. They are paid on an hourly basis cumulative over the month based upon the number of hours actually worked. Payment is only for instructional time with the student, not driving or commuting time. NOTE: PAGE 4 OF THIS RECOMMENDED ORDER IS UNAVAILABLE The composite of the four (4) different F.T.E. weeks determines the money a particular child earns in the system. Instruction of Billy Vickery by Ms. Osteen from February 17, 1988, through February 29, 1988, would have no impact on the F.T.E. count for the Lake County School System because it was after the count and the window period. There is no window period after the F.T.E. week. The entire staff is notified of the F.T.E. periods as they are published near the beginning of the school year. Teachers typically are not, however, involved in reporting the F.T.E. Nancy Vickery, Billy Vickery's mother, made a complaint to the Superintendent's office, in early February concerning Ms. Osteen's performance. Ms. Vickery explained that her concern was the amount of time Billy was receiving in homebound instruction. Ms. Vickery knew that Billy was to receive eleven (11) hours from Ms. Osteen weekly. After Ms. Vickery's conference with the school personnel, she began keeping, at their request, a record of the amount of time Ms. Osteen actually spent instructing Billy. Subsequently, Ms. Vickery created a summary of her time records and submitted it to the School Board. From February 10, 1988, through February 16, 1988, Ms. Vickery reported that Ms. Osteen spent approximately two (2) hours in homebound instruction of Billy. From February 17, 1988 through February 29, 1988, Ms. Vickery reported approximately three (3) hours by spent by Ms. Osteen in homebound instruction of Billy Vickery. After Ms. Vickery's complaint, the School Board hired an independent investigator to make a surveillance report of the number of hours that Ms. Osteen was in fact at the Vickery residence from February 17, 1988, through the end of the month. The surveillance report showed that Ms. Osteen spent two (2) hours and fifty-seven (57) minutes at the Vickery home from February 17, 1988, through the end of the month. Ms. Osteen submitted a time record to the School Board indicating that she had worked a total of forty-four (44) hours during February in the homebound program of instruction of Billy Vickery. Ms. Osteen claimed eleven (11) hours during the week of February 10, 1988, through February 16, 1988, and nineteen (19) hours from February 17, 1988, through the end of the month. Ms. Osteen admitted that she did not put in the hours claimed. In fact, she also admitted not working during the F.T.E. week, February 8, 1988, through February 12, 1988, and not giving Billy Vickery eleven (11) hours a week instruction from February 1, 1988, through February 17, 1988. The homebound teacher keeps a daily planning book, an attendance register, and a copy of the individual education plan as well as time sheets. Ms. Osteen conceded that homebound teachers are required to keep an attendance register, but that she used her register as a grade book instead. Ms. Osteen claimed that she used her plan book as an attendance registry, but acknowledged that it did not accurately reflect the days that Billy was instructed. Ms. Osteen did not keep an attendance record. Ms. Osteen's plan book is filled in retroactively, meaning that she makes entries for what she had done with Billy, as opposed to planning what she will do. The plan book does not accurately reflect the times or dates spent on the material and Ms. Osteen conceded she filled in the February plan in March with work done partly in March. Mr. Osteen made retroactive entries in the registry, coordinating it with the plan book, and the registry did not reflect what happened on any particular day. Ms. Osteen's testimony was confusing and contradictory regarding the actual instruction given Billy, especially in math. From the records presented and Ms. Osteen's testimony, it cannot be determined what actual instruction hours were given to Billy. Eight (8) witnesses testified either that Ms. Osteen's reputation was that of a truthful person or that they would believe her. Ms. Osteen was described as meticulous, conscientious, thorough and as one who follows the book. Ms. Osteen expected to be paid for the time that she turned in for February claiming that she planned to complete the work and make up the time before pay day. Ms. Osteen claimed that she did not intend to defraud the school system of any money. Ms. Vickery kept a time record for Ms. Osteen's visits to the Vickery home from March 1, 1988, through March 11, 1988, noting that Ms. Osteen made one visit for four (4) minutes and one other visit to have Ms. Vickery sign the time sheet. Ms. Osteen disputed Ms. Vickery's records, claiming that in March she had made up eight (8) hours of the time turned in for February. However, even Ms. Osteen admitted that by the end of the