The Issue The issues for determination are whether Respondent threatened to shoot students with a firearm located in his vehicle that he parked on campus, and whether the acts proved during the administrative hearing constitute just cause to terminate Respondent's professional services contract pursuant to Subsection 1012.33(6)a), Florida Statutes (2006).1
Findings Of Fact Respondent has taught diesel mechanics at the Ridge Vocational Technical Center (Ridge Center) in Polk County, Florida, for over 12 years. Respondent teaches diesel mechanics pursuant to a professional services contract. By letter dated May 14, 2007, the Superintendent of the Polk County Public Schools notified Respondent that she was suspending Respondent from his employment with pay. The letter also states that, on June 12, 2007, the Superintendent would recommend to Petitioner that Petitioner terminate the professional service contract of Respondent. On June 12, 2007, Petitioner followed the recommendation of the Superintendent. The letter dated May 14, 2007, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of his employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: On May 11, 2007, an investigation revealed that you had a 9mm pistol in the front seat compartment of your personal vehicle. When asked if you understood that it was against School Board policy to bring a weapon on campus, you indicated that you were aware of the policy. You were arrested by the Winter Haven Police Department for having a weapon on campus. The arresting officer also indicated that further charges may be made against you regarding threatening comments that you allegedly made to the students. * * * Your conduct in this situation is aggravated by the fact that you made reference to the weapon and threatened to use it against students and by the fact that you admitted you were aware that bringing the weapon onto campus was a violation of both state law and Board policy. This was a knowing, intentional act on your part involving students and constitutes just cause for termination. It is undisputed that Respondent possessed a firearm on the Pine Ridge campus on Friday, May 11, 2007. On the morning of May 11, 2007, Respondent placed a 9mm pistol into its holster and put both items into the center console of his truck. Respondent drove the truck to work and parked the truck in the Ridge Center parking lot. The truck was parked approximately 25 feet from the school. The pistol was securely encased and not readily accessible for immediate use within the meaning of Subsections 790.001(16) and (17). The possession of a firearm on the Ridge Center campus violated the written policy of Petitioner. In relevant part, the policy provides: It is the expressed policy of the Polk County School Board that no weapons/firearms shall be taken upon school property by any one other than law enforcement personnel. . . . Petitioner's Exhibits 8 and 10. The charging document notifies Respondent of several aggravating factors that are alleged as grounds to support a finding of just cause to terminate Respondent's employment. The document alleges that the violation of the written school policy was a knowing and intentional act; that Respondent made reference to the weapon and threatened to use it against students; and that the possession of the firearm by Respondent was unlawful. The violation of the written school policy was knowing and intentional. Respondent knew of the written school policy prohibiting the possession of firearms on campus but brought the firearm to school in his truck to take with him that night to a weekend job discussed in subsequent findings. Respondent did not make reference to the firearm and threaten to use it against students. The accusing student complains that Respondent referred to the firearm and threatened to shoot students on May 10, 2007. However, there is no evidence that Respondent possessed a firearm on campus on May 10, 2007. The weight of the evidence does not support the testimony of the accusing student that Respondent threatened to retrieve his firearm from his truck and shoot Pine Ridge students on May 10, 2007. On the afternoon of May 10, 2007, Respondent was grading papers in his classroom at the Ridge Center. Several male students outside of the classroom were using long broom handles to "sword-fight." Respondent readily admits that he yelled words from his classroom on May 10, 2007, to the effect that, "I'm going to shoot all of you guys one of these days if you don't straighten up." Respondent did not make reference on May 10, 2007, to the firearm he possessed on campus on May 11, 2007. The admitted statement was not a threat to shoot students and did not expose any student to conditions harmful to his or her physical or mental health. Respondent continued grading papers, and Respondent and the students remained on campus until shortly after the school day ended at 2:00 p.m. One of the students playing in the hall on May 10, 2007, testified that Respondent said, "The next one of y'all that breaks a broomstick, I'm going to go to my truck, I'm going to get my nine and come back and shoot you." The student further testified that he asked Respondent, "You're