Findings Of Fact During the 1993/1994 school year, the Respondent, Alan Davis, was in his 12th year teaching eighth grade science at Meadowlawn Middle School in St. Petersburg, Florida. He is on a professional services contract. He has a good record and reputation as science teacher at the school and no prior disciplinary problems (or even accusations against him.) The Respondent's classroom was located on the east wall of the school building, at the intersection of two interior hallways to the north and west of the classroom. There is a classroom door to the outside to the east, and the entire east wall of the classroom consists of windows looking across a walkway directly onto portable special education classrooms. There are vertical blinds that can be drawn across the windows and closed. The blinds usually are drawn but not closed. There is a classroom door to the hallway to the west of the classroom. Immediately across the intersecting hallway to the north of the classroom is the door to the teachers' lounge. Immediately past the intersecting hallway to the north is the door to the office of the school resource officer. Immediately past the resource officer's office, only approximately 25 feet from the door to the Respondent's classroom, is a suite of offices belonging to the school principal and other school administration personnel. Kim Wilder was an eighth grader at Meadowlawn during the 1993/1994 school year. She was in the Respondent's fourth period science class. Through about half of the year, she enjoyed a good record and reputation as a pupil of the school. Her grades were A's and B's, and she was not a disciplinary problem. However, several people noticed a change in her behavior in the middle of the school year. Her relationship with her parents deteriorated somewhat, and she sometimes displayed an attitude of not caring about family or school. The beginning of these changes in Kim roughly coincided with her friendship with a boy named Gilbert, who was a poor student, both in academics (he had to repeat grades) and in conduct. Gilbert also later began to spread rumors that he and Kim allegedly were sexually active. Such rumors came to the attention of interested and concerned teachers, one of whom alerted Kim's parents. Kim's parents became convinced that Gilbert was a bad influence on Kim and that she would be better off not seeing him. They refused to allow him to visit at their home, and they insisted that she stop seeing him. This created a conflict between Kim and her family. In the course of conversations with some girl friends approximately the end of March or beginning of April, 1994, Kim disclosed that she had been sexually assaulted by the Respondent. Initially, she told one of her friends only that the Respondent had "felt on" and "kissed" her. She told others additional details. But the first three friends she told did not recall any allegation that the Respondent performed oral sex on Kim. In later retellings, Kim added that allegation. In one later retelling, she added the allegation that the Respondent felt her breasts. Kim forbade her friends to tell anyone about her allegations. But one of her friends disclosed the allegations, and school authorities were informed on or about April 8, 1994. When Kim learned that the school authorities were investigating her allegations, she was very upset and angry at the friend who disclosed her confidences. When the school authorities confronted Kim, she maintained that her allegations were true, and the school authorities brought her home from school. Kim's parents were not home but her sister-in-law, who lived next door, was home and spoke with Kim. Based on the sister-in-law's testimony, it does not appear that Kim's statement to her was very detailed. Although Kim and her parents reported that they generally have an open and communicative relationship, Kim refused to discuss the allegations with them when they came home from work. Instead, she referred her parents to her sister-in-law. Through at least August 26, 1994, Kim had not discussed the details of her allegations with her parents. (They have, however, read statements she has written concerning the allegations.) Law enforcement interviewed Kim at her home on April 8, 1994, and memorialized the interview in a written statement. On June 21, 1994, Kim wrote an account of the alleged assault by the Respondent. Kim also recounted the entirety of the alleged assault twice during testimony at final hearing, once on direct and again on cross; parts were repeated once more on redirect. All of these statements are replete with rich detail, making them seem real. However, with one noteworthy exception, the consistent precision with which the details are repeated seems unnatural and could give the impression of being recited from a memorized script. Before her fourth period science class on Friday, December 10, 1993, the Respondent told her that her mother had telephoned the Respondent earlier that morning to inquire about the C on her report card for the second grading period (after getting an A for the first grading period) and that the Respondent had told Kim's her mother that Kim was missing seven assignments. The Respondent told Kim that she could get the assignments, together with the book she needed to do them, after school. (The required book would not be available until after school because the Respondent's classes shared the use of the same books during class.) Meanwhile, in the detailed versions of her allegations, Kim stated that she was jokingly bantering with a friend and the Respondent about whose "man" the Respondent was, as they did from time to time. She stated that, on this occasion, the Respondent informed them that he was "a dirty old man." She stated that she and her friend did not take the Respondent's statement seriously. Kim stated that, after school ended at about 3:50 p.m. on Friday, December 10, 1993, she went to the Respondent's class room to get the make-up assignments. She testified that she would have arrived at approximately 4 p.m. She said the Respondent was straightening desks and that she helped him finish before sitting in one of the desks. She stated that he then asked her if she had come by to see if he really was a "dirty old man." She made an off-hand comment to the effect, "I guess," or "whatever." He then walked to the classroom door and shut it. Several of the witnesses, including her friends and her sister-in-law, testified that, when Kim first told them what happened, she said that the Respondent locked the classroom door. The report of the law enforcement interview on April 8, 1994, also indicated that Kim told law enforcement that the Respondent locked the door. In fact, the classroom door does not lock from the inside. In her June 21, 1994, statement and in her testimony at final hearing, Kim stated that she thought the Respondent locked the door. Kim alleged that, after shutting (and, in the early versions, locking) the door, the Respondent put a poster with a monkey on it over the window portion of the door and dragged an easel with a flip chart in front of the door, apparently to block access to the classroom or, at least, to serve as an alarm to give him some time to react in the event someone tried to enter the classroom. There was indeed a poster of a monkey (or chimpanzee) on display in the Respondent's classroom that year, and there also was an easel in the classroom that would have been at the Respondent's disposal. But, in fact, the classroom door opens into the hallway, not into the classroom, and the placement of the easel in front of the door would not have been very effective. It is possible that it was the Respondent, not Kim, who overlooked the manner in which the door opened. But, even if the classroom door had been locked or blocked, the Respondent's classroom was adjacent to another science classroom, and there is a door between the two classrooms that does not lock. Ordinarily, it would not be uncommon for the Respondent's fellow science teacher, as well as a few students, to be in the adjacent classroom from 3:50 p.m. until as late as 4:05 p.m. In addition, administration personnel in the suite containing the principal's office and the other administration offices generally are occupied until 4:30 p.m., or later, even on a Friday. Custodians also circulated through the building after school (although they generally did not clean the Respondent's classroom until later.) Fortuitously, it has been possible to deduce, from some of the details provided in Kim's allegations, the precise day on which the alleged assault occurred--Friday, December 10, 1993. It so happens that Friday, December 10, 1993, was the last day of the school science fair. There were approximately 200 projects on display in the school gymnasium, which was just down the hall from the Respondent's classroom. Entrants in the fair were required to dismantle and remove their projects after school that day. As a result, although both students and teachers generally leave the school building promptly on Fridays, and fewer after school activities usually are planned for Fridays, more than the normal number of students would have been in the hallway during the time immediately after the end of school on that particular Friday. In addition, the Respondent's fellow science teacher in the connecting classroom adjacent to the Respondent's had arranged with a handful of his students to allow them to dismantle their projects earlier in the day and store them in his classroom. These students would have been in the connecting adjacent classroom between approximately 3:50 and 4:05 p.m. picking up their science projects. Kim alleged that, after securing the classroom door, the Respondent returned to her and asked whether she thought he was a "dirty old man." She stated that, when she answered, "no, I think you are a nice guy," he suggested, "maybe you should go now," and went over to remove the easel and open the door. But, she alleged, when she insisted that she had to stay in order to get her assignments, he again went to the door and repeated the steps he had just taken to secure the door. This time, when he returned to her, he backed her into a corner of the classroom, using gentle pressure on the shoulders, and (in each telling, "putting his arm around her neck") began kissing her. Kim stated that she did not resist the Respondent or call for help because the Respondent was not being violent, and she was afraid that he would become violent if she was not compliant, so she kissed him back. She alleged that he proceeded to lift her ankle-length "peach and black floral print skirt" (which she was wearing with a "black, long sleeve V-neck shirt"), remove her panties (and, in each telling, she stepped out of the panties "with [her] right foot" while he held her panties) and insert his finger into her vagina. She alleged that he pressed down on her shoulders until she was in a squatting position, lay on his back on the floor and positioned his head under her, and initiated oral sex. After this, he allegedly stood her up, and resumed kissing her, while unbuckling his belt and unzipping his pants. She alleged that he took her hand and placed it on his penis. She alleged that, when he removed his hand from hers, she removed her hand from his penis. When she allegedly thwarted his attempt to have intercourse with her, he allegedly turned her around to face the wall, bent her over (somehow, towards the walls she was facing), again pulled up her skirt, and (as best she could tell) again attempted intercourse, this time from the rear (she alleged that she "felt something hard against her vagina"). Then, she alleged, she detected movement from behind her and assumed that he was masturbating and ejaculating because, when she turned around after the movement stopped, he was wiping something off the floor with a yellow towel. (A yellow cloth, from which a piece had been torn or cut, was found in one of the closets in the Respondent's classroom during the School Board's investigation of the allegations. But it was not proven that the cloth which the Respondent allegedly used to clean the floor on the afternoon of Friday, December 10, 1993, had come from the cloth found in the closet in the Respondent's classroom.) Kim alleged that the Respondent apologized to her for what he did and begged her both never to come back to his classroom alone after school and not to tell anyone. She alleged that the Respondent made reference to a teacher who was being disciplined for sexual misconduct with a student 20 years ago and stated that he always would be afraid that she would disclose what he had done. (In fact, such a story had been reported in the local newspapers on December 8, 1993.) Kim alleged that she promised the Respondent she would not tell anyone. According to Kim, after the incident, which lasted a total of 20-30 minutes, she and the Respondent calmly and amicably left the school together. They allegedly exited through the classroom door into the hallway to the west of the classroom, crossed the intersecting hallway, immediately down which is located the door to the teachers' lounge, and continued walking down the hallway. Immediately past the intersecting hallway, they would have had to pass both the office of the school resource officer and the suite of offices belonging to the school principal and other school administration personnel. A little further down the hallway, they would have passed between the school cafeteria and the school gymnasium (the site of the science fair). Just past the cafeteria and gymnasium, they would have come to the door leading to the parking lot. Kim stated that no one saw them and that they did not see anyone on their way out of the building. Kim alleged that, before she left the building to walk home, she watched the Respondent walk across the parking lot and get in his pickup truck. The Respondent testified that, after learning the date on which it was deduced that the assault allegedly occurred, he realized that it would have been impossible for Kim to have witnessed him getting into his pickup truck on the day in question. He testified that he was having mechanical problems with the