The Issue Whether the Respondent's employment with the School Board of Dade County should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Dade County School Board is responsible for operating, controlling, and supervising all public schools within the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Scott is employed by the School Board as a custodian. She began working for the School Board in 1990 as a part-time food service worker at South Dade, and, in early 1992, she began working at South Dade as a full-time custodian. Custodians are classified by the School Board as maintenance workers, and Ms. Scott was a member of AFSCME at all times material to this action. The school's head custodian is responsible for overseeing the day-to-day performance of the custodians, which includes assigning duties to each custodian and developing a schedule for each custodian identifying the tasks that must be accomplished during specified blocks of time. The schedule is approved by the principal of the school. John Alexander is, and was at all material times, the head custodian at South Dade and Ms. Scott's immediate supervisor. Ms. Scott's job responsibilities and duties included "policing" 2/ all ten girls' restrooms after each class change; policing the girls' locker room; policing certain other areas, including designated corridors, the auditorium lobby, the clinic, and the band area; cleaning five girls' restrooms after 2:00 p.m.; cleaning designated cafeteria windows; removing graffiti from walls, mirrors, and corridors as needed; cleaning and disinfecting the drinking fountains in all corridors; cleaning graffiti off walls and doors in the ten girls' restrooms; and cleaning, dusting, and mopping the audio-visual room. Ms. Scott was also expected to respond to emergencies. These duties were the same as those assigned to the female custodian whom Ms. Scott replaced and as those currently being performed by the woman who replaced Ms. Scott at South Dade. Ms. Scott's training consisted, first, of working for several weeks with the female custodian she was hired to replace. Then, after Ms. Scott's predecessor retired, Mr. Alexander worked with her for approximately two weeks. Mr. Alexander noticed problems in her job performance shortly after Ms. Scott began working as a custodian. In a memorandum dated May 12, 1992, Mr. Alexander identified two specific incidents when Ms. Scott refused to follow his instructions. He notified Ms. Scott in the memorandum that he would recommend her termination as of May 19, 1992, during her probationary period, for lack of motivation and failure to perform her job responsibilities. As a result of this memorandum, on May 19, 1992, Ms. Scott, Mr. Alexander and Dr. Paul Redlhammer, the principal of South Dade at that time, met to discuss Ms. Scott's job performance. After this meeting, Dr. Redlhammer sent Ms. Scott a "Memo of Understanding: Job Performance," in which he summarized the reasons for the concern about her job performance and notified her that Mr. Alexander would work with her for two weeks to help her improve her job performance. Mr. Alexander did not notice any improvement in Ms. Scott's work during the two-week period or thereafter. On February 3, 1993, Mr. Alexander had a discussion with Ms. Scott about leaving work early, failing to empty the trash cans in her areas, and failing to clean the floor in the audio- visual room. On May 21, 1993, Mr. Alexander issued a Notification of Written Warning to Ms. Scott regarding her unsatisfactory performance, which included insubordination, disrespect, and improper behavior. Mr. Alexander proposed that Ms. Scott's file be reviewed and that she be given an opportunity to explain her performance. Mr. Alexander intended to recommend her termination from employment. From September 24, 1993, through October 27, 1993, Mr. Alexander kept a log of the time Ms. Scott reported for work and left work each day. The log reflected that Ms. Scott left work thirty to forty-five minutes early on fifteen days during that period, that she took a forty-minute morning break one day, and that she reported for work between one hour and forty minutes and two and one-half hours late on three days. In Ms. Scott's November 15, 1993, annual evaluation, Mr. Alexander rated Ms. Scott poor in the categories of taking lunch and breaks at the proper times, cleaning bathrooms, washing windows, following orders, following work schedules, and working well with other custodians. Mr. Alexander discussed the evaluation and her deficiencies with Ms. Scott, and she acknowledged by her signature that she had seen the written evaluation. Ms. Scott's job performance did not improve during the 1994-1995 school year. Despite being told repeatedly not to do so, Ms. Scott spent inordinate amounts of time talking with school security monitors in the school's corridors and in the school's north parking lot, sometimes spending an hour or more a day in these conversations. During most of that time, Ms. Scott was not on authorized breaks or lunch period. At the same time, Ms. Scott often did not properly police the girls' bathrooms or clean the areas for which she was responsible, and, on several occasions, she refused to obey direct orders from Mr. Alexander. In September 1994, Orlando Gonzalez, the assistant principal at South Dade, scheduled an informal conference with Ms. Scott to discuss the deficiencies in her work performance, including an incident in which Mr. Gonzalez observed Ms. Scott watching television at 9:30 a.m. in the audio visual room. Ms. Scott left the school before the scheduled conference without permission. As a result of this behavior, Mr. Gonzalez requested that Donald Hoecherl, the new principal at South Dade, schedule a formal conference for the record to discuss "serious deficiencies in her job performance." Mr. Gonzalez later withdrew the request for the conference on the record because he thought he could accomplish more by counseling with Ms. Scott informally to help her improve her job performance. Nonetheless, a conference for the record was held by Mr. Hoecherl in November 1994 for the stated purpose of addressing "continuous incidents of insubordination, failure to complete assigned work, and leaving work early." Ms. Scott was advised by Mr. Hoecherl that, if the problems were not resolved, another conference for the record would be held and that he would formally request her dismissal. Ms. Scott refused to sign the conference summary. Ms. Scott's job performance did not improve after the November 1994 conference for the record. Mr. Hoecherl tried to work with Ms. Scott on an informal basis, but his efforts to improve her job performance were not successful. In April 1995, Mr. Gonzalez received complaints from two parents about the lack of cleanliness in the ladies' restroom in an area which Ms. Scott was responsible