Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent holds Florida Teaching Certificate 237129, covering the areas of social studies and work experience coordinator. At all times material hereto, the Respondent was employed as a social studies instructor at Columbia High School in the Columbia County School District. Respondent has been a school teacher since January, 1967 and has taught school in the Columbia County School District since 1968, excluding two (2) years for military service. Respondent has a good record as a teacher in the Columbia County School District and has never been accused of any professional misconduct in the past. Adrianne Lewis (Lewis) was a sixteen (16) year old student at Columbia High School in the first semester of the 1985/86 school year and became acquainted with the Respondent when she was a student in his third and sixth period classes. Lewis did not start in Respondent's sixth period class until two (2) weeks after the beginning of school in August, 1985 and was required to make up work missed during the first two (2) weeks. Respondent has a consistent policy with regard to make-up work which requires all students to make up work either before or after school and not during class. During the first six (6) weeks of school, Lewis made up several tests that she had missed both before and after becoming a student of Respondent. The complaining witness, Adrianne Lewis, testified that on two (2) separate occasions, most probably in September, 1985, the first time during a school pep rally and the second time while she was taking a make-up test after school, the Respondent, among other things, kissed her on the mouth and neck, fondled her breasts, rubbed and fondled her derriere, attempted to put a balloon under her shirt and asked why she was afraid of him and sex. However, the more credible evidence is that: (a) On September 13, 1985, Lewis went to Respondent's classroom during a school pep rally to take a make-up test, arriving around 2:50 p.m. She was given a copy of the test by Respondent and took the test in Respondent's classroom; (b) After Lewis turned in the test, Respondent spent approximately ten (10) minutes with Lewis discussing a problem she was having; (c) During the time Lewis was in the Respondent's classroom and office, Ken Stark was in an adjoining classroom with connecting windows which had only a portion of the view blocked; (d) Later in September, 1985, Lewis stayed after school to take another make-up test, arriving around 3:30 p.m. She was given a copy of the test by Respondent and took the test in Respondent's classroom; (e) During the time Lewis was in Respondent's office turning in the test, Respondent's elder son, John D. Evans, III was present and observed no misconduct on Respondent's part in regard to Lewis and; (f) Respondent, at no time during these two (2) occasions or any other occasion, improperly touched Lewis or engaged in any misconduct with respect to Lewis. During the second six (6) weeks of school, Lewis began missing class regularly. Due to a School Board policy concerning unexcused absences, Respondent consulted with Tom Grubb, Guidance Counselor, and was instructed to contact Lewis' parents. Respondent was unable to contact Lewis' parents or her grandmother, with whom she lived, but did contact her aunt, Denise Lewis. Respondent informed Denise Lewis of Lewis' absences and the need for Lewis to makeup her work or risk failing. Respondent's conversation with Denise Lewis occurred during the week of October 28, 1985 and about one (1) week later Denise Lewis conveyed the message to Lewis. Lewis did not mention the alleged improper touching by Respondent to Denise Lewis at this time but did say that Respondent did not like her and was going to fail her anyway. When Denise Lewis informed Lewis' grandmother of her absences, Lewis became upset because her grandmother had not previously known about Lewis' absences. On or about October 31, 1985, Lewis reported to Sergeant James Rutledge that she had been improperly touched and fondled by a teacher but did not disclose the teacher's name. During the week of November 6, 1985, Lewis again reported to Sergeant Rutledge that she had been improperly touched by a teacher but did not disclose the teacher's name. Rutledge went with Lewis and her girlfriend to the dean's office and notified the dean that Lewis was outside and needed to talk to him. On or about November 6, 1985, Lewis became upset with Respondent about calling her aunt and angrily told him not to call her aunt again. Lewis told Respondent that she was going to inform the administration of his alleged misconduct. Thereafter, the matter was reported and investigated by the administrator. As a result of the alleged misconduct, the Respondent was arrested and charged with battery. Subsequent to the arrest, the State Attorney for the Third Judicial Circuit of Florida filed a No Information and the cause was dismissed. There was no evidence to prove that Respondent's conduct had reduced his effectiveness as a teacher. There was no evidence that Respondent had exploited the teacher/student relationship with the minor female student for his own personal gain, exposing her to harm and unnecessary embarrassment. There was no evidence that Respondent had: (a) accepted or offered any gratuity, gift, or favor to, or from, anyone; (b) used institutional privileges for personal gain or advantage; (c) intentionally exposed a student to unnecessary embarrassment or disparagement or; (d) failed to make reasonable effort to protect student from conditions harmful to learning or to health or to safety.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Commission enter a final order dismissing the Amended Administrative Complaint. Respectfully submitted and entered this 15th day of May, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3994 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Rejected as immaterial and irrelevant. 4. Adopted in Finding of Fact 5. 