going to shoot them?" and that Respondent replied, "Yeah, I'm going to shoot them." The testimony of the accusing student is not credible and persuasive and conflicts with material facts in the record. Respondent did not possess a firearm in his truck on May 10, 2007, when he allegedly threatened to fetch the firearm. A finding based on the testimony of the accusing student would require the trier of fact to ignore the weight of the other evidence as well as the candor, forthrightness, and cooperative nature of the testimony of Respondent. The accusing student is an older high school student with a history of discipline problems at the Ridge Center. The accusing student did not return to the Ridge Center after May 10, 2007, and, on the date of the hearing, was no longer pursuing a trade or degree in any school. He is hoping to enter a military academy within five months of the date of the hearing. Testimony from the accusing student that he did not return to the Ridge Center for fear of Respondent is not persuasive. The accusing student was a problem for other teachers and administrative staff at Pine Ridge, and the testimony of teachers and administrators shows they preferred that the student had never attended the Ridge Center. Petitioner did not prove that possession of the firearm on campus on May 11, 2007, was unlawful. Rather, the evidence and relevant legal authority discussed in the Conclusions of Law shows that the firearm was in Respondent's truck on Friday, May 11, 2007, for a lawful purpose pursuant to Subsection 790.115(2)(a)3. Respondent was scheduled to work that weekend on a truck delivery route that would take him into Liberty City, Florida, between midnight and 5:00 a.m. Respondent drove directly from the Ridge Center to his weekend job and took the firearm on his truck delivery job for self defense. Local law enforcement officials arrested Respondent for allegedly committing a third degree felony in violation of Section 790.115, Florida Statutes (2006).2 At the conclusion of the criminal investigation, not only were additional charges for threats against students not filed against Respondent, as alleged in the charging document in this proceeding, but the state attorney refused to prosecute Respondent on June 12, 2007. It is unclear from the record whether Petitioner knew of the decision of the state attorney on June 12, 2007, when Petitioner terminated Respondent's employment, in relevant part, for the unlawful possession of a firearm on May 11, 2007, and alleged threats against students. The criminal investigation began on May 10, 2007, when local law enforcement officials received an anonymous telephone complaint sometime concerning the alleged threat by Respondent. On May 11, 2007, an officer from the Winter Haven Police Department (Department) visited the Ridge Center to investigate the complaint against Respondent. The police officer questioned Respondent on May 11, 2007, and Respondent acknowledged that he had a pistol holstered and securely encased in his truck in the campus parking lot. Respondent took the officer to the truck, directed the officer to the location of the firearm in the center console, and otherwise fully cooperated in the investigation. The police officer arrested Respondent for possessing a firearm on a school campus in violation of Section 790.115. The Department conducted a full investigation, Respondent fully cooperated in the investigation, and the state attorney dismissed the charges against Respondent on June 12, 2007. Relevant legal authority is discussed further in the Conclusions of Law. At the hearing, Petitioner submitted evidence intended to prove the presence of several aggravating factors that the charging document does not allege. These un-alleged aggravating factors are that Respondent previously possessed an unloaded hunting rifle on campus in Respondent's truck; violation by Respondent had impaired Respondent's effectiveness as a educator; and Respondent failed to protect students from conditions harmful to their physical or mental health. The charging document does not provide Respondent with notice that Petitioner intended to submit evidence at the hearing of the un-alleged aggravating factors. However, Respondent did not object to questions asked during the hearing pertaining to the un-alleged aggravating factors. The ALJ admitted the relevant evidence and considered the evidence in this proceeding. The evidence supports a finding of only one unalleged aggravating factor in this proceeding. Sometime before May 11, 2007, Respondent possessed an unloaded hunting rifle in the back of his truck while the truck was parked on the campus of the Ridge Center. The events of May 10 and 11, 2007, and the prior possession of a hunting rifle did not expose any student to conditions harmful to his or her physical or mental health and did not seriously impair Respondent's effectiveness as a teacher. The testimonies of the director of the Ridge Center and a fellow teacher show that Respondent has consistently been an effective and competent teacher at the Ridge Center. Respondent has no prior discipline in his employment history.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007.