for cleaning. Mr. Gonzalez told Mr. Alexander to direct Ms. Scott to clean that restroom. The next day, Mr. Gonzalez found that the restroom had not been cleaned. Mr. Gonzalez prepared a memorandum to Ms. Scott directing her to clean the restroom. In June 1995, a Notification of Written Warning was directed to Ms. Scott because she refused to obey direct orders from Mr. Alexander. Ms. Scott's job performance deteriorated during the 1995-1996 school year. On October 5, 1995, a Notification of Written Warning was issued for "[f]ailure to follow and complete assigned work." On November 8, 1995, a conference for the record was held and was attended by Ms. Scott and two representatives of AFSCME, as well as by Mr. Hoecherl, and Mr. Gonzalez. Three issues were discussed: Ms. Scott's direct and implied insubordination when she refused an order by Mr. Alexander to clean up the clinic area after a student became ill and when she twice refused to comply with Mr. Hoecherl's request that she step into his office to discuss the incident; Ms. Scott's pattern of failing to complete her job assignments; and her pattern of loitering on the job by talking to the security monitors in the corridors and in the north parking lot. The written summary of the conference for the record, dated November 13, 1996, included the following: In an effort to resolve these issues the following directives were outlined: Comply with all requests and directives issued by your immediate supervisor or administrator. . . . In regard to this issue failure to comply with the direction of an administrator or immediate supervisor constitutes insubordination and will result in additional disciplinary action. Follow your job assignments as given to you prior to this conference and again at this conference. The cleaning must be performed in a satisfactory manner meeting the requirements to maintain a clean and healthy school setting. Failure to complete your job assignments will result in additional disciplinary action. Refrain from loitering while on the job. You are reminded that you may spend your break and lunch time in dialog with others if you wish. You are not entitled to spend an inordinate amount of time talking and not performing your job assignments. Failure to meet this condition will result in additional disciplinary action. Ms. Scott refused to sign the written summary of the conference. Ms. Scott's job performance did not improve after the conference, and she did not follow the directives outlined for her. She continued to talk with other employees at times when she had no scheduled break; she failed to perform or inadequately performed her assigned tasks; and she engaged in a pattern of arriving at work late without authorization, taking time off during her shift without authorization, and leaving work before the end of her shift without authorization. On or about February 16, 1996, Mr. Alexander attempted to discuss these problems with Ms. Scott. She became angry and belligerent. Mr. Alexander stood in front of his office door to prevent Ms. Scott from going out into the corridor because the students were changing classes and he felt it would not be appropriate for them to see her in that frame of mind, but she left his office anyway. Ms. Scott was immediately summoned for a meeting with Mr. Hoecherl and Mr. Alexander. During the meeting, a school police officer arrived in response to a 911 call, which Ms. Scott had made, accusing Mr. Alexander of restraining her against her will. The police officer determined that there was no basis for this charge, and Ms. Scott left the meeting in an angry and belligerent manner. Mr. Hoecherl referred this incident to the School Board's Office of Professional Standards. An administrative review was ordered, and Mr. Hoecherl was assigned to investigate the February 16 incident. On March 25, 1996, at Mr. Hoecherl's request, he and Ms. Scott met in his office. Mr. Hoecherl explained to Ms. Scott that he was trying to learn what had happened and wanted her to tell him her version of the incident. Ms. Scott became very agitated and left Mr. Hoecherl's office, slamming the door behind her. Her behavior as she left his office was very disruptive, but he nonetheless followed her to her car and asked that she return to his office to discuss the February 16 incident. Her response was belligerent and defiant, and Mr. Hoecherl told her to go home and not return to South Dade for the rest of the day. On the morning of March 26, Ms. Scott reported to work at South Dade. She was told that she had been reassigned to the Region VI administrative office and that she was not to return to the South Dade campus. In accordance with directions he received from the School Board's Office of Professional Standards, Mr. Hoecherl instructed Ms. Scott to report to the personnel director at the Region VI office. At approximately 8:00 a.m. on March 27, Ms. Scott appeared at the custodial office at South Dade. Mr. Hoecherl again told her to report to the Region VI office and provided her with written notification of her reassignment. Ms. Scott reported to the Region VI office, but, a short time later, she left and returned to South Dade. Ms. Scott was again told to leave the school grounds and informed that failure to do so would be considered gross insubordination; she refused to leave South Dade despite repeated orders from Mr. Hoecherl and the school police. Ms. Scott was belligerent and disruptive, and she was placed under arrest by the School Board police. She was escorted out of the school building in handcuffs; Mr. Hoecherl covered her shoulders with a jacket to hide the handcuffs from the students, but Ms. Scott attempted to shrug it off. In a memorandum dated March 28, 1996, to the Office of Professional Standards, Mr. Hoecherl detailed Ms. Scott's poor job performance from January 12, 1996, through March 25, 1996. A conference for the record was scheduled for March 29 at 2:00 p.m. by James Monroe, the Executive Director of the School Board's Office of Professional Standards. Ms. Scott failed to report for the conference even though she was contacted at her home by telephone shortly after 2:00 p.m. and told that they would wait for her for one hour. The conference for the record was rescheduled for April 4, 1996, and the topics to be discussed were identified in the notice as follows: "[Y]our failure to report for a conference on March 29, 1996, at 2:00 p.m., as previously directed . . .; failure to comply with site directives; unauthorized departure from the work site; attendance/performance related issues; medical fitness for continued employment and your future employment status with Dade County Public Schools." During the conference, Ms. Scott was advised that her employment status would be reviewed in light of the facts discussed at the conference, and she was directed to report to the Region VI office pending formal notification of the decision of the Superintendent of Schools and to perform all tasks and duties assigned to her. During the time she was assigned to the Region VI office, from April 1996 until September 1996, Ms. Scott disregarded instructions and directives from her supervisors, she failed to perform her job responsibilities or performed them inadequately, and she was absent from work a number of times without authorization. From September 1995 to September 1996, Ms. Scott was absent from her job without authorization for 20 days. She was absent from her job without authorization for three consecutive workdays from March 28 through April 1, August 23 through September 5, 1996. 