The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 to suspend Respondent from his employment as a teacher for ten days without pay. 1 All references to chapter 120 are to the 2019 version. 2 All references to chapter 1012 are to the 2018 version, which was in effect at the time of the alleged misconduct at issue in this proceeding.
Findings Of Fact Based on the credible and persuasive competent substantial evidence in the record, the following Findings of Fact are made: The Parties Petitioner, Miami-Dade County School Board, is charged with the duty to operate, control, and supervise free public schools in Miami-Dade County pursuant to section 1001.32, Florida Statutes (2018), and article IX, section 4(b) of the Florida Constitution. Respondent has been employed by Petitioner as a teacher since 2000. He has been employed as an art teacher at E.W.F. Stirrup Elementary School ("Stirrup") for the last 18 years, including when he is alleged to have engaged in the conduct that has given rise to this proceeding. Respondent is certified in art, graphic design, and vocational education. Notice of Specific Charges The Notice of Specific Charges ("NSC"), which constitutes the administrative complaint in this proceeding, alleges two instances of conduct on Respondent's part as the grounds for the proposed disciplinary action. Specifically, the NSC alleges that on or about September 27, 2018, Respondent told a female 5th grade student words to the effect of "get out here; I do not want you here," and forcibly pushed her away with his hand. The NSC also alleges that Respondent used profanity, spoken in Spanish— specifically, the words "mierda"3 and "pinga"4?while covering a class of kindergarten students. The complaint alleges that two adults witnessed Respondent's use of these words.5 This incident is alleged to have occurred on or about December 5, 2018. Based on this alleged conduct, the NSC charges Respondent with misconduct in office, pursuant to Florida Administrative Code Rule 6A-5.056(2), for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of Ethics. Evidence Adduced at the Final Hearing The September 27, 2018 Incident 3 Translated into English, "mierda" means "shit." 4 Translated into English, "pinga," as used in the context pertinent to this proceeding, means "fuck." 5 As more fully discussed below, the NSC does not allege that Respondent's use of these words was directed at any students, or that any students saw or heard Respondent use these words. On September 27, 2018, S.D., a minor, was a student in Respondent's 5th grade art class. S.D. testified, credibly, that on that day, Respondent told her to "get out of his way," then pushed her away by placing his hands on her shoulders. She testified that Respondent's words and actions made her feel "embarrassed, or, like, weird." S.D. acknowledged that she had gone up to Respondent and tried to talk to him while he was talking to the president of the Parent Teacher Association ("PTA"). She tried to get hand sanitizer and Respondent said to her "not now, go away" because he was talking to the PTA president at that time. Respondent characterized S.D. as a child who "has a reputation for basically not obeying anything." He testified that when S.D. approached his desk, he was in a discussion with the PTA president, and he told S.D. to "get out of here" and "sit down." He did not recall touching her. He stated that from where he was standing, he doubted that he could have reached her to push her away, and that had he pushed her, she likely would have fallen. No other witnesses testified at the final hearing regarding this incident. The December 5, 2018 Incident On Wednesday, December 5, 2018, Respondent was assigned to cover another teacher's kindergarten class starting at 9:00 a.m., so that the teacher who regularly taught that class, Ms. Rivero, could attend an exceptional student education ("ESE") meeting regarding one of her students. For the 2018-2019 school year, Respondent was assigned a full day of planning each Wednesday. In addition, Respondent was assigned one hour of planning every other day of the school week, per the Miami-Dade School District ("District") policy of providing teachers a minimum of one hour of planning per day.6 6 Respondent was assigned a full day of planning on Wednesdays in the 2018-2019 school year. This was not a function of his having an extraordinary workload; rather, it was because on Wednesdays, the language arts classes were scheduled back-to-back and students were dismissed early, so that it was infeasible to schedule art classes on Wednesdays. As a result of this scheduling, Respondent enjoyed nearly four more hours of planning per week than the minimum planning time to which he was entitled under the District's planning policy. According to Smith-Moise, if a teacher's schedule provides more than an hour of planning per day, that teacher may be requested, from time to time, to use that additional planning time for involvement in other school activities, including covering other teachers' classes as necessary. The administration at Stirrup generally attempts to schedule substitute teachers to cover classes when a teacher is called away from his or her class; however, on December 5, 2018, another teacher's class already was being covered by a substitute teacher. Because Respondent had planning that entire day, he did not have classes, so was available to cover Rivero's class. The length of ESE meetings varies, depending on the type of ESE service being delivered and whether the students' parents agree with the school district regarding the ESE services proposed to be provided. This particular meeting was an initial ESE team staffing meeting; these types of meetings often are relatively long compared to other types of ESE meetings. Respondent covered Rivero's class on December 5, 2018, from approximately 8:35 a.m. until shortly after 1:00 p.m., when a substitute teacher was called to cover the class for the remainder of the ESE meeting. During the time he was covering Rivero's class, Respondent called the Stirrup administration office multiple times, and also called and sent text messages to a fellow teacher, Yvette Mestre, asking how long the ESE meeting would take and when it would be over. In response to Respondent's calls, Smith-Moise twice left the ESE meeting to speak to Respondent in Rivero's classroom. Both times, when she entered the classroom, she observed Respondent disengaged from the students and talking very loudly on his phone. Respondent made clear to Smith-Moise that he was very frustrated at having his planning time taken to cover Rivero's class when he had other responsibilities to attend to.7 7 Respondent testified that he had a great deal of work to do on a large mural project for his own classes that needed to be completed under a tight deadline. Shortly after the beginning of the school day on December 5, 2018, Smith- Moise had taken a student from Rivero's class to Mestre's classroom because the student was misbehaving in Rivero's classroom. A short time thereafter, Respondent began sending text messages to Mestre, asking when the ESE meeting was going to be over. Mestre, who was occupied with teaching her own class, responded that she did not know, and suggested that Respondent contact the administration office. Around 10:30 or 11:00 a.m., Respondent began calling Mestre, again asking about the length of the ESE meeting. Mestre testified that "he seemed upset because he had stuff that he wanted to plan." Mestre again responded that she did not know and suggested that Respondent contact the administration office. At some point, Mestre went to Rivero's classroom to retrieve a lunchbox for the student from Rivero's class whom she was supervising. When she entered the classroom, she observed Respondent on his phone. Respondent told Mestre that he was on the phone with his United Teachers of Dade ("UTD") representative and that he was upset at having to cover Rivero's class because it was his planning day. Mestre went to the administrative office and reported to Smith-Moise that Respondent was upset and needed assistance in Rivero's classroom. Smith-Moise directed Mestre to take Acevedo Molina, an office assistant, to the classroom so that she (Acevedo Molina) could assist Respondent. According to Mestre, when they entered the classroom, Respondent initially thought Acevedo Molina was going to take over supervision of the class; however, when Mestre informed him that Acevedo Molina was there to assist him but would not be taking over supervision of the class, Respondent became very irate, raised his voice, and used the words "mierda" and "pinga" in speaking to them.8 Acevedo Molina confirmed that Respondent used these words when he spoke to her and Mestre. Mestre and Acevedo Molina were, respectively, "shocked" and "surprised" at Respondent's use of these words. 8 Mestre testified that Respondent said, translated into English, "[t]he school doesn't understand the shit that I do," and "they don't give a fuck what I do in this school." Respondent testified that he does not recall having said those words when he spoke to Mestre and Acevedo Molina that day. There is conflicting evidence whether Respondent used those words inside the classroom, such that they were said within earshot of the students, or outside of the classroom, where the students would not be able to hear or see him use the words. Mestre and Acevedo Molina both testified that they had entered Rivero's classroom and were inside the classroom with Respondent when he used the words. Respondent claims that he had to have stepped outside of the classroom into the corridor to speak to Mestre and Acevedo Molina, because the door was locked and they would have been unable to open it and enter the classroom on their own. In any event, it is unnecessary to determine whether Respondent used these words in the classroom within the students' earshot, because the NSC only charges Respondent with having said "mierda" and "pinga" while "covering a class of kindergarten students for another teacher," and that Respondent's use of these words was "overheard by two adult witnesses." The NSC does not allege that Respondent directed the words toward any students or that any students saw or heard him use these words.9 No direct or persuasive circumstantial evidence was presented showing that any students saw or overheard Respondent use those words. Although Mestre and Acevedo Molina testified that Respondent was inside the classroom when he said the words, both testified that the words were not directed toward the students, and neither testified that any students heard or saw Respondent say those words. Thus, even if the evidence conclusively established that Respondent was inside the classroom when he said those words—which it does not—that does not prove that any students saw or heard Respondent use those words. To that point, Smith-Moise 9 Trevisani v. Dep't of Health, 908 So. 2d 1008, 1009 (Fla. 1st DCA 2005)(a respondent cannot be disciplined for offenses not factually alleged in the administrative complaint); Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla 1st DCA 1996)(predicating disciplinary action on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act). See Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984)(administrative complaint seeking to impose discipline must state, with specificity, the acts giving rise to the complaint). testified that the school had not received any complaints about Respondent's use of those words from any of the students or their parents. The UTD Contract establishes a policy of imposing progressive discipline ("Progressive Discipline Policy") when "the Board deems it appropriate, and . . . the degree of discipline shall be reasonably related to the seriousness of the offense." Neither the Progressive Discipline Policy nor Petitioner's adopted policies articulate a disciplinary "scale" or penalty categories applicable to specific types of conduct. There is no competent substantial evidence in the record showing that Respondent previously has been subjected to disciplinary action by Petitioner. Petitioner did not present any competent substantial evidence establishing the factual basis for its proposal to suspend Respondent for ten days for the offenses charged in the NSC. Findings of Ultimate Fact As noted above, Petitioner has charged Respondent with misconduct in office under rule 6A-5.056(2) for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of Ethics. Whether an offense constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct violates a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from a standard of conduct is not a conclusion of law, but is instead an ultimate fact). Charged Conduct and Rule Violations The September 27, 2018 Incident Based on the foregoing, it is determined, as a matter of ultimate fact, that Respondent pushed S.D. on September 27, 2018. There was no justification for Respondent to place his hands on and push S.D., even if she interrupted him while he was speaking with another person. Respondent's conduct in pushing S.D. constituted misconduct in office, as defined in rule 6A-5.056(2). Specifically, Respondent's conduct did not comport with rule 6A-10.081(1)(a), which provides that his primary professional concern must be for the student, and requires him to exercise best professional judgment. In pushing S.D., he did not treat her as his primary professional concern, and he did not exercise best professional judgment. Additionally, Respondent's conduct did not comply with rule 6A-10.081(2)(a)1. or School Board Policies 3210 and 3210.01. Specifically, in pushing S.D., Respondent did not make a reasonable effort to protect her from conditions harmful to her mental and physical health and safety. Although S.D. was not physically injured, she was embarrassed by Respondent's conduct in pushing her. Respondent's conduct also did not comply with rule 6A-10.081(2)(a)5. or School Board Policies 3210 and 3210.01. Respondent's