truck that week and was driving his wife's car across the bay bridge to work after dropping her off at her place of employment in Tampa, where they lived, while his truck was being repaired. He produced a cancelled check and was able to secure a computer printout from the bill he paid for the repairs when he picked the truck up the next day, Saturday, December 11, 1993. Kim also testified that the Respondent left the "monkey poster" on the door covering the window when they left the classroom. But the custodian who cleaned the Respondent's classroom each evening did not recall ever seeing the "monkey poster" anywhere but on the wall. The Respondent denied engaging in any of the alleged inappropriate behavior. He was able to reconstruct that he had bus duty on Friday, December 10, 1993, and would not have returned to his classroom until 4 p.m. He recalled that there was an unusual amount of activity in the hallways, especially for a Friday, but that probably was attributable to the school science fair. He recalled that, as he approached his classroom, he noticed several students in the adjacent connecting classroom with his fellow science teacher. He thinks he saw Kim there, too. In any event, Kim followed him into his classroom shortly after he unlocked it, opened the door and turned on the lights. He remembered that she helped him straighten desks and that he sat at a desk with her to go over the assignments. He did not recall whether he or she actually wrote the assignments down. He then gave her the book she needed, and she left. He testified that the entire process took approximately five minutes and that the door to the classroom never was closed during that time. Kim alleged that, although she never completed the missing assignments, the Respondent raised her grade from a C to a B. The Respondent testified that Kim completed four of the seven missing assignments. The Respondent normally would not either keep the make-up assignments nor, to prevent other students from copying them, return them to the student. Kim alleged that the Respondent gave her special privileges, like library passes, after the assault. But it was not proven that the Respondent gave more privileges to Kim after the alleged incident than before, or that he gave her privileges that he did not also give to other good students like Kim. Kim alleged that the Respondent often complimented her appearance. The Respondent admitted to affirmatively answering occasional direct questions from Kim as to whether she was pretty. He also recalled occasions when he told Kim and other female students that they were "pretty enough already" and did not need to (and should not) comb their hair and apply makeup in class. Kim alleged that, on one occasion, the Respondent commented that a low-cut blouse she was wearing was distracting. The Respondent recalled once reprimanding Kim for wearing a blouse that was revealing and in violation of school dress code. He admitted that he may have told her that it could be distracting to other students. The Respondent admitted to making an inappropriate comment to or about Kim on one occasion. The school assembled in the gymnasium one day for the introduction of a fund-raising campaign that featured a "money machine." The money machine consisted of a transparent booth with dollar bills inside. As part of the fund-raising campaign, students would be allowed to enter the booth while fans blowing air through holes in the floor of the booth blew the dollars bills off the floor and around inside the booth. The student inside had a limited period of time to grab as many dollar bills as possible. When volunteers were requested to demonstrate the "money machine," Kim thought better of it since she was wearing a skirt. The next day, in the Respondent's class, the Respondent asked Kim why she hadn't volunteered. When she answered that she was wearing a skirt and was concerned that air in the booth would have lifted her skirt, the Respondent commented aloud to the class, "that would have been interesting," or words to that effect. The Respondent was trying to be funny but admitted that the comment was not appropriate. It is noteworthy that, when the Respondent was told that Gilbert was spreading rumors to the effect that he and Kim had an intimate sexual relationship, the Respondent warned Kim to take appropriate steps to protect her reputation. It was revealed during the course of the investigation into Kim's allegations against the Respondent that Kim also has made allegations that, during the summer of 1993, she was forcibly raped at two in the morning, in the bathroom of a restaurant, by a 24-year old male acquaintance. Although Kim's mother thought she remembered Kim returning home upset after the alleged incident, she also testified that she may have learned about it after the allegations against the Respondent surfaced--long after the alleged rape. (Kim's mother, who has been terminally ill and on several medications for some time, seemed confused on this point.) Regardless when Kim revealed the alleged rape, both she and her mother agreed that Kim asked her mother not to tell anyone because Kim could "handle it" by herself. Kim did not receive any treatment or counseling for the alleged rape. Kim also did not mention the alleged rape to law enforcement during the investigation into the allegations against the Respondent. Although it is possible that the alleged rape or the Respondent's alleged sexual assault actually happened, both seem improbable. Yet, it is troubling that no obvious motivation for Kim to fabricate the allegations against the Respondent appears from the evidence. It is possible that she was seeking attention. It is possible that her mother's medical condition could have played a role in motivating such action. On the other hand, it could have had something to do with the relationship between Kim and Gilbert. Maybe she was upset with the Respondent for his role, minor as it was, in turning her parents against Gilbert. Maybe she was trying to deflect her parents' attention away from the bad influence that Gilbert might have represented by trying to make the point that acquaintances or even teachers could pose a worse threat. Maybe the alleged rape and the allegations against the Respondent arose from apprehension about how to explain feared consequences of sexual activity with Gilbert, as irrational as it might seem. Maybe there are other possible explanations in the nature of mental or emotional instability. Perhaps the most likely explanation is that Kim was simply making up a story to impress her girl friends and found herself committed to the story when one of them disobeyed Kim's command not to tell anyone. One can only speculate as to what the actual motivation could have been.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges and reinstating the Respondent with back pay. RECOMMENDED this 1st day of March, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, accepted and incorporated; the rest is rejected as not proven. Accepted and incorporated. 13.-29. Rejected as not proven. Accepted and incorporated. Rejected as not proven that she "volunteered." (She decided not to volunteer.) Rejected as not proven that he told Kim (privately, as opposed to as part of the class). Otherwise, accepted and incorporated. 32.-33. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-17. Accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley Superintendent Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
The Issue The issue to be determined is whether Respondent violated the provisions of Section 1012.795(1)(c), (f) and (i), Florida Statutes (2007)1/, and Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate, numbered 1003139, covering the area of athletics coaching. The certificate was valid through June 30, 2008. Petitioner is the state agency charged with the certification and regulation of teachers, pursuant to Chapter 1012, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as an in-school suspension teacher and a track coach at Hernando High School in the Hernando County School District. The allegations in this proceeding involve events that occurred during the 2007-2008 school year, and deal with three separate incidents: Respondent's conduct in connection to the prom; his actions toward M.G.; and his actions toward A.H. The Prom The prom for Hernando High School was held on or about April 5, 2008, at the Glen Lakes Country Club in Hernando County. Joy Nagy was a coordinator for the prom, and Vicelia Azzarelli was the administrator on duty. Teachers who desired to chaperone the prom signed up in advance. They were given specific responsibilities, including a schedule for monitoring students' behavior. Volunteers' duties did not include dancing with the students. Those teachers who were not volunteering but wanted to stop by and see the students dressed up in their prom attire were also expected to get prior authorization. According to Joy Nagy, Respondent neither signed up to volunteer nor sought permission to attend the prom. Respondent came to the prom with Mr. Mobley, a long-time substitute teacher. Both men were present for a short time, approximately twenty minutes. During their appearance at the prom, they were seen on the dance floor dancing with the students. Assistant Principal Azzarelli observed Respondent while he was at the prom, and he appeared to her to be under the influence of alcohol. He had the smell of alcohol on his person and on his breath, his eyes were dilated and his gait was unsteady. She and another administrator requested that Respondent and Mr. Mobley leave the dance, and they did so. After the prom, a group of students chose to continue celebrating, and rented rooms at a hotel in Clearwater Beach. Respondent and Mr. Mobley went to the hotel where the students were staying, and socialized with the students. The students were drinking alcohol at the hotel, and the presence of alcoholic beverages was evident. The next week, some students came forward asserting that Respondent and Mr. Mobley were partying with students in Clearwater Beach following the prom. During a subsequent investigation into the partying, Respondent admitted to Ms. Azzarelli that he went to Clearwater Beach after the prom, and had a couple of drinks at a club there. He also admitted that he went to the hotel room of some of the students. As a result of the investigation into the events surrounding the prom, school officials also received information regarding possible conduct by Respondent with respect to two female students at Hernando High School. M.G. M.G. is currently a student at Valencia Community College. At the time of the events in this case, she was a senior at Hernando High School, and was, along with a few other students, a manager for the track team. At some point during the 2007-2008 school year, M.G. was sent to the in-room suspension room for a dress code violation, because she was wearing a skirt that was too short. She was the last student to leave the room. As she was leaving the classroom, Respondent came up behind her and reached around, putting his hand underneath her skirt, over her underpants. M.G. immediately left the room. She did not report the incident to anyone initially, because there were no witnesses to the conduct and she did not think anyone would believe her. She thought that by staying out of in-school suspension and working with the other track managers, she would not be in a position where the situation could be repeated. However, there was a subsequent occasion where M.G. was taking inventory of the uniforms for the track team. She was again alone with Respondent, and he again came up behind her and touched her in the crotch area, over her clothes. On this occasion, M.G. was wearing capris pants. She left the room and, as before, did not tell anyone because she did not want to be in a position where she reported the behavior and no one believed her. She only came forward after hearing about another incident involving Respondent's alleged conduct with a female student.3/ A.H. A.H. was also a student at Hernando High School at the time of the events in question. She graduated in 2009, and is now a student at Pasco-Hernando Community College. There was an occasion during the 2007-2008 school year when A.H. was alone with Respondent in the portable where he taught. Respondent kissed her, and she tried to walk out. He grabbed her arm, pulled her back to him and kissed her again. Respondent also sent A.H. inappropriate text messages. For example, he would text her that he did not want to have sex with her because he knew she was a virgin, but that "I'll go down on you and show you a good time." Like M.G., A.H. did not want to tell anyone about the incident with Respondent because she did not want anyone to know about it. When questioned initially by school officials, she denied it for the same reason. Both girls were interviewed by Detective Morrell of the Hernando County Sheriff's Office during her investigation stemming from the conduct related to prom. The information given during the investigation by Detective Morrell and the information provided during the hearing was consistent. Unfortunately for both girls, after the conduct was investigated, there was significant publicity regarding the incidents. Information was published in both the print and electronic media. Consistent with her fears, M.G. was subjected to ridicule and the publicity related to the investigation made it difficult for her to finish her senior year. Neither girl wanted to press charges as a result of Respondent's conduct, because they did not want to have to deal with the publicity associated with criminal charges. Neither girl wanted to testify in this proceeding. However, both girls were candid and credible, despite their obvious reluctance to appear. On or about May 5, 2008, Respondent resigned in lieu of termination from his position with the school district.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Section 1012.795(1)(c), (f), and (i), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and permanently revoking his teaching certificate. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of February, 2010.