3/ Ms. Scott was suspended by the School Board at its September 11, 1996, meeting. Mr. Alexander, Mr. Gonzalez, and Mr. Hoecherl tried for several years, through numerous informal memoranda and discussions, to help Ms. Scott bring her job performance up to an acceptable level. Ms. Scott was given several formal written notifications and warnings about the deficiencies in her job performance, and three formal conferences for the record were held to put Ms. Scott on notice of the perceived job deficiencies and of the complaints about her work and to allow her to explain the situation from her perspective. Ms. Scott did not comply with the directives for corrective action developed during the conferences for the record, and her attitude and job performance generally deteriorated from 1992 until September 1996, when she was suspended and dismissal proceedings instituted. The evidence presented by the School Board is sufficient to establish that Ms. Scott's job performance was deficient in that she failed to perform or inadequately performed her assigned job responsibilities; that on numerous occasions she refused to comply with requests and direct orders from the head custodian, from the assistant principal, and from the principal of South Dade; that she accumulated excessive unauthorized absences; and that she abandoned her position with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County issue a final order terminating Gale Scott's employment. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
Findings Of Fact Tracy Tashanna Jackson is a 13-year-old, and Tammy Terrell Jackson is a 12-year-old, who were, until February 7, 1979, assigned respectively to the eighth and seventh grades at Miami Edison Middle School in Miami, Florida. On February 7, 1979, an incident occurred at Miami Edison Middle School which resulted in both students being reassigned to Jan Mann Opportunity School North. At the time of this incident, the two students had been attending Miami Edison Middle School for only approximately one month. On February 6, 1979, one day prior to the incident which gave rise to this proceeding, the students were threatened by another student who allegedly was a member of a group of students popularly known as the "Graveyard Gang." Upon receiving the throat, the students went to the office of the Assistant Principal and advised him that they expected trouble from these other students. The Assistant Principal essentially advised the students to attempt to avoid any confrontation. However, on the afternoon of February 6, 1979, while Tammy and Tracy Jackson were on their way home from school, they encountered the students who had threatened them, and a fight ensued. After the fight, Tracy and Tammy Jackson were advised by the other students that the fight would continue the next day at school, that these other students would have knives, and that Tracy and Tammy Jackson should come prepared. When Tracy and Tammy Jackson and their brother stepped off the city bus in the vicinity of Miami Edison Middle School the next morning, they were met by a large group of other students. Apparently, some member of this group struck Tracy and Tammy Jackson's brother, at which point Tracy and Tammy Jackson first displayed knives which they had brought with them from home. According to the testimony of Tracy and Tammy Jackson, which is not controverted, this was the first and only time that they had attended school armed with knives. The entire group of students apparently began milling around but proceeded generally in the direction of the main school building. At this point, Freddie Robinson, the Assistant Principal at Miami Edison Middle School, noticed the crowd of students, and proceeded into the crowd on the assumption that a fight was occurring. Upon being advised that Tracy and Tammy Jackson were armed with knives, Mr. Robinson managed to direct the students into the main school building, down the hall and into the Counselor's office. At all times during those movements, the Assistant Principal and the students were surrounded by a milling group of hostile students apparently intent on prolonging the confrontation. According to the Assistant Principal, at no time did either of the students display their knives in a threatening or offensive manner, but were instead attempting to defend themselves against attack. At some point in this process, the Assistant Principal was joined by George Thomas, a teacher at the school, who attempted to assist Mr. Robinson in disarming the girls. Mr. Thomas managed to remove the knife from the possession of Tammy Jackson without incident, but when Mr. Robinson grabbed the arm of Tracy Jackson, that student, in attempting to break free, inflicted what appears to have been a minor wound to Mr. Robinson's forearm. Mr. Robinson testified, without contradiction, that it appeared to him that the student did not intentionally stab him, but inflicted the wound accidently in the process of attempting to break free from his hold. On February 22, 1979, both Tammy and Tracy Jackson were reassigned from Miami Edison Middle School to Jan Mann Opportunity School North as a result of this incident. There is nothing in the record to indicate the procedures by which this assignment was accomplished. It is, however, clear that the students never attended Jan Mann Opportunity School North, but were instead held out of school by their mother. As a result, February 7, 1979, was the last day on which these students attended school during the 1978-79 school year. The incident which occurred on February 7, 1979, was the only incident of disruptive behavior in which Tracy and Tammy Jackson have been involved while enrolled in the Dade County Public Schools. The other students involved in the fight with them, however, had been suspended from school on several occasions for fighting and disrupting classes. There is no evidence in the record in this cause concerning Tracy and Tammy Jackson' grades from which any determination could be made that they have been unsuccessful in the normal school environment. Likewise, the record is devoid of any testimony regarding their lack of