The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, 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 19th day of June, 2015.
The Issue The issue in this case is whether, and how, Respondent should be disciplined for failing to take appropriate action regarding a middle school student who brought a knife to school.
Findings Of Fact Respondent holds Florida Educator Certificate 1063574 and is licensed in the fields of English, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. She began teaching at Bonita Springs Middle School in Lee County in September 2011, after the start of the 2011-2012 school year. During instruction in her fourth period class on February 13, 2012, Respondent heard a student ask another student, who was an Exceptional Student Education (ESE) student with emotional issues, "was that a knife?" The ESE student responded, "Drama!" When Respondent looked up, she saw the ESE student place something in her lap, out of Respondent's view. Respondent did not see what it was but saw a flash of silver or metal. The class started to "act up," and Respondent decided to diffuse the incident and quiet the class by telling the ESE student to "put it away." The ESE student then put the object in her backpack. When the class ended, Respondent approached the ESE student and asked if she had a knife. The student denied it. Respondent told the student, if she had a knife, that would be unacceptable, but Respondent did not pursue the matter any further at the time and allowed the student to leave for her next class. During Respondent's eighth period class, the last period of the day, Respondent asked her student-aide, who also was a student in her fourth period class, about the incident during fourth period. The student-aide told Respondent that it was a knife, like a small steak knife, and that the ESE student had been licking it. After speaking with her student-aide, Respondent sent the school's ESE director, who also was the ESE student's caseworker, an electronic message simply asking to discuss the student with her when she had a moment. No details about the incident were included in the message out of Respondent's concern that it would be a public record. Respondent did not receive a response by the end of the school day. The ESE director received the message after hours. The next morning, Respondent saw the ESE director at a teacher's meeting and explained the previous day's incident. The ESE director was concerned about the delay in doing anything else about it and immediately went to the school principal, who was in the cafeteria, as were several other students, including Respondent's ESE student. The principal immediately went to the student and asked if she had a knife. The student admitted she did and thought it was no big deal since Respondent did nothing about it the day before. The student later stated that she was depressed and was considering cutting herself with the knife. Respondent now understands that she did not take the appropriate action on February 13, 2012. However, she contends that there are mitigating factors to consider, and any discipline should be constructive (such as, additional training), not punitive. Respondent attempts to defend herself to an extent by saying she did not actually see the knife during fourth period. However, it is clear that Respondent heard students asking about a knife, and saw something silver or metallic that could have been a knife, and was aware of the student's emotional issues. In light of those circumstances, Respondent should not have been satisfied with the student's denial that she had a knife; she should have involved the school's administrators and resource officer at that point. When she learned during eighth period that the student in fact had a knife, she should not have been satisfied with an unacknowledged electronic message to the ESE director. Respondent also attempts to deflect some blame onto the school for not making sure she knew what to do about incidents like the one that confronted her on February 13, 2012. It may well be true, as she testified, that Respondent did not get a copy of the Parent Guide and Code of Conduct for Students, normally distributed to teachers at the beginning of the school year, which identifies a kitchen knife as a weapon and prohibits it. Petitioner attempted to impeach Respondent's denial of receipt of the document by citing a handful of student discipline referrals by Respondent that use incident types taken from that document. One incident type, albeit not used by Respondent in any of her referrals, was possession of weapons; however, the form does not define weapons. Respondent testified convincingly that she used the forms without reference to the source document. Nonetheless, she knew it would be unacceptable for a student to have a knife at school. When Respondent started teaching at the school, she was offered an opportunity to take the APPLES program for new teachers, which provides information and training on codes of conduct, including provisions to protect the safety of students and faculty. Respondent opted out, stating that she took the APPLES program during her previous employment in Collier County. While perhaps not handed to Respondent when she started teaching at Bonita Springs Middle School, the Parent Guide and Code of Conduct for Students was easily accessible from Respondent's school computer via a program called SharePoint that was a link on the home page. Respondent denies ever accessing the material from her computer. However, Respondent prepared a professional development plan shortly after she started teaching at the school in October 2011. It included a plan to train on how to download documents from SharePoint, but Respondent had not yet followed through on that plan by the time of the incident. Information also was available to Respondent in the form of an Agenda book that she was given. The Agenda book contained the school's rules, including one prohibiting weapons as nuisances and providing that they would be confiscated. It is not clear whether any of the information provided or available to Respondent would have told her what to do in circumstances where she suspected, but was not certain, that a student had a knife, and the student denied it. Based on the facts of this case, additional training is appropriate and actually is desired by Respondent. On the other hand, Respondent would rather not be reprimanded, submit to supervised probation, and pay a $500 fine and pay costs, as Petitioner proposes. Under the facts and circumstances of this case, Petitioner's proposal would be harsh, not constructive, and possibly demoralizing. The evidence is clear that Respondent will follow the rules she is given and take appropriate action in a situation if she knows what is expected of her. A repeat of the failure to act appropriately in a situation similar to the incident on February 13, 2012, is not likely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission find Respondent guilty of violating rule 6B-1.006(3)(a), issue a letter of reprimand, and place her on a short term of probation conditioned on the completion of appropriate additional training. DONE AND ENTERED this 8th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 8th day of April, 2013.
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
The Issue The issue is whether Petitioner properly determined that Respondent should be discharged from employment as a tenured teacher based on his professional incompetence.