5. Adopted in Finding of Fact 9 but clarified. Rejected that portion of the finding of fact concerning Lewis requesting Respondent to sign, and Respondent signing, a balloon as immaterial and irrelevant. The balance of the finding of fact is rejected as not being supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 12. The fact that Lewis skipped classes is adopted in Finding of Fact 10 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record. The fact that Lewis took a second test before December, 1985, is adopted in Finding of Fact 9 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record. 11.-12. Rejected as not supported by substantial competent evidence in the record. The fact that Lewis reported the alleged incidents is adopted in Finding of Fact 15 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record. The fact that Lewis told the Respondent that she had reported the alleged sexual contact to the administration is adopted in Finding of Fact 14 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record. The first sentence is rejected as immaterial and irrelevant. The second sentence is rejected as not being supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 16. The fact that a No Information was filed and the case dismissed is adopted in Finding of Fact 16 but that the State Attorney dismissed because the contact was consensual is rejected as hearsay that does not supplement or explain any other evidence in the record. 19-21. Rejected as not supported by substantial competent evidence in the record. In these findings, the Petitioner relies mainly on the testimony of Lewis, testimony which I did not find credible. Rulings on Proposed Findings of Fact Submitted by the Respondent: Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 7.-15. Adopted in Finding of Fact 9. 16.-19. Adopted in Finding of Fact 10. 20.-23. Adopted in Findings of Fact 11, 12, 13 and 14, respectively. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 15. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Karen Barr Wilde Executive Director Education Practice Commission Room 418, Knott Building Tallahassee, Florida 32399 Carolyn Thompson LeBoeuf, Esquire Brooks, LeBoeuf and LeBoeuf 863 East Park Avenue Tallahassee, Florida 32301 Thomas W. Brooks Meyer, Brooks, and Cooper, P.A. 911 East Park Avenue Tallahassee, Florida 32302
The Issue The issue posed for decision herein is whether or not the Respondent's teaching certificate should be revoked based upon conduct which will be set forth hereinafter in detail, as contained in the Petition for Revocation filed by Petitioner on or about May 11, 1979. During the course of the hearing, Petitioner withdrew allegations B, E and J, which are set forth in the Petition. Pursuant to the Stipulation, the parties waived the thirty-day period prescribed in Subsection 120.56(3), Florida Statutes, requiring the undersigned to file a Recommended Order within the prescribed thirty-day period.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the legal memoranda submitted by counsel for the parties and the entire record compiled herein, the following relevant facts are found. Respondent, Michael S. Park, has been employed by the Broward County School System as an instructor in art at Plantation High School since 1970. He was continuously employed until his suspension on April 19, 1979. Respondent holds Florida Teacher's Certificate No. 274996, Post Graduate, Rank III, valid through June 30, 1985, covering the areas of art and junior college. Respondent currently enjoys continuing contract status. While employed by the Broward County School System, Respondent taught several courses, including design, drawing, craft, sculpture and ceramics. Pursuant to a probable cause determination made by the Commissioner of Education on May 11, 1979, the Petitioner, pursuant to authority contained in Chapter 6A-4.37, Florida Administrative Code, filed a Petition seeking revocation of Respondent's teaching certificate based upon the following allegations: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom office, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. During the school year 1977-78, MICHAEL PARK asked a female student to go 'bumming' with him and to meet him at the night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from Plantation was calling. During the school year 1977-78, MICHAEL PARK stated to a female art student that he knew for a fact that the she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. During the month of February, 1979, MICHAEL S. PARK asked a female student who was not under his supervision as a teacher to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked this student whether or not she participated in or agreed with the practice of oral sex. During the spring of 1978, MICHAEL S. PARK hugged one or more female students, grabbed one female student from behind and pushed himself up against her buttocks. During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. Based thereon, it is alleged that the Respondent violated Sections 231.09 and 231.28, Florida Statutes, and rules 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code. As such, the Petition concludes that the Respondent's alleged conduct seriously reduced his effectiveness as a school board employee. It is alleged in paragraph 1, subparagraph A. of the Petition that: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. The Respondent denied the allegation. Darlene Wilcox is the female student referred to in the allegation (TR 96-98). The thrust of student Wilcox's testimony is that Respondent invited her to stay after class one day and when her classmates left, he handed her a psychology magazine opened to an article on sex and asked her if she had ever read a magazine like that before (TR 97). Student Wilcox, who was a ninth-grade student of Respondent, testified that Respondent sat down across from her in a chair and asked her questions about how she was that day. They were interrupted by another student, whereupon Respondent immediately got up, opened the door, and told her he