first week in March, she would have owed Billy the eleven (11) additional hours he was entitled to for that week. According to Ms. Osteen's own computations, she still owed Billy ten (10) hours from February. Thus, by March 10, 1988, Billy Vickery was behind twenty-one (21) hours in instruction by Ms. Osteen's own admission. Ms. Osteen's computations are, however, incredible in view of the surveillance report and testimony of Mrs. Vickery. In fact, by March 10, 1988, Billy Vickery was owed at least sixteen (16) hours of instruction for the time period of February 11, 1988 through February 29, 1988, additional hours for the F.T.E. week, and eleven (11) hours for the first seven (7) days of March. The March time records refute Ms. Osteen's claim that she intended to make up the February time. She continued instead to fall further behind with the hours of instruction due. Ms. Osteen attempted to explain her reporting of hours not spent with Billy Vickery by claiming that if she had not, the child would have been denied his entitlement and the County would have lost its F.T.E. There was no basis in fact for these assertions. Ms. Osteen may have believed this, but was incorrect. Ms. Vickery kept a child during the month of February that was ill with Scarletina. Ms. Vickery also conceded that Sandy had illnesses during the time that she taught Billy and had advised her that Ms. Osteen's son had pink eye. However, illness is not relevant to the issues of falsification of the time or attendance records. Ms. Osteen claimed that there was precedence for her falsification of the records, including the fact that she had falsified the time records before for Billy Vickery as well as for another child. Further, Ms. Osteen claimed that School Board personnel falsified records all of the time. The Lake County School Supervisor of Exceptional Student Education conceded that a teacher on occasion is allowed to swap time, but that the practice was not encouraged. Such a request must be written and signed by both the teacher and the supervisor. That was not done in this case. Homebound teachers sometimes extend the time sheet forms to include Saturdays and Sundays as well as holidays in order to accurately report hours worked. Homebound teachers are encouraged to perform the homebound instruction on Monday through Friday and to consider the educational principles that it is better to do small chunks at a time rather than one extended day on a Saturday. Ms. Osteen had turned in a time sheet the last day of school before Christmas vacation reflecting hours not given at that time for a previous student. Additionally, in 1987, Ms. Osteen had been unable to complete the last week in May for Billy Vickery but turned in the time sheet claiming the hours as she had in the past. Ms. Osteen stated that she went back in June to give the additional instruction and that this procedure was approved by her supervisor. Apparently, it was common practice in the Lake County School System for IEPs to be corrected by back-dating, obtaining signatures at a later date, and placing check marks in appropriate places. These corrections were made to reflect what actually had happened. Information known not to comport with the facts was not, however, placed on forms. While it is a common practice for employees to make corrections in forms, it is not an accepted practice to create false statements on forms or records. Witnesses testifying concerning record corrections consistently drew a distinction between falsifying documents and making corrections to reflect what had actually occurred. No falsification of documents was reported.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lake County enter a Final Order finding Sandra Osteen guilty of the violations set forth above and dismissing her from her employment in the school system. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2029 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, SCHOOL BOARD OF LAKE COUNTY Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-16(1- 16); 18-39(17-38); 41(39); 42 & 43(40); and 44(41). Proposed finding of fact 17 is unnecessary. Proposed findings of fact 40, 45 and 46 are rejected as being argument and as relating to legal conclusions. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, SANDRA OSTEEN Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1 & 2); 7(8); 10(17); 12 & 13(32); 19 & 20(38); and 22(39). Proposed findings of fact 3-6 and 11 are unnecessary. Proposed findings of fact 8, 9, 14-18, and 23-26 are subordinate to the facts actually found in this Recommended Order. Proposed findings of facts 27 and 28 are rejected as being argument and as relating to legal conclusions. COPIES FURNISHED: Walter S. McLin, III, Attorney at Law Post Office Drawer 1357 Leesburg, Florida 32749-1357 Richard H. Langley, Attorney at Law Post Office Box 188 Clermont, Florida 32711 Freddie G. Garner, Superintendent The School Board of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 ================================================================= SETTLEMENT AGREEMENT =================================================================