conduct in pushing S.D. was intentional and it exposed her to embarrassment. Because Respondent's conduct in pushing S.D. violated rules 6A- 10.081(1)(a)1. and (2)(a)1. and 5., and School Board Policies 3210 and 3210.01, it is found, as a matter of ultimate fact, that Respondent committed misconduct in office, pursuant to rule 6A-5.056(2). Pursuant to the UTD Progressive Discipline Policy, it is determined that Respondent's conduct in pushing S.D. was sufficiently serious to warrant suspending him without pay for five days. There was no justification for him having pushed her. Although S.D. was not physically injured as a result of Respondent's conduct, the potential existed for her to have been injured had she fallen, and, in any event, Respondent's intentional action subjected her to embarrassment. The December 5, 2018 Incident Based on the foregoing findings, it is determined, as a matter of ultimate fact, that Respondent used the words "mierda" and "pinga," which are profane words, when speaking to Mestre and Acevedo Molina on December 5, 2018. However, for the reasons discussed above, it is determined, as a matter of ultimate fact, that Respondent did not direct those words toward the students or that any students heard or saw him use those words.10 Respondent's use of profanity in speaking to Mestre and Acevedo Molina did not comport with rule 6A-10.081(1)(c). In using profanity toward his colleagues, Respondent did not strive to achieve and sustain the highest degree of ethical conduct. Mestre and Acevedo Molina both testified to the effect that they viewed his conduct as inappropriate in that professional setting. Respondent's use of those words when speaking to Mestre and Acevedo Molina did not comply with the requirement in School Board Policy 3210 to refrain from the use of profane or abusive language in the workplace. Respondent's use of those words when speaking with Mestre and Acevedo Molina also did not comply with the standard set forth in School Board Policy 3210.01, which requires the employee to show respect for other people. In sum, Respondent's conduct in saying "mierda" and "pinga" while speaking to Mestre and Acevedo Molina violated rules 6A-10.081(1)(c) and School Board policies 3210 and 3210.01. Accordingly, Respondent's conduct constituted misconduct in office under rule 6A-5.056(2). As discussed above, there is no competent substantial evidence establishing that Respondent has ever been subjected to discipline by Petitioner prior to this proceeding. Although Respondent's conduct in using profanity when speaking to two adult colleagues violates certain policies, in light of the UTD Progressive Discipline Policy, such violation is not sufficiently serious to warrant suspension without pay. Therefore, it is determined that, consistent with the concept of progressive 10 Further, as discussed above, the administrative complaint does not charge Respondent with using those words toward students or charge that any students saw or heard him use those words. discipline, Petitioner should issue a verbal reprimand to Respondent for his conduct in using profanity when speaking to his colleagues. Because Respondent was not charged with, and the evidence did not prove, that he directed profanity toward any students or that any students saw or heard him use profanity, Petitioner may not impose discipline on Respondent on that basis. Just Cause Based on the foregoing, it is determined, as a matter of ultimate fact, that just cause exists to suspend Respondent. Recommended Penalty Based on the foregoing, it is determined that Respondent should be suspended for five days without pay for having pushed S.D. Based on the foregoing, it is determined that Respondent should be issued a verbal reprimand for using profanity when speaking to Mestre and Acevedo Molina and Respondent should receive five days of back pay for the balance of the ten-day period for which Petitioner proposed to suspend him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, consistent with the foregoing, Petitioner enter a final order suspending Respondent from his employment as a teacher for five days without pay, issuing a verbal reprimand to Respondent, and awarding Respondent back pay for five days. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 1st day of June, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Cristina Rivera, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Carlos M. Sanjurjo Apartment 214 14907 Southwest 80th Street Miami, Florida 33193 Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Respondent should be reassigned to the Opportunity School.
Findings Of Fact Raul Lopez entered the Dade County Public Schools in 1980 and was enrolled in the fifth grade. He repeated the fifth grade once, passed the sixth grade, and, in the 1984-85 school year, was repeating seventh grade. When Raul entered the Dade County school system he did not know the English language and was enrolled in a special program called English for Speakers of Other Languages (ESOL). He remained in the program for three years. Raul received no bilingual educational services from the school system after the first three years. Raul Lopez entered Palm Springs Junior High School on September 7, 1984, and was recommended for alternative school on January 18, 1985. During the time Raul was at Palm Springs, he was referred to the office for disciplinary reasons on eight different occasions. Assistant Principal Long's testimony was the only evidence presented by Petitioner to show that Raul had a record of disruptive behavior. However, Mr. Long's testimony was not credible and, for the most part, was uncorroborated hearsay. Mr. Long had no personal knowledge of any of the incidents which caused Raul's disciplinary referrals, and could not provide any information, other than speculation, as to what had actually happened to cause each referral. Mr. Long explained that, when a disciplinary problem occurs, the teacher or staff person involved fills out a referral, setting forth the details of the incident. The assistant principal to whom the matter is referred then prepares a computer card on the incident, fitting the behavior that occurred into one or more of the available categories, such as "general disruptive behavior." Mr. Long's testimony regarding Raul's behavior came directly from a computer print-out. It was clear that Mr. Long had no independent recollection of any of the incidents. From the computer print out, Mr. Long testified that Raul received the following referrals: DATE REASON FOR REFERRAL 10/9/84 general disruptive behavior 10/16/84 defiance of school authority; dress code violations; rude and discourteous (Mr. Long stated that Raul may have had his shirttail out or not worn socks) 10/30/84 general disruptive behavior; rude and discourteous; no school materials (Mr. Long explained that Raul didn't have his books or didn't have his P.E. uniform) 11/1/84 excessive tardiness; rude and discourteous 11/13/84 general disruptive behavior; didn't complete class assignment 11/21/84 unauthorized location; no school materials 12/10/84 excessive tardiness; general disruptive behavior; rude and discourteous 1/11/85 general disruptive behavior; assault (Mr. Long stated that he knew nothing about the assault because he didn't handle the referral) Raul was placed on indoor suspension as a result of the October 9, 1984, incident, and was referred to counseling after the November 1st and November 13th incidents. Although Mr. Long stated that attempts were made to contact the parents, the only conference with the parents was on January 18, 1985, to inform them that Raul was being referred to the alternative school. Mr. Long had personal contact with Raul and found him to be defiant, hostile, and disrespectful. Raul also used obscene language. However, he also testified that he had never had problems with Raul. The evidence establishes that Raul had a very poor attendance record while attending Palm Springs. He was absent 25 days, of which 15 absences were confirmed truancies. The Dade County Public Schools Complaint of Truancy (R.Ex.-l) indicates that several conferences were held with Raul's parents concerning Raul's excessive absences; however, the visiting teacher could not remember whether he actually made contact with Raul's parents or merely went to Raul's home and left a message that Raul was truant, and Mr. Long's testimony concerning parent conferences was inconclusive. Several letters were sent to the home regarding Raul's non-attendance. Mrs. Lopez testified that the only contact she had with school personnel was on January 18, 1985. Raul has not been successful academically. He had to repeat the fifth and seventh grades. After the first nine weeks at Palm Springs he received one C, two Ds, and three Fs. After the first semester the number of Fs had increased to four. Mr. Long testified that Raul was not in school often enough to receive passing grades. He also testified that the low grades were a result of Raul's behavior problem. Raul testified that he didn't go to school because he did not understand the school work. He admitted that he does not read or write very well. He stated that nobody had ever asked him why he did not like to go to school. Raul admitted that he had refused to "dress out" for physical education class. Mr. Long did not know why Raul failed to attend school, but stated that every effort was exhausted at Palm Springs to correct Raul's problems. He felt that Palm Springs simply could not meet Raul's needs. The counselor at the school requests testing for exceptional education, and although Raul had been sent to the counselor, Mr. Long did not know whether the counselor had requested exceptional education testing. Mr. Long believed that Raul was in the proper academic program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the assignment of Respondent to the opportunity school program at Jan Mann Opportunity School-North. DONE and ENTERED this 6th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, 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 6th day of August, 1985. COPIES FURNISHED: Mark A. Valentine, Jr., Esq. Assistant Schoo1 Board Attorney McCrarY & Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida Mitchell A. Horwich, Esq. Education Advocacy Project Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, Florida 33147-4796 Dr. Leonard Britton Superintendent of Schools Board Administration Building Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Phyllis O. Douglas Assistant School Board Attorney Dade County School Board Suite 301 1450 N.E. 2nd Avenue Miami, Florida 33132
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact: The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education. The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978. Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986. 1980-81 SCHOOL YEAR During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class. For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences. 1981-82 SCHOOL YEAR The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility. The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships. Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing. During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students. During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints. On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students. In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status. 1982-83 SCHOOL YEAR On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year. During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program. 1983-84 SCHOOL YEAR During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required. A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints. As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable. On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner. A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics. For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom. 1984-85 SCHOOL YEAR At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment. 1985-86 SCHOOL YEAR On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected. On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control. After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription. On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence. Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences. In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital. Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes. During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days. At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility. Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation. It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida. DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274 The following constitutes my specific rulings pursuant to Section 120.59 (2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 3. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 11 8. Adopted in Finding of Fact 11. 9. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 15. 17. Adopted in Finding of Fact 16. 18. Adopted in Finding of Fact 17. 19. Adopted in Finding of Fact 18. 20. Adopted in Finding of Fact 19. 21. Adopted in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 25. Rejected as a recitation of testimony. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/orsubordinate. Rejected as a recitation of testimony and/orsubordinate. COPIES FURNISHED: Johnny Brown, Esquire Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132
