The Issue The issues presented for determination are the following: Whether Respondent has violated rules of the School Board of Palm Beach County so as to constitute misconduct in office. If Respondent has committed misconduct in office, what penalty is to be imposed, including whether Respondent is entitled to back pay and in what amount.
Findings Of Fact At all times material hereto, Respondent, Dr. James McCabe, was employed by Petitioner, Palm Beach County School Board, as the Assistant Principal for Student Services in charge of special education at Crestwood Community Middle School. In this capacity, Respondent's duties include the supervision of the students and teachers in special education. He is responsible for parent contact and involvement in addition to student discipline. He manages the dropout prevention and honors program. Additionally, he has other administrative duties which relate to the migrant and alternative education programs. Although he is primarily assigned to the special education program, he assists in other areas such as school-wide discipline. On December 14, 1989, in the early afternoon, Respondent was called to Mr. Mundt's shop class with Mrs. Satchel, another Assistant Principal for Student Services, by the school's walkie-talkies. Responden1t was informed by Mr. Mundt, the shop teacher, that a baseball card worth in excess of $50 was missing. The baseball card had been displayed in the same class during the beginning of the period. The period was split by a lunch break. It was after the students returned from lunch that Respondent and Ms. Satchel were called to investigate its loss. The parties stipulated that, "Presumably, it [the card] had been taken by someone in the class." According to Respondent, the card was owned by a student with cerebral palsy. The student was limited physically and could not participate in sports at the school. He collected baseball cards as his sport. When they arrived, Respondent took charge of the male students while Ms. Satchel assumed the responsibility for the female students, as the logical separation of duties. Respondent asked the boys to go to one side of the room and told them that he would like the baseball card to appear on the table. He told them he would turn his back to them, and that if the baseball card appeared, that would be the end of it. Respondent then turned his back, and the baseball card did not appear. Prior to this incident, thefts of other valuable merchandise had occurred around the area of the shop class. A wallet was stolen from a teacher's car which was parked immediately outside the shop class just a week prior to the incident at issue. Respondent did not think that a particular student had stolen the card. Instead, he reasonably suspected that someone in the group had taken it. The period was coming to an end and another class was due in the room. Respondent did not attempt a lesser method of searching the boys for the baseball card, nor was a lesser method of searching the boys proven at the hearing. Instead, Respondent, in accordance with the procedure at Crestwood, instructed the boys to all go down to the clinic which is not within the immediate vicinity of the shop class where they were temporarily detained. He chose to remove the boys from the classroom because he did not want to subject them to the confusion from the incoming class or to any unnecessary embarrassment which might be caused by questioning them in front of it. He also wished to protect the learning environment for the incoming students. The clinic is a three room complex. To avoid unnecessary embarrassment of the students, Respondent took one student at a time into one of the outer rooms of the complex. He then asked the student to remove his shirt. He felt the shirt and handed it back to the student. He then requested their shoes and socks and handed those back after searching them. He then asked for the students outer pants. He did not request that any student remove his undergarments; their underpants and undershirts or T-shirts, if any, remained on. As Respondent completed his check of each piece of clothing, he handed the article back to the student. If the student was slow in completing his dressing, he then asked that student to finish dressing in the back of the room. At times, while the slow student was completing his dressing, the next student was asked to come in and commence the disrobing procedures. At times, more than one student was in the room. One was tying his shoes while the other was handing his shirt to Respondent. Respondent believed that he had the right to search the students to the extent necessary after having received instruction to that effect from school security and after having read the school board rule on detention, search and seizure. He apologized to the group for having to perform the search in this manner which was necessary under the circumstances. According to Respondent, sometime during the search, a couple of boys came into the room and asserted that one of the boys, who had not been searched at the time, had the card. The boys suggested that Respondent search just this one student and stop the search of each student. In reply, Respondent said, "I don't want to embarrass him anymore than anybody else. I really don't want to put any suspicion on him. Let's just take him in the normal course of events, when his turn comes up," and continued the search of each student in his charge. Each student cooperated with Respondent. Out of the twelve or thirteen students involved, only one student