Findings Of Fact At all times pertinent to this case, Petitioner employed Respondent as a certified tenured teacher. Respondent has 28 years of experience teaching mathematics. Michael Kemp became principal at Englewood High School (EHS) during the 2002/2003 school year. Respondent was a mathematics teacher at EHS for the 2002/2003 and 2003/2004 school terms. EHS has approximately 2,050 students. It is unique in that it serves as Petitioner's secondary center for a program known as "English for Speakers of Other Languages (ESOL)." Approximately 80 percent of the students at EHS score below a Level 3 (below standard) on the Florida Comprehensive Assessment Test (FCAT). In the 2002/2003 school year, EHS implemented a standards-based curriculum for the first time. EHS teachers, including Respondent, received training relative to new student performance standards. The teachers also received training in the use of a new mini-lesson plan format for 90-minute blocks of instruction in content areas. During the 2002/2003 academic year, Petitioner implemented a new college preparatory mathematics (CPM) curriculum and a new reading strategy for all content areas. Respondent, along with other EHS teachers, received training in the new math curriculum and reading strategies. Respondent did not transition well to the new way of teaching. He did not adjust his teaching style to accommodate a "block" schedule, which required 90-minutes of instruction for each class period. Mr. Kemp evaluated Respondent for the 2002/2003 school year. Mr. Kemp determined that Respondent's ability to plan and deliver instruction, Competency A on the annual evaluation form and the "Classroom Observation Instrument" (COI), was unsatisfactory. However, Mr. Kemp concluded that Respondent's overall performance for the 2002/2003 school year was satisfactory. For the 2003/2004 school year, EHS initiated a sheltered academic content teaching model. As a result of the new model, many ESOL students exited the core academic program and attended special ESOL classes with designated teachers in academic areas such as language arts, mathematics, and social studies. For the 2003/2004 school year, Respondent was not a sheltered content teacher. Therefore, Respondent's classes contained some ESOL students but not as great a percentage as in 2002/2003. A high student-failure rate was common at EHS for the 2003/2004 school year. That year, approximately two-thirds of Respondent's students previously had failed their required math classes and were repeating the courses. Parental complaints against teachers are normal. The complaints are not always valid. However, when the 2003/2004 school year commenced, Mr. Kemp became concerned about the number of parents who wanted their children removed from Respondent's classes. Some of the parents made the requests as soon as their children were assigned to Respondent's classes. Other parents requested reassignment of their children to other math classes as the year progressed. On November 7, 2003, a student in one of Respondent's classes became very disruptive. Respondent attempted to get the student to settle down. When his efforts were unsuccessful, Respondent directed a verbal obscenity to the student in front of other students while class was in session. Specifically, Respondent told the student to "get the f--- out" of the classroom. On November 14, 2003, Mr. Kemp had a conversation with Respondent about his unsatisfactory classroom performance. In a memorandum dated November 17, 2003, Mr. Kemp advised Respondent that a success plan would be developed and a support team identified to assist him. On December 3, 2003, Mr. Kemp observed Respondent teaching a math class. Mr. Kemp determined that Respondent did not demonstrate satisfactory teaching behaviors. Regarding Respondent's classroom management, Mr. Kemp's observations included the following: (a) Respondent did not control the classroom; (b) Students were not on task during the warm-up activity; (c) Students engaged in conversations, which were not related to the task at hand; (d) There were no apparent expectations for classroom behavior; (e) Respondent tolerated disrespectful talk from students; and (f) Respondent did not control classroom dialogue and discussions. Regarding Respondent's instructional delivery, Mr. Kemp's observations included, but are not limited to, the following: (a) Respondent did not connect the purpose of the lesson with its content; (b) Respondent lectured from the front of the class and did not vary his instructional delivery; (c) Many students were not on task; (d) Respondent continued the lesson despite statements of frustration and lack of understanding from students; (e) Respondent demonstrated content knowledge and mastery of material, but he did not successfully transfer content to students or communicate with them; (f) The lesson was not motivating; (g) Students were not engaged and ignored the lecture; (h) Except for two students who answered questions, the class was either lost or not engaged; (i) Some students requested other students to explain or teach them an assigned task; (j) Respondent circulated among the students but he had no organization as to what was being checked; and (k) Respondent was unaware that students were working on other assignments unrelated to the class work. In a memorandum dated December 4, 2003, Mr. Kemp notified Respondent that a conference had been scheduled for December 10, 2003. The purpose of the meeting was to initiate Respondent's success plan. On December 8, 2003, Mr. Kemp observed Respondent teach another math class. Mr. Kemp concluded that Respondent did not demonstrate satisfactory teaching behaviors. Mr. Kemp's observations included the following: (a) Respondent needed assistance with appropriate lesson planning for a block schedule; (b) Respondent relied too much on a lecture format with no connection between the content of the lesson and its purpose; (c) Respondent had adequate content knowledge but he was ineffective in transferring that knowledge to the students; (d) Respondent had difficulty keeping the students engaged and on task; and (e) Respondent had little control over classroom dialogue. On December 10, 2003, Respondent met with his success team. After the meeting, Respondent was given an opportunity to provide additional strategies and suggestions for improvement to the success plan. Respondent did not take advantage of this opportunity. Respondent's 2003/2004 success plan contained specific goals, objectives and tasks in the following areas: (a) Plans and delivers effective instruction; (b) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) Evaluates the instructional needs of students; (d) Communicates with parents; and (e) Promotes student growth and performance. The success plan identified certain members of the success team to work with Respondent on each area of professional development. The plan provided for weekly meetings with the success team members between January 5, 2004, and March 30, 2004. The success plan required Respondent to attend professional development cluster meetings for off-site continuing education in the following subject areas: (a) Standards Based Education; (b) Rituals and Routines; and (c) Effective Communication. The success plan provided opportunity for on-site continuing education and professional development. For example, the plan required Respondent to read and summarize certain professional literature such as the following: (a) Two math chapters in Best Practices; and (b) Modules related discipline and communication in CHAMPS Foundation. Additionally, Respondent's plan required him to view a video tape related to effective interpersonal communications with students and explain in writing how he planned to implement communication strategies in his classes. Most important, the plan required Respondent to observe his math colleagues twice a month. The success plan required Respondent to develop weekly lesson plans. These lesson plans had to include mini-lesson plans for each class at least once in each daily lesson. The mini-lesson plans included FCAT warm-ups, opening, practice, and closure. The success plan required other on-going activities including, but not limited to, the following: (a) Preparing a written script and implementing appropriate questioning strategies using Bloom's Taxonomy; (b) Preparing a written script of appropriate questions for use when monitoring and probing for solutions with cooperative groups; (c) Preparing a written summary on learning modalities; (d) Preparing a written list of strategies to meet all classroom exceptionalities and learning styles; (e) providing students with written individual corrective feedback; (f) Posting dates for remediation, retesting, or revision of work; (g) Establishing and applying published classroom routines; (h) Posting classroom rules; (i) Creating and maintaining an Absentee Assignment Notebook; (j) Publishing and enforcing a procedure for recording and reporting tardies; (k) Maintaining a notebook of handouts for student access; (l) Publishing and implementing a routine for lesson closure and class dismissal; (m) Maintaining student data records in the "Success by Design" notebook; (n) Communicating with parents about unsatisfactory student performance and course recovery opportunities, using two methods and keeping a log and copies of any written communication; and (o) Creating a daily journal of professional reflections relative to improving student rapport. The success team members