attendance in the regular school program. Although the students did not attend Jan Mann Opportunity School North after having been assigned to that facility, there appears no evidence of record concerning the programs available at that institution in which the students would have been enrolled had they chosen to attend. In addition, although there exists some testimony concerning a very commendable Dade County School Board policy against the possession of knives on campus at any school in Dade County, no such written policy was offered into evidence at this proceeding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That a final order be entered by the Dade County School Board reassigning the students, Tammy Terrell Jackson and Tracy Tashanna Jackson, to the regular school program in the Dade County School System. Recommended this 17th day of July, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mrs. Jerry D. Jackson 2340 NW 73rd Terrace, #12 Miami, Florida 33147 Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Ludwig J. Gross Executive Director Division of Student Services Dade County Public Schools 5975 East 7th Avenue Hialeah, Florida 33013 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 Michael Neimand, Esquire 3050 Biscayne Boulevard Miami Florida, 33137 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY CASE NOS. 79-709, 79-710 MRS. JERRY D. JACKSON, on behalf of minor child, TAMMY TERRELL JACKSON, Petitioner, vs. CASE NO. 79-709 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / MRS. JERRY D. JACKSON, on behalf of minor child, TRACY TASHANNA JACKSON, Petitioner, vs. CASE NO. 79-710 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting on August 22, 1979, upon the Hearing Officer's findings of fact, conclusions of law, and recommended order, recommending that Tammy Terrell Jackson and Tracy Tashanna Jackson be reassigned to the regular school program in the Dade County school system. IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that the Hearing Officer's findings of fact, conclusions of law and recommended order are adopted with the following modifications: 1. The Hearing Officer's Conclusions of Law are modified by deleting paragraph 7 and substituting the following therefor: 7. F.A.C. Section 6A-1.994 provides: "6A-1.994 Educational alternative programs. Definition. Educational alternative programs are programs designed to meet the needs of students who are disruptive, dis- interested, or unsuccessful in a normal school environment. The educational alter- native may occur either within the school system or in another agency authorized by the school board. Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) or more of the criteria prescribed below as deter- mined by grades, achievement test scores, referrals for suspension or other discipli- nary action, and rate of absences. (a) Disruptive. A student who: Displays persistent behavior which inter- feres with the student's own learning or the educational process of others and requires attention and assistance beyond that which the traditional program can provide; or Displays consistent behavior resulting in frequent conflicts of a disruptive nature while the student is under the jurisdiction of the school either in or out of the class- room; or Displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population." (emphasis supplied) 8. The petitioners have both displayed "dis- ruptive behavior which severely threatens the general welfare of the student or other members of the school population." Meeting this criteria is sufficient grounds for placement in an educational alternative program. Accordingly, they are properly, and in their own best interests, assigned to Jan Mann Opportunity School North. There is no evidence that this assignment is punitive rather than positive in nature. 2. The Hearing Officer's recommendation is, therefore, rejected, and the assignment of Tammy Terrell Jackson and Tracy Tashanna Jackson to Jan Mann Opportunity School North is affirmed. DONE AND ORDERED this 22nd day of August, 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By: Phyllis Miller, Chairman
The Issue Whether respondent should be dismissed from his employment with the School Board of Dade County and his teaching certificate disciplined for alleged incompetency, gross insubordination, immorality and misconduct in office.
Findings Of Fact Respondent is a continuing contract teacher with the Dade County Public Schools. During the 1979-80 school year, he was employed at Miami Killian Senior High School. He had been invited to teach at that school by Principal Harold Knott, who had known him in the past and had been impressed with his abilities as a physical education teacher. Commencing in the fall of the 1979-80 school year, respondent did not properly record student grades. The Killian teacher's handbook required teachers to, weekly, record two grades in their grade books for each student. As of November 29, 1979, respondent had recorded no grades for any student, although November 2 was the end of the nine-week grading period and all teachers were expected to have their grades recorded by that time. The result of this omission was that no grades could be reported on the progress reports which were sent to the parents of respondent's students. Several parents called the school, complaining that their children's progress reports contained no grades for respondent's class. As a result of respondent's omission, Principal Knott directed him to call each of the parents and explain why the grades were absent. Mr. Knott then went to each of Williams' classes and graded the students himself based upon what the students told him and on the available records. Respondent was the only teacher during that time who failed to record his grades at Miami Killian Senior High School. 1/ A conference was called to discuss this matter on December 3, 1979. At that time, respondent stated that his grades would be turned in the next day. They were not. Because of respondent's failure to record grades and because of other difficulties he was having in fulfilling his obligations as the head of the Physical Education ("PE") Department, Mr. Knott assigned Assistant Principal Robert Snyder to monitor his performance. Mr. Snyder met with respondent between eight and twelve times regarding his failure to record grades and asked him several times to bring copies of his grade cards and records for his (Snyder's) review. Respondent failed to comply with this request and on January 28, 1980, Mr. Snyder wrote him a memorandum directing him to bring his grade books and attendance cards to his (Snyder's) office at the end of the week. Respondent did not comply with this written directive and Mr. Snyder never saw his grade cards. On one occasion when Mr. Snyder was discussing respondent's grade cards with him, respondent stated