would see her in class the following day (TR 98). Respecting this allegation, the evidence reveals that it was impossible for Respondent to secure the lock on his classroom door from the inside, as alleged (TR 243-244 and 359). The evidence reveals that student Wilcox could have left the room by turning the doorknob. Student Wilcox told her parents about her encounter with Respondent, whereupon her parents replied that she should keep clear of Respondent and not be over-friendly with him. Paragraph C of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK asked a female student to go 'bumming' with him and to meet him at a night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from the Plantation was calling. The female student referred to in the above-described allegation is Cathy Weber. The evidence respecting the above allegation reveals that during the fall of 1977, while a twelfth-grade student, Cathy Weber, was at a local establishment called the "Crown" bar with other students one evening. Student Weber was not a student of Respondent, although Respondent joined Weber and a group of her friends and started conversing with her at the "Crown" bar. During the conversation, Respondent took student Weber's wrists, stated that he could read her mind and proceeded to tell her birth date. On another occasion, Respondent telephoned student Weber at her home although she declined to talk to him. Additionally, during late November or early December, Respondent entered Linda Whealin's class and asked permission from instructor Whealin to excuse Cathy Weber when she finished her work in order that she could help in the office. Ms. Whealin agreed, but Cathy testified that she was afraid of Respondent and, therefore, took as much time as she could to complete her work because of the "too personal attitude" the Respondent evidenced toward her. The matter was brought to the attention of the Principal and Assistant Principal, which resulted in a counselling of Respondent by the Principal. During these counselling sessions, Respondent admitted that he told student Weber that he could read minds; that he called student Weber at her home because she wanted to talk to him and that he had asked for her to help him inventory an art order. Respondent was warned of his conduct by school officials and advised to restrict his student contact to classroom situations. A summary of the warning is embodied in a memorandum dated December 5, 1977, which Respondent signed acknowledging that he had read the warning contained therein. Respondent also submitted a rebuttal reciting his version of circumstances involving the student (Petitioner's Exhibit 3 and the testimony of Respondent and witnesses Lawton, Weber, Whealin and Hanes). The Respondent acknowledged talking to student Weber at the Crown bar; however, he testified that he was merely attempting to joke with the student, rather than, as contended by Petitioner, to advance a sexual topic to achieve a lustful objective. Paragraph D of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK stated to a female student that he knew for a fact that she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. The student referred to in the above paragraph is Susan Clement. During the 1977-78 school year, student Susan Clement was a student of Respondent. Student Clement testified that during the school year, she smoked marijuana approximately three times a week and was sometimes under the influence of marijuana while attending classes. However, she testified that her ability or memory was not impaired and that she was able to concentrate in her art classes. She testified that on several occasions, Respondent grabbed her neck with his hand, pinched her buttocks, and pushed up against her buttocks with his body from behind while she was washing her hands at a sink in the classroom. Student Clement testified that Respondent told her that there were rumors going around that she was going to bars and meeting male teachers there. Following one of these incidents, student Clement complained to the school's Principal about Respondent's conduct. The Respondent denied making such statements to student Clement and testified further that Clement confided in him without any prompting on his part with respect to her relationship with males. Additionally, the Respondent urges that student Clement generally spoke to others about her personal life in an unguarded manner (testimony of Dan Van Fleet)(TR 134 and 236). Paragraph F of the Petition alleges that: During the month of February, 1979, MICHAEL S. PARK asked a female student, who was not under his supervision as a teacher, to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked the student whether or not she participated in or agreed with the practice of oral sex. The student with whom the Respondent allegedly addressed the above remarks is Tammy DeCarlo. In this regard, the evidence reveals that the Respondent had four conversations with student DeCarlo. Respondent acknowledged that he initiated the first conversation with DeCarlo. Evidence reveals that the above-referenced conversations occurred during February of 1979 while student DeCarlo was a senior at Plantation High School. DeCarlo was not a student of Respondent. While DeCarlo was conversing loudly with another student in a school corridor, Respondent joined the conversation based on DeCarlo's "frantic behavior" and the fact that she was shouting that "I'm going to kill him", referring to Mr. Kinder, the yearbook advisor, in a tone which was loud enough for Respondent and others to overhear the conversation (TR 76, 77 and 376). DeCarlo was the school yearbook editor and had been having problems with its publication. The thrust of the problem appeared to be that DeCarlo was of the opinion that although she was exerting all the effort towards the publication of the yearbook, advisor Kinder was receiving or attempting to receive all credit for her work. While the Respondent initially injected himself into the conversation with DeCarlo and another student