observed Respondent's classes and reviewed his written assignments to determine whether he was meeting the requirements of his success plan. The team members provided Respondent with verbal and written feedback about his progress or lack thereof. The success team met as a group on February 10, 2004. On March 10, 2004, Mr. Kemp made a final observation of Respondent's teaching performance. Mr. Kemp concluded that Respondent was attempting to establish a rapport with his students. However, Respondent's performance was inadequate in the following ways: (a) He needed to implement strategies to engage the students; (b) He needed assistance with lesson plans; and (c) He needed additional strategies for classroom management. Mr. Kemp met with Respondent on March 12, 2004. At the meeting, Mr. Kemp advised Respondent that he had not successfully completed the success plan. The annual evaluation that Mr. Kemp and Respondent signed at the meeting indicates that Respondent's performance was unsatisfactory in the following areas: (a) Competency A--plans and delivers effective instruction; (b) Competency C--Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (c) Competency G--promotes student growth and performance. According to the evaluation, Respondent's overall performance for the 2003/2004 school year was unsatisfactory. As requested by Respondent, Petitioner assigned Respondent to a teaching position at La Villa School of Arts (La Villa) for the 2004/2005 school term. Connie Skinner was La Villa's principal and Jeffery Hutchman was head of the math department at La Villa. Mr. Hutchman made several attempts to contact Respondent during the summer before the 2004/2005 school year commenced. Mr. Hutchman intended to invite Respondent to a middle-school mathematics workshop. Respondent never received Mr. Hutchman's messages and therefore did not attend the workshop. At La Villa, Respondent did not have an assigned classroom. Instead, Respondent was a "traveling" teacher who changed classrooms each period. On September 3, 2004, Ms. Skinner observed Respondent teach a math class for the first time. Ms. Skinner had some positive and negative comments about her observations. Among other things, Ms. Skinner concluded that Respondent circulated appropriately among the students, quickly stopped disrespect by one student, and had good questions from the class at the end of the lesson. She made the following suggestions: (a) Respondent needed to speed up the mini-lesson; (b) Respondent needed to set a time limit for student work to reduce the number of students who were not engaged or slow to start; and (c) Respondent needed to get students to the board. EHS sent La Villa a copy of Respondent's 2003/2004 success plan. On September 3, 2004, the success team at La Villa decided to use a modified version of the 2003/2004 success plan until Ms. Skinner and the La Villa success team had an opportunity to observe Respondent and develop a new success plan for the 2004/2005 school year. On October 11, 2004, Ms. Skinner made an unplanned observation in Respondent's class. The purpose of the visit was not to evaluate Respondent, but to gain additional information for the development of the new success plan. During the visit, Ms. Skinner noted, among other things, that Respondent's voice registered disgust with students for not using notes. On October 20, 2004, Ms. Skinner observed Respondent teach a math class, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner noted the following: (a) There was a great deal of confusion in a group assignment; (b) Respondent did not gain student attention at the start of the lesson; and (c) Respondent made statements showing his disdain for students and his lack of class discipline. Ms. Skinner concluded that Respondent's performance was unsatisfactory. On October 21, 2004, the success team at La Villa presented Respondent with a new success plan. The plan included specific goals and objectives to effect improvement in Respondent's ability to plan and deliver instruction, to demonstrate effective classroom management skills, to show sensitivity to student needs, to demonstrate abilities to evaluate students' instructional needs, to communicate with parents, and to promote student growth and performance. The 2004/2005 success plan required Respondent to attend training classes in "Connected Math." It also required him to attend workshops in instructional strategies and classroom management as well as other on-site and off-site continuing education programs. The 2004/2005 success plan specified that success team members would assist Respondent by explaining and demonstrating classroom strategies. Additionally, the success team members were required to observe Respondent in the classroom and provide him with feedback. Ms. Skinner observed Respondent on November 17, 2004. Among other comments, Ms. Skinner noted that Respondent's students were either not engaged or asked questions unrelated to the subject of the lesson. Ms. Skinner also concluded as follows: (a) Respondent's lesson did not include a mini lesson; (b) The content of the students' notebooks were poorly arranged and inconsistent; and (c) The students' homework folders were mostly empty and contained no teacher commentary. Ms. Skinner observed Respondent on November 24, 2004, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner determined that Respondent told the class to "shhhh" over 30 times. For this and other reasons, Ms. Skinner concluded that Respondent had not demonstrated satisfactory performance. On January 20, 2005, Ms. Skinner used the COI and the Professional Behaviors Instrument (PBI) to evaluate Respondent's classroom performance. These evaluations indicated that Respondent had improved in some areas such as clarity of instruction and interaction with students, resulting in a more engaged class. However, his overall performance was unsatisfactory. On March 10, 2005, Ms. Skinner used the COI to evaluate Respondent's teaching behaviors. Ms. Skinner observed the following: (a) Respondent presented material that was hard to read; (b) Respondent handled questions poorly; (c) The pace of the lesson seemed very slow; (d) Respondent failed to praise a student for a correct answer; and (e) Respondent's tone of voice carries disdain for students. Ms. Skinner concluded that Respondent's teaching behaviors were not satisfactory. On March 11, 2005, Ms. Skinner completed Respondent's annual evaluation. She concluded that his performance was unsatisfactory in the following areas: (a) Competency A, Plans and delivers effective instruction; (b) Competency D, Shows sensitivity to student needs by maintaining a positive school environment; (c) Competency E, Evaluates instructional needs of students; and (d) Promotes student growth and performance. Respondent's overall evaluation indicated that his professional growth was unsatisfactory. As to Compentency A, persuasive evidence indicates that Respondent's delivery was not clear and explicit. His students did not understand the lesson objectives. His written communications included misspelling and typos. As to Competency D, the record shows that Respondent failed to provide his students with positive reinforcement. Instead, his tone of voice carried disdain when interacting with his students. As to Competency E, Respondent had an unusually high failure rate. This shows that Respondent's instruction did not meet the needs of his students. As to Competency G, Respondent did not provide for individual student needs during his classes. On March 15, 2005, Ms. Skinner and Respondent discussed his 2004/2005 success plan. Ms. Skinner advised Respondent that he had not successfully completed the plan. After each observation/evaluation, Ms. Skinner discussed her findings with Respondent. She advised Respondent of strategies for improving his teaching behaviors. While there was some improvement in the middle of the 2004/2005 school term, by the end of the year there was a reversion in Respondent's professional growth. Ms. Skinner stated that "all of the strategies for standards-based education that we had worked on and helped him to understand, we thought went by the wayside." Regarding Competency A and Competency G, Respondent was unable to improve, despite the assistance of his success teams and the specific in-service training they provided. Respondent's was unable to maintain a satisfactory level of performance for Competency D and Competency E. He made improvement in only one area, Competency C. Overall, Respondent's professional growth was unsatisfactory for consecutive annual evaluations separated by a year of in-service training to correct his deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order, terminating the Respondent's employment as a tenured teacher. DONE AND ENTERED this 18th day of November, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 18th of November, 2005. COPIES FURNISHED: Adres Rojas, Esquire City of Jacksonville City Hall, St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph J. Wise, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207
The Issue The issues are whether Petitioner has just cause to discipline Respondent for restraining a student with disabilities, in violation of Petitioner’s policy 5.181(4)(a), (4)(b)(iv), and (6)(d)(iii)(A), and, if so, whether Petitioner may depart from progressive discipline and impose a one-day suspension, as provided by the Collective Bargaining Agreement Between Petitioner and The Palm Beach County Classroom Teachers Association (CBA).