that the grade cards were in his (respondent's) office. They both proceeded to the office, and, when they arrived at the office respondent stated that the grade cards had been stolen. In addition to his failure to report grades, respondent failed to attend department head meetings and often did not attend faculty meetings. Many of the teachers in the PE department were concerned that he was not working with them. In March, 1980, respondent planned a field trip to attend track relays at Winter Park, Florida, without first obtaining the principal's permission. This was another violation of school policy. (Petitioners' Exhibits Nos. 10 and 11). There were times when respondent was absent from his regular teaching duties but, after the school day was over, he would report to handle his coaching responsibilities. Mr. Knott began to suspect that respondent's coaching responsibilities were more important to him than his teaching duties. During the course of the 1979-80 school year, respondent was gradually relieved of many of his duties because of performance deficiencies. On November 29, 1979, he was removed as PE Department head. On June 10, 1980, he was relieved of his assignment as head track coach. At the end of the school year, Principal Knott evaluated him as unacceptable in the areas of assessment techniques and professional responsibility. (Petitioners' Exhibit No. 13) Respondent maintains that he was the object of a vendetta because he refused to assist Principal Knott in an alleged effort to transfer or terminate several coaches at Miami Killian. This alleged effort to transfer or terminate other coaches, however, took place during the 1978-79 school year, when respondent received an acceptable evaluation from Principal Knott. In any case, the coaches who respondent alleges were the subject of Principal Knott's efforts still coach at Miami Killian Senior High School. Mr. Knott's denial that he made an effort to transfer or dismiss them is persuasive. Mr. Knott stated that the students were sometimes afraid of respondent. One incident took place between Joseph Bellow, a student, and respondent in the spring of the 1979-80 school year at Miami Killian Senior High School. An argument had ensued between them. Respondent screamed at the student, suddenly grabbing him and throwing him up against a gate or wall. He taunted the student to hit him back but Joseph refused, stating "I can't fight you. I'm a kid. I mean, you will hurt me." Joseph suffered minor injuries from the assault, including back, head and neck pains. Of more concern to Joseph, however, was the fact that he had been embarrassed. He dropped out of high school soon after the incident. One of his reasons for leaving was that he did not wish to confront respondent again, although his resolve to finish high school at that time was not particularly strong. Beginning with the 1980-81 school year, respondent was transferred to Redland Junior High School under the supervision of Principal Norman Lindeblad. Mr. Lindeblad had been aware of the outstanding job done by Williams with students in the Richmond Heights community from 1969 to 1972. However, when respondent arrived at Redland, he (respondent) appeared to be a bitter and angry person. During the 1982-83 school year, Principal Lindeblad observed what appeared to be irrational behavior by respondent. On October 11, 1982, respondent was involved in an incident with student James Santana. Respondent and James were arguing in the locker room, when respondent said, "Let's get down with it", or words to that effect. Respondent and James walked toward the adjacent elementary school parking lot, with respondent leading. At the lot they exchanged punches. Respondent then grabbed James by each side of his head and threw him up against a car. James' shirt was ripped, and there was blood on his mouth. James proceeded to Principal Lindeblad's office where he described the incident. He stated that he and respondent had exchanged words in the school locker room and that respondent had invited him to leave the school grounds so they could handle the problem "man-to-man"--where respondent was not a teacher, and James, not a student. Respondent was summoned to the office where he admitted that he had directed James to go to the elementary school parking lot. This is a violation of school rules in that students are not permitted to leave the school premises without signing out at the central office. Respondent also admitted that he had picked up James and "put him on a car." 2/ Principal Lindeblad observed that a few days earlier, respondent had made a similar statement to another student, to wit: "Let's go out in the street, where I am not a teacher and you are not a student, and we will settle this like men." Mr. Lindeblad felt that a psychiatric evaluation was necessary before respondent could continue his teaching duties. As a result of the incident and Mr. Lindeblad's recommendation, Dr. Desmond Patrick Gray, Executive Director of the School Board's Division of Personnel Control, arranged for a psychiatric evaluation of respondent by Dr. Robert Wainger. It was explained to respondent that, should he wish to obtain a second medical opinion, the School Board would consider it in addition to Dr. Wainger's. The examination was scheduled for October 26, 1982, but respondent did not keep the appointment. Instead, he called Dr. Gray and argued about his right to obtain a second opinion. Since he had not yet obtained the first opinion, this appears to have been an effort to delay or forestall the examination by Dr. Wainger. Respondent was finally evaluated by Dr. Wainger on November 9, 1983. Dr. Wainger concluded that respondent was suffering from a mixed personality disorder with a variety of problems, including insecurity and fears of inadequacy. Dr. Wainger found that respondent's ability to respond to stress was impaired and that he would, at times, engage in erratic behavior when under stress. He concluded that respondent needed psychiatric help on an ongoing basis, since his ability to function had deteriorated over the last couple of years. Without this therapy, Dr. Wainger concluded, further incidents of the type which had led to the medical evaluation would inevitably recur. He recommended that, should the School Board reinstate respondent, such reinstatement be concurrent with psychiatric treatment. Respondent was advised of these psychiatric findings and that his return to work was conditioned upon his initiation of an ongoing psychiatric treatment program. He was given full discretion as to the professional with whom he would initiate treatment and the type of treatment. On December 16, 1982, he agreed to undergo the necessary psychiatric treatment program. Yet, as of December 29, 1982, he had not obtained any such psychiatric help and notified Dr. Gray's office that he would not do so until he was so ordered in writing. Dr. Gray sent respondent the requested written order on January 5, 1983. 