The Issue Whether just cause exists to terminate Respondent's employment with the Lake County School Board.
Findings Of Fact The Parties Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Lake County, Florida. At all times relevant hereto, Respondent was employed as a teacher in the School Board's online learning program. Events of March 26, April 11, and April 14, 2014 The first incident giving rise to this proceeding occurred on March 26, 2014, in Mount Dora, Florida. On that occasion, Brandy Herron, a former School Board employee, was shopping with an acquaintance (Kelly Richter) at an Office Depot store. Respondent, accompanied by his 15-year-old daughter, was also present in the establishment. The record reflects that Mrs. Herron and Respondent were no strangers, having worked together——acrimoniously——at the same elementary school from 2007 to 2008. As such, it is not surprising that, upon seeing Respondent in the store, Mrs. Herron noted his presence to Ms. Richter. Regrettably for all involved, Respondent misinterpreted Mrs. Herron's innocent remark to Ms. Richter as a personal affront. Eschewing self-restraint, Respondent approached Mrs. Herron and demanded to know if she was talking about him. Moments later, while gazing at Mrs. Herron's breasts, Respondent uttered, "fakey, fakey, fakey." Predictably, Mrs. Herron asked Respondent to back away. Respondent eventually did so, but not before he told Mrs. Herron that, because he was unwilling to fight a woman, he would instead "beat [her] husband's ass." For good measure, and to the dismay of Mrs. Herron, Respondent repeated his "fakey, fakey, fakey" refrain. On the heels of his encounter with Mrs. Herron, Respondent drove (with his daughter in tow) to Mr. Herron's place of business. Upon his arrival, however, Respondent was informed by a member of Mr. Herron's staff that Mr. Herron was out of the office.1/ The second encounter at issue occurred on the evening of April 11, 2014, on the campus of Lake Tech College ("Lake Tech"), a vocational charter school located in Lake County. At approximately 9:00 p.m., Respondent accompanied two of his minor children to Lake Tech, where Respondent's father-in-law, Jack Miller, is employed as the school's assistant director. It is undisputed that the presence of Respondent and his children at Lake Tech was at the invitation of Mr. Miller, who had arranged for his secretary to notarize certain test registration documents. (Respondent's children were scheduled to take the ACT examination early the next morning.) Per Mr. Miller's instructions, Respondent accompanied his children to an office adjacent to Lake Tech's welding classroom, where a school secretary proceeded to notarize the documents. At that time, a welding class was wrapping up, one of whose students, 21-year-old Ozzie Villafranca, nodded a greeting to Respondent. From this innocent nod, Respondent erroneously concluded that Mr. Villafranca had ogled his 15-year-old daughter. By all accounts, Respondent overlooked this perceived slight (temporarily at least), completed the business at hand, and accompanied his two children to the parking lot. At that point, and without provocation, Respondent returned to the entrance to the welding classroom, where Mr. Villafranca was getting some fresh air. Respondent approached Mr. Villafranca and demanded to know if he had a "problem." Taken aback by Respondent's peculiar conduct, Mr. Villafranca replied that there was no problem. Moments later, Mr. Villafranca's cousin, Eddie Villafranca (also an adult vocational student), joined the encounter, at which time Respondent asked if he, too, had a problem. When Eddie did not respond, Respondent inquired of the cousins, "do you little boys want to get your asses beat?" Fortunately, much of the foregoing incident was witnessed by Mr. Miller, who repeatedly implored Respondent to go home. After three explicit warnings, Respondent returned to the parking lot and drove away. The next incident, which occurred on April 14, 2014, was comparatively less serious. On that occasion, Stephanie Burnett, a School Board employee, was shopping in a Target store when she was approached by Respondent's wife, Sue-Ellen Anselmo. During the brief conversation that ensued, Mrs. Anselmo identified herself to Ms. Burnett, accused Ms. Burnett of trying to destroy her family (by supposedly providing, some years earlier, misinformation to the School Board during an investigation of Respondent), and called Ms. Burnett a "bitch." Mrs. Anselmo then proceeded to walk away, at which point Ms. Burnett, who was rattled by the exchange, began to wheel her shopping cart elsewhere. Moments later, Ms. Burnett encountered Respondent, who, upon seeing her, exclaimed, "I read your