objected to the search procedure. In response to the objection, Respondent gave the student the opportunity to call the school security or to call his mother and ask her to come to the school. The student chose neither option and participated in the search. As Respondent reached the last student, Mr. Hagan, the principal at Crestwood, came into the room and asked Respondent to step outside. He told Respondent that he did not see how the school could benefit from the search and told him to stop the search. The baseball card had not been located at that point. Respondent stopped immediately. If Mr. Hagan believes that a teacher or administrator is not effective at his school, there is a procedure for asking that teacher or person to be removed from the staff. Mr. Hagan chose not to commence the procedure in this instance. Prior to this incident, searches of students occurred at Crestwood, but no search had involved the removal of the students clothes. The guidelines for detention, search and seizure of students in the Palm Beach County School District is contained in Palm Beach County School Board Rule 5.18(5). The rule authorizes school personnel, such as Respondent, to temporarily detain students for questioning, upon reasonable indication of wrongdoing, and to search, to the extent necessary, students upon reasonable suspicion of illegal activity. The rule, however, does not establish the permissibility or impermissibility of any specific search procedure, i.e., pat down, strip search or other means of locating the missing items. Although the School Board gives periodic seminars, and Respondent has attended every seminar at which his attendance was required, no seminar has given specific instruction on the procedures to be used when searching students. Respondent had read the rule on detention, search and seizure prior to the December 14 incident. Also, prior to the incident, Respondent had requested the advice of the school security director assigned to Crestwood, Mr. Willie Noland, about his right to search and has discussed procedure relating to specific incidents with Mr. Noland. From Mr. Noland, Respondent was assured that he had the right to search students. One incident, in particular, on which Respondent sought Mr. Noland's advice involved a student who allegedly had threatened another student with a knife. Respondent was asked to look into the threat fifteen minutes prior to the end of the school day. When Respondent asked the student if he had a knife, he voluntarily emptied his pockets. Respondent did not ask him to remove his clothes. Unfortunately, the student did have a knife lodged in the mid-seam of his trousers. After that incident, Mr. Noland advised Respondent that students do not hide things in their pockets. Instead, Mr. Noland recommended checking down in the student's waistbands and in their shoes and socks for the missing items. Mr. Hagan had also informed the school personnel not to be alone with students and to avoid situations which could be embarrassing. His purpose in giving the admonition was to avoid the potential for child abuse allegations. It was with the direction given by Mr. Noland and Mr. Hagan, combined with Respondent's understanding of the governing rules, that he undertook the type of search he performed. With reasonable concern that he might be subjecting himself to a potential child abuse allegation and in a diligent attempt to locate the missing baseball card, Respondent chose to ask the students to remove their clothes, rather than search the clothes while on their bodies. Under the circumstances, the search procedure was necessary and reasonable. After the December 14 incident, Respondent, as was his usual behavior, cooperated completely with the directives of his superiors. He voluntarily completed an incident report in which he related the facts surrounding the search. An investigation into the incident by the School Board was performed, and a report from the investigation was given to the Superintendent of the Palm Beach County School District. Without performing a personal investigation, talking with Respondent or with Respondent's coworkers about the incident, the Superintendent suspended Respondent and recommended to the School Board that Respondent be suspended without pay and terminated. The Superintendent based his recommendation on his belief that Respondent's conduct violated the school board rule and the Code of Ethics and Principles of Professional Conduct for educators in Florida to the extent that his effectiveness in the school system was impaired. The School Board accepted Respondent's recommendation and this proceeding ensued. At the time of the incident, Crestwood had four assistant principals in addition to Respondent. At the hearing, three of the four, each of whom had worked with Respondent, had observed Respondent and had shared responsibilities with him, unanimously agreed that his performance in the school system up to the time of the incident was effective and each agreed that they would not object to his return to the school. The fourth was not asked the questions at the hearing. Also, approximately eighty signatures appear on a petition in support of Respondent's effectiveness from the faculty and staff of Crestwood to Petitioner dated January 17, 1990. l6. Since 1964, except for a brief period, Respondent has been involved in education and primarily working with, teaching about or studying exceptional students. His tenure in the Palm Beach County School District began as Director of Special Education in September 1, 