3/ Dr. Gray also advised him at that time that he was absent without leave, since he had not complied with the agreed upon condition for his return to work and he was no longer drawing sick leave. He had been advised, however, that he could request a leave of absence and that failure to do so (or to return to work upon satisfying the precondition) would constitute absence without leave. Respondent eventually decided to attend counselling sessions with Dr. Evalina Bestman. At his initial appointment with her on January 13, 1983, she obtained background information. This was approximately a one-half hour meeting. Based on the fact that he had scheduled another appointment, Dr. Bestman advised the school system that he was being treated by her, he returned to work on January 18, 1983. Subsequently, respondent was 45 minutes late for his first one-hour appointment with Dr. Bestman. Another appointment was scheduled, and again he arrived 45 minutes late. Dr. Bestman scheduled a third meeting for February 2 at 4:30, and he did not attend. Dr. Bestman then wrote a letter to the Division of Personnel Control stating that Leo Williams was no longer receiving treatment from her. Although Dr. Bestman stood ready to provide psychiatric counselling for respondent, he received no counselling from her because he failed to attend the sessions. (Dr. Bestman concluded that Mr. Williams may have been resistant to counselling.) When confronted with his failure to attend Dr. Bestman's counselling sessions, respondent stated that he had not attended the sessions because of transportation problems. He acknowledged, however, that he resisted receiving counselling at that time. On March 14, 1983, two further incidents involving respondent occurred at Redland Junior High School. Early in the morning on that date, respondent encountered a 13-year-old female student, Crysta Mullis, in the hallway of the school. He directed her to go to his office. When she arrived, he asked her about her parents and her school work. Then, he physically embraced her. She left the office and went to her PE class. When she arrived at the basketball court, respondent motioned her to come to the back door of the boys' locker room. She complied, and the two of them walked back into his office. He then shut the door, hugged her, and kissed her on the lips. He tried to insert his tongue in her mouth. He then warned her not to say anything to the other students about the matter. She did not want to be hugged or kissed by respondent and she was frightened. She is still afraid of him. During her lunch hour, Crysta told Assistant Principal Dobson of the incident, and subsequently reduced the matter to writing. That same day, Assistant Principal Judy Cobb tried to talk to him about his refusal to write out a referral regarding two students who had been in a fight and his failure to be in his assigned class when a male student shoved a female student. The parents of the female student had complained of improper supervision. At first respondent refused to speak with Ms. Cobb unless a union representative was present. When the attendance of the union representative was secured, he decided to come for a conference while he had a class, although Ms. Cobb had said that they should confer after school when it would not interfere with his class activities. Respondent proceeded to the main office where he yelled, "Don't have Ms. Cobb say anything to me. I don't want to hear anything from that lady." Secretaries and students were present and listening. Principal Lindeblad asked him to go into his office, but he refused. Respondent then asked if he was being insubordinate and Lindeblad replied, "Yes"; respondent replied, "Good." Respondent was directed three times to go into the principal's office, and refused--three times. Finally, respondent entered the principal's office where he was asked to close the door. He said he was not the principal's flunky and would not close the door. Ms. Cobb entered and closed the door. Respondent's conduct during the conference was unprofessional and rude. He began to shout that Ms. Cobb was a flunky and was working for the devil; that he was not going to take directions from her. Principal Lindeblad told him that Ms. Cobb was the assistant principal and had the authority and responsibility to handle the duties of that office. Due to respondent's behavior, Mr. Lindeblad relieved him of his duties for the rest of the school day. Respondent demanded the directive in writing and Mr. Lindeblad complied. Dr. Gray told respondent not to report to Redland the next day, but to report directly to Dr. Gray's office for a conference. The scheduled conference took place in Dr. Gray's office on March 15, 1983. Shortly after the meeting began, respondent announced that he was resigning. His union representative asked to speak to him privately first. Respondent replied, "No, you don't tell me what to do," (TR-I, 144, 207, TR-II, 38) and left the conference. (TR-I, 144, 207, TR-II, 38) He subsequently rescinded the oral resignation. On March 30, 1983, the School Board suspended respondent and instituted dismissal proceedings against him. Subsequently, Dr. Gray was informed that respondent was visiting the school campus and threatening the staff. Accordingly, he wrote respondent a letter dated May 6, 1983, advising him that requests for information should come to his office and that respondent should remain off the grounds of Redland Junior High School. Respondent was advised that he would be subject to arrest if he entered school grounds again. One of the actions precipitating Dr. Gray's letter was respondent's visit to the campus on May 5, 1983. At that time, Principal Lindeblad attempted to speak to him. Respondent ignored him, stating that he would speak to him only through his lawyers. Mr. Lindeblad then told him not to come on the school grounds again and that, if he did, he would be arrested. Respondent responded that he had been in jail before and was not afraid of the police. An argument ensued, with respondent challenging Mr. Lindeblad by saying, "If you come across the street, we can settle this now. We can settle this man to man." He further stated, "When I get through with you, you will be very sorry. I'm going to throw off all of your pretty tricks." Then he turned to Assistant Principal Cobb, who was also present, and stated, "And you too, if you don't stop being his flunky." (TR-I, 146-148, 208, 209) Later on that day, Officer Douglas Reese and her partner responded to reports of an aggravated assault and burglary. Upon arriving at the scene, the officers encountered a group of eight to ten people who were Jehovah's Witnesses. They said he had approached them in a vehicle and called them prostitutes. He