statement and you're a liar." Needless to say, the foregoing incidents were reported to and investigated by the School Board. Although one or more of the episodes——particularly the first two——likely would have warranted Respondent's termination, the School Board instead issued a "Level II Written Reprimand." The reprimand, whose relevant content is quoted below, was issued on June 3, 2014, by Dominick Pedata, the School Board's supervisor of employee relations: This Level II reprimand is to put you on notice of your three separate incidents involving your behavior outside of the office. An investigation proceeded regarding these allegations. On March 26, 2014, it was documented by a police report that you harassed one former employee and her husband regarding a prior Lake County Schools investigation that you were involved in. On April 11, 2014, it was reported that you threatened two students at Lake Tech Education Center in the parking lot with physical harm and were asked to leave on several occasions or the police would be called to escort you off the campus. On April 14, 2014, it was documented by a police report that you and your wife threatened a Lake County Schools employee regarding a prior Lake County Schools investigation. These are clear violations [of] Florida Administrative Code [Rule] 6A-10.081 Principles of Professional conduct for the Education Profession in Florida . . . . Moving forward you are not to approach any employee regarding a prior investigation, and/or enter a Lake county School campus and act in an aggressive or harassing manner toward a student. Any similar issues will lead to further disciplinary action up to and including termination. Please let me know if you have any questions. (emphasis added). The foregoing language makes plain that the School Board had completed its investigation regarding the incidents of March 26, April 11, and April 14, 2014, and that Respondent's "Level II Reprimand" constituted formal disciplinary action in connection with those events.2/ Thus, as discussed later in this Order, the School Board is now precluded from terminating Respondent for the same misconduct. Psychological Evaluation As noted previously, the School Board advances an alternative basis for termination, namely, that Respondent is guilty of "incompetency." On this issue, the record reflects that on June 3, 2014, Mr. Pedata directed Respondent to report for a "Medical Fit for Duty Examination" with Dr. Wally Austin, a licensed psychologist. At or around that time, Mr. Pedata furnished Dr. Austin with police reports and other investigative documents relating to the incidents of March 26, April 11, and April 14, 2014. Consistent with Mr. Pedata's directive, Respondent thereafter reported to Dr. Austin's office and submitted to a psychological evaluation. The evaluation, which Dr. Austin conducted on June 24, 2014, comprised three elements: a one- hour interview; the Minnesota Multiphasic Personality Inventory- 2 ("MMPI-2"); and a follow-up interview of approximately 5 to 10 minutes. Dr. Austin concedes that, during the interview, Respondent's speech was "clear, logical, and coherent," and that there was "no evidence of a thought disorder, perceptual disturbance, or psychosis." Nevertheless, Dr. Austin was troubled by the fact that, when pressed about the episodes of March 26, April 11, and April 14, Respondent provided descriptions of the events that varied significantly from the accounts of the other involved parties (as documented in the police reports and other materials provided to Dr. Austin by the School Board). For example, Respondent insisted that he was not present at the Target store on April 14, 2014, and, thus, did not interact with Ms. Burnett on that date. Operating under the premise that Respondent had engaged in "grossly inappropriate behavior" during the episodes of March 26, April 11, and April 14,3/ Dr. Austin thought it prudent to "get objective information." To that end, Dr. Austin administered the MMPI-2, a widely-used, standardized test of adult personality. Unfortunately, Respondent's answers to the MMPI-2 resulted in a high "lie" (or "L") scale (one of the test's three "validity" scales) that rendered the entire evaluation invalid. As Dr. Austin explained, a high L scale typically occurs when test takers attempt to depict themselves as unrealistically virtuous. Notably, however, Dr. Austin equivocated whether the high "L scale" resulted from conscious behavior on Respondent's part. At one point, for example, Dr. Austin testified that Respondent "had the ability to answer [] in a more forthright manner."4/ Later, though, Dr. Austin credibly opined that Respondent believed in the truthfulness of his test responses: Well, that's the part we didn't get into. He faked it – when I say "faked it good," there is [sic] other scales that indicate that John believes what he is saying. So for him, he is not faking it. * * * [B]ecause by [the