The Issue The issues are whether Respondent, William Doran, committed the acts alleged in the Statement of Charges and Petition for Ten-Day Suspension Without Pay, and, if so, the discipline to be imposed.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at SMS, a public school in St. Lucie County, Florida, pursuant to a professional services contract. Respondent has been employed by the School Board for approximately eight years. Respondent most recently provided individualized instruction and assistance to students with individualized education plans. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the St. Lucie Classroom Teachers’ Association. Lydia Martin, principal of SMS, was authorized to issue directives to her employees, including Respondent. The 2010-2011 School Year On November 8, 2010, Respondent was counseled by Principal Martin for discourteous and disparaging remarks to students causing them to feel unnecessary embarrassment. Students and parents reported that Respondent made comments in the classroom including “the Bible is crap and we should not believe it,” told students they could not work in groups because they “would just bullshit,” called a student “stupid,” and referred to a group of African-American students as the “black coffee group.” Parents also expressed concern that Respondent discussed prostitution and told students that, in some countries the younger the girls are, the better it is considered because they have not lost their virginity. Respondent denied saying that the Bible is “crap” but admitted telling students that he did not believe in it. Respondent denied calling a student stupid but admitted that he told a student certain choices may be what a “not so smart” person would do. Respondent admitted to referring to a group of black students as a “coffee klatch,” but denied any reference to race or ethnicity. Respondent admitted discussing prostitution in the context of human rights and his personal observations of sex trafficking while serving in the military in East Germany. Principal Martin provided Respondent with a written Summary of Conference that stated, “In the future, do not make comments to students that may cause them embarrassment or that are unprofessional. My expectation is that you will treat students with respect and follow the district guidelines under 6.302 Employee Standards of Conduct and Code of Ethics for Educators.” On May 2, 2011, Principal Martin gave Respondent a Letter of Concern for making comments to a student that caused embarrassment to the student when Respondent stated that, “somebody cried about not getting their stupid PTO FCAT Goodie bag” and that “they were filled with cheap candy.” The daughter of the PTO president was in the class. The 2011-2012 School Year During the fall of 2011, Respondent was accused of inappropriately touching students.1/ As a result, on December 5, 2011, Respondent was removed from the classroom at SMS and placed on Temporary Duty Assignment at the School Board district office pending an investigation into the allegations. In a letter from Maurice Bonner, director of personnel, dated December 14, 2011, Respondent was directed not to engage witnesses, their parents, or potential witnesses during the open investigation. While he was working at the district office, two co- workers of Respondent overheard Respondent contact the parents of one of the student witnesses involved in the investigation by telephone to discuss the investigation. Also, during the investigation, it was discovered that Respondent had taken pictures of students when they were misbehaving in his class as a means of disciplining those students. On February 13, 2012, Principal Martin provided Respondent a Letter of Reprimand for the violation of the administrative directive (not to contact witnesses and parents during a pending investigation) and inappropriately disciplining students. This Letter of Reprimand reminded Respondent of his previous counseling and Letter of Concern and notified Respondent that his failure to follow the prior directives or violation of any other School Board policy would result in more severe disciplinary action being taken against him. In May 2012, Respondent received a three-day suspension without pay for embarrassing students. Respondent is alleged to have announced a student’s name in class and stated that he (Respondent) was “just wasting red ink” by grading the student’s paper. Respondent does not deny the statement, but claims he muttered it under his breath, and it was overheard by several students. Respondent embarrassed another student by sharing personal information about her family with the class. A student’s mother had privately discussed with Respondent the fact that her daughter might act out in class due to the distress she was experiencing as a result of her parents’ divorce. During a classroom discussion about families, this student made a comment that she had a “normal” family. Respondent said to the student, in front of the class, “If you’re so normal, where is your father?” Respondent admits this was inappropriate behavior on his part. The 2012-2013 School Year On May 3, 2013, Respondent was in the classroom of another teacher for the purpose of providing additional teaching assistance for several students. On this date, the usual classroom teacher was absent, and a substitute teacher was present. While walking around the classroom, Respondent observed two students, M.M. and A.L., engaged in a game of “slaps,” in which both students tried to hit each other’s hands. Respondent directed M.M. to stop and asked why he was doing the game during class time. M.M. responded that he was trying to cheer up A.L., it felt good, and they liked playing the game. At this time, Respondent was approximately eight to ten feet away from M.M. who was sitting at a desk. Respondent told M.M. that he didn’t care if it felt good for M.M. to “jump off a bridge,” it was not to go on in the classroom and to get back to work. M.M. asked Respondent what he meant and the two began to argue. Respondent approached M.M. and bent over him while M.M. remained seated at his desk. Respondent testified that he closed the gap between him and M.M. when he felt M.M. told him to shut up by saying “get out of my face.” Respondent stated, “At that point I decided I wasn’t going to let him push me around and I decided to engage him.” The credible testimony from several of the student witnesses was that Respondent approached M.M. and stood over him and that M.M. repeatedly asked Respondent to “please, get out of my face” and to leave him alone. M.M. also cursed and used a racial slur directed at Respondent.2/ Respondent told M.M. to get up and get out of the classroom. When Respondent did not move away from looming over M.M., M.M. said something to the effect of “I don’t want to do any of this.” M.M. stood up, and he and Respondent were face to face, only a few inches apart. M.M. told Respondent that he was a grown man and that he was “acting like a bitch.” Respondent repeatedly mocked M.M., yelling in his face, “Come on big man-- What are you going to do about it, hit me?” and told M.M. to hit him because it would “make my day.” Respondent called M.M. a coward several times when M.M. refused to hit Respondent and backed away. While this was going on, the other students in the classroom believed that Respondent and M.M. were going to have a physical fight, and they stood up, pushed the desks and chairs back, and got out their cell phones to take photos and video. Several of the students began screaming and yelling.3/ M.M. left the classroom and continued to curse at Respondent as Respondent followed him to the Dean’s office. During this altercation, the substitute teacher did not intervene or attempt to help or contact the SMS office. Respondent admits that, once M.M. told Respondent to “get out of his face,” Respondent did nothing to de-escalate the situation. To the contrary, Respondent intentionally escalated the altercation. According to Respondent, “He [M.M.] needed to be shown you can’t tell an adult to shut up.” Respondent testified that he believed that he was teaching M.M. a “life lesson”-–that “you can’t engage an adult and expect to get away with it.” SMS has a protocol for handling belligerent students in the classroom. Teachers receive training at the beginning of each school year regarding the difference between classroom managed behaviors and office managed behaviors. Teachers are trained not to engage a belligerent student but rather to use the buzzer which is tied to the intercom or telephone, available in every classroom, to notify the main office of the situation. In response, someone from the trained management team will come to the classroom to retrieve the student and bring them back to the Dean’s office. As explained by Principal Martin, the purpose of sending an adult from out of the classroom to retrieve a disruptive student is to minimize the possibility of harm to either the student, teacher, or other students, and to allow a “cooling off period” while the misbehaving student is escorted to the Dean’s office. During the altercation with M.M., Respondent made no effort to use the buzzer or the telephone or ask anyone else to notify the office of the escalating situation. Respondent was aware of the protocol but chose to ignore it. According to Respondent, “[M.M.] wanted to intimidate me and he failed and I let him know about it.” Respondent was purposely confrontational and testified that he wanted to show M.M. that Respondent “was not going to back down.” Respondent disregarded the protocol because he believed it would be ineffective and he wanted to teach M.M. a “humility lesson.” Respondent’s explanation, that he thought using the buzzer or telephone would be ineffective because sometimes the buzzer does not work or he was blocked from reaching the buzzer by M.M., was not supported by credible evidence. Further it was directly contradicted by Respondent’s explanation that he didn’t contact the office because M.M.’s behavior problems likely started in elementary school and that at this point, M.M. was not responsive to “conventional means of disciplining students.” While the undersigned is sensitive to the difficulty faced by teachers when dealing with confrontational and unruly students, no rational justification was provided for Respondent’s extreme and outrageous act of attempting to engage M.M. in a fight and labeling him a coward in front of his peers. Respondent’s actions were an unwarranted attempt to bully and belittle a middle school student. In May 2013, Respondent received a letter from then Superintendent Michael Lannon advising Respondent that he was recommending him to the School Board for a ten-day suspension without pay. During the School Board’s investigation and at the final hearing of this matter, Respondent expressed no remorse regarding his actions towards M.M. and testified that, despite knowing his actions constitute a violation of School Board policies, he would do the same thing again. Respondent received all the necessary steps of progressive discipline required by the collective bargaining agreement between the parties prior to receipt of the recommendation for the ten-day suspension without pay. As discussed in greater detail below, the School Board proved by a preponderance of the evidence that Respondent engaged in misconduct in office in violation of rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order finding William Doran guilty of misconduct in office, suspending his employment without pay for a period of ten school days, and placing him on probation for a period of one year. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 19th day of August, 2014.