The Issue Whether Respondent violated sections 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and 6A-10.081(2)(c)1., as alleged in the Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence, testimony, and stipulated facts, the following Findings of Fact are made. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Respondent holds Florida Educator Certificate No. 834897, covering the areas of elementary education, English for Speakers of Other Languages (“ESOL”), and varying exceptionalities, which is valid through June 30, 2023. At the time of the allegations in the Administrative Complaint, Respondent was employed as an exceptional student education (“ESE”) teacher at Wyomina Park Elementary School (“WPES”) in the Marion County School District (“MCSD”). Ms. Miller has served as an elementary education teacher since the 2000-01 school year. Thus, she has a 20-year career with MCSD. From 2008 to 2018, Respondent taught third, fourth, and fifth grades at Reddick Collier Elementary (“Reddick Collier”’). Since she holds certification in ESE, she also taught ESE inclusion students in her general education classrooms. However, she has never taught a classroom of only ESE students. In 2018, Respondent’s value-added model (commonly referred to as VAM) scores rendered her ineligible to continue teaching at Reddick Collier because it was one of the District’s lowest performing schools. As a result, she was involuntarily transferred to WPES. Ms. Baxley testified that Respondent was initially assigned to teach students with academic issues, not behavioral issues. The initial assignment was consistent with her experience and previous work with ESE inclusion students. Respondent had maintained certification in ESE so that she could better serve academically low-performing ESE students in a general education inclusion environment. While Respondent had training in an inclusion environment, she did not have training or certification in Treatment and Education of Autistic and Communication Handicapped Children (“TEACCH”) or Crisis Prevention Intervention de-escalation techniques for use with students with behavioral issues. Ms. Baxley believed that Respondent had been trained to work with children with behavioral issues. After the initial assignment, students were reassigned between Ms. Miller and Patricia Poag. Respondent became responsible for only students with behavioral issues. Some of the students assigned to Respondent had extensive behavioral issues to the extent they required medication treatment. Respondent’s new assignment was a kindergarten through second grade self-contained ESE class of 12 to 13 students. Generally, a self- contained ESE classroom is a group environment with students who have special needs. Respondent’s students required increased supervision, structure, visuals, and very specific direct instruction. Respondent, Ms. Davis, and Ms. Poag testified that the classroom assignment was very “challenging, overwhelming, and distressing.” The new classroom structure included six or seven more students than previously assigned. Respondent had one paraprofessional to assist with supervision of the students. Respondent requested additional staff support, but never received it. In addition to learning to navigate the struggles with the student’s behavioral issues, Respondent was struggling with paperwork. Respondent made the effort to get help with completing necessary documents and learning how to complete IEP’s and behavior plans. She had no experience in completing these documents, or in working with “severe maladaptive behaviors” before being assigned to WPES. Allegations Involving Classroom Management As an ESE instructor, Ms. Miller’s primary responsibility was to ensure compliance with services or accommodations required for ESE students assigned to her classroom. Gina Gazzaniga is the MCSD ESE specialist. Her primary responsibility is to ensure compliance with services/accommodations required for all ESE students. Ms. Gazzaniga visited Respondent’s classroom. While in Respondent’s classroom, Ms. Gazzaniga observed students run on tables, throw items, and elope from the classroom unsupervised. Ms. Gazzaniga testified that while students were engaged in this conduct, Respondent did not intervene. Ms. Gazzaniga also testified that when students eloped from the classroom, they would typically go to the Guidance office or the Dean’s office. Ms. Gazzaniga had the Behavior Team (behavior tech, behavior specialist and analyst, and school academic coaches) assist with structure and behavior/classroom management strategies in Respondent’s classroom. The team implemented procedures to help prevent students from eloping. However, Respondent would change the practices the behavior team implemented. Respondent testified that some of the practices put into place were not effective. For example, when tables were lowered, the students increased their jumping from table to table. In addition, the assistance button was not within the reach of the teachers in the classroom. Ms. Gazzaniga’s overall assessment was that she saw “limited improvement, or refusal to follow taught strategies.” Other members of the WPES administration expressed concerns about Respondent’s classroom management. While visiting Respondent’s classroom, Ms. Baxley, along with Kendra Hamby, saw student W.H. pulling the hair of M.D. W.H., a male student, dragged M.D., a female student, by her hair as she screamed. Ms. Baxley testified that she heard Respondent say “stop.” Ms. Baxley then approached the students and removed W.H.’s hand from M.D. so that he would “stop pulling M.D. around like a caveman on the floor.” Ms. Baxley testified that Respondent did not intervene to help M.D., but rather “she just stood there.” Ms. Hamby testified that “Ms. Miller was standing there, not intervening, not saying or doing anything. So that was extremely concerning.” On another occasion, while in Respondent’s classroom, Ms. Baxley saw students hitting each other with containers. Ms. Baxley testified that Respondent did nothing to intervene. Respondent testified that she approached the students and instructed them to return the containers. Jennifer Foster was a paraprofessional assigned to Respondent’s classroom. On one occasion two students were running around the room, fighting, and chasing each other. Ms. Foster tried to “get in the middle to separate them and they both ran behind the big solid wooden table.” When Ms. Foster went in front of the table in an effort to separate them, the two students picked up the table and tossed it over on the side. Ms. Foster was able to move one foot out of the way, but the table landed on her other foot. Ms. Foster testified “I eventually got up and hobbled over to push the panic button and asked for assistance.” Her foot was injured as a result of the incident involving the students. Ms. Foster indicated that Respondent did not assist her. Allegations Involving Failure to Supervise Students In addition to concerns about classroom management, the Administrative Complaint alleged Respondent failed to supervise students. One of those incidents involved K.C. K.C. was one of Respondent’s kindergarten students. He is an ESE student with a medical condition. On September 6, 2018, a teacher informed Assistant Principal Troy Sanford that Respondent’s student, K.C., was found standing at the exit door of a hallway that opens to the playground. Mr. Sanford saw K.C. approaching the exit doors to the playground alone at 11:24 a.m. K.C. stood there alone until 11:29 a.m., at which time the teacher spoke to K.C. After consulting with another teacher, Ms. Hawthorne, about where K.C. belonged, the teacher took him to Respondent’s classroom. Respondent denied allowing K.C. to stand alone in the hallway for several minutes. She testified that while standing at her classroom door, awaiting the arrival of students coming from the restroom, K.C. began to walk from Ms. Davis toward her. This was customary for her students if children needed additional time in the restroom. As K.C. got close to Respondent, L.G.R. began climbing on the top shelf of a bookcase in the classroom. Since their routine was for the students to come into the classroom, she assumed K.C. would follow the customary practice and enter the classroom. Respondent testified that she made a judgment call to turn her attention to L.G.R. to ensure his safety and prevent harm to him. Instead of entering the classroom, K.C. walked down the hallway. Based on the totality of the circumstances, Respondent’s actions were reasonable. A second incident involved a different student. Two first-grade teachers, Nancy P. Neal and Ireina Hawthorne, were outside on the playground with their students. When recess was over, they were gathering their students and doing a head count to go back inside to their classrooms when they noticed there was “an extra child” in line. The student did not belong in their classroom. The student was nonverbal so they could not determine to which classroom he belonged. Ms. Hawthorne assumed that he belonged in Respondent’s class and took the student to Respondent’s classroom. When Ms. Hawthorne took the student to Respondent’s classroom, Respondent “ushered him into the classroom.” Respondent testified that she was in the hallway, counting her students before going to her classroom. She explained that she had a substitute paraprofessional, Ms. Foster, who did not know all of her students. In addition, this was the first time she had Ms. Foster serve as a substitute. To help remedy the issue regarding the student left outside, Respondent asked her assigned paraprofessional not to take breaks or lunch during recess. Whether Respondent was in her classroom (as stated by Ms. Hawthorne) or in the hallway, the student was left outside without her supervision, which could be harmful to the student’s safety. A third incident related to supervision involved student L.G.R. On October 19, 2019, L.G.R. entered Ms. Gazzaniga’s office and hid under a table. The evidence offered at hearing demonstrated that when the student eloped from the classroom, Respondent immediately followed the student into the guidance office. However, she did not see the L.G.R., so she continued to search for him. A minute or so later, Ms. Gazzaniga saw Respondent walk down the hallway towards the main office. Respondent later learned the student was in the guidance office at the time she initially searched that location. However, Ms. Gazzaniga did not alert Respondent that L.G.R. was in her office. Ms. Gazzaniga testified that she “kept an eye on him while he was there.” After a short time, Ms. Gazzaniga went over to L.G.R. and spoke to him. He came from under the table and went to the doorway of the office. At the same time, Respondent was walking back down the hallway and saw L.G.R. and took him back to her classroom. The credible evidence demonstrates that Respondent made reasonable efforts to locate the student by searching for him immediately after his elopement from the room. DP-3 Assessment On September 10, 2018, Ms. Scott gave Respondent a Developmental Profile Third Edition (“DP-3”) to complete for student A.M.S. Students who are developmentally delayed must have a DP-3 completed for re-evaluation to determine what ESE services need to be continued. A DP-3 is an assessment tool used to evaluate nonverbal or low achieving students that have not reached the cognitive level to take an IQ test. MCSD uses the DP-3 to assess the student’s level of achievement. The DP-3 assesses five areas of development, including the child’s cognitive functioning, physical development, communication skills, social, emotional, and adaptive skills. The assessment is completed by completing a series of questions on whether a student can or cannot perform a particular task. Respondent returned the DP-3 to Ms. Scott on September 25, 2018. Respondent circled items indicating a “yes” response. During the hearing, however, Respondent acknowledged the student would not be capable of performing the tasks. In addition, Ms. Scott did not believe A.M.S. could perform the skills for which Respondent answered yes. Based on the evidence offered at hearing, some of the responses Respondent provided on the DP-3 were inaccurate. Performance Assessments Throughout her career, Respondent had been assessed as progressing or effective related to instructional practice as an educator. For the 2018 informal classroom teacher instructional assessment performed by Ms. Baxley, Ms. Cino, and Mr. Sanford, Ms. Miller was assessed as unsatisfactory in multiple areas.1 However, in the areas of criticism, it was also noted that Ms. Miller was engaged in instruction of students. Interestingly, she was criticized for a child wandering to her desk, and then, criticized for leaving the group of students she was working with to redirect the wandering student. In another instance, the observers were critical of a Positive Behavioral Interventions Support plan but Ms. Miller was never trained in the area of behavioral management. For the 2019 informal classroom teacher evaluation, Ms. Miller was assessed effective in each category, including areas where she was assessed unsatisfactory in 2018. Disciplinary Action at WPES For the first time in her career, Respondent received disciplinary action while working at WPES. On or about September 10, 2018, Respondent was issued an oral reprimand for purported failure to supervise the students assigned to her. On or about September 26, 2018, Respondent was issued a written reprimand for misconduct for purported falsification of documents. On or about October 26, 2018, Respondent was issued a written reprimand for alleged failure to supervise a student assigned to her. On or about November 26, 2018, Respondent was issued Step One progressive discipline for substandard performance due to behavioral concerns in her classroom and failure to report grades. On or about December 11, 2018, Respondent was issued a Step Two verbal reprimand regarding substandard performance. 1 In 2018, Ms. Miller was assessed unsatisfactory in the following areas: 2b. establishing a culture for learning, managing student behavior; 3b. using questioning and discussion techniques; and 3c. engaging students in learning. On or about December 18, 2018, Respondent was issued a Step Three progressive discipline written reprimand regarding substandard performance. Respondent’s educator certificate has no prior discipline.