said he was going to kill all the prostitutes, and attempted to run them over with his vehicle, which subsequently crashed into a parked motorcycle next to the side of a house. He exited his vehicle and attempted to enter two residences, then entered a third residence which belonged to the Salle family. Kathleen Salle was in her home at the time and heard a loud noise outside, as though one car was colliding with another. A few moments later, there was a loud, frantic banging on her front door. She went to the front window to see who was outside. She saw no one at the door, but saw respondent knocking on the bedroom window. He came back to her front door and told her that she was a prostitute and operated a prostitution ring in her house. He also stated that there was a black man in bed in her bedroom. He yanked the door out of her hand and entered her house. He continued to call her a prostitute and said that he knew that the neighborhood was a prostitution ring. She asked him to leave, but he did not. Although Ms. Salle had never seen respondent before, he advised her that he was "Coach Williams." When respondent headed toward her bedroom, Mrs. Salle picked up her three-year-old daughter and ran out of the house. Respondent took a pillow with a Star Wars pillowcase and a Star Wars poster from her son's bedroom, along with a racoon tail. After he yanked the pendulum off a clock, he left the house. Respondent then proceeded to the nearby Patton residence. He wrapped a garden hose around Mr. Patton's boat and was going through the glove compartment of his (Patton's) vehicle when Mr. Patton came on the scene and asked him what he was doing. Respondent stated, "I'm going to blow your ing boat up." Mr. Patton said he didn't know who respondent was but demanded that he get off his property. Respondent continued to rant about blowing up the boat and killing the prostitutes, and told Mr. Patton that the whole thing was being filmed. Mr. Patton became alarmed. He went inside his house, and returned with his 38-caliber handgun. He told respondent that if he did not get off his property, he would call the police. Respondent replied that guns did not scare him, then charged Mr. Patton, who shot him in the left leg. At approximately this time, the police officers approached and respondent warned, "Don't ----ing touch me. Just get the ---- away from me or I'll ----kill you." He continued to shout obscenities and threatening violence toward prostitutes and others in the vicinity. Finally, he stated, "I'm going to have one hundred ----ing niggers here tonight and we'll burn this ing town down. We're going to have a ----ing riot, worse than you've ever seen." Although Officer Reese placed him under arrest, respondent continued to resist. Officer Reese did not institute Baker Act proceedings against respondent because he felt respondent understood everything that was going on at the time. There were approximately 50 citizens watching this entire incident. (TR-II, 70-79) Ms. Salle was shocked that a public school teacher would act in this manner. Respondent did not come on the grounds of Redland Junior High School again until June 8, 1983. In the interim he made numerous harassing telephone calls to the school and finally attempted to confront Vice Principal Cobb at her home at night. Ms. Cobb was frightened by him and still is. On June 8, 1983, respondent again entered the grounds of Redland Junior High School, where he again challenged Principal Lindeblad to come across the street and settle their differences. Officer John Truitt had been assigned to the Redland Junior High School school grounds because of past threats made by respondent toward the school faculty. He was called by Principal Lindeblad at approximately 2:40 P.M. on that day and was advised that respondent was on school property. Officer Truitt went to the rear of the school and saw respondent in the school driveway. When he approached, respondent went across the street and refused to speak to him. At that point, respondent threatened Principal Lindeblad, and challenged him to come across the street. Respondent was then taken into custody and became unruly, using profanity toward Principal Lindeblad. He was placed in the back of a Metro Dade police car because he had kicked the door of Officer Truitt's car, and the car did not have a protective device to separate the officer from respondent. While respondent was shouting obscenities across the street from the school, the school was letting out and students were present. At one time, respondent was a good teacher. For almost 20 years he served the Dade County School System as a capable and responsible teacher. He became recognized as a pillar of the community (Richmond Heights), and his accomplishments, particularly in the field of PE, were many. However, due to numerous personal and other problems, his performance began to deteriorate during the 1979-80 school year. By his own admission, in November of 1979, he was diagnosed as suffering from "burnout" or stress. It was about this time that he was also having marital problems, resulting in a divorce. He has been hospitalized numerous times, including one at Miami Mental Health Center and Crisis Intervention, which resulted from Baker Act proceedings instituted by his wife. He was, however, promptly released from the Center. He was also hospitalized at P. L. Dodge Memorial Hospital for emotional problems in August of 1981. He once checked himself into Highland Park Hospital for four days. He is currently seeing a Dr. Miller, whom he first saw when ordered by a criminal court after his arrest on May 5, 1983. Subsequent to that first meeting, he has had three sessions with Dr. Miller. One of these sessions involved a social worker and nurse, and Dr. Miller was not present. Respondent now acknowledges that he has mental or emotional problems. Yet he resists accepting responsibility for his actions. And he has failed to actively seek and obtain psychiatric help. The school system has made reasonable efforts to help him with his emotional and other problems. These efforts, however, have been to no avail. Dr. Gray testified that respondent presently lacks the ability and fitness to discharge the required duties of a school teacher, an opinion which is supported by the evidence and accepted as persuasive.
Recommendation Based on the foregoing, it is RECOMMENDED: That the teaching certificate of respondent be revoked by the Education Practices Commission; and That suspension of respondent by the School Board of Dade County be sustained and that he be dismissed from his employment and forfeit all back pay. DONE and ENTERED this 1st day of June, 1984, at Tallahassee, Florida. L. CALEEN, JR. 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 1st day of June, 1984.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of November, 2016.