1981 where he was assigned until June 30, 1983. From August 1983 to June 1986, Respondent served in the capacity of a Specialist in Education. In July, 1986, Respondent was appointed as an Assistant Principal at Gove Elementary School. At the request of Mr. Hagan, Respondent was transferred to the Crestwood Community Middle School in January, 1987 and has served in his present capacity since then. While employed as an assistant principal, Respondent has received nothing but outstanding evaluations. Respondent holds a regular instructional certificate in the area of administration and supervision. Respondent is a credible individual, and an experienced educator who has the interest of his students as his main concern. At no time during the incident in question, did Respondent intend to embarrass or disparage any of the students. Instead, in his best professional judgment, under the circumstances, he attempted to protect the students from unnecessary embarrassment and made reasonable efforts to protect the learning environment of all the affected students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Palm Beach County issue a Final Order reinstating Respondent with full back pay and benefits retroactive to January 24, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1990. JANE C. HAYMAN 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 13th day of June, 1990.
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.
The Issue The issue presented here concerns an Administrative Complaint brought by Ralph D. Turlington, as Commissioner of Education, against Willie Lynn Brown, calling for the revocation, suspension or other appropriate disciplinary action against the Respondent's teaching certificate issued by the State of Florida. The contention in this Administrative Complaint is that the Respondent, while employed at the A. D. Harris Sixth Grade Center, conducted physical acts with a minor male student, involving the student sitting on the Respondent's lap and the Respondent taking one of the student's hands and rubbing it against the Respondent's genital area. For these alleged acts of misconduct, the Petitioner attempts to discipline the Respondent, in keeping with the provisions of Section 231.28, Florida Statutes, in that the Respondent is reputedly guilty of gross immorality and an act of moral turpitude and conduct which seriously reduces his effectiveness as an employee of the Bay County School Board and further the Petitioner, in keeping with the Provisions of Section 231.09, Florida Statutes, claims that the conduct on the part of the Respondent is conduct which fails to provide a proper example for students.
Findings Of Fact This matter is here presented for consideration following an Administrative Complaint brought by Ralph D. Turlington, as Commissioner of Education, State of Florida, vs. Willie Lynn Brown, Respondent. The dispute concerns the allegations as alluded to in the Issues statement of this Recommended Order. The Administrative Complaint is dated April 9, 1981. After receipt of the Administrative Complaint, the Respondent requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. In turn, the Petitioner in this action asked that the matter be conducted by the Division of Administrative Hearings, this request being forwarded on May 14, 1981. After consideration of certain preliminary matters, the final hearing in this cause was conducted on July 10 and 14, 1981. The Respondent holds Florida Teaching Certificate No. 385083, valid through June, 1985, and covering the areas of elementary education, early childhood education and administration/supervision. At all times pertinent to this matter, the Respondent Willie Lynn Brown, was employed by the Bay County School Board as a teacher at the A. D. Harris Sixth Grade Center. In the school year 1980-81, a local civic club in Panama City, Florida, held an oratorical contest for the benefit of students in the Bay County School System. Among the participants in that contest were students from the A. D. Harris Sixth Grade Center where the Respondent taught. Brown acted in the capacity as advisor to those students and met with the students from the Harris Center on several occasions to aid the students in the preparation of their speeches, and in the presentation of those speeches. One of the students participating in the oratorical contest was Steve William Rudd, a minor. Rudd was not a student in Brown's regular academic classes. The involvement Rudd had with Brown prior to the oratorical contest was merely to the extent of knowing that Brown was a teacher at Harris. On the first occasion of Rudd's participation with Brown in the speech contest, Brown met with Rudd and other students in the auditorium at the school and listened to their speeches and critiqued their presentation. The next occasion in which Brown took part in the preparation of the students for the oratorical contest occurred in Brown's homeroom, at which time the general nature of the relationship between Brown and the students was as occurred at the auditorium session. On the third occasion in which the Respondent met with Rudd there was also in attendance a second student, William Arnold Stevenson. This session was held in the classroom of another teacher. On that occasion Stevenson was allowed to present his speech while Brown listened and Rudd waited for his turn. When Stevenson had concluded his speech, he left the room leaving Brown and Rudd alone. Rudd then commenced his speech standing at the front of the room, and he concluded that presentation while