L scale] being so high, it invalidates the report because it lowered all of the other scores. And the psychopathology would come up, but you don't know what it is because he denies everything. But it is not a conscious denial, he believes what he believes. Pet'r Ex. 10, p. 68:5-9; 68:23-69:3 (emphasis added). Upon the completion of the MMPI-2, Dr. Austin conducted a brief follow-up interview with Respondent, at which point the evaluation concluded. The following day, on June 25, 2014, Dr. Austin notified the School Board that, in his view, Respondent was "not fit to return to work in the school system." A charging document soon followed, wherein the School Board alleged that Respondent is guilty of incompetency: Based on the results of the medical fit for duty you are also charged with "Incompetency." Under F.A.C. 6A-5.056(3), Incompetency is the "inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Inefficiency under 6A- 5.056(3)(a)2 is "Failure to communicate appropriately with and relate to students[,]" and 6A-5.056(3)(a) is "Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents." Incapacity under 6A- 5.056(3)(b)1 is "Lack of emotional stability." Your actions clearly reflect incompetency in this regard. Pet'r Ex. 17. In its Proposed Recommended Order, the School Board reiterates its position that Dr. Austin's findings and/or the incidents of March 26, April 11, and April 14, 2014, demonstrate Respondent's incompetency. For the reasons explicated below, the undersigned is not so persuaded. First, the School Board is precluded from basing the incompetency charge upon the episodes for which Respondent was previously reprimanded. The psychological evaluation likewise cannot support the incompetency charge, as it is evident that Dr. Austin's opinion was informed almost exclusively by Respondent's previously-punished misconduct. Consider the following exchanges between Dr. Austin and School Board counsel: Q. Okay. And what are those duties, just in your own words, that you would expect for a teacher who is, in fact, fit for duty to perform? A. I think the question is very broad. Because I would like to answer it by ruling out what I don't expect. Q. Okay. A. I don't expect there to be threats of violence to hit other students – to hit students where the teachers now are starting to get violent with the kids, or young men, students of the county. Or I don't expect teachers or adults to conduct themselves inappropriately in the school setting or in public to the point that you were going down the street to fair it out with someone's husband. You know, those kinds of things, I don't think that is becoming of a school teacher. * * * A. All right. I am not assessing his ability to teach. I am assessing: Is he fit to be in the room. Q. Correct. A. I am looking at an individual who has had five episodes of grossly inappropriate behavior: The Triangle School thing one, the Home [sic] Depot lady, the flirting, the technical school, the Target. He has had inappropriate behavior in multiple settings; in the school setting, in the public with the school teachers; he is going over to people's work environments. His inappropriate behavior has involved teachers, it has involved students, it has involved administrators. He has been called on the carpet and had consequences of police reports filed on him, changes in school, three-days [sic] suspension. And it keeps going on and on . . . . If a person has done something twice, three times, four times they are very likely to do that behavior again. What faith do I have that [Respondent] is not going to threaten violence to teachers or to students when he leaves my office . . . ? Pet'r Ex. 10, p. 35:7-22; p. 36:3-8. The only reasonable interpretation of the foregoing testimony is that Respondent's earlier misdeeds were a necessary component of Dr. Austin's opinion. At bottom, then, the School Board is attempting to accomplish indirectly (i.e., terminate Respondent by channeling his previously-punished misconduct through an expert, who opines that the misconduct demonstrates unfitness) what it cannot do directly (i.e., terminate Respondent for the previously-punished misconduct). As noted shortly, basic due process precludes such an outcome. Moreover, and in any event, Dr. Austin's evaluation, which comprised a single office visit, was insufficiently comprehensive to evaluate properly Respondent's fitness to carry out his required duties. On this point, the undersigned credits the testimony of Respondent's expert witness, Dr. DeLeon, who opined that an appropriate evaluation would necessarily include multiple office visits over a period of time.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order: dismissing the charges brought against Respondent in this proceeding; and awarding Respondent any lost pay and benefits. DONE AND ENTERED this 26th day of March, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 26th day of March, 2015.