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 the statues and rules as referenced above; Respondent be placed on probation for a period of two years, with conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 31st day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN 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 31st day of March, 2021. Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Lisa M. Forbess Interim Executive Director Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent attends Thomas Jefferson Junior High School. With the exception of band class which he attends regularly and achieves high marks, his absentee rate (unexcused) is approaching 50 percent and he is receiving failing grades. He is frequently disruptive in class and disrespectful to his instructors. He regularly comes late to his classes or leaves before being excused. Petitioner has made frequent attempts to assist Respondent. All available counseling and disciplining techniques have been used without success. Respondent will be 16 years old in September and intends to withdraw from school at that time. Respondent and his mother seek his release from mandatory school attendance now so that he may begin vocational training. School officials agree that this is appropriate, but the application has not been completed due to communication problems between Mrs. Perez and Thomas Jefferson Junior High School.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Respondent to its opportunity school pending release from mandatory school attendance. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER, 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 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Sylvia Perez 460 Northwest 125 Street Miami, Florida 33168 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact The Respondent Carr has been employed as an art teacher for the School Board of Dade County, Florida, since approximately 1972. He has taught at the senior high, middle school, and elementary school levels. He obtained tenure during 1976 or 1977. He has had varying levels of success according to his official performance evaluation ratings that are contained in his personnel file. In all but three years of his service, his annual evaluations have contained at least one category that was at or below an acceptable level of teaching in the Dade County Schools. Since the 1979-80 school year, the Respondent has received unacceptable ratings in three out of eight evaluative criteria on his annual evaluations. Respondent Carr has been the subject of personnel investigations on five different occasions, each involving the alleged use of physical contact beyond what is normally acceptable with students. Three instances of misuse of physical contact/corporal punishment were tried at the November 14, 1983, hearing. In the first incident which occurred in September, 1978, the Respondent came up behind a student and placed his hand in the student's hair in order to remove him from a classroom. From that point forward, it is unclear exactly what occurred since the incident which happened five years prior to the hearing could not be specifically recalled by the student. The student did, however, swing his arms at the Respondent in order to release the Respondent's grasp on the back of his head. In the second incident which also occurred in September, 1978, Respondent reached across student Byron Martin's desk with a pole or a stick and tapped the student on the head. The Respondent did not hurt the student who testified at the final hearing that other people made a bigger issue out of the incident than he did. In the final incident, during October or November, 1982, the Respondent turned the head of student Karen Bass, a nine-year-old girl, in order to get her attention. Karen became scared and began to cry. The Respondent did not intend to strike or frighten Karen, but turned her head to try and prevent her from being distracted by another student. Respondent was formally observed by the assistant principal of Edison Park Elementary School, Jill Witlin, on May 15, 1980. He was found to be overall unacceptable and specifically unacceptable in the categories of classroom management, techniques of instruction, and teacher-student relationships. The Respondent was marked unacceptable in classroom management because he was not able to manage the classroom. The students did not respond to him. They did not follow his directions or do what he asked them to do. As he became frustrated with the class, he would use sarcasm and cynicism. The Respondent addressed the students in an angry manner and did not seem to know their names. At times he would bring students to the office, pushing them toward the assistant principal saying that he could not deal with them. This is an inappropriate way to handle students because it lets students know that a teacher cannot deal with them, lets them see the teacher's frustrations, and is a misuse of physical force. A teacher is required to have the skills and techniques for dealing with students calmly, despite emotions. Mrs. Witlin rated Respondent unacceptable in techniques of instruction because Respondent dealt with very technical kinds of instruction without following conventional, developmental learning modes of children. The lesson was too heavily teacher-directed and Respondent was very concerned with the ultimate art product. His instruction was very technical without giving the children any sense of where they were headed. This is not an appropriate way to teach elementary school children. Such children learn best when they have some sense of what they are doing and why they are doing it, rather than just following instructions. Respondent taught above the level of the children and used vocabulary and instructions that were too difficult for them to understand. There were times when Respondent did not use CurriculArt. There were other times when he did use CurriculArt but he did not fulfill many of the aspects of what the CurriculArt manual suggested. Respondent was marked unacceptable in teacher-student relationships because he talked to the students in a harsh manner. He did not know the names of his students so he called them "Boy" or "Girl." He referred to the students in a negative manner and did not have a good opinion of what they could accomplish or learn. He was negative toward what they knew and what they could produce. He was also negative about their behavior. There was screaming coming from his room that could be heard in the hallways. Respondent could be heard saying "shut up" to his students. Respondent would make negative comments about students in front of other students. This is inappropriate because it can damage a child's self- concept, does not provide a proper role model for a child, and makes the teacher immediately lose his position as an authority figure. As a result, some of the Respondent's art students did not want to go to his class at all. On Respondents's annual evaluation, although he received three unacceptable categories, he was recommended for employment the following year. His classroom management was unacceptable because he spent a great deal of time at the outset of classroom time lecturing students about their behavior from the previous week's class. He took up 10 or 15 minutes of instruction time doing this. Once he got the class started, the students lacked direction and walked around the room not knowing what their particular task was. Respondent had great difficulty in keeping their interest and keeping everyone on task. At times the room became so noisy that Respondent had to scream and yell in an attempt to get the class under control. The class got progressively worse as the classroom time extended. The Respondent was marked unacceptable in teacher-student relationships because he had difficulty in working with students in a positive manner. He name-called and belittled students in front of other students. He said such things as "stupid" and "you are stupid" and "you really don't know what you are talking about; you are no good." These statements are demoralizing and ridiculing to students in front of other students. His instructional techniques did not motivate and enable students to learn. Respondent was next formally evaluated by his principal, Della Zaher, on June 16, 1981. He was found to be overall unacceptable and was rated unacceptable in the categories of preparation and planning, knowledge of the subject matter, classroom management, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was marked unacceptable in preparation and planning because he did not have his materials ready for this particular class. He began the class by talking about the children's negative behavior from the week before. Then he spent a good portion of the class time trying to retrieve the materials and getting them ready for the classroom instruction. In the meantime, the children became disruptive because of the time that Respondent had taken for this preparation. Respondent was marked unacceptable in knowledge of the subject matter because his vocabulary was overly advanced for elementary-age children and they had no idea what he was saying. The students did not understand the intent of the lesson. Most of the time, they were sitting idle, not comprehending the lesson. This led to unacceptable classroom management. Respondent was marked unacceptable in classroom management because of his negative and sarcastic comments to the children. There was no mutual respect on the part of the children or the teacher. If the children did not follow exactly what was presented to them, he would tear up their papers and throw them in the waste basket. When the children did their tasks incorrectly, Respondent could be heard outside of his classroom scolding his students even with the door closed. The children were not in their seats and were not working on the lesson. The entire classroom period was devoted to this type of disruptive behavior. Respondent could not correct the children by calling their names because he apparently did not know their names although he could have learned their names through the use of a seating chart or name tags. Other teachers who taught special classes, and who had as many students as Respondent, did not have the same difficulty ascertaining the names of the children. Respondent did not improve in his knowledge of the children's names by the end of the school term or from year to year when he had many of the same children again. Respondent was marked unacceptable in techniques of instruction because he did not have a way of explaining the assignments and giving clear instructions to his students. He never completed a task on time because he took too much classroom time disciplining the students and telling them about their behavior from the previous week. Because of this, he did not finish his lessons. The endings of his class periods were chaotic. Respondent was marked unacceptable in assessment techniques because of the manner in which he graded students' papers. He used a random assessment technique. There was no consistency in grading procedures. He would have the students stand up and show their papers and he would try to grade them. This technique can be ridiculing to students. There was very little meaning in the lesson for the children because he did not explain to them why they got the grades they got. He never completed an entire class and he spent a great deal of the class time at the end of the period trying to record grades. The students who were not being graded were disruptive. The Respondent kept no individual folders on the students where a student's progress could be monitored; instead, the papers were placed in a stack of papers in a closet. With Respondent's lack of a paper filing system, it would be impossible to explain to a parent why a child got a particular grade on his report card. His grade book was not up-to-date and he did not have sufficient grades for each child. Respondent was also marked unacceptable in student-teacher relationships because of his continual negative approach. Respondent did not indicate any real respect for each individual child in his classroom. There were some students who did not want to go to art class. In every conference that Respondent had with the principal, Respondent reminded her that black children could not learn. He also stated this belief to Ms. Witlin in that he felt the schools were spinning their wheels and wasting their time working in a low income, black area. Respondent was marked unsatisfactory in professional responsibility because he had difficulty turning his grades in on time so that the classroom teachers could record the students' art grades on their report cards. Respondent was again recommended for employment on his annual evaluation for the 1980-81 school year, although he was rated unacceptable in the categories of classroom management, techniques of instruction, and teacher- student relationships. He was recommended for reemployment because he had shown some improvement and the principal was interested in trying to improve his instructional techniques and his classroom instruction. Respondent was next formally observed by his principal, Mrs. Zaher, on September 25, 1981. While Respondent was marked overall acceptable, he was still unacceptable in classroom management, teacher-student relationships, and in one subcategory of preparation and planning. Respondent was unacceptable in classroom management because his voice was still very loud. He would almost lose complete control when he could not get the students' attention. He still began the class by lecturing to them about their behavior from the previous week. He did not have the materials ready to begin the lesson which added to the poor classroom management and resulted in more disruption. The children became disruptive each time Respondent had to retrieve supplies. Respondent was marked unacceptable in teacher-student relationships because he was unaware of the lack of student interest and other individual differences which caused students to be disruptive. Respondent was next formally observed by Ms. Witlin on October 23, 1981. Although he was found to be overall acceptable, this observation was a result of priming by Ms. Witlin. She met with Respondent early in the year to go over the observation form in great detail prior to the actual observation in an attempt to show him exactly what she would be looking for. He followed through on many of the things she had suggested. As a result, the lesson was acceptable. The next formal observation was performed by Jacqueline Hinchey, Art Supervisor for the Dade County Public Schools. Ms. Hinchey was called in to give advice to Respondent. She attempted to be as positive as possible. She rated the Respondent acceptable even