The Issue Whether the Respondent, Kim Littrell, committed the acts complained of and should be terminated from her employment with the School District.
Findings Of Fact The Petitioner, St. Lucie County School Board, is the entity charged pursuant to Florida law to operate, govern and administer school personnel employed by the St. Lucie County School District (Petitioner or School District). At all times material to the allegations of this case, the Petitioner employed the Respondent to serve as a teacher at Westwood High School. The Respondent has been a teacher with the School District for 16 years. At all times material to the allegations of this case, Respondent held a professional services contract with the Petitioner. The Respondent’s seventh-period class on March 5, 2004, was composed of ninth-grade students. The class was designated as a creative writing course. The purpose of the class was to assist students with the Florida assessment known in this record as the “FCAT.” Students in the class were encouraged to develop “critical thinking” skills. Presumably such skills enhance performance on the FCAT examination. The Respondent was responsible for developing the curriculum for the class but was assisted by aides and instructive materials available through the school, the School District, as well as state resources. Although Respondent did not have a textbook for the “critical thinking” component of the class, appropriate resources were available from which appropriate educational materials could be prepared. For the subject lesson (seventh-period class, March 5, 2004), the Respondent elected to offer an assignment that she hoped would encourage “critical thinking.” In substance, the Respondent asked a series of questions and the students were asked to formulate an answer. The title of the subject lesson, “Is Your Mind Clean?” sought to elicit answers that were not profane or “dirty.” Respondent thought the subject lesson would be challenging and “fun.” The Respondent advised the students that none of the answers required the students to answer with profanity or improper language. The students were not supposed to verbally respond to the questions but were to write their answers on a sheet of paper. Although perhaps not verbatim, it is found that Respondent posed the following questions, in substantially this form, to her class during the “Is Your Mind Clean?” assignment: What is a four-letter word that ends in “k” and means the same as intercourse? What is it that a cow has four of and a woman has only two of? What can you find in a man’s pants that is about six inches long, has a head on it, and that women love so much that they often blow it? What word starts with “F” and ends with “u- c-k”? Name five words that are each four letters long, end in “u-n-t” one of which is a word for a woman? What does a dog do that you can step into? What four-letter word begins with “F” and ends with “k,” and if you can’t get one you can use your hands? What is hard, six inches long, has two nuts, and can make a girl fat? What four-letter word ends in “i-t” and is found on the bottom of birdcages? What is it that all men have one of; it’s longer on some men than on others; the pope doesn’t use his; and a man gives it to his wife after they’re married? Inappropriate responses were verbalized during the administration of the assignment. In many instances the most apparent answer to the question posed could be considered profane. The Respondent should have foreseen that students would react inappropriately to the questions. The students thought the assignment was unusual. The assignment made the students feel uncomfortable. Some students were unable to come up with any non-profane response. Some students were fearful their responses would get them in trouble. One student yelled out an inappropriate answer. Some students thought the answers to the assignment were the profane words. Teachers are required to get prior approval from school administrators if they want to use any teaching material that might be considered “controversial.” The Respondent was aware of the procedure to obtain such approval. The Respondent did not get prior approval before delivering the “Is Your Mind Clean?” assignment. When students responded with inappropriate answers, the Respondent laughed. The parent of one of the students complained to the principal regarding the “Is Your Mind Clean?” assignment. The complaint was the first notice the school administrators had regarding the subject lesson. The use of inappropriate words in the Respondent’s class was not permitted. Nevertheless, on more than one occasion the Respondent elected to explain the origins of certain words. For example, the Respondent lectured on the origin of the word “fuck.” Respondent claimed the word was an acronym for “fornication under command of the king” or “for unlawful carnal knowledge.” The Respondent believed that setting the record straight on the origin of the word would take the amusement value out of using the word such that usage would be deterred. Similarly, the Respondent instructed the class regarding the origin of the word “shit.” According to Respondent, historically, it was important that manure be “shipped high in transport.” Manure left in the lower cargo holds created problems. The origins of inappropriate words were not part of the Respondent’s curriculum. Moreover, the Respondent did not have approval to discuss the origins of such words with her class. When the school administration began to investigate the “Is Your Mind Clean?” assignment complaint, the Respondent confronted a student and claimed another student (the first student’s friend whose parent had made the complaint) was trying to get her in trouble. This encounter made the confronted student uncomfortable. The Respondent did not understand that the use of inappropriate words could and did make some students uncomfortable. Additionally, the Respondent did not comprehend that challenging the student about the complaint would also intimidate a student. The Respondent was disciplined in the past regarding her failure to create a learning environment that does not embarrass or disparage students. The Respondent knew or should have known that embarrassing students is not acceptable professional conduct. The Respondent knew or should have known that efforts to intimidate a student are not appropriate. In fact, reprimands issued to Respondent during 2000 cited unprofessional conduct directed toward students. In connection with prior conduct, the Respondent was required to complete a course on professionalism or ethics. The Respondent had a responsibility to protect students from conditions that would be harmful to learning. The Respondent had a responsibility to refrain from exposing students to unnecessary embarrassment or disparagement. After being fully apprised of the facts of this case, the Superintendent recommended that the Petitioner take action to suspend the Respondent from her employment without pay. In fact, the Petitioner approved that recommendation and initiated the instant action to terminate Respondent’s employment. The Respondent timely responded to the action and requested an administrative hearing to challenge the proposed action. The Respondent maintained that the “Is Your Mind Clean?” assignment was a reasonable effort to teach “creative thinking” and that none of the students were unduly embarrassed, disparaged, or humiliated by the assignment. Such assertion is contrary to the persuasive weight of the evidence presented in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a Final Order sustaining the termination of Respondent’s employment. S DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2005. COPIES FURNISHED: Michael Lannon, Superintendent St. Lucie County School Board 4204 Okeechobee Road Fort Pierce, Florida 34947-0000 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 David Miklas, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948
Findings Of Fact The following findings of fact are based upon the evidence presented at hearing, the demeanor of witnesses, and stipulations of the parties: Respondent was employed by Petitioner as a 4th and 5th grade teacher under continuing contract since June, 1980. During his employment, he was evaluated as a satisfactory teacher. The parties stipulated that on May 19, 1987 at approximately 1:45 a.m., Respondent committed fellatio with another male adult. They further stipulated that Respondent does not claim that this was a single, isolated occurrence. The incident on May 19, 1987 took place in North Shore Park, St. Petersburg, which is an area known to the local police as a place for homosexual activity. North Shore Park is approximately 6 1/2 miles from the elementary school at which Respondent taught fourth grade. It is a public park extending from Sixth to Nineteenth Avenues, North, and bordered on the east by Tampa Bay and on the west by Shore Drive. The park has a public swimming pool, tennis courts, parking areas and a public beach. On the morning of May 19, 1987, Respondent drove to the park, parked his car, and walked from Seventeenth Avenue, North, to Thirteenth Avenue, North, where he encountered the other male. Respondent believed they were alone. They walked to a bench on the public beach and engaged in fellatio. Police Officer Thad Crisco, St. Petersburg Police Department, observed Respondent performing fellatio on the other male. Officer Crisco, who was patrolling the park on foot, was approximately twenty feet away from Respondent. He observed them with the use of an infra-red night scope, but he testified that the night scope was not required or necessary to observe the incident due to the moonlight and other available lighting. Crisco was behind a palm tree, but had a clear line of vision over a four foot high sea wall which separated him from Respondent and the other male. There was also a lit public parking area about 100 feet from where Respondent was observed. Respondent was arrested and charged with performing an unnatural and lascivious act with another male in a public place. On or about May 27, 1987, Respondent was suspended with pay by Superintendent Scott Rose, who also recommended his dismissal by the School Board, effective June 25, 1987. The Superintendent's action and recommendation resulted from the incident on May 19, 1987. The School Board approved the Superintendent's recommendation for dismissal on June 25, 1987, and Respondent was informed of this action by letter dated July 21, 1987. Respondent timely sought this hearing on his dismissal. On or about June 12, 1987, Respondent entered a plea of no contest to the criminal charges arising out of the incident at North Shore Park, and an Order Withholding Adjudication of Guilt and Placing Defendant On Probation was entered on June 12, 1987 in Case Number CTC 87-10343 MMANO, County Court for Pinellas County. Respondent was placed on six months probation, ordered to perform ten hours of community service and prohibited from entering any parks in Pinellas County. Respondent's probation was terminated early by Order entered on October 15, 1987 since he had satisfied all terms and conditions of his probation. By letter dated October 26, 1987, the Commissioner of Education found there was no probable cause "at this time" to suspend or revoke Respondent's teaching certificate in connection with this incident. Within the month following the incident in North Shore Park and his arrest, Respondent was the subject of one article in the St. Petersburg Times and three articles in the Tampa Tribune, Pinellas Edition. The parties stipulated that the St. Petersburg Times has a daily circulation of approximately 285,000 in Pinellas County, and the Pinellas Edition of the Tampa Tribune has a daily circulation of approximately 11,000. Based upon the testimony of Robert Welch, Principal of Bay Point Elementary School, Nancy Zambito, Director of School Operations, and Superintendent Rose, all