concerning differences that DeCarlo was having with the yearbook advisor, Kinder, she later conversed with Respondent about various problems that she was having with the yearbook in the following weeks. During the third of approximately four conversations with Respondent, the evidence reveals that the Respondent told another student (Chris Sarko) that he wanted to speak with DeCarlo, whereupon Sarko summoned student DeCarlo to go to his office where he later joined her, bringing a paper flower with him to give her. In Respondent's office, they discussed the yearbook deadline and Respondent mentioned that he had "ESP". Respondent gave student DeCarlo several examples in that regard. Respondent requested DeCarlo to keep their conversations between the two of them, although DeCarlo later mentioned the conversations to her parents. DeCarlo's parents later spoke with the Assistant Principal about Respondent. Within a few days, DeCarlo received a note telling her that Respondent wanted to see her and again Respondent took her into his office. During this conversation, Respondent told DeCarlo that she did not trust him because she had been hurt by her boyfriend. Respondent later told her to close her eyes and concentrate and told her that the boy just took her out so that she could make love with him and that he had tried to make her do something she did not want to. DeCarlo replied that she did not know what he was talking about, and Respondent inquired "What is it, oral sex?". According to DeCarlo, Respondent asked her to give him something personal, whereupon she took her necklace off and gave it to him. Respondent also inquired of her the type birth control pill she used and DeCarlo told him. Approximately one week later, student DeCarlo saw Respondent again. He asked her to come to see him during her lunch hour, but she declined. DeCarlo later asked a friend (Sarko) to get her necklace from Respondent, which was returned by the student, together with Respondent's picture. DeCarlo's parents made a written complaint to school authorities concerning Respondent's conduct. Respondent testified that he was regarded as a confidant among the students and that they frequently conversed with him about personal matters. He testified that the DeCarlo relationship, which was initiated by him, was motivated by a normal concern for a student who was visibly upset, and he felt that he could offer some assistance to student DeCarlo in resolving a crisis. Paragraph G of the Petition alleges that: During the spring of 1978, MICHAEL S. PARK hugged one or more female students from behind and pushed himself up against their buttocks. The primary incident in which Respondent is alleged to have gone beyond a mere touching of the shoulder is when he grabbed student Clement from behind and touched his lower torso against his buttocks. As stated earlier, Respondent denied this allegation. In this regard, several of Respondent's former students testified that they had never seen him act improperly in class or inquire into the personal lives of students. These students considered Respondent to be a warm, friendly teacher who occasionally would pat a student on the back or put his arm around a student's shoulders. In this regard, Van Fleet testified that the Respondent was a "touching, feeling type of friendly" person (TR 254). Other students testified that the Respondent often placed his arms around the shoulders of various students. During the period 1971 through 1979, Respondent's Principal warned him approximately four or five times concerning his involvement with female students (testimony of witnesses Graff, Wilcox, Landers, Cirillo, Larkin, DeCarlo, Evans, Jackson, Hanes and Van Fleet). Paragraph H of the Petition alleges that: During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. The two students involved in this allegation are Susan Clement and Lori Evans. The Respondent testified and denied that he pinched students Evans and Clement on the buttocks; however, he conceded that he might have grabbed Clement's neck when she did not "clean up her mess" in the classroom. Student Clement was not sure of the time when the Respondent allegedly pinched her or of the number of times when such acts were allegedly committed by Respondent. Instructors Dan Van Fleet and Gail Altman testified that students Clement and Evans both complained and were upset that the Respondent gave them failing grades. Noteworthy, also, was the fact that student Evans testified that there were students present at the time that the Respondent pinched her, although no corroborating student witnesses were called upon to verify said acts. Paragraph I of the Petition alleges that: During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. During the hearing, the only student who claimed to have been pinched by Respondent was Lori Evans. Again, the Respondent denied that any such conduct occurred on his part. Although Evans testified that there were student witnesses to the incident, no witnesses were called upon to testify during the hearing. RESPONDENT'S DEFENSE Respondent, for the most part, denied that he engaged in any conduct which could be considered grossly immoral or inconsistent with good morals and the public conscience or conduct which would not be a proper example for students. He further denied that such conduct was sufficiently notorious to bring him and the educational profession into public disgrace and respect, or that it otherwise reduced his effectiveness as a School Board employee. He testified that students confided in him and that he was an instructor who was overly concerned about the plight and well-being of students. In that regard, he testified that he interjected himself into conversations in situations wherein students appeared to have needed his counsel and guidance. Respondent denied pinching Lori Evans above the breast or on the buttocks or slapping her on the buttocks with a ruler. He testified that Evans' motive for giving testimony supportive of the charges is that she was a problem