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
Findings Of Fact Respondent has for twelve years been an instructional employee of the School Board of Broward County, Florida. She currently holds a continuing contract as a classroom teacher, and is assigned to Perry Elementary School in Miramar, Florida. During the same time period, Harold McKahand, Respondent's husband, and Peggy Freeman were instructional employees of the Broward County School Board assigned to Perry Middle School, adjacent to Perry Elementary where Respondent taught. From as early as 1979, Respondent had suspected that her husband and Mrs. Freeman were having a love affair. These suspicions were a frequent topic of conversation between Respondent and her husband. In fact, Respondent had indicated to her husband her intention to seek a divorce. Notwithstanding Mr. McKahand's assurances that he did not want a divorce and would no longer see Mrs. Freeman, he continued to do so, and Mrs. Freeman on many occasions made telephone calls to the McKahand residence, which Respondent apparently considered harassing in nature. All of this culminated in a discussion between Respondent and Mrs. Freeman in August of 1981 in which Respondent requested that Mrs. Freeman cease making telephone calls to her home because they disturbed her and her two children. After this discussion between Respondent and Mrs. Freeman, there was little or no personal contact between them until the act which gave rise to this proceeding. On December 12, 1981, Respondent, her husband and two children attended a racquetball tournament. After the tournament, they returned to their home and Respondent busied herself with work around the home. Respondent's husband, unbeknownst to Respondent, took the family car and proceeded to Perry Middle School to obtain some work folders from his office. Upon arriving at Perry Middle School, Mr. McKahand discovered Mrs. Freeman conducting a Saturday afternoon basketball practice with the school's girls basketball team, which she served as coach. Mr. McKahand and Mrs. Freeman conversed briefly, and Mr. McKahand departed the school and returned home. Meanwhile, Respondent's oldest son had left the family home without performing certain chores which had been assigned to him by Respondent. Upon discovering her son's absence, Respondent took her bicycle and began to search the neighborhood for him. Her search carried her ultimately to the gymnasium at Perry Middle School. Respondent had no knowledge that her husband had gone to his office at Perry Middle School, nor did she know that Mrs. Freeman was conducting a basketball practice at the school. When Respondent arrived at the school, she walked into the gymnasium to see if her son was there. Upon entering the gym, she saw the basketball practice in session, and noticed Mrs. Freeman. When she did not see her son, Respondent started walking from the gym. A member of the girls basketball team advised Mrs. Freeman that Mrs. McKahand was at the door. Although there is some conflict in the testimony on this point, it appears that Mrs. McKahand did not beckon to Mrs. Freeman to follow her outside the gym, but that one of the team players told Mrs. Freeman of Respondent's presence, and indicated to Mrs. Freeman that Respondent wanted to talk to her. Upon being advised of this, Mrs. Freeman walked across the basketball court, picked up her purse from a table, and proceeded to the gym door through which Respondent had exited. By this time Respondent was outside the gym. Mrs. Freeman forcefully opened the gymnasium door behind which Respondent was standing, striking Respondent on the arm. As Mrs. Freeman exited the door, she and Respondent grabbed one another and a fight ensued. The girls basketball team members were at various positions inside the gymnasium at the time the scuffle between Respondent and Mrs. Freeman started. It is clear from the record, however, that each of the students were located behind Mrs. Freeman and, therefore, were not in the best of positions to observe the precise manner in which the conflict started. It is also equally clear that the physical confrontation between Respondent and Mrs. Freeman occurred quickly and spontaneously, and, as a result, the various eye-witness accounts contained in this record predictably contain varying and conflicting versions of the events leading up to and culminating in the scuffle between Respondent and Mrs. Freeman. During the course of their physical confrontation, Mrs. Freeman placed one of her hands on Respondent's throat and the other in Respondent's hair, and Respondent reciprocated, pushing Mrs. Freeman against the gymnasium wall. Several blows were exchanged between the two women. Although the gymnasium door had closed behind Mrs. Freeman, several of the basketball team members followed the two teachers out the door and attempted to separate them. After the fight began, there is no evidence that Respondent acted other than in defense of the actions of Mrs. Freeman. When the students were finally successful in separating the two combatants, Respondent began looking for her sunglasses, which had fallen off, and Mrs. Freeman retrieved her purse, which she had dropped during the altercation. Upon finding her purse, Mrs. Freeman called to several of the students to stand back, whereupon she removed a .22 calibre pistol from her purse, and fired at least two shots. Respondent, upon observing Mrs. Freeman to be armed, began to run from the school premises, retrieved her bicycle, and retreated to her home. Apparently unsatisfied with these results, Mrs. Freeman incredibly