Findings Of Fact The Respondent, Harvey R. Steckler, holds Teacher's Certificate No. 520419 issued by the State of Florida, Department of Education. This Certificate covers the area of substitute teaching. On February 5, 1985, the Respondent was employed as a substitute teacher at Brownsville Junior High School in the Dade County Public School System. On February 5, 1985, while substitute teaching in a physical education class, the Respondent was conversing with a group of minor male students. During this conversation, a minor female student passed the Respondent and the group of students. While looking at the female student, the Respondent began to make sexual remarks about her. She could hear portions of these remarks, such as "Oh, she's so fine; he had a girl on his boat and liked to eat her out; you wouldn't mind getting to her; he would like to eat her out," and other sexual comments. These remarks were also overheard by the boys in the group, as well as by the female student. The female student went to the school office and told the Principal and the Assistant Principal about the incident. They suggested to her that she write out a report on the incident, which she did. The Respondent's remarks caused the female student to be both nervous and frightened, as well as embarrassed. When the Principal of Brownsville Junior High reported this incident to the Dade County school system, the Respondent was informed that his name had been removed from the approved list of substitute teachers, pending further notice. After an investigation and several conferences, the Respondent's name was permanently removed from the list of authorized substitute teachers in the Dade County public school system. On April 24, 1985, the Respondent appeared before a publicly televised meeting of the school board to appeal the removal, but the school board took no action to reinstate him. The nature of the incident described above, together with the awareness of the incident on the part of students, staff, parents and the community, because of its publicity, so impaired the Respondent's effectiveness as a substitute teacher and as an educator, that the school board could not re-employ him in any capacity in the Dade County public schools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Teacher's Certificate No. 520419 held by the Respondent, Harvey R. Steckler. THIS RECOMMENDED ORDER ENTERED this 17th day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 17th day of June 1987. COPIES FURNISHED: William E. Williams, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Mr. Harvey R. Steckler 825 82nd Street Miami Beach, Florida 33141 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney Moenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
The Issue This is a challenge to action of the Gilchrist County School Board in its act of abolishing the Petitioner's employment position with the School Board as Occupational Specialist. In particular, Petitioner alleges that this action constituted rule within the meaning of Section 120.-52(15), Florida Statutes. Further, it is alleged that that rule activity did not comply with the procedural requirements set forth in Section 120.54, Florida Statutes. Finally, Petitioner claims that the rule enactment or activity was arbitrary and capricious.
Findings Of Fact The parties have agreed by stipulation in the course of this hearing that the entire record, to include testimony and exhibits presented in the companion case, Hazel Bowdoin v. School Board of Gilchrist County, Florida, D.O.A.H. Case No. 82-1375, becomes part of the record in this proceeding and may be utilized by the Hearing Officer in arriving at the decision in this cause. The parties have also stipulated to the standing of this Petitioner to challenge the alleged activity in the abolishment of the Occupational Specialist position as being a rule. The parties are satisfied on the subject of the notice of hearing as established in a stipulation entered into at hearing. In a concluding stipulation, the parties agree that the decision to abolish the position of Occupational Specialist held by the Petitioner was not a decision which complied with the formal rule-making procedures set forth in Section 120.54 Florida Statutes. Petitioner is the holder of a Rank III Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the Petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the Superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the Petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Bell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school as contrasted to the half-time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the superintendent of schools wrote to the Petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83, that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the-Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teachers's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu, of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the Petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Had Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately $65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 Schools year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
Findings Of Fact Prior to May 18, 1977, the Respondent was employed by the School Board as a driver education teacher and head football coach at Miami South Ridge High School. At approximately 3:00 A.M. on May 15, 1977, the Respondent left his home in Miami, Florida, and drove to the back of a business located at 7211 S. W. 40th Street in Miami, Florida. John F. Allen operates a boat, motor, and trailer sales, service, and repair business at that location. In the back of the building there is a work area that is surrounded by a chain link fence. Customers' boats and motors are stored in this area while work is done on them in the shop. The Respondent walked down an alleyway along the fenced area, and climbed over the fence. He removed an outboard motor from a boat, and pulled it away from the boat toward the fence. The Respondent did not work in the boat yard, and he was not authorized to be there after regular business hours. There was no direct evidence as to the Respondent's intentions. The circumstance of his being in the fenced in portion of the boat yard at between 3:00 A.M. and 4:00 A.M. and the circumstance of his removing an outboard motor from a boat, and carrying it toward the fence, lead inescapably to the conclusion that the Respondent was seeking to steal the engine. The Respondent did not remove the engine from the boat yard. For unknown reasons, he abandoned his effort to steal the engine and left the boat yard. The Respondent was not armed with any weapon, and no other person was in the boat yard while he was there. The outboard engine which the Respondent was attempting to steal was a 40 horsepower Johnson outboard engine. The weight of the engine is approximately 140 pounds. The engine has a wholesale value of approximately $250. Even if the engine were in the worst possible operating condition, it would still be worth approximately $150. While the Respondent was in the boat yard, two police officers employed by the Dade County Public Safety Department were undertaking a routine patrol of the area in an unmarked car. They observed the Respondent's automobile parked adjacent to the boat yard. One of the officers walked along the chain link fence in back of the boat yard and observed the Respondent inside the yard holding an engine. There was heavy vegetation along the fence, but the police officer was able to see through it at one point. The officer went back to his car, and told his partner what he had witnessed. Shortly thereafter the Respondent came out of the alley, got into his car, and drove away. The police officers turned on a flashing light in their car, pulled up behind the Respondent's car, and stopped him. The Respondent was placed under arrest. The police officer read the Respondent his rights from a "Miranda card". During interrogation after the arrest the Respondent pointed out the motor that he had removed from the boat, and told the officers were he had gotten it. The Respondent was then taken to a police station where he was fingerprinted, and later released on bail. A criminal action is now pending against the Respondent in the courts in Dade County. Tools of a sort which could have been used in perpetration of a burglary were found in the Respondent's pockets and on the floor of the Respondent's automobile by the police after they stopped him. There was no evidence presented that these tools were used by the Respondent in breaking into the boat yard or in removing the outboard engine from the boat. There was no evidence that the Respondent intended to use the tools for these purposes. There was evidence presented that the tools were put in the automobile by a friend of the Respondent's wife. There is insufficient evidence from which it could be concluded that the Respondent intended to use the tools to commit any trespass or burglary. The School Board acted promptly to suspend the Respondent from his position at South Ridge High School. The instant proceeding ensued.