student who was unreliable when assigned a task. Additionally, Respondent denied pushing against student Susan Clement at the classroom sink or pinching her buttocks; however, he conceded that he might have grabbed her neck inadvertently as stated earlier, when she failed to "clean up her mess". Respondent's stated reason for visiting the "Crown" bar to join students with whom he taught was merely an effort to socialize with students and that respecting the Cathy Weber allegation, he was merely trying to assist her to resolve the problem that she was having with her boyfriend. He testified that the fact that he asked her to go shopping in a public shopping center indicates that he had no ulterior motive in making such request. Respondent voiced his opinion that student Weber was probably drinking due to that problem and that he wanted to inspire confidence in her to prevent her from drinking to resolve problems. Respondent's version of the incident surrounding the Tammy DeCarlo incident is much the same as his involvement with student Weber. That is, that he was simply trying to console her, which was prompted, in part, by counselling from the Assistant Principal to the effect that students and parents complained that he was not consoling enough to students. However, Respondent's testimony and inquiries, admittedly, as they related to his giving of flowers to student DeCarlo and inquiring into her sexual activity, missed the mark of a proper teacher-student relationship. Respondent's denial of the incidents involving student Wilcox, Evans and Clement as they related to his alleged physical contact is denied based upon the entire record, including other admissions by Respondent, including his inquiries into students' personal/social lives. In this regard, Respondent's inquiries relative to students' birth control pills, talks about oral sex, the giving of paper flowers to students and the embracing of students are considered immoral in a student-teacher setting and certainly does not inspire or set a proper example for students, as required in Chapter 6B-1, Florida Administrative Code.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's teaching certificate, No. 274996, be suspended for a period of three (3) years. DONE and ENTERED this 18th day of January, 1980, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Respondent holds Florida Educator's Certificate No. 1091499, covering the areas of Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education, and Autism Spectrum Disorder, which is valid through June 30, 2016. The Commissioner of Education is responsible for investigating and prosecuting allegations of misconduct against individuals holding a Florida Educator's Certificate. Respondent is an experienced teacher, having taught for 22 years, the last ten in Florida. Respondent has a post- bachelor's degree in Special Education, and a second bachelor's degree in English, and a master's degree in Special Education. Respondent began his career teaching emotional behavioral students, and did that for a few years. He later worked at a residential school, then transferred to teaching those with intellectual disabilities, and later focused his time and professional efforts on autistic students. Respondent decided to teach Special Education students because he had himself been a Special Education student. The incidents complained of in the Amended Administrative Complaint are alleged to have taken place over a three-month period at Olympic Heights High School in Boca Raton, Florida, where Respondent was employed as the emotional behavioral teacher and provided math support. Respondent testified that students with emotional behavioral disorders that interfere with their learning, need a support system to help them learn how to better handle their emotional and behavioral states in order to learn. His job was to oversee that system and to direct a classroom where he could teach them those skills. In addition to his special needs classes, Respondent would "push into" math classes, to teach Special Education students that were in the general education community. In this case, Petitioner outlined several rule and statutory violations by Respondent in its Amended Administrative Complaint including: Violations of the Principles of Professional Conduct. Failing to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Unreasonably restraining a student from independent action in pursuit of learning. Intentionally exposing a student to unnecessary embarrassment or disparagement. The factual allegations underlying these violations were as follows: During the 2014-2015 school year, Respondent improperly and aggressively handled T.C., an eighteen year old, male student with Autism Spectrum Disorder (ADF). On or about January 27, 2015, when T.C. grabbed Respondent's coffee cup, Respondent improperly restrained T.C. by placing T.C. in a headlock. On three (3) other occasions during the 2014/2015 school year, Respondent pulled T.C. to the floor, squeezed his cheeks and yelled at him. Respondent would often put his hands on a student when unnecessary and yell at them calling them names. Further, in November of 2014, the Respondent left a student, P.M., unattended in the classroom for twenty (20) minutes while he used the bathroom facilities. Facts Regarding Aggressive Handling and Improper Restraint of T.C. Nicole Ben-Hamo was a speech pathologist doing contract work for the Palm Beach County School District at Olympic Heights High School, in Boca Raton, Florida. She testified that on January 15, 2015, she observed an incident between Respondent and T.C., a student. The incident occurred in what she described as "an amazing small classroom" (referring to its physical size). The classroom was full of other staff members who were in a position, she felt, to observe what she observed. Ben-Hamo saw what she described as "a little wrestle," when student T.C. "grabbed" Respondent's coffee cup. T.C. was tall, heavy, and a big guy. She observed Respondent move forward from behind T.C. to try