loaded several of the team members, including some of the students who testified in this proceeding, into her car, where she reloaded her weapon. Mrs. Freeman then proceeded to drive in a reckless manner, including running several stop signs, to Respondent's home. Upon arriving at Respondent's home, Mrs. Freeman pulled her car into the driveway, took her pistol, got out of her car, and again confronted the Respondent who was standing in her driveway with her two children. Respondent picked up a broom in her garage and got her two children to stand behind her in an attempt to shield them from Mrs. Freeman. Mr. McKahand, who was inside the home during this time, came outside, and ultimately was able to get Respondent inside their home. Mrs. Freeman then departed the McKahand residence, but shortly thereafter began making harassing telephone calls to the McKahand home. Later that afternoon, Mr. McKahand attempted to take Respondent to her part-time job in a local department store, but was prevented from doing so when Mrs. Freeman attempted to run the McKahand car off the street with her vehicle, and further fired upon the McKahands with her pistol. As previously indicated, Petitioner has charged Respondent with referring to Mrs. Freeman as a "bitch" during the course of their fight. Respondent denies making such a statement, and the only testimony in the record which would establish a finding that such a statement was made is contained in the conflicting testimony of Mrs. Freeman and Rachel Geathers, one of the student basketball players. Mrs. Freeman's testimony in this regard, which the Hearing Officer hereby finds unworthy of belief, was that Respondent referred to her as a "filthy bitch" as Mrs. Freeman exited the gymnasium door. Ms. Geathers' testimony was that Respondent referred to Mrs. Freeman as a "bitch" after the two combatants had exited the gym and enough time had passed to allow all of the basketball players to run through the door and outside the gym. Ms. Geathers' testimony in this regard is also rejected, in that several of the other students who were in a better position to observe and hear Respondent and Mrs. Freeman testified that they heard no such statement made. Accordingly, it is specifically concluded that the evidence in this case fails to establish Respondent's use of profanity in the presence of students as alleged in the Petition. There is no evidence in the record of this proceeding to indicate the Respondent's effectiveness as an employee of the Broward County School System has in any way been adversely affected by the above-described events. In fact, Respondent's principal and grade chairman both testified that Respondent is a good teacher, and they would welcome her back on the faculty of Perry Elementary School should she be absolved of the allegations involved in this proceeding. Even a cursory review of the record in this case will reveal sharp divergencies and conflicts in the testimony of several witnesses. In attempting to resolve these conflicts, the Hearing officer has observed the demeanor of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, together with any motive, bias or prejudice which might affect their credibility. Further, the Hearing Officer has also taken into account the conditions existing at the time of the incident observed by the witnesses in weighing the credibility to be attached to the various accounts contained in this record. In so doing, the Hearing Officer has concluded that Respondent did not go to the Perry Middle School gymnasium seeking a confrontation with Mrs. Freeman. Indeed, the record clearly establishes that Respondent did not know Mrs. Freeman was even at the gymnasium on the date in question. Further, it is concluded, despite some evidence to the contrary, that Respondent did not summon Mrs. Freeman to follow her outside the gymnasium, but that Mrs. Freeman was induced to do so as a result of a student telling her that someone was outside the gym to see her. Finally, the quality as opposed to the quantity of the evidence in this case does not support a factual conclusion that Respondent, in fact, initiated the physical confrontation with Mrs. Freeman. Because of her conduct at the time of the incident, and further because of the inaccuracies and inconsistencies in Mrs. Freeman's testimony at the final hearing in this cause, her testimony, in its entirety, is worthy of little credibility. Because of this, her testimony that Respondent initiated the fight has been found unworthy of belief. The testimony of Mrs. Freeman's students, several of whom testified that the first aggressive gesture they saw was made by Respondent, is tainted both by their admitted allegiance to their teacher, Mrs. Freeman, and by their physical positioning which would not admit a particularly clear view of the incident. Conversely, the factual version of this incident given by Respondent in her testimony was, in every particular, more plausible than that contained in the testimony of either the students or Mrs. Freeman. At the time of the above- described incident, almost three and one-half months had passed since Respondent had last spoken in person with Mrs. Freeman. The Respondent did not know that Mrs. Freeman was at the gymnasium when she arrived there looking for her son. As a result, there could not have been any premeditated design on the part of Respondent to assault Mrs. Freeman and, due to the passage of time since her last contact with Mrs. Freeman, there is no apparent motive of record to explain a spontaneous assault. As a result, the only way to resolve the conflict in the testimony concerning how this altercation originated is to weigh the credibility of the various participants. Making such a choice is perhaps the most difficult task a finder of fact must face in a proceeding such as this, but by applying the aforementioned factors, the Hearing Officer has determined that in the areas of conflict, the testimony of the Respondent is more credible than that of either Mrs. Freeman or her students.