Brown moved around the room listening to the speech. Brown then made certain suggestions to Rudd about correcting Rudd's speech presentation and then asked Rudd to move to the back of the classroom. Rudd complied with that request. Rudd then began to give his speech again while standing at the back of the room in the area of a desk. At this time the Respondent was moving around the room and eventually approached Rudd. At that point, Brown placed his folded arms on the back of Rudd at Rudd's shoulder level. At this juncture, Rudd was facing the front of the classroom and the Respondent was directly behind him. The front of Brown's body was touching the back of Rudd's person. Brown remained in this position until Rudd had concluded his speech. During this interval, Brown made no comment. The interval for this occurrence was approximately two or three minutes. After Rudd had presented his speech for the second time, the Respondent went and took a seat in a chair in the back of the classroom. The Respondent then instructed the student to sit on the Respondent's lap. Rudd complied and seated himself on the Respondent's leg, in the area of the Respondent's knee. The Respondent then gestured with his hands, pointing in the direction of the Respondent's groin area, meaning the genital area, and said to the student, "sit right here." The Respondent then pulled the student toward his body and at that time the student was seated on the Respondent's genital area with his back against the Respondent's chest. No comment was made during this part of the episode, which lasted a short time. Brown then moved Rudd back away from his body into the original location near his knee. He then took the student's right hand and with the student's hands stroked Brown's genital area. This maneuver with the student's hand was a momentary event. While the student was seated on the Respondent's lap, he was concerned for his welfare and in particular worried about the door which had been locked by the Respondent. The student thought that the door was locked such that he, the student, could not exit. In fact, the door was locked barring entry from persons outside the room. Brown released Rudd's hand and told Rudd that he could get out and that Brown was sorry for what had occurred. He told the student this several times, once when the student got up, once when the student was midway in the classroom approaching the door, and once when the student got to the door. On the same day as the event transpired, Rudd reported the incident to the Principal at Harris Center, one James Griffin. Griffin then confronted the Respondent with the student's allegations by asking Brown if the story that Rudd had told about the incident was true. Brown responded, "Yes, it is." When Griffin asked him why he did it, Brown said, "I don't know." Griffin then commented to Brown that the matter was a very serious offense and that Brown might be suspended or dismissed from the school system, to which Brown replied, "I know this." Griffin then asked Brown if he was prepared to face the consequences, and Brown replied, Yes, I guess I am." Since the time of the event, some of the other students in the sixth grade center have referred to Rudd as a "gay boy," meaning that Rudd was a homosexual, due to his circumstance with Brown and that Rudd "felt Mr. Brown off," meaning that Rudd had manipulated the Respondent's penis. Rudd had bean teased about the event by other students, and the students did not talk to him. Rudd has felt insecure in his home and has desired to sleep on the floor in a sleeping bag with the lights on because of this event with the Respondent. Rudd has felt as if someone were watching him even in his home, in particular that the person was the Respondent. The student has also felt that he did not wish to sleep by a window and has chosen to sleep in the middle of the room, and at times has slept on a couch in the living room of his home. The aforementioned treatment of the student by other children in the sixth grade center led Rudd's parents to change his bus transportation to avoid a confrontation with the children. Nonetheless, it has not been necessary for the student to seek psychiatric assistance and he is recovering from the trauma of the subject occurrence. In spite of attempts by the school authorities to deter publication of this incident, students, teachers, parents, staff and other persons within the community have learned of the incident and Principal Griffin is of the persuasion that there would be dissension with teachers, parents and students should Brown be allowed back as an instructor in the school. Griffin feels that there would be a lack of trust in that Brown has lost his effectiveness as an instructor. Likewise, Bay County Superintendent Holman who is familiar with the case facts, is of the persuasion that Brown's effectiveness as a teacher in Bay County has been seriously reduced. Nothing offered in defense rebuts the opinion of these educators. Following the incident, a meeting was held on March 6, 1981, between the Respondent and Pete Holman, Superintendent of Schools in Bay County, Florida, with the Principal Griffin being in attendance. At that time Brown again admitted that the incident had occurred and subsequent to this meeting Brown was suspended from his teaching duties in the Bay County system. There ensued an administrative complaint brought by Ralph D. Turlington as Commissioner of Education in the State of Florida, and the Bay County School Board took action to discharge the Respondent as an employee.