to reclaim his coffee cup. She claimed that Respondent was standing up behind T.C. and both had their feet on the floor. Respondent reached over the shoulder of T.C. and around him as he tried to take back the coffee cup. Ben-Hamo later wrote a statement in which she claimed that Respondent's arm was around T.C. in a "headlock." Pet. Ex. 2. In her hearing testimony, she described the action as Respondent reaching with one hand to reach the coffee cup, and reaching around T.C. to restrain him with the other hand. In her prior deposition testimony, she noted that it was probably not the right terminology to say a "headlock," but said that Respondent was holding the student's head in a restraint while reaching for the cup. She conceded that she was not familiar with wrestling moves or any kind of move that would be called a "headlock." She testified that she does not know if that is what the move is called, or if it was intended to be a headlock.1/ Ben-Hamo tried to clarify that what she actually observed was Respondent's arm extending from T.C.'s clavicle to his neck area. She could not tell if Respondent was squeezing T.C. In both her deposition testimony and at the hearing, she indicated that she could not imagine that he was squeezing or trying to hurt T.C. In her written statement, given a day or so after the event, Ben-Hamo wrote that she did not believe that Respondent's actions constituted intentional abuse. Pet. Ex. 2. In an effort to further clarify what she thought she saw, Ben-Hamo explained that she did not think that she had witnessed intentional abuse. She felt that Respondent was trying to get the coffee cup back and calm the student.2/ Pet. Ex. 2. Ben-Hamo testified that the entire incident took a "short time" and that none of the other adults who were present intervened. Because she felt that the incident was not "proper interaction," she reported it to an assistant principal. Sarah Borah, the assistant principal; Sharon Dix-Stark, the ESE coordinator; and David Clark, the principal, all were called to testify by Petitioner.3/ Mary Beth Hall, who was present in the room, reported that Respondent sat next to T.C., as he often did. This was done to keep T.C. from jumping up to be disruptive or grab the food of others. While they were seated, she saw T.C. grab Respondent's coffee cup off the table. In turn, Respondent took T.C.'s hat, telling T.C. that "if you take something of mine; I'll take something of yours." Hall reported that nothing she saw about the interaction was extraordinary. She felt that by the time an investigator was called in "things had been kind of blown out of proportion" and the incident between T.C. and Respondent was more a matter of "perception." She felt Respondent worked well with the students. He was more "hands on" with T.C., with whom he got along well. Respondent served as a needed male role model to T.C. Hall recalled that Respondent and T.C. remained seated throughout the incident. Contrary to the testimony of Ben-Hamo, Hall never saw T.C. or Respondent stand during the incident. Hall gave a statement months later in which she used the term "chokehold." Pet. Ex. 3. However, she unequivocally explained at the hearing that she did not see Respondent actually choking T.C., using a chokehold on T.C., or restraining T.C. Hall testified, instead, that the two were "wrestling with their arms" over the items (the cup and hat) and reaching over and around each other, as would two children tussling for the same toy. They both remained seated during the incident and their respective desks never moved or were jostled out of position. Respondent never stood behind T.C. during the incident. According to Hall, the entire incident was two people sitting next to each other and wrestling with their arms. She used the term "wrestling" to indicate two people reaching around each other. Hall testified that she saw Respondent's actions as a means for him to teach T.C. not to grab something that did not belong to him and belonged to someone else. After what she described as a very quick incident, Hall reflected that Respondent got his coffee mug, T.C. got his hat back, and they both seemed happy after the incident concluded. Hall did not find it necessary to intervene in the incident, as there was no violence between Respondent and T.C. Hall observed several paraprofessionals in the room. None intervened, or put down their cell phones during the incident. According to Hall, T.C. was not harmed in any way. Hall testified that no noises or sounds were made by T.C. during the incident that indicated he was in any pain, distress, or discomfort. Hall never saw Respondent mistreat T.C. in any way. Respondent appeared to treat all children respectfully and attentively, and she never saw him use his hands improperly on any student in the classroom. Respondent testified on his own behalf. He felt he had a "wonderful" relationship with T.C. He described T.C. as a physically 18-year-old adult, who was large and strong. However, his emotional development was at the pre-kindergarten level. T.C. was over six feet tall, and weighed 250 to 260 pounds. T.C. was obsessive compulsive and had a short attention span. He had certain behavioral problems, which were accentuated because he never learned proper replacement behaviors for his maladaptive kindergarten behaviors. These behaviors were not appropriate for an 18-year-old. T.C. always needed to be escorted because he liked to run, look, investigate, and discover. Whether it was in front of a car or whether it was a trash can, he just always wanted to do things. For safety reasons, an adult was always required to be with him. Assistance was provided to help steer T.C. to more appropriate behavior and activities. Occasionally, T.C. would put Respondent's hand on his shoulder for Respondent to rub his shoulder. It was a method that Respondent used to soothe T.C., which they called "tickles." On the day of the incident, Respondent sat down next to T.C., who had finished lunch. Respondent placed his coffee cup on the