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent held a Florida Teaching Certificate number 541001, covering the areas of Physical Education and Driver's Education. Respondent was employed by the Dixie County School District at Dixie County High School in Cross City, Florida, from the spring of 1983 through late November, 1985. During the period of time Respondent was employed by the Dixie County School Board (Board), he was married to Tina Bailey, with whom he had two children. He was divorced from Tina Bailey in July, 1986. Respondent was employed in the positions of athletic director, head football coach, and also had some duties teaching physical education. During the fall semester of 1985, respondent spent his mornings at Anderson Elementary School and was on the high school campus at Dixie County High School from 11:15 a.m. through the remainder of the day. During the Respondent's fifth hour he taught physical education, and during his sixth period he was involved in being the varsity coach for boys' football. Dixie County High School, which is located in Cross City, is the only public high school in the County. The population of Cross City is 3,000. The position of head football coach at Dixie County High School is a "spotlight figure," a visible position with a great deal of influence or contact with young people. A valid teaching certificate is necessary to hold the position of football coach at a public high school. During the late summer of 1985, Respondent attempted to use his influence as head football coach to intercede and possibly prevent an impasse in the contract negotiation between the teachers and the Board. Respondent's action resulted in members of the football team, and possibly some of their parents, putting pressure on the Superintendent of Schools to call a Board meeting. The student aides assigned to the Physical Education Department for fifth period of the 1985-1986 school year were Mary Cravey and Trina Fletcher. Trina was a senior during the 1985-1986 school year and head cheerleader. She had been a cheerleader since the seventh grade. Due to Trina's head cheerleading responsibilities and being a teacher's aide in the same period Respondent taught physical education, she had more contact than usual with the head football coach in her senior year. During the fall semester of 1985, toward the end of October, School Principal Kenneth Baumer was advised by Cynthia Wells, an English teacher, that Trina was romantically involved with Respondent. Upon Baumer questioning the Respondent and Trina, both denied any improper conduct and there was insufficient evidence to show any improper conduct prior to this date. However, in effort to quiet any rumors, Baumer transferred Trina across campus under the supervisor of her aunt, Cherie Norton. Sometime after Trina was placed under the supervision of her aunt, Trina became attracted to Respondent, and Respondent later became attracted to Trina, and they began to discuss their personal problems with each other. Later on, subsequent to the discussion with Baumer but before Respondent resigned his position, their relationship became more personal and progressed to the point of physical contact such as hugging and kissing on possibly one or two occasions off campus and out of Dixie County. After Respondent resigned in late November, 1985, his relationship with Trina continued, but it was not until after her eighteenth birthday that the relationship progressed to the point of being physical and sexual. Also, they dated more openly after Trina's eighteenth birthday. It was not until Respondent resigned that Trina's parents became fully aware of the relationship. Trina's parents were bitterly opposed to Trina dating or seeing Respondent and, as a result, on her 18th birthday, January 23, 1986, Trina moved in with her Aunt, Cherie Norton. After moving out of her parents' home, Trina received very little financial support from her parents. The relationship between Trina and her parents was very poor during the spring of 1986. Trina did not go to the senior prom, although she did go for pictures, nor did she go on the senior trip. Trina decided against going to these events because she was dating Respondent. There was no evidence that Respondent encouraged Trina not to attend these events. Trina was a straight "A" student which did not change as a result of her relationship with Respondent. Trina had a standing academic scholarship to attend Lake City Junior College. Trina did not attend college, although she was encouraged by Respondent to attend college, and, in fact, offered financial assistance through his uncle. In a small community such as Cross City, rumors, whether true or untrue, affect an individual's reputation and could damage the effectiveness of teachers in a classroom. However, there was insufficient evidence to show that Respondent's effectiveness as a classroom teacher was adversely affected by any rumors before or after he had resigned. Respondent was aware after the discussion with Baumer that getting involved with a female student, particularly while employed by the Board, was inappropriate. There was insufficient evidence that Trina