Recommendation Upon consideration of the facts of this case, the conclusions of law reached in matters in aggravation and mitigation, it is RECOMMENDED: That the Respondent, Willie Lynn Brown, have his teacher's certificate in the State of Florida, revoked permanently. 1/ DONE and ENTERED this 21st day of September, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 21st day of September, 1981.
The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
Findings Of Fact In January, 1987, Respondent became employed with the School Board of Alachua County as an Aide I at the Alachua County Regional Juvenile Detention Center in Gainesville, Florida. Said employment was for the duration of the 1986-87 school year. The Detention Center is a custodial facility designed for the temporary placement of youth ordered there by juvenile court, while awaiting adjudication or other placement. The facility is staffed and operated by the Florida Department of Health and Rehabilitative Services which contracts with the School Board for instructional services. The School Board provides educational services for juveniles detained in the facility and employs teachers and teachers' aides to carry out instructional responsibilities HRS maintains custodial supervision of the juveniles in the center. Pursuant to the agreement between the School Board and the Department of Health and Rehabilitative Services, HRS staff are responsible for handling aggressive behavior exhibited by juveniles in the center. An Aide I is a noninstructional employee who assists the teacher in general clerical and administrative tasks and in certain daily classroom activities. (Petitioner's Exhibit The respondent performed his duties in an acceptable manner during the period from January to April, 1987. On April 27, 1987, the Respondent was evaluated on a number of factors, with an evaluation scale of 1 (low) to 5 (high). On this evaluation, the Respondent received a 5 for "personal appearance," a 4 for "knowledge of job," "quality of work," and "ability to adjust to change." He received a 2 for "punctuality." In all other categories, the Respondent received a 3. (Petitioner's Exhibit 2). At some point following the evaluation of April, 1987, Respondent was counseled regarding his tardiness in arriving for work. Respondent was employed as an Aide I during the summer of 1987 at the detention center, had good attendance, and generally arrived at the time scheduled for his work day to begin. Beginning in August of 1987, Respondent was employed for the 1987-88 school year and was assigned to work with Floretta V. Allen, a teacher at the detention center. As an aide to Ms. Allen, the Respondent was to assist the teacher in general clerical and administrative tasks and certain classroom activities. Among the clerical tasks within the Respondent's responsibilities were the completion of various forms. In addition to the responsibilities of assisting Ms. Allen, Mr. Wright was assigned by the director of the school program at the detention center to administer the Wide Range Achievement Test to new students, which he did two days each week. During the fall of 1987, Ms. Allen indicated to the director of the school program at the detention center that she was dissatisfied with Mr. Wright's job performance. She expressed her concern that Mr. Wright was frequently tardy or altogether absent and was not calling the center to notify her of his status. She also expressed her concern that he was not completing administration of the WRAT test in a timely manner. She also indicated that Mr. Wright was not fulfilling his responsibilities in regard to the completion of various forms. No specific instances of Mr. Wright's tardiness or absences without phone notification were documented. No specific occasions on which Mr. Wright did not complete the WRAT test in a timely manner were documented. No specific instances of the alleged mishandling of various forms were documented. Although Ms. Allen expressed her concern to the director of the center regarding Mr. Wright's job performance on more than one occasion, no written records of these conversations were made prior to October 9, 1987. On the morning of September 29, 1987, the students in Ms. Allen's class were lining up to leave the classroom. Ms. Allen directed one student, D.C., to go to the back of the boy's line. Shortly thereafter, the Respondent became involved in a verbal and physical altercation with said student. At some point during the altercation between the Respondent and the student, the Respondent held the student in