in borderline areas in her attempt to be helpful and positive. Ms. Hinchey rated the Respondent overall acceptable. She felt that while he had made strides in improving his instructional techniques and public relations strategies, his knowledge of child development was still very limited. The major shortcoming of his teaching was that because he did not understand how children grew, he was unable to level his knowledge in a manner so that the children could understand and be able to succeed. Because of his lack of understanding how children grew, he had unreal expectations of them. This resulted in his will being pitted against the children's will. As a result, Respondent became angry. The children were not doing what he expected them to do or what he wanted them to do or they could not do it, and he, therefore, became angry. He was not using CurriculArt. CurriculArt is a School Board-approved program which incorporates the School Board's balanced curriculum. A teacher is required to use CurriculArt unless he has submitted a different, but acceptable, program to Ms. Hinchey. Since no school in the county has submitted an alternate curriculum, it would be expected that all art teachers, including Respondent, would be using CurriculArt. Respondent was still assessing the children's work by having them hold up their work, and he would say that one child's work was the best. This is not an appropriate assessment technique because he did not explain why a work was the best and also makes the other children feel inadequate. The Respondent tended to talk too long and his demonstrations were too technical and detailed for the age group with which he was working. Since not all the children could see his demonstration, they would begin to get fidgety. Respondent was recommended for reemployment at the end of the 1981-82 school year. Although Respondent needed to improve his techniques of instruction, he was showing some improvement. Respondent was next formally observed by Ms. Witlin on November 15, 1982. He was found to be overall unacceptable and was rated unacceptable in one subcategory of preparation and planning and in the areas of techniques of instruction, assessment techniques, and professional responsibility. Respondent was marked unacceptable in Part A of preparation and planning because while his planning was done, the lesson was not an effective one. He needed to plan his lesson in much greater detail in terms of what he wanted to accomplish, what time frames he would use, and what specific actions he would take. Respondent was still not using CurriculArt. Respondent was marked unacceptable in techniques of instruction because he did not accept student responses and utilize students' ideas, and he did not vary instructional strategies or adapt his methodology to different students. Respondent was marked unacceptable in assessment techniques because art projects were not graded and were not organized into portfolios. There were insufficient grades in the grade book. There was no ongoing regular assessment week after week and the assessment was irregular. Respondent was marked unacceptable in professional responsibility because there were consistent delays in getting his art grades to the home room teachers. If Respondent would have kept up with his grades on a weekly basis and had averaged them, he would not have had a problem getting his grades to the home room teachers. He had to rush to get the grades in to the teachers at the last minute and as a result, the other teachers bothered the assistant principal for them all day long on the teacher workday. This was not a professional way to operate. Further, Respondent's room was very disorganized, messy, and uninviting. The next formal observation was performed by Ms. Witlin approximately a week and a half after her last observation. This observation took place on November 24, 1982. "While his progress was not fully acceptable, there was propress over the prior observations. Ms. Witlin wanted to encourage Respondent's use of CurriculArt which she had prescribed in the prior observation. His classroom management was unacceptable because he spent an inordinate amount of time introducing the lesson, preparing the materials for it and following the CurriculArt card to the letter. He began to lose track of time. He was not able to pace the lesson properly and when he told the children to stop doing their work they did not listen to him. As time ran out and things started to unravel, the Respondent became frustrated. Classroom discipline broke down badly. He was not able to grade the children's work or give them a conduct grade. He was marked unacceptable in a subcategory D of techniques of instruction because he did not give ample time for cleanup, or organization of materials, and for putting away art products. The next formal observation was performed by Ms. Zaher on December 14, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in classroom management, techniques of instruction, and in one subcategory of preparation and planning. He was found unacceptable in category C of preparation and planning because he did not arrange for the distribution of materials in an effective manner, and he did not begin his lesson on time. He would begin his lesson by spending time talking about the children's behavior from the prior weeks. He was never able to complete a lesson because of the time taken to discipline the children and to give instructions as to how they should behave. Respondent was marked unacceptable in classroom management because he never got the class under control. He ran out of time and did not complete grading. He did not close his lesson. He spent too much time trying to get the classroom under control. Students were out of their seats running around the room and exhibiting disruptive behavior. Respondent was marked unacceptable in techniques of instruction because the children had no time to finish their lesson and clean up. Respondent lost instructional time because of disruptiveness. Although Respondent was rated acceptable in assessment techniques, he was still shouting out grades in front of the whole class, and taking up a great deal of time trying to grade the children. The next formal observation was performed by Ms. Hinchey on January 10, 1983. He was rated overall unacceptable and was unacceptable in the areas of classroom management, techniques of instruction, and teacher-student relationships. Respondent deteriorated in his teacher-student relationships and in his teaching techniques since Ms. Hinchey's prior observations. Teacher-student relationships was marked unsatisfactory, because Respondent frequently appeared and sounded angry with his students. He still did not know the names of the students and pointed or gestured at the students when he wanted them. The students became fidgety and began to nudge each other and whisper. The more this happened, the more upset Respondent became. He gave the students angry looks and raised his voice. Techniques of instruction was marked unsatisfactory because one-third of the class could not see a demonstration rubbing. As a result, the children did not get the idea of what a rubbing is. They did not get the idea of repeating the shapes on the page and there was no planned critique at the end of the lesson so that the children could see if they understood the goals of the lesson. Respondent was still assessing the students' work by choosing the best one at the table. Respondent was using the Curricul Art card but the lesson was misleveled and the lesson was very minimal. During the many informal observations of Respondent, he fared no better. He had the same kinds of problems that he had on the formal observations. He was having trouble in all of his classes and he was frustrated and angry with his students. The administration has attempted to help Respondent improve his teaching. Since Respondent had been having difficulties in his prior school assignment, Ms. Hinchey recommended that he be placed in the elementary level where there was more structure and a curriculum that could easily be followed. She recommended that he be put with an administrator who was known to be a helping person and someone who would patiently work with him. Her recommendation was that Respondent be placed with Della Zaher at Edison Park Elementary. Ms. Zaher had a reputation of being an administrator who could get along with individuals and would try to work with them closely to get the best out of them. After various classroom observations, the administrator prescribed various means of help for the Respondent. It was recommended that Respondent observe two good art teachers in other inner-city elementary schools in order to see that it was possible to get good control from these students. An assertive discipline workshop was also prescribed for the Respondent. It was recommended to Respondent that he take the time to learn the students' names. The administration ordered any supplies that Respondent wanted in order to provide him adequate materials with which to work. The administrators recommended that Respondent establish classroom rules, enforce them, and use behavior modification techniques. Conferences were held with Respondent in order to help him improve. It was suggested that Respondent meet with the counselor of the school in order to learn positive techniques for motivating student interest and for learning techniques to control student behavior in a positive way. It was recommended that Respondent attend workshops. It was recommended that he tape his own lessons to hear how he addresses students so that he would be aware that he was not getting the response that he wanted. Ms. Witlin asked Respondent to discuss his feelings about the students and to take a humanistic attitude toward the children and to observe a variety of teachers at Edison Park, teachers of the young, and teachers of old, and teachers of ethnic groups to see how pleasantly and positively they got along with the students. In early October, 1981, as discussed above, Ms. Witlin gave Respondent extra help prior to his November 15, 1982 observation in order to help him reach an acceptable observation. After the November 15, 1982 observation it was prescribed that Respondent begin to use CurriculArt. Ms. Witlin developed an elaborate procedure in order to help the special teachers get their grades to the home room teachers on workdays. Ms. Zaher brought in the art supervisor, Jacqueline Hinchey, to give advice to Respondent. Ms. Hinchey recommended the CurriculArt workshops for Respondent. She also recommended that the area art consultant and the assistant principal work with Respondent. The area art consultant worked specifically with Respondent in the areas of classroom management and planning five or six times during the 1982-83 school year. He assisted Respondent with planning and did a demonstration lesson for Respondent. The art consultant recommended the two teachers whom Respondent was to visit in the other schools. None of these prescriptions seemed to improve Respondent's performance. As a final attempt to offer Respondent an opportunity to improve his teaching, Ms. Zaher recommended a reduction from continuing contract to annual contract status. She felt that if he would understand that the school system meant serious business, Respondent would do something about his teaching. This was the last remedial action, a final opportunity for Respondent to improve his teaching while on a probationary status and placing the burden of competent performance on him. On December 17, 1982, Ms. Zaher put Respondent on notice that he had not sufficiently improved in the areas of planning, classroom management, and techniques of instruction and assessment. At that time, she could not recommend him for continuing contract status. She indicated that in order to be recommended for continuing contract by February 25, 1983, there must be improvement as indicated in her memo. On February 9, 1983, Ms. Zaher notified Respondent that she would be recommending that he be returned to annual contract status for the 1983-84 school year since the standard of performance indicated on her memo of December 17 had not been achieved. At a conference-for-the- record with the Executive Director, Division of Personnel Control of the Dade County Public Schools, on March 14, 1983, the charges were made known to the Respondent, and his prior investigative reports were reviewed. It is the consensus of opinion of the administrators who observed Respondent that the students in Respondent's class did not receive the minimal amount of educational experience to which they were entitled. There was a repeated failure on the part of Respondent to communicate with and relate to the children in his art room to such an extent that they were deprived a minimum educational experience. The art experience was a very negative experience for his students. Although Respondent is intelligent and knows his subject matter, he is a poor teacher. On March 23, 1983, the Superintendent of Schools notified Respondent that he would recommend to the School Board at its next regularly scheduled meeting on March 30, 1983, that Respondent's continuing contract be removed and that he be returned to annual contract status for the 1983-84 school year. The Superintendent's letter indicated a right to a hearing and a time frame within which to exercise that right. It also contained a copy of the charges, to wit: . . . for just cause including, but not limited to, incompetency . . . . On March 30, 1983, the Superintendent filed his written recommendation with the School Board, and the School Board acted to remove the continuing contract of Respondent and to return him to annual contract status effective for the 1983-84 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: That a final order be entered by the Petitioner, Dade County School Board, affirming the reduction of contractual status of the Respondent Richard Carr from continuing contract to annual contract status. DONE and ENTERED this 11th day of October, 1984 in Tallahassee, Florida. SHARYN L. SMITH 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 11th day of October, 1984. COPIES FURNISHED: Ellen L. Leesfield, Esquire Jesse J. McCrary, Esquire DuFresne and Bradley 3050 Biscayne Boulevard 2929 S. W. Third Avenue Suite 800 Fifth Floor 3050 Miami, Florida 33137 Miami, Florida 33129 William DuFresne, Esquire Dr. Leonard Britton 1782 One Biscayne Tower Superintendent of Schools 2 South Biscayne Boulevard Dade County Public Schools Miami, Florida 33131 1410 Northeast Second Avenue Madelyn P. Schere, Esquire Suite 200 1410 N. Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether just and good cause exists to terminate Respondent from his employment as an educational support employee with Miami-Dade County Public Schools.