suffered any damaging consequences as a result of her relationship with Respondent, particularly prior to his resignation. Trina was a "loner"; her friends were limited and she did not mix well with her peers. This was true before and after she became involved with Respondent, and there is insufficient evidence to show that Trina was treated any differently by her peers or the public at large in Dixie County after she became involved with Respondent, particularly before his resignation. Although, as a rule, high school students may be sensitive to what is said about them by their classmates, there was insufficient evidence to show that any derogatory remarks were made to or about Trina, directly or "behind her back," concerning her relationship with Respondent that resulted in Trina being embarrassed or hurt, being isolated from, or treated differently by her peers or suffering any damaging consequences. There was insufficient evidence to show that Respondent's relationship adversely affected or seriously reduced his effectiveness as a teacher and an employee of the Board, notwithstanding the testimony of Principal Baumer and Superintendent Hardin in this regard, particularly their concern about the political implication of any Board member's thinking or theories in recommending Respondent for re-employment as a teacher in Dixie County, Florida. It is clear that there was a strong mutual affection between Respondent and Trina, in spite of the age difference, that lasted for a period approximately 1 1/2 years, long after Respondent had resigned and Trina had graduated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED that the Education Practice Commission enter a Final Order finding Respondent in violation of Section 231.28(1)(c), Florida Statutes, for conduct constituting "gross immorality" and suspending Respondent's teaching certificate for a period of (1) year, subject to reinstatement in accordance with Section 231.28(4)(6), Florida Statutes. It is further Recommended that Petitioner's Final Order dismiss all other charges relating to a violation of Section 231.28(1)(f) and (h), Florida Statutes, and Rule 6D-1.006(3)(e) and (h) and Rule 6B-1.006(4)(c), Florida Administrative Code. RESPECTFULLY SUBMITTED AND ENTERED this 14th day of March, 1989 in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4782 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-13. Adopted in Findings of Fact 1-12, respectfully. The first sentence is immaterial. The second sentence is adopted in Finding of Fact 14. The first sentence is immaterial. The second sentence is adopted in Finding of Fact 15. 16.-17. Adopted Findings of Fact 15 and 16, respectively. 18.-23. Adopted in Findings of Fact 16, 16, 17, 18, 19 and 17, respectively. 24.-26. Adopted in Findings of Fact 20, 20 and 22, respectively. Adopted in Findings of Fact 14, 15 and 16. Adopted in Findings of Fact 15 and 16. Adopted in Findings of Fact 14 and 16. Rejected as being argument rather than a finding of fact. Rejected as being argument rather than a finding of fact. Rejected as not supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 26. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 16. Adopted in Finding of Fact 22. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: Betty J. Steffens, Esquire Nabors, Giblin, Steffens & Nickerson, P.A. 106 South Monroe Street Post Office Box 11008 Tallahassee, Florida 32302 Thomas Bailey, Pro Se Post Office Box 1482 Cross City, Florida 32628 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde, Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 =================================================================
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint?
Findings Of Fact Respondent holds teaching certificate number 394824, which was issued on July 1, 1982, and is valid until June 30, 1992. At all times relevant, Respondent was an employee of the Duval County School Board. Respondent is an English teacher and also a coach for baseball, basketball and football teams. During the 1986-1987 school year, Respondent taught English at Jeb Stuart Junior High School. While at Jeb Stuart, Respondent befriended Ms. Westerman, a ninth grade student. The friendship resulted in Respondent and Ms. Westerman talking and exchanging handwritten notes often. The notes Respondent wrote to Ms. Westerman during this period appear to be a little too personal for a student-teacher relationship, but cannot be said to constitute inappropriate behavior. When the 1986-87 school year ended, the relationship was interrupted by the summer break. Respondent thought he would not see Ms. Westerman again, since she would be going to a different school, Forrest Senior High School, for the 1987-88 school year. Respondent, however, also transferred to Forrest Senior High School because he wanted to coach high school sports teams and an opportunity to do so presented itself. At the beginning of the 1987-88 school year, Respondent and Ms. Westerman reestablished their relationship and started talking and exchanging notes. Beginning in September, Respondent's notes to Ms. Westerman became more personal, containing statements such as: . . . do you love and appreciate me. . . you're the mayonnaise on my cheeseburger.! * * * I like to talk to you. My only problem is that I want to talk to you the way a man talks to a woman (nothing nasty) and I can't because of this student- teacher relationship. Petitioners Exhibit 1, pages 25 and 26. While at Jeb Stuart, Respondent had given Ms. Westerman a metal bookmarker. During the period from approximately early October 1987 