a headlock. The student's neck was held in the bent arm of the Respondent, with the Respondent's other arm placed across the back of the student's neck to maintain the hold. While the student testified that he was unable to breathe while in the headlock, the student was uninjured and required no treatment. The cause of the altercation is unclear. No eye witnesses, other than the Respondent and the student, testified as to what caused the physical altercation. There is considerable conflict between the accounts of both parties. Shortly after the altercation began, two members of the HRS staff entered the classroom and removed the student from the Respondent's hold. The student did not attempt to continue any involvement with Mr. Wright. Mr. Wright was somewhat upset and disturbed following the incident. On the morning of October 5, 1987, Ms. Allen was outside of the classroom, in an office adjacent to the classroom. Mr. Wright was responsible for supervising the students while Ms. Allen was occupied with other educational duties. Upon looking into the classroom, Ms. Allen became aware that the student, D.C., had been removed from the classroom and was sitting in the hallway outside of the classroom. There is considerable conflict between the student's and the Respondent's accounts of the incident. The student claims that Mr. Wright ejected him from the classroom for reasons which are unclear. The Respondent claims that the student was disruptive and was removed from the classroom by an HRS worker according to appropriate procedure. No other eye witnesses testified regarding the October 5, 1987 event. They are the only eye witnesses who testified to the event. HRS staff members at the detention center receive training in how to handle youth who are assigned to the regional detention center, including specific training for situations which may require the use of physical force on the part of the staff member. A headlock is considered to be an inappropriate hold to use on a minor child and is not included as part of HRS staff training in how to respond to difficult situations. On October 13, 1987, the Respondent was Suspended with pay pending the outcome of an investigation into the Respondent's job performance. By letter of November 5, 1987 (Petitioner's Exhibit 6), Respondent was informed by Wilford A. Griffin, Supervisor of Career Service Personnel for the Petitioner, of Mr. Griffin's recommendation to the Superintendent of Schools that the Respondent's employment be terminated. As grounds for termination, Mr. Griffin alleged that the Respondent was frequently tardy or absent without providing appropriate notification to the teacher; that the Respondent was involved in two altercations with a student, one on September 29, 1987 and one on October "4" (sic), 1987; 1/ that the Respondent did not provide assistance to the teacher; that the Respondent was not able to complete the administration of tests or to complete various clerical duties in a timely manner; and that the Respondent had lost or misplaced teaching materials and student assignments. Griffin's letter stated that the Superintendent would recommend to the School Board that the Respondent be suspended without pay on November 18, 1987, and terminated effective December 2, 1987. By agreement between the School Board and HRS, at the time of the alleged instances between the Respondent and D.C., members of the HRS staff were not stationed inside the classroom but were instructed to remain outside the classroom in the hallway. Maintenance of discipline in the classroom is the responsibility of the teacher. The Respondent's role in maintaining discipline is to assist the teacher. (Petitioner's Exhibit 1). The handbook prepared by the School Board for use by teachers and aides in alternative education for residential programs (Petitioner's Exhibit 4) identifies methods for handling student aggression. Specific methods for responding to physical aggression are stated on page 26 of the handbook. The alternatives listed are non-physical responses to the aggression, and are designed to lower the level of the confrontation while protecting School Board personnel and other students. The handbook was available to the Respondent and was discussed with the Respondent but was not distributed or delivered to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Alachua County enter a Final Order terminating the employment of Kevin M. Wright, effective November 18, 1987. DONE and ORDERED this 29th day of March, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of March, 1988.