Findings Of Fact Respondent is a certified ESE teacher and has taught ESE classes for 12 years. Since 2012, Respondent has taught at Royal Palm School, which is an ESE center operated by Petitioner for students ranging in age from 3 to 22 years. During the 2014-15 school year, as well as summer school of 2015, Respondent taught a K-1 class of mostly five- and six-year-olds in an intellectual disabilities class. At the start of the 2014-15 school year, Respondent's classroom consisted of 12 ESE students, although Respondent's class, by the end of the school year, consisted of 11 students and, in summer school, 9 students. At the start of the school year, the principal assigned two aides to Respondent's classroom. The students' disabilities were varied. Student 10 suffers from Down Syndrome, has deficits in vision and hearing, and was the most cognitively challenged of the students in the class. Student 10 used a "chew toy" for oral stimulation, wore diapers, and required full assistance when eating. He was unaware of danger and required adult supervision at all times, including a curb-to-curb escort on arriving and leaving school. Student 10's delays in cognition, communication, and social/emotional development limited his interactions with adults and peers. Based on his May 2015 IEP, by the end of the school year, Student 10 still could not attend for more than five seconds in response to an adult voice, required hand-over-hand assistance to mark paper, demonstrated no hand dominance, repeatedly grabbed nearby items and placed them into his mouth for oral stimulation, could not maintain eye contact, and (if permitted) wandered about the classroom climbing onto chairs and tables or spinning in continuous circles. He was unable to walk more than 300 feet on uneven surfaces independently without losing his balance and engaged in various behaviors, likely to self-stimulate or to modulate stimulation, including rocking side to side while standing or rocking his chair back and forth while sitting. Student 10 had rocked his chair the prior school year until his teacher placed the chair against a wall, so he could not rock it. Student 11 was aggressive and would slap, kick, bite, spit, and throw things at adults and peers. Another student was blind and defenseless. Student 11 had bitten this student once and had tried to bite him on another occasion, so adults had to ensure that Student 11 could not get at the defenseless student, who had been attacked on two other occasions by other students. Another student suffers from Dandy Walker Syndrome, which involves swelling of the cerebellum due to the collection of intracranial fluids. She is deaf, tends to aspirate her food, suffers seizures, has limited mobility, and is highly aggressive. Another of the students has a serious liver disorder, so that the consumption of certain foods could be deadly. Although her mother sent food to school every day, the student tried to take other students' food and eat it. She also must be kept from bending over, which may necessitate emergency hospitalization. Another student is developmentally disabled, deaf, and blind. These five students required one-on-one adult supervision as much of the time as adult staff was available to provide it. In addition to Student 10, four other students were diagnosed with Down Syndrome. One of these students was limited to baby food and tried to escape from the classroom every time he approached the door. He also threw things at other students. One of the other students with Down Syndrome is much less mobile, but constantly pushed over chairs. Much time of the adults in Respondent's classroom was spent in toileting. Ten of the students were still in diapers. These students required considerable assistance in the bathroom to avoid accidents that would leave the area soiled with feces. One aide estimated that nine of these students averaged four diaper changes daily; the tenth--the student with the liver condition--required six or seven diaper changes daily. She estimated that an aide would spend an average of three minutes changing a wet diaper and six minutes changing a soiled diaper, which, she testified, occurred with a high frequency. The aide added that considerably more time was involved if the child's clothing also required changing, but she did not estimate the frequency of this occurrence. Ignoring clothing changes, toileting activities thus consumed at least three hours daily of aide time. Aides were also required to devote one hour daily to hall duty and substantial blocks of time to serving breakfast and assisting with children leaving or entering buses or other transportation. In sum, due to these responsibilities, half of an aide was not available for supervision in the classroom during instruction or transitions. The principal's assignment of two aides to Respondent's classroom was based on Petitioner's policy of one aide per every six ESE students. Although the staffing of Respondent's classroom conformed to Petitioner's staffing policy, at the start of the 2014-15 school year, Petitioner and her two aides were overwhelmed by the needs of their 12 students, prompting Respondent to seek help from her administrators. The principal agreed to provide Respondent relief if the District office approved the creation of another classroom at Royal Palm School. However, the enrollment at the school failed to meet the threshold for the addition of another class. In the alternative, the principal directed other persons, including an occupational therapist, physical therapist, varying-exceptionalities teacher, deaf-and-hard-of-hearing teacher, speech-language pathologist, and behavior resources teacher, to meet and find a solution for Respondent. The group appointed by the principal met four times in November 2014 to devise a plan to help Respondent with her entire class. The first meeting took place on November 7, 2014, with 13 attendees, including Respondent. Although the principal did not attend the first two meetings, the perspective of the administration was presented by the behavior resources teacher, who led off the meeting by acknowledging that the principal had asked them to identify ways to help Respondent better meet the "safety and needs" of her students using existing staff. Respondent spoke next, stressing the need for "additional staff" and distributing a handout describing her students in general terms. The behavior resources teacher suggested splitting the class in two by allowing aides and "support staff" to use an adjacent, underused room to teach half the class while Respondent taught the other half. Respondent stated that she needed another aide. In addressing a suggestion that an aide might volunteer to help out in Respondent's classroom, one of the existing aides mentioned that the other aides knew of the problems, such as children removing their clothes and one child playing with his stool, so any aide would have to be assigned. Someone asked if the classroom was set up for "good teaching," and Respondent replied, "yes, but we have serious danger issues." The existing aide noted staffing deficiencies, but the behavior resources teacher answered, "Do the best with the people we have now." The meeting concluded with several persons offering to supervise some of Respondent's students during parts of the day, but a unique aide to one child worrying that she and the nurse would be exposed to potential liability if they were expected to serve the needs of any students besides the single student to whom they were assigned. A few days later, a group of 10 persons reconvened. The minutes of this meeting conclude that all staff was willing to try to help Respondent, there was a "great need for additional help to assist with toileting and general assignments throughout the day," and Respondent continued to insist on additional staff. One week after the first meeting, 14 persons met for a third meeting. This group included Respondent, the principal, and the assistant principal. Attendees addressed the changes that had already been made, including greater use of the adjacent room effectively to reduce the ratio of students to adults in Respondent's classroom. The principal agreed to hire a third aide. The group discussed that students were overturning furniture and changes were needed to avoid injury to someone. Someone had suggested bigger tables--presumably, too heavy for the students to overturn--and the appropriate person was trying to locate some. The final meeting took place on November 24, 2014, with 13 attendees, including Respondent, the principal, and the assistant principal. A discussion of Student 11 mentioned the proper use of a Rifton chair, which is equipped with a lap belt. The behavior resources teacher emphasized that the chair must be used properly, and the assistant principal added that it may not