Findings Of Fact The Parties At all times material to this proceeding, Petitioner was a duly- constituted school board charged with the duty to operate, control, and supervise free public schools within Miami-Dade County, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes. At all times material to this proceeding, Respondent was employed by the District as an electrician at Maintenance Service Center 4 (hereafter, "MSC4") in Miami-Dade County, Florida. As such, Respondent was subject to applicable Florida Statutes, applicable State Board of Education rules, Petitioner's policies and procedures, and the Dade County Schools Maintenance Employees Committee ("DCSMEC") Contract.2 Charges in the Amended Administrative Complaint The Amended Administrative Complaint alleges that between May and July 2019, Respondent misrepresented his working time on daily status forms and forged the signatures of worksite administrators on daily status forms. The Amended Administrative Complaint charges Respondent with having violated Florida Administrative Code Rules 6A-5.056(2) and 6A- 10.081 and School Board Policies 4210, 4210.01, and 8700. The Amended Administrative Complaint alleges that the conduct in which Respondent is alleged to have engaged, and the violations with which he has been charged, constitutes just cause to suspend Respondent without pay and terminate him from his employment position with the District. 2 The version of the DCSMEC Contract in effect between July 1, 2018, and June 30, 2021, was in effect at the time of the alleged conduct giving rise to this proceeding, and, therefore, applies to this proceeding. Evidence Adduced at the Final Hearing Background Respondent was hired by the District as an electrician in February 2007. He worked at Maintenance Service Center 3 until September 2008, when he was reassigned to MSC4. MSC4 is one of four District maintenance service centers that the District operates. MSC4 is several acres in area and contains trucks, storage facilities, a fueling station, and dumpsters. The geographic service area for which MSC4 is responsible stretches from Southwest 168th Street, in Miami, southward to the Miami-Dade County/Monroe County line. District employees assigned to MSC4 perform work at District facilities within the MSC4 service area. Respondent's work hours at MSC4 were from 6:00 a.m. to 2:30 p.m. He worked at MSC4 from September 2008 until December 2020, when he was suspended without pay and Petitioner took agency action to terminate his employment with the District. Respondent's home is located approximately 21 miles north of the northern boundary, and over 30 miles north of the southern boundary, of the MSC4 service area. During his employment at MSC4, Respondent engaged in the typical tasks performed by electricians who work for the District. Specifically, he handled work orders sent to MSC4 from District school facilities, entailing a wide range of electrical issues that arose, including loss of power, lighting issues, air conditioning, kitchen equipment, electrical wiring, damaged motors, and other tasks. Electricians are—and, at the time of Respondent's alleged conduct giving rise to this proceeding, were—assigned work by a foreman at MSC4. Work orders for specific jobs at specific facilities would be given by the foreman to the electrician, who would travel to the facility and perform the requested work. An electrician could be given several work orders on a given day, and if the work assigned through a work order was not completed that day, the electrician would return the following day to complete the work. If the electrician finished all of the work assigned through a work order, he or she was to contact the foreman, who would dispatch the electrician to another location to complete another work order. Electricians kept track of their work each day on a Daily Status Form ("DSF"), which (as the name indicates) was required to be completed by the electrician and submitted to the foreman on a daily basis. On each DSF, the electrician would provide a brief description of the work performed; enter the amount of time spent on a particular job; state whether the job was completed; and obtain the signature of the principal or authorized representative, who, by signing the DSF, verified that the work described on the DSF for that facility was, in fact, performed. At the time of the alleged conduct giving rise to this proceeding, Respondent's supervisors were Michael Thomas and a person referred to in the record as "Mr. Hetzer."3 At that time, and at the time of the final hearing in this proceeding, Timothy Jones was the director of MSC4, so was the supervisor for Thomas, Hetzer, and Respondent. At the time of Respondent's alleged conduct giving rise to this proceeding, he was assigned a District work vehicle having Vehicle Number 202209. Telogis Vehicle Tracking Software Installed in District Vehicles In 2016, the District purchased new Ford trucks for MSC4. The vehicles came equipped with global positioning system ("GPS") hardware and Telogis software, a Verizon Connect software product. Via cellular signal, the Telogis software tracks, among other things, the location and speed of 3 The record does not refer to Mr. Hetzer's first name. Hetzer died in January 2020, so was unavailable to testify at the final hearing. equipped District vehicles. The software enables the District to efficiently manage its fleet of vehicles. Respondent, along with the other MSC4 employees and the members of the DCSMEC union, was informed by Jones that the District vehicles used by employees at MSC4 were equipped with the Telogis software. The work vehicle assigned to Respondent, Vehicle Number 202209, was equipped with the Telogis software. The evidence establishes that Respondent knew his vehicle was equipped with the Telogis software. The data for each District vehicle is gathered by the Telogis software and electronically stored by Verizon Connect in a records storage and maintenance platform called Fleet. Verizon Connect customers have access to the data stored in the Fleet platform for purposes of monitoring the location and performance of their vehicles, and they can print out reports of their vehicle data that is stored in the Fleet platform. The competent, substantial, and persuasive evidence establishes that the Telogis software functions accurately in recording the vehicle location, speed, and other monitored features. No competent or persuasive evidence was provided showing that the Telogis software was generally unreliable or that it had a significant error rate.4 Respondent's Alleged Conduct Giving Rise to this Proceeding On or about July 12, 2019, Hetzer, who was Respondent's immediate supervisor at the time, and Jones found Respondent sleeping in his work vehicle. This incident caused Jones to investigate Respondent's work-related records for the preceding few months, because, as Jones put it, "I just wanted to see what Mr. Fleites had been up to." Jones testified, credibly, that had he found other employees sleeping on duty, he also would have accessed the Telogis software reports for their vehicles. 4 See paragraph 66, below. As part of the investigation, Jones or Hetzer accessed, and printed out, the Telogis software reports for Respondent's work vehicle for the period from May 1 to July 12, 2019.5,6 Also as part of the investigation, Jones reviewed Respondent's DSFs for the period from May 1 to July 12, 2019. Jones compared the Telogis software reports for Respondent's vehicle with the DSFs that Respondent had completed for the period from May 1 to July 12, 2019. Based on the information provided by the Telogis software for Respondent's District vehicle, Jones determined that on numerous days during the period between May 1 and July 12, 2019, Respondent either was not at the specific location he had recorded on the DSF for that day, or he was not present at a specific location for the amount of time he had stated for that day. Specifically, on May 1, 2019, Respondent's DSF stated that he was at Redondo Elementary School ("Redondo") for eight full hours; however, the Telogis report indicated that he was not at Redondo at all that day. Rather, the Telogis report showed that he drove to his home, as indicated by "JF" in 5 Jones testified that either he or Hetzer printed out the Telogis software reports for Respondent's work vehicle. He could not specifically recall whether he personally printed out the reports, but he testified, credibly, that he was trained in how to read and analyze the vehicle data in the reports, and he was authorized to print such reports. 6 The Telogis reports admitted into the record fall within the business records exception to hearsay rule codified in section 90.803(6), Florida Statutes. Petitioner presented the testimony of Avram Polinsky, a records custodian employed by Verizon Connect, who is directly involved in the preparation and storage of the Telogis records and in making them available in report-form for customer use. Polinsky authenticated the Telogis records and his testimony established that the records were made at or near the time the data comprising the records was compiled by the Telogis software system; that these records were kept in the ordinary course of Verizon Connect's business; and that it was a regular practice of Verizon Connect to keep such records and make them available for use by customers. Accordingly, the Telogis records constitute business records pursuant to section 90.803(6). See Jackson v. State, 877 So. 2d 816, 817 (Fla. 4th DCA 2004)(computer printouts generated at the request of a party in connection with litigation fall within the business records exception). Moreover, the Telogis reports are directly relevant to the charges against Respondent, and, therefore, are admissible in this de novo proceeding. the report, which, as found above, was approximately 21 miles north of the northern boundary of the MSC4 service area, and spent close to an hour there. He also drove to unidentified locations in Miami-Dade County, to the District's Redland vehicle fueling station, to the MSC4 facility, and then back to the fueling station. Respondent's DSF for May 2, 2019, stated that he worked eight hours at the South Dade Skills Center ("SDSC"). However, the Telogis report shows that he was only at SDSC for approximately 17 minutes. Had Respondent completed the work ordered at SDSC in that amount of time, as discussed above, he was supposed to contact his foreman to receive another work assignment for that day—which he did not do. The Telogis report also shows that Respondent drove to his home, to unidentified locations in Miami-Dade County, to the Redland fueling station, and to the MSC4 facility. Respondent's DSF for May 3, 2019, stated that he spent eight hours at Miami Heights Elementary School. However, according to the Telogis report for that day, he did not go to the school, but instead, went home and also drove to the Redland fueling station and the MSC4 facility. Respondent's DSF for May 7, 2019, stated that he was at the Air Base K-8 Center for eight hours; however, the Telogis report for that day shows that he was not at that facility at any time on that date. The Telogis report shows that he went home, went to various unknown locations in Miami-Dade County, went to the Redland fueling station multiple times, and went to the MSC4 facility. Respondent's DSF for May 8, 2019, stated that he was at the Peskoe K-8 Elementary School for eight hours; however, the Telogis report for that day shows that he was not at that facility at any time on that date, but, instead, went home, went to unknown locations in Miami-Dade County, went to the Redland fueling station multiple times, and went to the MSC4 facility. Respondent's DSF for May 9, 2019, states that he worked eight hours at the MSC4 facility. However, the Telogis report for that day showed that, in addition to being present at the MSC4 facility for two short periods of time, he drove 68 miles that day, to several unknown locations in Miami-Dade County, and to the Redland fueling station five times. Respondent's DSF for May 13, 2019, states that he worked eight hours at Redland Elementary School; however, the Telogis report for that day shows that he was only present at that location for slightly over seven minutes. The Telogis report shows that he made several stops at the Redland fueling station, three stops at the MSC4 facility, and three stops at unknown locations in Miami-Dade County. Respondent's DSF for June 3, 2019, states that he worked eight hours at Miami Heights Elementary School. However, the Telogis report for that day shows that he did not go to that school at all on that date, but, instead, went home, drove to the Redlands fueling station several times, and drove to unknown locations in Miami-Dade County. Respondent's DSF for June 4, 2019, states that he worked eight hours at Redondo. However, the Telogis report for that day indicates that he did not go to the school at all on that date, and that instead, he drove home, made four stops at the Redland fueling station, and made two stops at unknown locations in Miami-Dade County. Respondent's DSF for June 5, 2019, states that he worked eight hours at South Miami Heights Elementary School. The Telogis report for that day shows that Respondent did not go to this school at all on this date, but instead went to Redondo, drove home, made four stops at the Redland fueling station, and made two stops at the MSC4 facility. Respondent's DSF for June 6, 2019, states that he worked eight hours at Gulfstream Elementary School; however, the Telogis report for that day shows that he did not go to that school at all on that date, but instead drove home; went to various locations in Miami-Dade County, including a busway station; made five stops at the Redland fueling station; and made multiple stops at the MSC4 facility. Respondent's DSF for June 10, 2019, states that he worked eight hours at South Dade Middle School. However, the Telogis report for that day shows that he did not go to that school, but instead made two very brief stops at two other schools, and made stops at the Redland fueling station and the MSC4 facility. Respondent's DSF for June 11, 2019, states that he worked eight hours at South Dade Middle School. However, the Telogis report for that day shows that he was only present at that school for slightly over 41 minutes. The