dining table some three feet away. Without warning, T.C. lunged across Respondent to grab Respondent's coffee cup. He did not reach it the first time. Respondent began massaging T.C.'s arm and said, "Do you want tickles, or do you want the coffee cup?" T.C. calmed for a time, and then reached for the cup again. T.C. reached and got his hand on Respondent's cup. While doing this, he was leaning into or on Respondent's lap. He eventually reached and grabbed Respondent's cup. Respondent took T.C.'s hat from the windowsill, and asked if T.C. wanted his hat given back. T.C. reached for his hat with his other hand. As the incident unfolded, T.C. held the cup and reached over Respondent trying to grab his hat back from Respondent. The two were right next to each other, reaching back and forth. Respondent extended his hand out, so that T.C. would see that he was waiting for his cup to be exchanged. Eventually T.C. got bored of the cup and gave it back to Respondent. When T.C. gave Respondent the cup, Respondent gave him back his hat. The more persuasive and credible testimony regarding the classroom incident was that T.C. impulsively grabbed Respondent's cup while they were seated next to each other. Respondent then attempted to make a teaching point with T.C. about not taking the things of another, by taking his hat. In the process, T.C. and Respondent reached over and around the other in an effort to retrieve their item from the other. There was physical contact between the two, but it was not inappropriate, or unduly rough.4/ There was no credible proof that Respondent intended to harm, restrain, or injure T.C. Ben-Hamo's testimony and conclusions regarding the extent, type and nature of the contact and interaction between T.C. and Respondent is rejected as unpersuasive and implausible.5/ The undersigned finds that Respondent did not place or restrain T.C. in a "chokehold," "headlock," or other improper restraint. Based on this record and the circumstances, there was no clear and convincing evidence to support Petitioner's allegation that Respondent violated any statute, policy, or rule in the incident with T.C. regarding the coffee cup. Allegations Reported by Shannon Lewis Shannon Lewis, a paraprofessional, testified by deposition. Pet. Ex. 11. She described T.C. as being 6'5" tall and weighing 250 to 280 pounds. She noted that he had very little impulse control, and that when he saw something of interest, he impulsively went to get it. Lewis testified that one day when Respondent took T.C. to physical education class, T.C. wanted to put his tooth on the doorway when he exited the gymnasium.6/ According to Lewis, Respondent grabbed T.C. by one arm, then pulled him away and yanked him. She testified that Respondent put his foot behind T.C.'s foot, so that T.C. would have to go to the ground. According to Lewis, Respondent did that three times before he would relent.7/ Lewis testified that the students in the physical education class and two paraprofessionals, including Pedro St. Jacques and Illiana Girtman, were present when the incident occurred and saw it. She testified that St. Jacques was the aide assigned to T.C. Lewis testified that while T.C. was on the ground, Respondent squeezed his face and made his lips pucker and yelled, "No, T. No." No student or other teacher testified that they saw or witnessed the actions described by Lewis. St. Jacques executed an affidavit admitted into evidence as Respondent's Exhibit 3.8/ Resp. Ex. 3. However, he never witnessed anything inappropriate between Respondent and any students, including T.C. St. Jacques never witnessed Respondent throw T.C. to the ground and never saw him treat T.C. badly.9/ St. Jacques testified that sometimes it was necessary to approach T.C. in a different manner because of his size and to prevent him from getting hurt. It was sometimes necessary to physically guide T.C. away from whatever activity he became fixated on. St. Jacques never observed Respondent use any unnecessary or questionable force on T.C. in those instances. He knew that Respondent was working with T.C. to have him stop biting the door frames as he walked through the halls. He heard Respondent tell T.C. not to bite them and saw him maneuver T.C. away from them. No undue force was used by Respondent. Girtman was also present during this incident, according to Lewis. She was a paraprofessional with Respondent at Olympic Heights High School. She never saw Respondent touch a student in a way that she thought was unnecessary or improper. Respondent was always gentle with T.C. She never saw Respondent squeeze T.C.'s face or yell at him. Another paraprofessional, Alvaro Rodriguez testified. He was also identified by Lewis as being present during the door- biting incident. He never saw Respondent use physical methods or force on T.C. in a way that he thought was improper. He never saw Respondent pull T.C. down to the floor. He never saw Respondent squeeze T.C. by the cheeks or yell at him. Respondent denied that the hallway incident occurred, as described by Lewis. He testified that the banging of T.C.'s teeth on a piece of metal was part of his obsessive-compulsive disorder.10/ Respondent was not big enough to pull T.C. down to the floor, and never did so. When T.C. was agitated or running around, Respondent would ask him to sit, but he never pulled him to the floor. Respondent explained that sometimes T.C. needed gentle pressure on his arm or something to reinforce what it means to go down or to go in one direction or the other. Respondent denied that he yelled into T.C.'s face or yelled at him, and that T.C. did not respond to yelling, he only responded to quiet talking. Respondent testified that he never grabbed T.C. by the cheeks and squeezed. Respondent's testimony concerning this incident, and the testimony from St. Jacques, Girtman, and Rodriquez was more persuasive and credible. There simply was no clear and convincing evidence that Respondent improperly, violently, or forcefully threw or took T.C. to the ground, yelled at him, squeezed