be used for restraint. The third aide had been assigned to the classroom, and Respondent reported that she had helped a lot. About three weeks later, during the final week of school before winter break, Respondent reported to the behavior resources teacher that the behaviors in her classroom had improved and transitions were proceeding smoothly. Respondent did not elaborate at the hearing on the effect of the behavioral improvements that followed the assignment of a third aide to her classroom toward the end of the first semester of the 2014-15 school year. Clearly, adult time was consumed partly by dealing with maladaptive behaviors, but many of the time-consuming features of the class, as described above, were not behavioral, at least in the sense of their amenability to dramatic change: for example, the demanding toileting needs of all but two of the students; Student 10's cognitive challenges, unawareness of danger, need for oral stimulation, need for hand-over-hand assistance to mark a paper, and spinning, rocking, and tendencies to climb atop the furniture; and the extraordinary needs of the students with Dandy Walker Syndrome, the liver disorder, and development disability with blindness and deafness. The CBA authorizes discipline of employees for "just cause." CBA, Art. II, § M, ¶ 6. Petitioner is required to impose progressive discipline, which, in ascending order, is a verbal reprimand with a written notation, written reprimand, suspension without pay, and dismissal. CBA, Art. II, § M, ¶ 7. Petitioner is limited to progressive discipline "[e]xcept in cases which clearly constitute a real and immediate danger to the District" or "the actions/inactions of the employee constitute such [sic] clearly flagrant and purposeful violations of reasonable school rules." Id. Petitioner has failed to prove just cause for disciplining Respondent in connection with Student 11. Petitioner failed to prove the material allegations involving Student 11 other than that, when he became overstimulated and unruly, Respondent directed him to sit on a bean bag chair in the back of the room so that he could recompose himself before returning to his seat. This directive was entirely reasonable, especially given Student 11's above-noted proclivity toward biting and spitting upon his neighbors and staff, including one particularly vulnerable child. The evidence fails to establish that any adult folded up Student 11 "like a taco" in the bean bag chair or directed Student 11 to fold himself up in the chair. It is possible the sides of the chair could have been pulled up to interfere with the occupant's sight line of something that had been distracting him or someone he had been assaulting, but no evidence suggests that pulled-up sides substantially blocked Student 11's view of the room or that the sides would remain pulled up for very long. When giving a statement to Petitioner, Respondent's casual description of her use of the bean bag only underscores that its use was innocuous; this statement did not constitute, as Petitioner contends, a concession of child abuse in an unguarded moment during an intensive interrogation. On this record, the evidence fails to prove that Respondent's use of the bean bag chair was in any way inappropriate, and Student 11 is not further addressed in this recommended order. On the other hand, Petitioner has proved just cause for disciplining Respondent in connection with Student 10. Petitioner proved that, in violation of Petitioner's policy governing the restraint of ESE students, on several occasions, Respondent attached a bungee cord to the legs of Student 10's chair, stretching the cord around the legs of the table at which Student 10 sat. The cord did not touch Student 10, unless he could reach it with his feet, nor did the cord force the chest or stomach of the child to press against the edge of the table. But tethering the chair to the table prevented Student 10 from pushing his chair back from the table to get out of the chair without assistance from an adult. It is not entirely clear when Respondent first used the bungee cord to restrain Student 10. She applied the bungee cord for not more than one hour at a time when one of the aides was at lunch or unavailable in the classroom due to toileting or other duties that removed her from direct contact with the students, and Student 10 was rocking in his chair, at risk of tipping over. This practice clearly took place after the addition of the third aide to the classroom. At no time did Student 10 acknowledge the presence of the bungee cord or indicate any embarrassment at its use. Respondent's use of the bungee cord was not a means to punish Student 10. Respondent's use of the bungee cord was not for her personal convenience, such as to permit Respondent to escape her instructional and supervisory duties during the school day. Respondent's use of the bungee cord was to protect Student 10 from tipping over his chair and harming himself while allowing Respondent and the aides to monitor more closely other vulnerable students. Respondent worked hard to obtain help in her classroom, and administrators responded with a third aide. It seems that the additional adult may have helped with the more behavioral problems. But the more intractable issues presented by the students still had to be managed, and Respondent continued to advocate for the needs of her students. At one point during the school year, Student 10's mother gave to Respondent a prescription for occupational therapy, physical therapy, and speech therapy. Respondent delivered this prescription to the school's occupational therapist, who said they would evaluate Student 10, but not until the end of the school year, despite the fact that the child obviously suffered from significant deficits that are properly addressed by occupational therapy. The record provides no support for a departure from progressive discipline. If every violation of the policy restricting the restraint of ESE students justified a departure from progressive discipline, the policy and perhaps the CBA should so provide, but they do not, so it is necessary to analyze the circumstances of Respondent's violation from the perspective of the language of the CBA's departure clause. In general, Petitioner has failed to prove by clear and convincing evidence that Respondent's use of the bungee cord clearly constituted a real and immediate danger to the District. Not a natural person, the District is most obviously jeopardized by legal liability. There is no evidence of the reaction of the mother of Student 10 upon being told of the use of the bungee cord with her son. There is no evidence of any legal action that has been commenced or is likely to be commenced by Student 10's mother, any advocate for disabled students, or any federal or state agency responsible for monitoring compliance with the Individuals with Disabilities Education Act. Investigations by the Department of Children and Families and Petitioner's police were closed without any action. Nor has Petitioner proved by clear and convincing evidence that Respondent's acts and omissions constitute clearly flagrant and purposeful violations of reasonable rules. The reference to "reasonable" rules is puzzling, as though some rules are not reasonable, but, if it must be said, Petitioner's policy restricting the restraint of ESE students is reasonable. Also, Respondent's violation was purposeful. Admitting that she never told any administrator about her use of the bungee cord, Respondent testified that she did not know that her use of the cord violated Petitioner's policy against restraints when applied to ESE students. If Respondent meant that she was unaware of Petitioner's policy addressing the restraint of ESE students, this testimony is discredited. Even the aides understood that there was a general prohibition against restraining ESE students. Also, during one of the four meetings in November 2014, one or two participants alluded to the policy. Lastly, generous portions of the policy are incorporated in the CBA. If Respondent meant that she was unaware that her use of the bungee cord violated Petitioner's policy, this testimony also is discredited. The purpose of the bungee cord was to restrain Student 11, and the policy broadly restricts the restraint of ESE students. Petitioner thus proved that Respondent's violation was purposeful because she knew of the policy restricting the restraint of ESE students, knew that the bungee cord restrained Student 10's freedom of movement, and knew that her use of the bungee cord violated the policy. The CBA requires, though, that the violation also be flagrant. Flagrant means " conspicuously offensive <flagrant errors>; especially: so obviously inconsistent with what is right or proper as to appear to be a flouting of law or morality <flagrant violations of human