of whom were accepted as experts in education, it is found that Respondent's action on May 19, 1987, his arrest and plea of no contest, and his being placed on probation are inconsistent with a public school teacher's responsibility to set an example for the students he teaches, undermines the confidence, trust and respect which parents and students should have in a teacher, evidences extremely poor judgement for one in whose custody the educational welfare of fourth graders is placed, and can reasonably be expected to impair his effectiveness as a teacher and lead to serious discipline problems with students if he returns to the classroom. Respondent even expressed concern about the embarrassment his actions caused for the school district. Through the testimony of Thomas Auxter, Ph.D., who was accepted as an expert in ethics, Hernan Vera, Ph.D., who was accepted as an expert in sociology, and Harry D. Krop, Ph.D., who was accepted as an expert in psychology, Respondent sought to establish that the incident on May 19, 1987 was a private, consensual act, without demonstrable or intentional injury or infliction of harm upon others outside the act. Dr. Auxter expressed the opinion that the act was not immoral since Respondent had a reasonable belief that no one else was present, and the act was not demonstrably or intentionally harmful. According to Dr. Auxter, one has to consider the time and place where an act occurs, as well as a person's intentions, in determining if it is an immoral act; circumstances are very important. Thus, an act performed at 1:45 a.m. may be a private sex act, while the same act at 1:45 p.m. in the same place may be clearly intentional, observable and offensive to others, and therefore be immoral. Dr. Vera expressed the opinion that Respondent's behavior did not constitute public behavior since the circumstances were private. Again, the time of the morning when the incident occurred was critical to Dr. Vera's opinion. Dr. Krop testified that school children would not necessarily be negatively affected by the incident, and that Respondent is capable of mitigating the effect of the incident on his ability to teach. The testimony of Drs. Auxter and Vera concerning the private nature of the act of fellatio in this case is specifically rejected based upon the testimony of Officer Crisco and Sergeant Earl J. Rutland, St. Petersburg Police Department. Crisco was only twenty feet away from Respondent at the time of the incident, with a clear line of sight. Respondent and the other male were clearly visible in the moonlight without having to use the night scope. The act occurred in a public park, and on a public beach. According to Sergeant Rutland, North Shore Park has a great deal of public activity at all hours of the day and night, and much of that activity results in complaints to the police. The very fact that Respondent went to this area at 1:45 in the morning looking for someone to engage in homosexual activity with, confirms the fact that members of the public frequent this area at all hours. Thus, he had no reasonable expectation that they would be alone on this beach, even at 1:45 a.m. Respondent did commit a sexual act, fellatio, in public on May 19, 1987. Dr. Vera testified that cultural norms require that sexual acts be performed in private, and Dr. Auxter acknowledged that just one violation of said norm can bring a person into disgrace and disrespect. The testimony of Dr. Krop concerning the effect of this incident on children and parents, and on Respondent's ability to teach, is outweighed by the testimony of Welch, Zambito, and Superintendent Rose. Krop was not accepted as an expert in education, and demonstrated little experience working with public school children and their parents when compared with the vast experience of Petitioner's experts.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order dismissing Respondent from employment. DONE AND ENTERED this 19th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN 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 19th day of May, 1988. APPENDIX (DOAH Case No. 87-2849) Rulings on Petitioner's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1. 5. Adopted in Findings of Fact 2, 3. 6-9 Adopted in Findings of Fact 6, 14. Adopted in Finding of Fact 7. Adopted in Finding of Fact 9. Adopted in Finding of Fact 11. Adopted in Findings of Fact 3, 14. 14-16 Rejected as cumulative and unnecessary, but considered as the basis for accepting the witness as an expert in education. 17-20 Adopted in Finding of Fact 12. 21 Rejected as irrelevant and also hearsay. Rulings of Respondent's Proposed Findings of Fact: 1-2 Adopted in Findings of Fact 1, 4, 8. Adopted in Findings of Fact 7, 9, but otherwise rejected as irrelevant and unnecessary. Rejected in Findings of Fact 6, 14. Adopted and Rejected in Findings of Fact 6, 14. Adopted and Rejected in Finding of Fact 5, and otherwise Rejected as irrelevant. 7-8 Adopted in Finding of Fact 12. Rejected as irrelevant. There was evidence that Respondent initially considered resigning and then Petitioner acted expeditiously to take disciplinary action. These events may have affected the level of community reaction. Adopted in Findings of Fact 7, 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 13. 13-14 Rejected as unnecessary and as not based upon competent substantial evidence. While the ethical analysis set forth by Dr. Auxter represents one expert's opinion, it was not shown that his opinion, albeit an expert opinion, competently and substantially represents 2500 years of study and thought. Rejected as unnecessary since Dr. Auxter's ultimate opinion is rejected. Rejected as Finding of Fact 14. 17-30 Adopted in part and Rejected in part in 13 and 14; otherwise Rejected as irrelevant and unnecessary. Rejected as unnecessary since Dr. Vera's ultimate opinion is rejected. Adopted in Finding of Fact 13. Rejected in Finding of Fact 15. Rejected as unnecessary since Dr. Krop's ultimate opinion is rejected. 35-38 Rejected in Findings of Fact 12, 15. 39 Rejected as argument on the evidence rather than a Finding of Fact. COPIES FURNISHED: Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 33518-4688 Bruce P. Taylor, Esquire School Board Attorney Post Office Box 4688 Clearwater, Florida 33518-4688 Robert F. McKee, Esquire Charleen C. Ramus, Esquire KELLY & McKEE, P.A. Post Office Box 75638 Tampa, Florida 33605-0618 =================================================================
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd 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 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 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. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. 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. Highway 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
The Issue The issue addressed in this proceeding is whether Respondent committed any acts which would subject him to termination of employment as an annual contract teacher of the School Board of Escambia County.
Findings Of Fact In 1988, Respondent, David Madison, received his degree in elementary education. In 1989, Mr. Madison worked as a third grade elementary school teacher at Montclair Elementary School in Escambia County, Florida. Later during the school year, Mr. Madison transferred to the fourth grade drop out prevention program at Montclair Elementary School. While at Montclair, Mr. Madison received excellent reviews of his teaching ability and received the superintendent's recommendation for renewal of his annual contract for the 1990- 91 school year. The school board followed the recommendation of the superintendent and renewed Mr. Madison's annual contract. The term of Mr. Madison's contract ran from August 20, 1990 through June 12, 1991. Mr. Madison's contract provided that a teacher could not be dismissed from his or her employment "except for just cause as provided in Section 231.36(1)(a), Florida Statutes." The contract also incorporated by reference the collective bargaining agreement which had been negotiated between the school board and the Escambia Education Association for 1990-1993 (the master contract). Portions of the master contract governed and in some cases restricted the type of conduct which could be recognized as subjecting a teacher to discipline, as well as, the procedure and type of discipline, including dismissal or termination, which might be imposed regardless of whether that discipline arose out of violations under the terms of a teacher's contract or had its basis in Chapter 231, Florida Statutes. The master contract provided in Article II, Section L as follows: L. The Board shall not discriminate against any member of the unit because of marital status, religion, race, sex, lifestyle, national origin, age or medical or physical handicap as a condition of employment or continued employment. The master contract also provided at Article V, Section E as follows: E. No action against a teacher shall be taken on the basis of a complaint by a parent, student, or other individual unless the matter is first reported to the teacher in writing by the principal within ten (10) days of the complaint. No records shall be kept concerning anonymous complaints. and at Article XXVI, Sections A and B: Disciplinary Action shall be defined as any action that includes: warning conference, verbal reprimand, written reprimand, suspension with pay, suspension without pay, and/or dismissal. Any disciplinary action shall be administered only by the appropriate immediate administrator. All disciplinary action shall be progressive, fair, and non- discriminatory. Disciplinary action which involves the more severe discipline of written reprimand, suspensions or dismissal shall be for proper cause. In August 1990, Mr. Madison was hired to teach second grade at the Helen Cairo Elementary School. Helen Cairo Elementary School was a new elementary school opening in Escambia County and had a student population of about 725 students for the 1990-91 school year. Mr. Madison was hired along with a group of teachers as additional staff for the school since student enrollment greatly exceeded that which was predicted for the opening of the school. The school year had been in session for approximately 3 to 4 weeks before Mr. Madison began teaching at Helen Cairo Elementary School. The students which were selected for Mr. Madison's second grade class came from other second grade classes which had already been in session. Mr. Madison's class consisted of approximately 23 or 24 students. The Petitioner met with the students and parents prior to beginning his teaching at Helen Cairo and established a rapport with approximately ten sets of parents out of an approximate 20 student class. November 20 was Mr. Madison's birthday. In 1990, Mr. Madison's birthday fell on Thursday, the middle of the work week. Mr. Madison would be 25 years old. Because Mr. Madison had to teach the day after his birthday, he elected not to celebrate his birthday on November 20 but would celebrate the following Friday evening since he did not have any teaching duties over the weekend. On the evening of November 21, 1990, Mr. Madison celebrated his birthday at Chan's and McGuire's, two of the local bars in Pensacola. Mr. Madison, in youthful exuberance, overindulged in alcoholic drink. To the best of Mr. Madison's recollection of his birthday celebration, which memory is very limited, he had at least 5 or 6 shooters during the evening of the 21st. Around 10:00 p.m., in a highly intoxicated state, although driving reasonably well, Mr. Madison left McGuire's and proceeded home. On the drive home, Mr. Madison had to urinate and stopped in the parking lot of a bar known as the Chimney. A few parking spaces away from where Mr. Madison parked were two undercover police officers in an unmarked car. The police officers were part of the Vice and Intelligence Division of the Pensacola Police Department. The