Telogis report shows that he went to three unknown locations in Miami- Dade County, made five stops at the Redland fueling station, and multiple stops at the MSC4 facility. Respondent's DSF for June 13, 2019, states that he worked eight hours at Laura Saunders Elementary School. However, the Telogis report for that day shows that he was at the school for slightly over 42 minutes, and that he made stops at unknown locations in Miami-Dade County, at the Redland fueling station, and at the MSC4 facility. Respondent's DSF for June 17, 2019, states that Respondent worked eight hours at Homestead Elementary School. However, the Telogis report for that day shows that he did not go to that school on that date, and instead stopped at McArthur South High School—for which no work had been requested—for slightly over 26 minutes. He also made stops at an unknown location in Miami-Dade County and two stops at the Redland fueling station. Respondent's DSF for June 18, 2019, states that Respondent worked eight hours at Redondo. However, the Telogis report for that day shows that he did not go to that school on that date, and instead briefly stopped at South Miami Heights Elementary and Herbert A. Ammons Middle School, although no work had been requested for either school. He also drove home, made five stops at the Redland fueling station, and made two stops at the MSC4 facility. Respondent's DSF for June 19, 2019, states that Respondent worked eight hours at Miami Heights Elementary School. However, the Telogis report for that day shows that he did not go to that school, or to any other school, on that date. He made three stops at unknown locations in Miami- Dade County and two stops at the Redland fueling station. Respondent's DSF for June 24, 2019, states that he worked eight hours at the Medical Academy for Science and Technology. However, the Telogis report for that day shows that he was on site at this school for slightly over 21 minutes. The Telogis report also shows that he made a brief stop at Redland Elementary School, despite no work order being issued for that school that day; and that he made stops at three unknown locations in Miami-Dade County, three stops at the Redland fueling station, and stops at the MSC4 facility. Respondent's DSF for June 25, 2019, states that he worked eight hours at Whigham Elementary School; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report shows that Respondent stopped at Redland Elementary School for slightly over 28 minutes, notwithstanding that no work had been requested for that school on that day. The Telogis reports also shows that he made five stops at the Redland fueling station and two stops at unknown locations in Miami- Dade County. Respondent's DSF for June 26, 2019, states that he worked eight hours at Air Base Elementary School; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report also shows that he made two stops at unknown locations in Miami-Dade County. Respondent's DSF for June 28, 2019, states that he worked eight hours at Air Base Elementary School; however, the Telogis report for that day shows that he only was present on site at that location for approximately 53 minutes. The Telogis report shows that Respondent drove home, stopped at three unknown locations in Miami-Dade County, and made four stops at the Redland fueling station. Respondent's DSF for July 8, 2019, states that he worked 6.5 hours at Caribbean K-8 Center; however, the Telogis report for that day shows that he did not go to that school on that date. The Telogis report shows that Respondent drove home, made three stops at unknown locations in Miami- Dade County, and three stops at the Redland fueling station. Respondent's DSF for July 9, 2019, states that he worked eight hours at R.R. Morton Elementary School; however, the Telogis report for that day shows that he was at that location for slightly over one hour and 36 minutes, and that he briefly stopped at Redland Elementary School, notwithstanding that no work had been requested for that school on that day. The Telogis report also shows that he made four stops at the Redland fueling station and four stops at unknown locations in Miami-Dade County. Respondent's DSF for July 10, 2019, states that he worked eight hours at Campbell K-8 Center; however, the Telogis report for that day shows that he was at this location for slightly over 39 minutes. The Telogis report shows that Respondent drove home, made three stops at the Redland fueling station and two stops at unknown locations in Miami-Dade County. Respondent's DSF for July 11, 2019, states that he worked eight hours at Caribbean K-8 Center. However, the Telogis report for that day shows that he was only present at that location for one hour and 36 minutes. The Telogis report shows that Respondent made two brief stops at Miami Heights Elementary School, notwithstanding that no work had been requested for that school on that day, and that Respondent made two stops at unknown locations in Miami-Dade County. Respondent's DSF for July 12, 2019, states that he worked eight hours at Redland Elementary School; however, the Telogis report for that day shows that he was present at that location for a total of three hours and 21 minutes. The Telogis report shows that Respondent stopped at the Caribbean K-8 Center, notwithstanding that no work had been requested for that school on that day. The Telogis report also shows that he made four stops at the Redland fueling station, three stops at unknown locations in Miami-Dade County, and one stop at the MSC4 facility. As discussed above, when maintenance work is performed at a District facility, the employee must fill out the DSF, describing the work and stating the number of hours of work performed at the facility, and the employee must obtain the signature of the school's principal or authorized designee. The purpose of obtaining that signature was to verify that the work addressed on the DSF was performed. Here, the persuasive evidence establishes that Respondent falsified or forged signatures on some of the DSFs he submitted. Specifically, Respondent's DSF for May 8, 2019, contains the employee number of James Tuning, a foreman at MSC4, and a signature purported to be Tuning's. Tuning testified, credibly, that the employee number on the form was his, but was not written in his handwriting, and the signature on the DSF was not his. He further testified that, under any circumstances, he would not have been authorized to sign DSFs for work performed at the facilities serviced by employees at MSC4. Respondent's DSFs for June 17, 26, and 28, 2019, contain the employee number of Melissa Vincenti, the principal's secretary at Air Base Elementary School, and a signature purported to be Vincenti's. Vincenti testified, credibly, that the DSFs did contain her employee number, but that the number was not written in her handwriting, and the signature on the DSFs was not hers. The evidence establishes that she did not give permission for Respondent, or anyone else, to sign the DSF for her. Respondent's DSF for July 8, 2019, contains the employee number of Darryl Lyles, the head custodian at Caribbean K-8 Center, and a signature purported to be Lyles's. Lyles testified, credibly, that the employee number on the DSF was his, but the signature was not his. The evidence establishes that he did not give permission for Respondent, or anyone else, to sign the DSF for him. Respondent's Prior Disciplinary History Respondent previously has been disciplined by Petitioner. Specifically, in 2010, Respondent was suspended from his employment with the District for eight days without pay for having left work early, which constituted payroll fraud. In addition to being suspended without pay, Respondent entered into a settlement agreement with Petitioner under which he agreed to reimburse the District for 20 work hours. Respondent's Defenses Michael Thomas, a retired supervisor who worked at MSC4 in 2019, testified that when the Telogis software was installed in District vehicles, he repeatedly assured the District employees at MSC4 who were using the Telogis-equipped vehicles that the data generated by the software system would "never be used against them in a derogatory or disciplinary manner." Thomas testified that he was authorized by his supervisor, Timothy Jones, to tell the employees that the data gathered by Telogis for their vehicles would not be used for disciplinary purposes. However, Jones directly contradicted Thomas's testimony on this point. Jones testified that he did not direct anyone, including Thomas, to tell employees that the Telogis data would not be used for disciplinary purposes. Rather, he told his foremen that he was not using the data for disciplinary purposes at that time. On questioning, Thomas acknowledged that he never had given written assurances to employees that the Telogis data would not be used to support disciplinary action. Furthermore, in any event, there is nothing in the DCSME Contract— which establishes the terms and conditions of employment for those to whom the contract applies, including Respondent—that provides that the Telogis data would not be used as a basis of, or to support, disciplinary action against District employees who violate School Board policies.7 Thomas also testified that the Telogis system had a 20 percent inaccuracy rate. However, on questioning, Thomas acknowledged that this assertion was "anecdotal," and that he did not have any data to support this assertion. He also acknowledged that he was aware of only one vehicle, out of the 21 vehicles dispatched from MSC4, that ever had any Telogis software accuracy issues. He further testified that that particular vehicle was not assigned to Respondent, and that to his knowledge, the Telogis software installed on Respondent's vehicle did not have any accuracy issues. Respondent testified that on July 12, 2019, the day that Jones and Hetzer found Respondent in his vehicle at the MSC4 facility, he was not sleeping, but was instead waiting for rain to pass so he could pick up materials and return to the school to complete the work. However, as found above, this testimony was directly contradicted by Jones, who testified that on that day, he, along with Hetzer, found Respondent sleeping in his vehicle. Thus, Respondent's testimony on this point was not credible. Respondent also testified that Tuning, Vincente, and Lyles gave him their employee numbers and gave him permission to sign the DSFs on their behalf. Respondent's testimony was directly contradicted by the testimony of Tuning, Vincenti, and Lyles, all of whom testified that they had not given Respondent their employee numbers; had not signed the DSFs; and had not authorized Respondent to do so on their behalf. Thus, Respondent's testimony on this point was not credible. Respondent also testified that on the days he had driven home during the work day, he had done so in order to take medication for pain he 7 To that point, any verbal representations made to employees regarding the use of the Telogis software would not, and did not, supersede the DCSME Contract. experienced due to medical issues.8 He testified that he had been given permission to do so by a former supervisor, William Barroso, and that he did not know if his subsequent supervisors were aware that Barroso had given him such permission. In any event, Jones testified that permission to return home for personal reasons, such as to take medication, during work hours could only have been granted by a current supervisor. During the operative time period of May 1 through July 12, 2019, Barroso was not Respondent's supervisor. Therefore, in order for Respondent to have been excused from his job duties during his work hours, he would have needed to obtain permission from his supervisor at the time. There was no evidence presented showing that Respondent had obtained such permission, and the most plausible inference from Respondent's own testimony is that he did not obtain such permission. Respondent also asserts that in using the Telogis records for his District vehicle in support of its proposed disciplinary action at issue in this proceeding, Petitioner has singled out Respondent and treated him disparately as compared to other employees, who have not been subjected to discipline on the basis of Telogis records for their District vehicles. However, this assertion is undercut by the credible testimony of Carlos Diaz, Director of Professional Standards for the District, who stated that Telogis records have, in fact, been used to impose discipline on other District employees. IV. Findings of Ultimate Fact As noted above, Petitioner has charged Respondent with misconduct in office under rule 6A-5.056(2) for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 4210, Standards of Ethical Conduct; School 8 Respondent testified that he kept his pain medication at home, rather than with him at work, so that he would not be tempted to take more than the prescribed amount. Board Policy 4210.01, Code of Ethics; and School Board Policy 8700, Anti- Fraud.9 Whether an offense constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct violates a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from a standard of conduct is not a conclusion of law, but is instead an ultimate fact). The competent, substantial, credible, and persuasive evidence presented in this proceeding establishes that on multiple occasions, Respondent submitted, to his supervisors, DSFs on which he had intentionally misrepresented the description of the work that he ostensibly had performed and the number of hours he had worked. As further discussed below, Respondent's conduct in this regard violated School Board Policies 4210, 4210.01, and 8700. The competent, substantial, credible, and persuasive evidence also establishes that on several occasions, Respondent falsified or forged signatures of persons, without their permission, on DSFs that he submitted to his supervisors for the purpose of representing that he had performed the work described on the DSF and/or had worked the number of hours represented on the DSF. 9 As further discussed below, it is determined that rules 6A-5.056 and 6A-10.081 do not apply to Respondent, who is not a Florida educator and has no interaction with students in the District. As further discussed below, Respondent's conduct in this regard violated School Board policies 4210, 4210.01, and 8700.