his cheeks or handled him in an inappropriate way. Further, the proof was insufficient to prove any unreasonable restraint was used by Respondent during this incident with T.C. Incident Involving P.M. Lewis described P.M. as a non-verbal and out of control student, who destroyed his home and wiped feces everywhere. Lewis claimed that Respondent decided to work with P.M. in his classroom one-on-one during lunch.11/ One day Lewis walked into Respondent's classroom and saw P.M. sitting on a yoga ball with no teacher in sight.12/ She then heard the toilet flush, and Respondent walked out of the bathroom. The aides were instructed that no student should ever be left alone. St. Jacques' statement indicates he (St. Jacques) was always assigned to supervise P.M. when Respondent was at the school, and that he (St. Jacques) was supposed to be with P.M. on the day in question. Apparently, P.M. was another student who needed full-time supervision. Evidently, P.M. liked to walk around the classrooms and would walk into Respondent's classroom on occasion. St. Jacques would always redirect him. When P.M. wandered into Respondent's classroom, it would only be for about 30 seconds. There was never a time that Respondent was responsible to supervise P.M. during his planning period, or at any other time. It was always the responsibility of the paraprofessional to supervise and attend to P.M. Even if Respondent was working with P.M., St. Jacques was responsible to be with him. Respondent testified, consistent with St. Jacques, that he never worked with P.M. without the aide present. He was never assigned to supervise P.M. in lieu of the aide, because that would have changed P.M.'s Individualized Education Program. Students were not allowed in Respondent's classroom during his planning period, except to be escorted to use the bathroom. Respondent testified that there were times that he would transition back from a class and P.M. would be in his room using his sensory equipment, but he would always be with St. Jacques. One time when he came out of the bathroom during his planning period, he observed P.M. in his room with Lewis, who sometimes covered for St. Jacques during the other paraprofessional's break. During the period of time that Respondent was in the bathroom, he was not assigned or supposed to be supervising P.M. He was surprised to see P.M. when he came out of the bathroom during his planning period. The allegation that Respondent failed to properly supervise P.M. and left him alone while Respondent used the bathroom was not proven by clear and convincing evidence. The more persuasive evidence at the hearing indicated that Respondent was not assigned to supervise P.M. at the time of this particular incident. The testimony of St. Jacques supports Respondent's version and this finding. Whatever Lewis saw, or thought she saw, was not persuasive or sufficient to establish by clear and convincing evidence that Respondent left P.M. unattended in his classroom for 20 minutes or failed to supervise a student assigned to him. Exposing a Student to Unnecessary Embarrassment or Disparagement Lewis further testified that there was an incident involving students who wanted to use calculators during math class. J.M. wanted to use the calculator, but Respondent would not let her use it. The student had to be taken from the room because she screamed and carried on when not permitted to use the calculator. Apparently, Respondent wanted her to learn to do math without a calculator. There were two other students who Respondent also did not allow to use the calculator. In response to the various requests, Respondent commented, "This is ridiculous. You guys are stupid if you can't do this without a calculator. You need to have life skills in order for you to be successful outside of the classroom." There was not a shred of proof offered or adduced at the hearing that Respondent "put his hands on" any of these students.13/ Furthermore, there was no clear and convincing proof that Respondent intended to expose these math students to unnecessary embarrassment. See Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1996). Respondent denied that he ever called any of the students a derogatory name or called any of them "stupid." Lewis agreed that it was Respondent's role as the teacher to determine whether a calculator was used. She claimed that St. Jacques was in the room when Respondent called the girls stupid and heard him say it. St. Jacques' attested in his written statement in a contrary manner. Resp. Ex. 3. He said that he never witnessed anything inappropriate between Respondent and any students, including the girls involved in the calculator incident, J.M. and Rebecca. St. Jacques never witnessed Respondent mistreat the math students referred to by Lewis. Respondent was always respectful to the students and he never saw Respondent embarrass or ridicule any of them. Respondent testified that he treated the students in general with compassion and respect. He denied he ever called them names other than their own and never embarrassed any student or called them names because they wanted to use the calculators. Based upon the more persuasive and credible evidence adduced at the hearing, the allegations of belittling the math students and calling them "stupid" were not proven by clear and convincing evidence. There was insufficient proof to establish that Respondent intended to unnecessarily ridicule, demean, or belittle any particular student The testimony of St. Jacques bolsters Respondent's testimony on this point. The undersigned credits Respondent's testimony and finds it more persuasive. The undersigned finds that there was no clear or convincing evidence to conclude that Respondent's actions or statements to the girls regarding the use of the calculator, constituted a violation of any statute, policy, or rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Amended Administrative Complaint against Jeffrey Voner. DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 30th day of April, 2018.