police officers had stopped at the Chimney because it is an area allegedly known for illegal sexual transactions, mostly involving homosexual males. Mr. Madison exited his vehicle and made a beeline for the woods which are located close to the Chimney. He walked by the unmarked police car and around the corner of the Chimney's building on his way to the woods. Within a few seconds of Mr. Madison walking by the unmarked police car, Officer Paul Kelley exited the police car in order to follow Mr. Madison to see if he could catch him in some crime. The officer's egress from the car occurred well within Mr. Madison's hearing and Mr. Madison more than likely knew someone was following him through the parking lot and around the corner towards the woods. No other people were in the area and the area could not be seen from the more public areas of Chimney's surroundings. The police officer was dressed in plain clothes and judging from his appearance at the hearing would have fit the stereotypical image of a "pretty" male homosexual. Mr. Madison went into the woods, relieved himself, and came back out of the woods. As Mr. Madison left the woods he saw the police officer standing by himself watching him obviously waiting for Mr. Madison to exit the woods. Mr. Madison stopped about 10 feet away from the officer. The officer and Mr. Madison exchanged eye contact back and forth. During the exchange, Mr. Madison rubbed the outside front of his pants in the area of the genitals. The officer testified that such behavior is a common signal of interest among homosexuals and is part of the homosexual lifestyle and way of communicating with each other. The police officer continued to exchange looks with Mr. Madison. The police officer did not move away from Mr. Madison and allowed him to approach. Mr. Madison walked over to the police officer, and they exchanged greetings with each other. Clearly such behavior on the police officer's part was an invitation by the police officer to Mr. Madison to make further overtures. After all the police office was there in an attempt to entice such sexual propositions in order to determine if any crime, such as prostitution, would ensue. Mr. Madison again began rubbing the front of his pants in the area of his genitals while the officer stood watching. Mr. Madison then reached over and touched the officer's clothing in the area of his genitals. The officer took a step back, said no and Mr. Madison desisted in his advance. To the officer, Mr. Madison looked confused and surprised by the officer's response. Mr. Madison immediately left and returned to his vehicle to leave. The officer followed Mr. Madison back towards his vehicle and indicated to his partner, by pointing at Mr. Madison, that Mr. Madison should be arrested. Mr. Madison was subsequently arrested on a first degree misdemeanor charge of simple battery which is not, in and of itself, a crime involving moral turpitude. In that regard, none of the above facts support a finding that Mr. Madison is an immoral person or committed an immoral act. Indeed, the best that can be said about the above facts is that Mr. Madison attempted to interact socially with someone he reasonably believed was of the same persuasion. His behavior was common among the homosexual community as a means of communicating with another homosexual. It was the officer who had followed Mr. Madison and stood waiting for him when no one else was around. In this case, the officer's consent was non-verbally communicated to Mr. Madison by a police officer who was fully cognizant of the impact his own action or lack of action would have. Mr. Madison desisted from his advances as soon as the officer's consent was withdrawn. Mr. Madison's actions did not involve a battery, sexual battery, lewd and lascivious conduct or any other criminal activity. The incident involved no children, did not occur during working hours, and did not involve or have any relevance to Mr. Madison's ability to teach or otherwise utilize his teaching skills. Unfortunately, the battery arrest was picked up by the local newspaper, and some details from the police officer's report were published in the local newspaper. Articles involving the arrest incident ran at least 3 times in the local newspaper on December 1, 1990, January 17, 1991 and February 8, 1991. Mr. Madison, after taking approximately 9 days off, returned to teaching his second grade class. During the time he taught his students, he could discern no impact on the children and their progress in his class. Likewise, there was no impact on Mr. Madison's ability to teach his class. In fact, teaching was a release from the stress created by the publication and subsequent reaction of a few parents who did not have children in his class. On February 7, 1991, Mr. Madison pled no contest to the simple battery charge, received six months probation and paid a $150 fine. Adjudication was withheld. The probation was terminated after three months. Mr. Madison pled to the charges because he could not remember any of the incident the police officer claimed happened and could not admit or deny any of the allegations of the officer. However, Respondent's entry of a plea of no contest does not constitute proof of immorality, moral turpitude or lack of moral character when such characteristics are absent from the underlying facts of the charge to which he is pleading. Apparently, based on the articles in the newspaper, some of the parents at Helen Cairo School became aware of the incident involving Mr. Madison's arrest. The parents who reacted did not necessarily have students in Mr. Madison's class. Parental reaction was evenly divided among those who cared to react. Some parents were supportive, and others were not supportive. Intolerant, incorrect and prejudicial statements such as "we don't want those type of people teaching our children" and "homosexuals are child molesters," were communicated to the principal by these unsupportive parents. For the most part, the negative comments about Mr. Madison involved not the criminal charge, but the homosexual nature of the event. In essence, it was a reaction of total intolerance on those parents' part as to homosexuality. However, even with these intolerant parents, the evidence did not support a loss of parental support for the school save for one or two very vocal persons of morality who engaged in a campaign to have Mr. Madison terminated because they believed he was an immoral person and a potentially bad influence to children. These two parents kept things stirred up in the sense that the school board had to deal with the two parents. Neither parent had a child in Mr. Madison's class. Mr. Madison taught his second grade class until February 12, 1991, when he was suspended without pay from his teaching position. On March 25, 1991, Mr. Madison was terminated from his position as a school teacher. Before this incident, Mr. Madison had never received any disciplinary action during his time as a teacher in Escambia County. Mr. Madison's discipline was based solely on the notoriety of the case and not necessarily on the fact that a criminal charge had been filed resulting in a plea. The evidence did not demonstrate that the overall reputation of the school had been so diminished by Mr. Madison's conduct that it could no longer deliver an appropriate instructional program to the children at the elementary school. In fact, the evidence demonstrated that the school did deliver such instructional programs since the school students all scored within the average of the county. Similarly, other than some hearsay testimony about what a substitute told the principal, there is no credible evidence to suggest that Mr. Madison's ability to teach had been impaired or that the students in Mr. Madison's class had in any way had their academic potential affected. There was also no evidence that the students at Helen Cairo had lost respect for Mr. Madison or otherwise would refuse to submit to his authority. In fact, the better evidence in relation to student attitudes was that Mr. Madison's students were very concerned about his well being, cared a great deal about their teacher and wanted him to return. Finally, the evidence affirmatively demonstrated that Mr. Madison's ability to teach was not impaired by the events of November 21, 1990 or the subsequent agitation of a few parents. The evidence only showed that Mr. Madison felt embarrassed and down about what had happened. However, as a well adjusted person, he handled those feelings, went on with his life and performed his duties until prohibited from doing so by the school board. In short, none of the charges in the Petition for Dismissal have been supported by the evidence. Additionally, discipline based on a persons lifestyle is clearly prohibited by the master contract. Moreover, the Board failed to follow its own policy and contractual agreement regarding progressive disciplinary penalties. Mr. Madison, therefore, is entitled to reinstatement under the terms of his annual contract with back pay to February 12, 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, It is accordingly, RECOMMENDED: That the School Board of Bay County enter a Final Order reinstating Respondent with back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April, 1992. DIANE CLEAVINGER, 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 23rd day of April, 1992. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1, 2, 3 and 6 of Petitioner's Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 21, 22, 23 and 24 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 15 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the first sentence of paragraph 16 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was subordinate The facts contained in the last sentence of paragraph 17 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was subordinate The facts contained in the last sentence of paragraph 25 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was legal argument. The facts contained in the first sentence of paragraph 26 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraphs 1, 2, 4, 9, 26, 27, 28, 29 and 30 of Respondents' Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of Respondents' Proposed Findings of Fact are subordinate. COPIES FURNISHED: Joseph L. Hammons, Esquire 17 W. Cervantes Street Pensacola, FL 32501 Mark S. Levine, Esquire 245 E. Virginia Street Tallahassee, FL 32301 Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Pete Payton Superintendent Escambia County School Board Post Office Box 1470 Pensacola, FL 32597