rights>." http://www.merriam- webster.com/dictionary/flagrant. The bungee cord itself was inconspicuous, as it extended a few inches about the floor under a chair and a table amid a classroom of tables and chairs. No administrator who happened by Respondent's classroom for the several months that the bungee cord was in intermittent use ever noticed it. Other students appeared not to notice the use of the bungee cord, as Student 10 suffered no embarrassment from the use of the bungee cord in this manner. Respondent's use of the bungee cord was not conspicuously offensive. All three aides witnessed Respondent's use of the bungee cord for several months, but said nothing and did not seem to think that the use of the bungee cord presented much, if any, of an issue. The third aide, who had worked only part of the school year, mentioned the bungee cord to the assistant principal, but primarily as support for her complaint that Respondent's summer-school class of nine students could not be served by only two aides. A conspicuously offensive act would have generated more dramatic responses from the aides. Respondent's motivation in using the bungee cord also undermines a finding of flagrancy. As noted above, the class presented serious demands on the four adults. Especially when one or two aides were unavailable due to other duties, the bungee cord kept Student 10 from harming himself and allowed Respondent and the available aide or aides to better serve the other children, as in preventing one from striking a particularly vulnerable child, preventing one from eloping, and preventing one from bending over or eating others' food, or providing a few extra minutes of direct support to a developmentally disabled child who could neither see nor hear what was going on around him. Respondent's use of the bungee cord did not expose Student 10 to an unreasonable risk of personal harm. An adult could quickly remove him from the tethered chair, probably more quickly than she could remove a child strapped into a Rifton chair. In no way did this restraint pose as much risk as that posed by one or more adults’ grasping and holding a child, say, pinned to the ground. Student 10 could not self-evacuate with or without the bungee cord. Whatever theoretical risk of harm was posed by the few seconds that it would take for an adult to push the tethered chair back to allow Student 10 to get out of his chair was more than offset by the gain in safety from stopping the climbing atop furniture and tipping the chair back. When administrators at Royal Palm School learned of Respondent's use of the bungee cord during summer school in 2015, they immediately removed Respondent from her teaching assignment under her summer-school contract, without pay, for the remaining 12 days of summer school. The following year, she was assigned alternative duties that did not involve student contact, but was paid at her regular rate.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding just cause for disciplining Respondent for a violation of Petitioner’s policy 5.181(k)(ii) in connection with the restraint of Student 10, issuing a verbal reprimand with a written notation instead of the proposed one-day's suspension, and denying Respondent's claim for back pay. DONE AND ENTERED this 16th day of August, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of August, 2016. COPIES FURNISHED: Nicholas Anthony Caggia, Esquire Law Office of Thomas L. Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed) Jean Marie Middleton, Esquire Laura E. Pincus, Esquire School Board of Palm Beach County Office of General Counsel 3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239 West Palm Beach, Florida 33416-9239 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Dr. Robert Avossa, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
Findings Of Fact Petitioner graduated from high school in the People's Republic of China in 1972. She thereafter worked for a short time in a factory that manufactured Chinese medicines as a foreman. She became interested in Chinese medicine and enrolled in Kenchow Chinese Medical College, a nighttime professional university. She studied chemistry, biochemistry, and Chinese medicine. As a part of this program, she studied acupuncture meridians and points. For a full year, she spent two hours per day in classroom studies directly related to acupuncture and two hours practicing acupuncture as an apprentice. Thereafter, from 1973 until 1980, she worked as an acupuncturist for four hours per day, six days per week. She worked at a Chinese medicine industrial research center. In addition to her work with patients as an acupuncturist, she was involved in field studies regarding herbs and Chinese medicines and in the recording of statistics and research data. During this same time, the Petitioner enrolled in a correspondence course at Western Pacific College in Hong Kong. This program included courses in the basic theory of Chinese medicine, including courses specifically dealing with the theory and practice of acupuncture. The Petitioner enrolled at Western Pacific College so that she could receive certification as an acupuncturist. She already had completed similar work at Kenchow, and she was able to complete the course work by devoting approximately two hours per week to it. She received a certification from Western Pacific College that she completed the acupuncture course. The certification is dated January 20, 1980. In January, 1981, Petitioner moved to the United States. Since May, 1981, she has worked under the supervision of physicians performing acupuncture treatments in Volusia County, Florida. Petitioner appears to have sufficient education and experience to practice as an acupuncturist. The Department of Professional Regulation has not approved any programs of education in acupuncture or any apprenticeship programs in acupuncture. There is insufficient evidence in the record in this matter from which it could be determined that the programs offered at either Kenchow Chinese Medical College or Western Pacific College should be approved by the Department. Inquiries directed to the schools by the Department have not been answered, and the Petitioner has been unable to obtain transcripts of her course work. It cannot be determined whether anyone in any of the clinical portions of the educational programs attended by Petitioner were certified acupuncturists. The Department of Professional Regulation has not approved any apprenticeship programs for the practice of acupuncture. While it appears that Petitioner has an ample theoretical and practical background as an acupuncturist, it does not appear that prior to her coming to the United States she was ever supervised by a person who is licensed under Chapters 458, 459, or 468, Florida Statutes. Indeed, since all of her experience was in China, it is extremely unlikely that she was supervised by any such person. Petitioner has been practicing as an acupuncturist since May, 1981, under supervision as required under Chapters 458 and 459, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered denying the application of Lucy Wei-Nor Yu for licensure as an acupuncturist in Florida. RECOMMENDED this 9th day of March, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Lucy Wei-Nor Yu 1360 Ridgewood Avenue Holly Hill, Florida 32017 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent, Diane Velez, violated section 1012.795(1)(g) and (j), Florida Statutes (2017), and Florida Administrative Code Rule 6A-10.081(2)(a)1., and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the testimony given, and the documentary evidence received, the following Findings of Fact are made. Respondent holds Florida Educator’s Certificate 789520, covering the areas of Elementary Education, English for Speakers of Other Languages, (ESOL), and Exceptional Student Education (ESE), which is valid through June 30, 2020. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an ESE teacher at Stillwell Middle School (Stillwell) in the Duval County School District. She has been teaching for approximately 20 years, with no prior discipline. Respondent teaches in a wing at Stillwell that is referred to as the SLA Unit, which stands for Supported Level Academics. The students in the SLA Unit are cognitively delayed and have all of their classes in this self- contained unit. The SLA Unit is located in a wing at the back of the school, near the bus loop. If someone is looking down the hall from the doors closest to the rest of the school, there are female and male bathrooms for students to the left and right, respectively, closest to those doors. From those bathrooms, there are five classrooms on each side of the hall. Ms. Velez’s classroom is the third classroom on the right-hand side of the hallway. There are additional restrooms in the wing, all congregated in the area between the third and fourth classrooms on the left hand side of the hallway. At least one of those bathrooms is entered from within a classroom. Stillwell had a policy that if a student was given permission to leave the classroom, the student should not be gone for more than eight to ten minutes without the teacher calling for assistance to locate the student. Teachers could call for assistance from Ronald Messick, the lead ESE teacher; send a paraprofessional to look for the student; or call the front office or a resource officer. The eight-to-ten minute window was not a written policy, but was discussed during pre-planning meetings at the beginning of the year, as well as at faculty meetings. While attendance logs from pre-planning and faculty meetings were not introduced to establish that Respondent was present during faculty meetings or pre-planning meetings, no evidence was presented to indicate that she was absent. In addition, the 2017-2018 Faculty Handbook (Handbook) for Stillwell had more than one section that addressed supervision of students. For example, under the caption “Supervision of Students,” beginning on page 12 of the Handbook, it states:1 It is the responsibility of the school to provide supervision for students in attendance. It is the teacher’s responsibility to make sure that students in his/her charge are supervised at all times. Teachers should be aware of the legal and progressive discipline aspects of failure to provide adequate supervision. Students should always have adult supervision. Under the caption “Hall Passes,” on page 16 of the Handbook, it states: Hall passes are to be used for emergencies only. In an effort to reduce the number of students out of class during instructional time, each classroom will have either a lime/orange vest or a Colored clipboard. Students needing to leave the classroom are required to wear the vest or carry the clipboard. Please make sure students continue to sign-out when leaving/returning to your classroom so if the vest/clipboard disappears, you will know who was in possession of it last. Only one student per class may be on a hall pass at any given time. If it is necessary that a student leave your classroom to go to an Administrative Office and your vest/clipboard is already being used, security will need to escort student(s) to and from the classroom. While it is our desire that no student be in the halls during instructional time, there are absolutely NO hall passes for any reason during the first/last 30 minutes of each class and NO hall passes during 2nd block each day unless called by an Administrator. Students who are found out of class during the first/last 30 minutes of the block will have the vest or clipboard taken and given to the Assistant Principal for you to retrieve. Students who are out of class, unaccompanied by security, and do not have a vest/clipboard will be 1 All italics, underlining, and bold used in the quoted material is as it appears in the Handbook. considered skipping and appropriate consequences will be assigned. The teacher will also be held accountable if not following school procedure. Finally, under the heading “Hall and Campus Monitoring,” it states in all capitals and bold letters, “STUDENTS SHOULD NEVER WALK BY THEMSELVES.” On or about January 11, 2018, J.L. was an 11-year-old female student in the sixth grade. J.L. was assigned to Respondent’s classroom, and has an Individual Education Plan (IEP). J.L. was a student in a class containing students who functioned cognitively at the lowest level for students at Stillwell. While those who testified could not state definitively what the IQ level was for the class, it was generally around 67-70. Ms. Velez described the class as one for which there was “a need to have eyes on them.” J.L. was new to the school during the 2017-2018 school year. On August 22, 2017, Ronald Messick sent an email to J.L.’s teachers, including Respondent, stating that J.L. could not be left alone and that she would “leave with a complete stranger.” He advised that when J.L. uses the restroom, she likes to play in it, and directed that the teacher who has J.L. the last period of the day needed to make sure she used the restroom. J.L.’s mother had called Mr. Messick the first week of school with concerns that J.L. had been unsupervised in the bus pick-up area. Her mother explained her concerns to Mr. Messick regarding J.L.’s need for constant supervision. The email referenced making sure that J.L. went to the bathroom before boarding the bus simply because she would have a long ride home from school. An IEP meeting was conducted for J.L. on October 12, 2017. Mr. Messick was present as the LEA (lead educational agency) representative, along with Ms. Velez, who wrote the IEP, and three others. J.L.’s IEP states that “[s]he has Williams Syndrome which is a developmental disorder that affects many parts of her body.” The IEP also states that J.L. “is a very trusting child and will walk away with a stranger. She does not distinguish friend from stranger and this causes danger to her safety,” and that J.L. “needs increased supervision to ensure her safety.” The statement that J.L. needs increased supervision to insure her safety is included in two separate sections of her IEP. Respondent was J.L.’s case manager. As her case manager, Respondent reviews, completes entries, and inputs other appropriate data in J.L.’s IEP. She was aware of the information contained in J.L.’s IEP. On January 11, 2018, J.L. was present in Ms. Velez’s classroom during the last period of the day. At approximately 2:05, she asked for, and received, permission to go to the bathroom. Ms. Velez allowed J.L. to go by herself. No adult or other student accompanied her. Allowing J.L. to go the restroom alone was not permitted by her IEP. Further, it appears to violate the policies outlined in the Handbook, which prohibits allowing hall passes for the first 30 minutes of each class. The final class of the day began at 2:05.2 It also runs afoul of the email sent by Mr. Messick at the beginning of the school year, which specifically directed that J.L. not be left alone. After J.L. was permitted to leave the classroom, T.B., a male student in Respondent’s class, also asked to go the bathroom, and was allowed to leave the classroom. Ms. Velez did not check to see where J.L. was before letting T.B. leave the classroom. T.B. was also unaccompanied. J.L. was absent from the classroom for approximately 24 minutes. There are no credible circumstances presented at hearing by which a student should be absent from the classroom for that length of time, regardless of 2 The Administrative Complaint does not charge Respondent with violating this policy, and no discipline is recommended for apparently doing so. It is included simply to show that there were multiple guidelines in place to prohibit allowing J.L. outside of the classroom alone. their mental capacity, the policy contained in the Handbook, or any policy discussed at faculty meetings. T.B. returned to the classroom before J.L. After he entered Ms. Velez’s classroom, T.B. apparently told Ms. Velez that J.L. was in the boys’ bathroom. Ms. Velez testified that she was about to look for her when J.L. returned to the classroom. Ms. Velez testified that she noticed J.L. had “a lot of energy,” and was breathing hard and her hands were shaking. Ms. Velez asked J.L. if she had been in the boys’ bathroom, and testified at hearing that J.L. responded that she did not want to get in trouble. J.L. became upset and asked to speak with the school nurse. Ms. Velez allowed her to go to the nurse’s office, this time accompanied by an eighth grade girl. While Ms. Velez described the child who accompanied J.L. as “very responsible,” it is noted that she was also a child in this classroom of children who represented the lowest functioning students at Stillwell. Lana Austin was the school nurse at Stillwell, and her office was down the hall from Ms. Velez’s room in the SLA wing. She testified T.B. was in her office when J.L. arrived. It was not explained at hearing whether T.B. had also asked Ms. Velez to go to the nurse’s office or just how he came to be there. When she arrived at the nurse’s office, J.L. was crying and somewhat distraught, and T.B. was also getting upset. Ms. Austin tried to get J.L. to tell her what was wrong, and J.L. kept saying they were trying to get her in trouble. J.L. wanted to call her mother, and Ms. Austin let her do so, because she believed it would calm her down. A paraprofessional came into Ms. Austin’s office while J.L. was on the phone with her mother. So while the paraprofessional was in the office with the students, Ms. Austin contacted Ms. Raulerson, the principal at Stillwell, and notified her there might be a problem so that someone could look at the hallway video and