Findings Of Fact Respondent Robert L. Collins has been employed by the School Board of Dade County, Florida as a teacher for the last twenty-four years and is on continuing contract. For approximately the last seven of those years, Respondent has been teaching Industrial Arts at Miami Killian Senior High School. Between late September 1983, and November 23, 1983, Jonathan Wright was a student in Respondent's Plastics class. On November 23, 1983, Wright came into Respondent's Plastics class wearing a hat, which is against school rules. Respondent directed Wright to remove his hat which he did. Later in that same class Respondent saw Wright sitting by the engraver again wearing that hat. Respondent removed the hat from Wright's head and advised Wright that if he put the hat on another time Respondent would send him to the principal's office. At approximately 5 minutes before the end of the class period, Respondent instructed the students that it was time to clean up the shop area. Wright and some of the other students began gathering at the door. Respondent motioned to those students to come back into the classroom and away from the door, which some of them did. Wright, however, did not. Respondent then specifically directed Wright to get away from the door. Instead of obeying, Wright put up a hand and a foot in a karate type posture but clearly in a playful manner. As a normal reaction in the context of the situation, Respondent did likewise. Respondent then turned back toward the class at which time Wright grabbed him by the legs and pulled him down to the floor. Respondent and Wright were rolling around on the floor in a small alcove area, and Respondent was unable to get loose from Wright's grip. Respondent was afraid that he, Wright, or the other students might be severely injured in the small alcove by the door or on some of the machinery located in the Plastics shop classroom. Unable to free himself, Respondent bit Wright on the back. Wright released Respondent and got up off the floor. After the bell rang, Wright left the classroom. Wright was transferred to the Plastics class of teacher Gerald Krotenberg where he remained for the rest of the school year. On several occasions Krotenberg was required to admonish Wright because Wright often resorted to "horse play" with other students. On occasion Wright would come into the classroom and would "bear hug" the girls, "jostle" the boys, and be disruptive so that Krotenberg could not take attendance or conduct the class. Although Krotenberg followed his normal technique of chastising the student in public, and then chastising the student in private, those techniques did not work and Krotenberg was required to exclude Wright from class on probably two occasions, for two days each, due to Wright's inappropriate behavior with other students. During the two months that Wright was in Respondent's class, Wright had come up behind Respondent on one or two occasions and lightly put his arms around Respondent in the nature of a bear hug. Respondent counseled Wright that that was not appropriate behavior. The only touching of Wright that was initiated by Respondent himself occurred in the form of Respondent placing his hand on Wright's shoulder while discussing a project being worked on at the moment or perhaps a light slap on the back in the nature of encouragement or praise for a job well done. Not all teachers, however, agree that it is appropriate to occasionally give a student an encouraging pat on the back. Although Wright had on one or two occasions given Respondent a playful hug and although Respondent had on several occasions given Wright an encouraging pat on the back or touch on his shoulder, no physical combat ever occurred between them. Although Wright often engaged in "horse play" with other students, no "horse play" occurred between Wright and Respondent. None of Respondent's annual evaluations during the years he has been teaching in the Dade County public School, including the annual evaluation for the the 1983-1984 school year, indicates that Respondent has had any problems with either maintaining good discipline in his classes or that Respondent is anything other than acceptable in the area of classroom management.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reversing Respondent's suspension, reinstating him if necessary, and reimbursing him for back pay-if he was suspended without pay. DONE and RECOMMENDED this 3rd day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1985. COPIES FURNISHED: Thomas H. Robertson, Esquire 111 SW Third Street Third Floor Miami, Florida 33130 Michael D. Ray, Esquire 7630 Biscayne Boulevard Suite 202 Miami, Florida 33138 Phyllis 0. Douglas Assistant Board Attorney Dade County Public Schools 1410 N.E. Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132
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