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Lloyd Wright, was a teacher employed by the St. Lucie County School District at Westwood High School. Tenecia Poitier was, during the 1986-1987 school year, a student of Respondent in his world history class. In early February, 1987, she filed a complaint against him with school officials because, she says, she got tired of his repeated comments to her of a sexual nature. Reportedly, on one occasion, Respondent indicated to her that he was going to "... fuck her brains out." This comment was overheard by another student in the class, Tony Lee, who believed Respondent was only joking with her. No follow-up action was taken by Respondent on this threat. Ms. Poitier also alleges that on one occasion, while in the school library, Respondent came over and sat down next to her and touched her on the leg. This was observed by Felicia Newton who was sitting across the library table from Ms. Poitier and who, because she was sitting out somewhat from the table, could see Respondent touch her on the outside of the leg. The hug Respondent also gave Ms. Poitier was more of a friendly hug than one with sexual overtones as was the touch. When Ms. Poitier told him to stop, he did and immediately thereafter left the table. Respondent has never hugged or touched Ms. Newton and she has never heard any other girl say Respondent has hugged or touched them except Ms. Poitier, who had told her prior to the library incident that she didn't like the way Respondent was always touching her. On one other occasion, according to Ms. Poitier, when she got chocolate on her pants in class, she asked to go to the rest room to wash it off. In response, she claims, Respondent grabbed her "butt" and commented, "Girl, I want that thing" or words to that effect. Ms. Poitier claims that when he did that, she "cussed him out." Ms. Poitier filed her complaint with school officials after reporting the incident to her father. It would appear, however, that the complaint was motivated by fear of punishment herself, as Respondent contends that on the day prior to the complaint, he observed her doing her math homework in his history class and confiscated and destroyed it. When he did this, she became irate and indicated she was going to tell her father. With that, Respondent summoned a representative of the administration and had her ejected from class. He also wrote a letter to her counselor complaining that she refused to follow class rules and was disruptive and requested she be taken out of his class because she was not doing the required work. There is ample independent testimony from others, including Ms. Poitier herself; that she curses frequently in class and her reputation for telling the truth is not good. In addition, Respondent had notified Ms. Poitier that she had been denied membership in the Millionaire's Club which he sponsored, because she would not follow club rules. She was also dismissed from membership in the Pep Club because of her forgery of Respondent's name to hall passes. Neither these latter actions nor the allegations of her removal from class, testified to only by Respondent, were corroborated by independent evidence. Ms. Poitier denies being put out of the Pep Club and claims she quit the Millionaire's club to join another one. Ms. Poitier indicates, on the other hand, that she was written up because she had threatened to tell her father what Respondent had said and done to her. Her veracity being successfully attacked, however, it is found that Respondent's story is more believable. Respondent, Ms. Poitier claims, also hugged other girls and touched at least one, Ms. McGee, on the leg when she came up to his desk on one occasion. In fact, she claims, he will touch any girl who will put up with it. McGee, on the other hand, denied that Respondent touched her on the leg as alleged by Poitier, but contends he did hug her around the shoulder from the side on one occasion. More significant, however, is the fact, admitted by the Respondent, that early one morning, while driving his mother to the grocery store, he saw Ms. McGee walking with two boys, one of whom was her brother. Respondent drove up beside them, waved and blew his horn to get their attention, and then told her he was going to take her to the woods. He claims he did not mean the comment to be taken literally but more as a joke like the kids would make. He did not believe that McGee took the comment seriously but, in fact she did, and the comment was totally inappropriate for a teacher to make to a female student under any circumstances. Other students, such as Eugenia Lunsford, report improper comments by Respondent to them or others. Ms. Lunsford claims she heard him tell girls, in the classroom, that he liked them and ask them if he could have a chance with them. She contends she heard him state that he'd like to "fuck" Cochina Hall and Tenecia Poitier. Ms. McGee remembers Respondent stating he would like to do something sexual to her, and on one occasions, when she asked him to stop peeling a grapefruit in class, he asked her if he could touch her. He never did, however, except to give her a hug. She considers the term "touch" to mean a sexually oriented touching of a girl's private parts. She also recalls an incident where she saw Respondent pull Ms. Foster's shirt away from her body by the pocket and look down the front. She thinks he was looking at her breasts. Ms. Foster, however, denies this incident happened. In light of this, Ms. McGee's testimony is suspect and, like Ms. Poitier, her credibility is slight. There is no evidence that by any of the hugs that he gave the various girls he in any way committed any inappropriate touching of the breasts or any place else or that though unwelcome, they were sexual in nature. The report by Ms. Lunsford of Respondent's touching Ms. Foster's "butt" was denied by Ms. Foster. In substance, Ms. Lunsford's testimony is not credible and Ms. Foster considers Respondent a good teacher. She would not fear going back into his class. Tony Lee, who heard Respondent make the inappropriate comment to Ms. Poitier, also heard him say to a female student, "Pull your pants down and let me touch you." At the time, Respondent and a group of female students were laughing and joking together and he does not feel that Respondent's comment was seriously made. In fact, Respondent frequently joked with his students, both male and female, making suggestive comments, and everyone knew they were jokes. Lee knows of no incident where Respondent ever attempted to follow up on these comments. He denies ever hearing that Respondent attempted to touch Ms. McGee. To the contrary, she allegedly told Lee she had attempted to touch Respondent and Lee told her she was crazy to do that. Only one parent had direct knowledge of Respondent's relationship with his students. At one parent/teacher night, Mrs. Johnson was attending Respondent's presentation to a group of students and parents when he reportedly stopped in mid- sentence and ogled one or more female students who came into the room. Mrs. Johnson felt his stare, which, she claimed, constituted a visual undressing of the girls, was inappropriate and embarrassing. Her comments were endorsed by her daughter Josephine, who would not want to go back into Respondent's class. In this incidents however, Respondent neither said anything to or about these girls nor did he attempt to touch them. Petitioner presented testimony to establish that at one time, Respondent humiliated a male student in his class by implying he was a homosexual. Both the student and his mother were permitted to testify to this incident without objection by Respondent. This is, however, irrelevant to the issues framed by the Notice of Charges and in any case, the student admits that he and another student were smirking at allegedly inaccurate statements made by Respondent during his lecture, misconduct and out-of-line behavior in and of itself. Assuming, arguendo, that Respondent's reaction to the student was inappropriate, it has no relevance to the conduct complained of in the Notice of Charges. Other present and former students of Respondent indicated that he had a good rapport with his students and is a good teacher. None of these individuals including, Ms. Shaw, Ms. Donovan, Ms. Fuller, Ms. Frazier, and Ms. Diaz have ever seen him be improper or sexual in orientation with students notwithstanding numerous observations. He is not known by these people to flirt with or improperly touch students or to make suggestive comments to them though he would hug from time to time. The extent of his familiarity would be comments like, "Hey, baby. How ya doin'?," or words to that effect, comments readily admitted by Respondent. According to Ms. Frazier, a student in Respondent's class with Ms. Poitier, some students would speak improperly to Respondent by cussing at him. Usually, he would warn them but if they got out of hands he would write them up. Respondent is described by some, and by himself, as a friendly, outgoing, caring person who tries to get his students to achieve their potential. He is a tough taskmaster who expects his students to do their best. By his own admission, he tries to relate to his students by speaking their language and using their phrases. He tries to get his students to relate to him by relating to them and in 9 1/2 years as a teacher he has never before been told this was improper. He admits to hugging his students from the side and to touching them on the arm or head in encouragement while teaching. He rides up and down the aisles in his classroom on a rolling chair so he can sit next to students who are having trouble to help them. He uses flattery, even personal comments such as "You are beautiful" in an effort to motivate his students and denies that any of his comments or touchings were salacious or sexually oriented. From an evaluation of the evidence, it becomes clear that Respondent did not touch or handle his female students in a lewd, lascivious, or indecent manner. It is equally clear, however, that on several occasions he did make lewd, lascivious, or indecent comments to female students which could be construed as advances though it is doubtful he would have followed through on them. These comments, however, in the expert opinion of Ms. Bretherick, an experienced teacher, are never appropriate for a teacher to make to a student. A teacher who made such comments would be ineffective as a teacher. Exposure to such a teacher adversely effects the students' capacity to learn the subject matter and clouds or distorts the concept of the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore; RECOMMENDED that the Respondent, Lloyd Wright, be discharged from employment with the St. Lucie School District because of misconduct in office. RECOMMENDED this 27th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 27th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1366 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. By Petitioner Petitioner, by letter, specifically declined to submit proposed findings of fact. By Respondent Accepted and incorporated Finding of Fact. Irrelevant. Accepted and incorporated Finding of Fact. Accepted and incorporated Finding of Fact. Accepted as to the ultimate fact that the comment was made. Motivation is irrelevant. Irrelevant. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Irrelevant. Irrelevant. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. First sentence is. Accepted and incorporated in the Finding of Fact. Second Sentence is irrelevant to the issues. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted. Accepted. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. COPIES FURNISHED: George R. Hill, Superintendent School Board of St. Lucie County 2909 Delaware Avenue Fort Pierce, Florida 33450 Jack Gale, Esquire The Boston House 239 South Indian River Drive Fort Pierce, Florida 33450 Lorene C. Powell, Esquire Asst. Gen. Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Daniel B. Harrell, Esquire First Citizens Federal Building 1600 South Federal Highway, Suite 200 Fort Pierce, Florida 33450 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 1988 LLOYD WRIGHT, Appellant, DOAH CASE NO: 87-1366 CASE NO. 87-2723 v. SCHOOL BOARD OF ST. LUCIE COUNTY, FLORIDA, Appellee. / Decision filed December 28, 1988 Appeal from the School Board of St. Lucie County. Lloyd Wright, Fort Pierce, pro se appellant. Daniel B. Harrell of Gonano, Harrell & Sherrard, Fort Pierce, for appellee. PER CURIAM. AFFIRMED. HERSEY, C.J., DOWNEY and ANSTEAD, JJ., concur. MANDATE from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida. WITNESS the Honorable George W. Hersey, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day DATE: January 13, 1989 CASE NO.: 87-2723 COUNTY OF ORIGIN: School Board of St. Lucie Co. T.C. CASE NO.: 87-1366 STYLE: Wright v. School Board of St. Lucie Clyde Heath Clerk of the District Court of Appeal of the State of Florida, Fourth District ORIGINAL TO: School Board of St. Lucie county cc: Lloyd Wright, pro se Daniel B. Harrell, Esquire
The Issue The issues are whether Mr. Verdiner should be dismissed from employment as a continuing contract teacher with the Dade County School Board for immorality, misconduct in office, and gross insubordination and whether his certificate as a Florida teacher should be revoked.