to December 16, 1987, Respondent gave Ms. Westerman the following items: 1 pink Panasonic cassette player 1 vase containing sixteen roses stuffed bear in karate suit tee shirts (1 blue and 1 white w/Minnie Mouse design) 1 picture - fish 3 cassette tapes 1 Chinese Scent fan small straw basket bags of scented potpourri 1 football jersey #55 small bottle of scented Rose liquid pictures of Mr. Tackett 1 blue plastic sun visor with "Moi Gata" written on it Also, Respondent would occasionally give or loan Ms. Westerman lunch money and money to buy sodas after school. Sometime in October, Respondent realized that he was getting "feelings" for Ms. Westerman and that the relationship was becoming more than a teacher-student relationship. Respondent also became jealous of Ms. Westerman's male friends. Ms. Westerman became concerned about the tone of some of Respondent's notes and statements. In November 1987, Respondent and Ms. Westerman decided it would be best to end the relationship and attempted to do so. However, the attempt was unsuccessful and Respondent and Ms. Westerman resumed exchanging notes and talking. On December 15, 1987, Ms. Westerman's sixteenth birthday, Respondent gave her a note containing written instructions. The instructions directed Ms. Westerman to go to the Burger King near the school and ask for the manager. Upon doing so, the manager gave Ms. Westerman the vase containing sixteen roses. Ms. Westerman was accompanied by a friend and was embarrassed to receive the roses under such circumstances. Respondent also gave Ms. Westerman the cassette player for her birthday. Respondent told Ms. Westerman to bring a black bag to school and leave it with him. When Ms. Westerman received the bag back, the cassette player was in it. The bag was needed to hide the cassette player, since it was against school rules to have a cassette player at the school. On December 16, 1987, Ms. Westerman's mother discovered the notes and gifts. On the following day, Ms. Westerman's mother went to the school and met with the assistant principal regarding the notes and gifts. After this meeting, the school began the investigation which led to this hearing. The investigation was supposed to be confidential. However, when school began in 1988, after the Christmas break, it became known around the school that Mr. Tackett was being investigated and that Ms. Westerman was part of the investigation. Ms. Westerman was harassed by students who liked Mr. Tackett and believed Mr. Tackett's problems were Ms. Westerman's fault. After her mother discovered the letters, Ms. Westerman began having nightmares, developed sleeping and eating problems and her grades deteriorated. These problems disappeared with time, but resumed as the time for this hearing drew near and Ms. Westerman received a subpoena to appear at the hearing. Respondent never made oral, written or physical advances of a sexual nature toward Ms. Westerman. Respondent has given gifts and lunch money to other students. However, he has never given 19 gifts to another student. In those instances where gifts to students were substantial, e.g., a radio or a television set, the gifts were rewards for good school work and not outright gifts as in Ms. Westerman's case. Respondent is an excellent teacher who takes a great interest in his students and is able to inspire them to want to do better in school. On several occasions, Respondent has been directly responsible for bad or mediocre students being able to better their academic performance. In September 1987, Respondent was 42 years old. At the hearing, Respondent was not willing to recognize that what he had done was improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered placing Respondent on probation for two years during which Respondent's teaching activities are supervised and he receives counselling regarding what a proper teacher-student relationship should be. DONE and ENTERED this 16th day of February, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES 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 16th day of February, 1989. APPENDIX CASE NO. 88-2990 Rulings on Petitioner's proposed findings of fact with exception of some proposed facts which are subordinate to facts found, the proposed findings of fact contained in paragraphs 1-25 are accepted. Paragraphs 26-30 are rejected as recitations of testimony. Rulings on Respondent's proposed findings of fact 1-10. Accepted. True for face-to-face conversations, but Respondent encouraged the relationship through his notes where he asked Ms. Westerman to respond and write back. Accepted. Accepted. Rejected as recitation of testimony. 15-19. Subordinate to facts found. 20-22. Rejected as irrelevant. 23. Accepted. COPIES FURNISHED: Lane Burnett, Esquire 331 East Union Street Jacksonville, Florida 32202 Al Millar, Esquire 2721 Park Street Jacksonville, Florida 32205 Karen B Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL08 Tallahassee, Florida 32399-0400
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards And Training Commission enter a final order: Dismissing, as moot, the petition of Margherita Renzi insofar as it seeks a determination of prospective eligibility for salary incentive monies under Section 943.22, Florida Statutes (Supp. 1984); and Dismissing, as having no merit, the petition of Margherita Renzi insofar as it seeks a determination of retroactive entitlement to salary incentive payments before October 1, 1984, under Section 943.22, Florida Statutes (1983). RECOMMENDED this 2nd day of April, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2nd day of April, 1985.