Conclusions For Petitioner: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 For Respondent: Teri Guttman Valdes, Esquire 1501 Venera Avenue, Suite 300 Miami, Florida 33146 1 All references to chapter 120 are to the 2021 version. All other statutory references are to the 2019 and 2020 versions of Florida Statutes, which were in effect at the time of the alleged conduct giving rise to this proceeding. As a practical matter, none of the substantive statutory provisions applicable to this proceeding were amended in the 2020 legislative session, so the 2019 and 2020 versions are the same.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order suspending Respondent without pay and terminating his employment. DONE AND ENTERED this 22nd day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S CATHY M. SELLERS 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 22nd day of November, 2021. Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Teri Guttman Valdes, Esquire Teri Guttman Valdes LLC 1501 Venera Avenue, Suite 300 Miami, Florida 33146 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132
The Issue The issue presented is whether Respondent should be terminated from his employment with the Leon County School Board based upon the charges in the Notice of Final Disciplinary Action.
Findings Of Fact After serving ten years with the United States Marine Corps, Respondent Lester L. Hall became a firearms instructor for a Maryland police department. He also began to work with at-risk children. After he returned to Leon County, Florida, in 1996, he began working with at-risk children at DISC Village and worked there until 2005. In 2003 Respondent began his college education at Tallahassee Community College. He is now in his last year at Flagler College, which has a satellite branch on the community college's campus. He is majoring in elementary education and exceptional student education. Sometime in 2006, Respondent began working as an instructional aide at Gretchen Everhart School. Everhart is a special day school with approximately 250 students. Those students are primarily moderately to severely mentally handicapped, and some are also physically handicapped. On July 26, 2006, Respondent was promoted to assistant director of the Students Motivated in Learning at Everhart (SMILE) after-school program. He was terminated from his position as of October 13, 2006, for reasons unrelated to the allegation which gives rise to this proceeding. In January 2007 Respondent began working at DeSoto Trail Elementary School as an instructional aide. Renee Gadson has worked for the Leon County School Board as a substitute teacher since 1992. During the 2006-07 school year and thereafter she worked at several different schools within Leon County, including Everhart. On September 13, 2008, Gadson saw Respondent at Everhart talking with some adults and then helping to load a student into a van. The next day she again saw Respondent at Everhart. After seeing Respondent at Everhart two days in a row, she then went to Pam Jameson, the site coordinator for the SMILE program, demanding to know why Respondent was at the school and why he was allowed to be near children. Jameson inquired as to why Gadson was so upset. Gadson related to Jameson that two years earlier, Gadson had gone to Everhart to pick up her nephew from the SMILE program and upon entering the classroom saw a young female with her head in Respondent's crotch area. Jameson told Gadson to report this to the Principal. Late that day Gadson spoke with Principal Jane Floyd- Bullen. Gadson told the Principal what she had told Jameson. According to Gadson, Respondent was standing just three feet inside the open classroom door and that in addition to the young female and Respondent, two other students were present in the classroom: Gadson's nephew and another boy who was in a wheelchair. She further explained that as she and Respondent made eye contact, Respondent pushed the girl away, turned away from Gadson, and adjusted his clothing. Respondent then turned to Gadson and began talking to her about how her nephew's day had gone. A few minutes later, the pregnant mother of the boy in the wheelchair arrived to pick up her son, and Gadson left the classroom. She said that she looked for program director Jameson, but Jameson was not there so Gadson left the school. Gadson explained that after a few more days she did not see Respondent at Everhart any more so she assumed the problem had been taken care of until she saw him there two years later. Floyd-Bullen asked Gadson if she had reported what she saw to anyone at the time, and Gadson said she thought she had but could not remember to whom she had spoken. Since it was late Friday afternoon when Gadson came to her, on Monday morning Floyd-Bullen contacted James Parry, the School Board's Chief of Labor and Employee Relations to report this conversation. Two investigations ensued: one by the School Board's Department of Safety and Security and one by the Leon County Sheriff's Office. On September 17, 2008, Respondent was given a letter telling him he was being placed on administrative leave with pay pending resolution of an investigation. Respondent was not told the subject of the investigation until he was summoned to the Sheriff's Office for questioning and was told then. Investigating Gadson's allegation was difficult because it was two years later, and the date of the incident she reported could only be narrowed down to late-September or early- October 2006. Further, although it was easy to identify the boy in the wheelchair, identifying the young girl was difficult. Gadson made the identification based upon looking at pictures in the most-recent Everhart yearbook. She identified a girl who had an unusual gait. The girl identified by Gadson has an I.Q. of 24 or 25 and is non-communicative, as are Gadson's nephew and the boy in the wheelchair. The girl she identified was not in the SMILE program during the time period of the alleged incident but "could" have been there if no one was at her home when the school bus delivered her there and if the bus driver had returned her to Everhart and taken her to the SMILE classroom. During the investigation Gadson remembered that she had reported the incident in 2006 to Joanne Kilpatrick, an employee at Everhart. When questioned, Kilpatrick did not remember any such conversation. During the investigation Gadson described what the girl was wearing, what Respondent was wearing, and what she was wearing two years earlier. She explained that she was wearing tennis shoes so her footsteps walking to the classroom made no noise and that the electric-powered doors to the hallway where the classroom was located were partially opened and so she opened them manually, thus preventing the motor to make its usual noise. She admitted that she had not seen Respondent's penis and the little girl was not moving during the incident which she described. During the investigation Gadson was asked by the detective investigating the case to take a computerized voice stress analyzer test. Among the questions she was asked during the test were two very specific questions which included Respondent's name, her nephew's name, and the classroom as the location. Her answers were considered to be "non-deceptive" by the person who administered the test and the person who read the computer print-out. When Respondent was informed of the allegation against him, he became extremely upset and frightened. His demeanor varied during the interview among being calm, being frightened, being angry, and crying. He denied the allegation but was unable to tell the detective why Gadson would make such an allegation if it didn't happen. He asked if he could be given a lie detector test and was offered the computerized voice stress analyzer test. Among the questions he was asked, the only two relevant questions were general in nature, unlike the very specific questions asked Gadson. Respondent, who was then a 43-year-old, unmarried, full-time college student, was asked: "Have you ever exposed your penis to a student?" and "Have you ever had a student perform oral sex on you?" His answers were determined to be "deceptive" by the person who administered the test and the person who read the computer print-out. At the final hearing Respondent explained the physical location of the SMILE classroom, the second classroom on the left, in a hallway with other classrooms and with an outside entrance to the building at the rear and another in the front of the building. At the time of the alleged incident, there were 17 students enrolled in the SMILE program, which ended at 6:00 p.m. Between the hours of 5:00 p.m. and 6:00, the time of the alleged incident, the classroom is busy with parents, staff, and students coming in and going out. The mother of the boy in the wheelchair regularly brought her young daughter with her when she picked up her son. Respondent had a teasing relationship with the girl and even had a nickname for her. Since her mother was 8 1/2 months pregnant at the time and moved slowly, the girl would usually arrive at the classroom before her mother. Respondent thinks it is possible that the girl ran into the classroom and hugged Respondent just as Gadson appeared in the doorway and saw a girl with her head in Respondent's crotch area. That girl was the age of the girl described by Gadson, but the girl identified by Gadson was several years older than the age of the girl Gadson described. At the conclusion of the Sheriff's Office investigation, the State Attorney's Office declined to prosecute. Although Gadson, as she repeats her story, is credible, it is determined that her allegation has become true to her over time, but was not true at the time of the alleged incident. Her behavior at the time is inexplicable if she saw what she now says she saw. She came into the classroom through its open door. She said and did nothing to confront Respondent about what would constitute not just child abuse but a serious crime. She did nothing to comfort the girl or remove the girl from Respondent's presence. She simply chatted with Respondent for a few minutes and left, assumedly leaving the girl with Respondent. When she was unable to find Jameson, she simply left the school without contacting anyone at the School Board, calling the abuse hotline, or contacting the police. In short, she did not report what she now says she saw to anyone in a position of authority to do something, including the principal at Everhart who testified that Gadson regularly came to her to voice concerns about other matters. Her testimony that she assumed Respondent had been dealt with since she didn't see him at Everhart after a few more days is also strange for two reasons. First, the conversation she says she had with Kilpatrick which Kilpatrick doesn't remember was simply saying that Respondent had done something inappropriate. Thereafter, since no one ever asked her what she had seen, it would have been clear to a reasonable person that there was no one looking into her vague report. Second, her testimony means that she was not bothered by the fact that Respondent was still at Everhart after the alleged incident, even for a few days. Gadson's behavior on the day of the alleged incident and thereafter can only be justified if she didn't think at the time that she had seen an abusive and criminal act taking place even though she has apparently convinced herself she had two years later. Gadson has been an educator for many years, and it is beyond belief that she would react as she did if she believed that she had witnessed what she later described and yet simply left the child to be alone in the classroom with Respondent when the mother removed her son in the wheelchair. After Respondent quit his job at DISC Village, he filed a complaint with the Florida Commission on Human Relations alleging discrimination. An evidentiary hearing was conducted by this forum and resulted in a Recommended Order recommending that Respondent's complaint be dismissed. That recommendation was adopted by the Commission. (DOAH Case No. 06-1052, Final Order entered October 12, 2006). The findings of fact in the DOAH Recommended Order entered July 20, 2006, reflect that an investigation of Respondent was about to commence when Respondent left his employment. There is no evidence that an investigation was already underway. When Respondent was terminated from his position as the assistant director of the SMILE after-school program, he filed a complaint with the Florida Commission on Human Relations. An employee there conducted an investigation and determined that there was no reasonable basis for believing that an unlawful employment practice had occurred. Respondent did not pursue his claim any further. Respondent's March 8, 2007, application for employment by the School Board of Leon County in Section III asks for employment history. Respondent left blank the reason(s) for leaving his prior positions. In question numbered 2 Respondent answered in the affirmative that he had been terminated in October 2006. Questions numbered 3 and 4 asked if he had left a job by mutual agreement or under unfavorable circumstances. While it can be argued that Respondent's answers to these questions in the negative were technically correct but conceptually incorrect, his answers do not reflect on his credibility in this proceeding. Despite his only-arguably- incorrect answers, Respondent's testimony is more credible than Gadson's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the charges against Respondent and reimbursing him for lost wages and benefits from the date of termination until the effective date of his non-reappointment. DONE AND ENTERED this 27th day of July, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 27th day of July, 2009. COPIES FURNISHED: Lester L. Hall 810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304 J. David Holder, Esquire J. David Holder, P.A. 1400 Village Square Boulevard, Suite 3-196 Tallahassee, Florida 32312 Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether Respondent should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