Findings Of Fact Yves Verdiner holds teaching certificate number 464217 issued by the Department of Education. He held that certificate at all times pertinent to the complaints filed against him. Mr. Verdiner is employed by the School Board of Dade County as a continuing contract teacher. He was an industrial arts classroom teacher at Thomas Jefferson Junior High School during the summer of 1983 and during the 1985-1986 school year. The principal at Thomas Jefferson Junior High School was Mr. Eric Parker. The summer of 1983 During the 1983 summer school session, Milagros Jimenez, a seventh grade female student, was assigned to Mr. Verdiner's class. Miss Jimenez was designated a class foreman, which meant that she was responsible for distributing wood supplies. This brought her into more frequent contact with Mr. Verdiner than other students. One day, while talking with Miss Jimenez, Mr. Verdiner used both hands to lift up her blouse and expose her bra. He also made a sexual reference to her, saying that he wanted to "jack off." A few days later, Mr. Verdiner patted Miss Jimenez on the buttocks. On another occasion Miss Jimenez climbed onto Mr. Verdiner's desk to reach some wood on a shelf above his desk. Mr. Verdiner held Miss Jimenez's leg to steady her with his hands on one ankle. When she jumped down from the desk, Mr. Verdiner left his hand in contact with her leg until it reached her vaginal area. During the 1983 summer session, Sonia Pattee was assigned to Mr. Verdiner's class. In the woodshop there is a small tool shed, of a type that is often located in a home backyard. While Miss Pattee was in the shed, Mr. Verdiner entered it, closed the door and hugged Miss Pattee. On another occasion, when Miss Pattee was sitting on one of the desks in the shop class, Mr. Verdiner put his hand on her buttocks while she was moving herself from the desk. On more than one occasion, Mr. Verdiner solicited Miss Pattee to have sex with him in his van. During the 1983 school year, Mr. Verdiner would often use improper language in addressing students during class, using such words as "shit" and "damn" and saying such things as "what the fuck is wrong with you?" or "are you fucking stupid?" After an investigation was made into the allegations of touching students and using improper language, a conference for the record was held with school administrators. Mr. Verdiner was specifically instructed both by his principal and by the district administrator of the Office of Professional Standards for the Dade County Schools that he was not to make physical contact with or touch students, and that he was not to use vulgar or profane words in the classroom. The 1985-86 School Year Mr. Verdiner taught woodshop at Thomas Jefferson Junior High School during the 1985-1986 school year. Catina Pierre-Louis was a student in his class. She was in seventh grade and approximately 13 years old. In December 1985, while in Mr. Verdiner's class, Miss Pierre-Louis received permission to leave the classroom to go to the water fountain outside in the hallway. As she leaned over to drink from the fountain, Mr. Verdiner put his arms around her and rubbed her vaginal area with both of his hands. Miss Pierre-Louis pushed him away by pushing her elbows backwards. Miss Pierre-Louis felt ashamed about what had happened and was afraid to tell her mother and the teachers and principal at school. Three or four days later, Miss Pierre-Louis was standing against one of the tables in the shop class when Mr. Verdiner came behind her and placed his hands on her buttocks and squeezed them. Miss Pierre-Louis reported the incident to her counselor, Miss Mapp and shortly thereafter was transferred out of Mr. Verdiner's class. While in Mr. Verdiner's class, Miss Pierre-Louis often heard Mr. Verdiner using profanity or vulgar language, saying things as "shut the fuck up." During the 1985-86 school year Stephanie Williams was a student in Mr. Verdiner's woodshop class. Mr. Verdiner would rub or pat her back, ostensibly to congratulate her. Mr. Verdiner engaged in this sort of physical touching only with female students, not with any of the male students in the class. While teaching, Mr. Verdiner would use words such as "fuck," "shit," and "damn" commonly during his classes. The Hearing Officer accepts the testimony of the principal at Thomas Jefferson Junior High School that there was awareness among other teachers, students and parents of Mr. Verdiner's conduct which has seriously impaired his effectiveness as a teacher. The Hearing Officer also accepts the testimony of Dr. Gray that Mr. Verdiner's touching of his female students, and his use of indecent language constitutes immorality or acts of moral turpitude, conduct which seriously reduced his effectiveness as a teacher.
Recommendation With respect to Case No. 86-2277, it is recommended that a final order be issued by the School Board of Dade County dismissing Mr. Verdiner as a continuing contract teacher, and with respect to Case No. 88-0598, it is recommended that the teaching certificate held by Mr. Verdiner be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1988. APPENDIX The following are my rulings of the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985) Rulings on the proposed findings of fact made in the Amended Proposed Recommended Order of the School Board of Dade County: Covered in Procedural background. Covered in Procedural background. Rejected as unnecessary. Covered in findings of fact 8, 9, 10, and 11. Covered in findings of fact 3-7. Covered in finding of fact 12. Covered in finding of fact 12. Covered in findings of fact 13-16. Covered in finding of fact 18. Rejected as unnecessary. Covered in finding of fact 19. Covered in finding of fact 20. Rulings on Proposed findings of fact of the Commission of Education: Covered in finding of fact 1. Covered in finding of fact 2. Covered in the Procedural background. Rejected as not constituting a finding of fact. Covered in finding of fact 3. Covered in finding of fact 4. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 7. Covered in finding of fact 11. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 9. Covered in finding of fact 11. Covered in finding of fact 10. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 14. Covered in finding of fact 15. Covered in finding of fact 17. Rejected as inconsistent with the Hearing Officer's evaluation of the evidence. Rejected as unnecessary. Covered in findings of fact 11, 16, and 17. 24-25.Covered in finding of fact 20. Rulings on proposed findings of fact by Mr. Verdiner: Rejected as unnecessary. Rejected as unnecessary. 3a. Rejected because the Hearing Officer accepts the testimony of Catina Pierre-Louis. 3b. Rejected because the Hearing Officer accepts the testimony of Sonia Pattee. 3c. Rejected because the Hearing Officer accepts the testimony of Milagros Jimenez. 4. Rejected because contrary testimony made in findings of fact 11, 16, and 18 has been credited. COPIES FURNISHED: Frank Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Craig Wilson, Esquire 215 5th Street Suite 302 West Palm Beach, Florida 33401 William DuFresne, Esquire 2929 S.W. 3rd Avenue Suite 100 Miami, Florida 33129 Dr. Joseph Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor The Capitol Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
Findings Of Fact Respondent holds Florida teaching certificate 310395 covering the areas of biology and science. During the 1985-1986 school year, he taught ecology and science courses at Winter Park High School in the Orange County School District until he was relieved from duty on March 13, 1986, as a result of an investigation into the incidents and behavior described below. During the school day, Respondent repeatedly harassed the female students with sexual remarks, attempts at sexual humor, and requests for sexual favors and intimacies. The sexual harassment so permeated the classroom that Respondent was completely unable to discharge his professional teaching responsibilities. Faye Zentner was a senior at Winter Park High School during the 1985- 1986 school year. Notwithstanding the fact that Respondent knew that she was a student, he repeatedly asked her to go with him on a date, followed by dinner and bed. Unsolicited, he gave her his home telephone number and told her to call him. He frequently remarked on her clothing, advising her that she should not wear such nice clothes. He often communicated by notes that he would show her and then tear up. Ruth Evans was a senior at Winter Park High School during the 1985-1986 school year. She was in Respondent's science class. Respondent repeatedly complimented her on her dress. He would intentionally drop a pencil and watch her while she picked it up. At different times, Respondent told her that he "wanted her body" and thought that she had a "nice ass." He also told her that he wanted to "get between her legs." He asked her to go out with him and then to his place. One afternoon when Ms. Evans asked to leave class 10 minutes early for a school-sponsored softball game, Respondent's response was, "If you're not going to do anything for me, why should I do anything for you?" Kristen Fischer was a senior at Winter Park High school during the 1985-1986 school year. She was in Respondent's ecology class. Looking at her breasts and body while speaking, Respondent would frequently tell Ms. Fischer that he liked what he saw, including her tight jeans. As with the other female students, Respondent asked Ms. Fischer to go out with him and have a drink. The testimony of the remaining female students reiterated the above testimony and established a pattern of sexual harassment on the part of Respondent. Respondent summoned Juliana Gomes from the classroom and, in the hall, commented on her appearance and asked her out on dates. Ms. Gomes finally began reporting to school late in order to avoid her first-period class with Respondent. Respondent told jokes involving female body parts, such as the vagina, to Laurie Kreitner, another student. When she would not listen to these jokes privately at his desk, Respondent would tell them publicly to the entire class. Respondent regularly asked Sheila Buchanan, another of his students, what she was doing on that Friday night and where she would be. At spring break, he found out where she and her girlfriends would be staying at the beach and gave them his hotel room and telephone numbers with an invitation to call him. During the entire term in ecology, Respondent administered only one test and a couple of quizzes. Otherwise, the students and Respondent sat around and talked about movies and matters unrelated to the subject of the class. On more than one occasion, Respondent admitted that his grades were a reflection of whom he liked and whom he did not like. Respondent even allowed Ms. Buchanan to grade half of the finals, and she gave good grades to her friends.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent's teaching certificate be permanently revoked. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Martin Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 J. David Holder, Esquire Rigsby & Holder Suite 200 1408 North Piedmont Way Tallahassee, Florida 32312 Reginald Crooms 617 South Delaney Avenue, No. 19 Orlando, Florida 32801