find out if anything happened. Ms. Austin knew that J.L. was a student who needed to be escorted. She was always brought to the nurse’s office by an adult. On this occasion, there was no adult. Jennifer Raulerson was the principal at Stillwell during the 2017-2018 school year. She is now the executive director for middle schools in Duval County. Ms. Raulerson testified that J.L.’s father came to the school immediately after J.L.’s telephone call home, and started asking questions. Because of the nature of his questions, consistent with school protocols, Ms. Raulerson contacted Stillwell’s school resource officer (SRO), Officer Tuten, as well as Mr. Messick and Ms. Hodges, who was the dean of students, to discuss with J.L.’s father what needed to be done to investigate what actually happened.3 The following morning, Ms. Raulerson, Ms. Hodges, and Mr. Messick spoke to J.L., T.B., and M.N., another student in the hallway, about what happened the day before. Based on their answers, Ms. Raulerson gave Ms. Hodges a basic timeframe, and asked her to check the cameras to see if she saw anything that would indicate that something happened involving J.L. and T.B. Ms. Hodges testified that a person can type in a date and time on the computer and look at a specific timeframe on the video, which is what she did. Once she viewed the video and realized how long a student had been out of the classroom, she went to Ms. Raulerson and they looked at the video again. Mr. Messick also watched the video with them. Administrators at the school could access the surveillance video on their computers. The surveillance video software has dates and times from which you can retrieve a time period to watch. However, when you download 3 Although they were under subpoena, neither J.L. nor J.L.’s father appeared to testify at hearing. Any statements attributed to them cannot support a finding of fact for the truth of the matter asserted. § 120.57(1)(c), Fla. Stat. Statements by J.L. that are included in this Recommended Order are not intended to establish the truth of her statements, but rather, to explain why teachers and administrators took the actions they did in response to the situation. a section of the surveillance video, the downloaded portion does not include the timestamp. When Ms. Raulerson viewed the surveillance video on the computer screen, she could see the time stamp. While the video in evidence as Petitioner’s Exhibit 17E does not contain the time stamp, Ms. Raulerson credibly testified that it is the same video she and the others viewed to determine whether J.L. and T.B. were out of the classroom and how long they were out of the classroom. Petitioner’s Exhibit 17E is a type of evidence commonly relied upon by reasonably prudent persons in the conduct of their responsibilities as a school administrator. There is no evidence that the tape itself has been altered, edited, or tampered with in any way. The lack of a time stamp is not all that important. What is important is not so much the time of day when J.L. and T.B. were absent from Respondent’s classroom, but the length of time that they were absent.4 Ms. Velez admits that she allowed both students to leave her classroom on January 11. She simply disputes how long J.L. was gone. The surveillance video is 39 minutes and 53 seconds long. The times given in the summary of the video activity below are based on the times recorded on the video, as opposed to the time of day. A comparison of those timeframes with the timeline made by Ms. Austin and Mr. Messick shows that the timelines are essentially the same. The video shows the following: 4 Respondent claims she is prejudiced by the admission of the video, because she was not able to view it with the time-stamps to verify that it was, in fact, the video for January 11, 2018. It is noted that Respondent initiated no discovery in this case. Petitioner filed an exhibit list that included a reference to a video as early as July 24, 2020, some three weeks before hearing. Moreover, the Order of Pre-Hearing Instructions specifically requires not only a list of all exhibits to be offered at hearing, but also any objections to those exhibits and the grounds for each objection. Respondent did not note any objection in the Second Amended Joint Pre-Hearing Statement to the admission of any of the videos admitted as Petitioner’s Exhibit 17. At eight minutes, 17 seconds, J.L. leaves Ms. Velez’s classroom and heads down toward the girls’ bathroom at the end of the hall.5 She is wearing an over-sized jacket, but is not wearing a vest or carrying a clipboard. At nine minutes, 15 seconds, she comes out of the girls’ bathroom and speaks to an adult in the hallway, and then heads back to the bathroom. At the 13-minute, 4-second mark, T.B. walks down the hall from Ms. Velez’s classroom and, curiously, walks over toward the girls’ bathroom before going over to the boys’ bathroom. At 14 minutes, 39 seconds, T.B. comes out of the boys’ bathroom and walks over toward the girls’ bathroom a second time. After approximately ten seconds, he exits the area near the girls’ bathroom and heads back to the boys’ bathroom. At approximately 15 minutes into the video, and almost seven minutes after leaving Ms. Velez’s classroom, J.L. comes out of the girls’ bathroom, peers down the hallway in both directions, and goes over to the boys’ bathroom. At this point, she is still wearing her jacket. At approximately 18 minutes, 16 seconds into the video, a second male student, later identified as M.N., walks down the hall. M.N. is not in Ms. Velez’s class during this class period. He also goes toward the girls’ bathroom first, and then stands in the hallway outside the boys’ bathroom. After approximately 30 seconds, he walks down the hall and back, before going toward the boys’ bathroom and out of sight at 19 minutes and 40 seconds. At 20 minutes, 16 seconds into the video, other students start lining up in the hallway. Approximately four classes line up in the hallway, with no one coming out of the boys’ bathroom. At approximately 29 minutes, 5 Respondent established at hearing that one cannot actually see students enter and exit the bathrooms from the surveillance video. The sight line for the video stops just short of the doors to the two bathrooms. However, the only other alternative to going in the bathrooms would be for students to exit the SLA unit through the doors near the bathrooms. If that were the case, J.L. would be subject to harm as well, given that the doors lead to the rest of the school and the bus loading zone. 26 seconds, girls in line outside the bathroom are seen looking toward the boys’ bathroom and appear to be laughing. J.L. comes out of the boys’ bathroom at the 29-minute, 53-second mark, followed by T.B. J.L. is not wearing her jacket, and her belt is undone. T.B. throws J.L.’s jacket on the floor and walks down the hallway with his hands up in the air. Both J.L. and T.B. walk down the hall toward Ms. Velez’s room, and then turn around and return to their respective bathrooms. At the 31-minute, 53-second mark, J.L. comes out of the bathroom with her shirt tucked in and her belt fastened. She is still not wearing her jacket, a small portion of which can be seen on the floor of the hallway. She does not pick it up, but stays in the hallway until T.B. comes out of the bathroom, then both go down the hall toward Ms. Velez’s class, with T.B. running and J.L. walking. J.L. re-enters Ms. Velez’s classroom at 32 minutes, 21 seconds into the video. Finally, at 32 minutes, 30 seconds, M.N. comes out of the boys’ room, picks up J.L.’s jacket and heads down the hall. Based on the surveillance video, J.L.was out of the classroom for slightly over 24 minutes. T.B. was absent from the classroom for over 18 minutes. Ms. Velez is never seen in the hallway. There is no admissible evidence to demonstrate what actually occurred during the time that J.L. appeared to be in the boys’ restroom. Regardless of what actually happened, no female student should be in the boys’ bathroom, and a female student already identified as needing increased supervision should not be allowed to be unsupervised outside of her classroom at all, much less for such a lengthy period of time. The potential for harm was more than foreseeable, it was inevitable. Ms. Velez did not go in the hallway or send Ms. Kirkland, the paraprofessional present in her classroom that day, to check on J.L. or T.B. She did not call the SRO, the front office, or Mr. Messick to ask for assistance in locating either child. She also did not contact Ms. Raulerson, Mr. Messick, or J.L.’s parents after T.B. told her that J.L. had been in the boys’ restroom. She testified that, while J.L. certainly should not be in the boys’ restroom, there was nothing that led her to believe or suspect that there could be neglect or abuse. Ms. Velez acknowledged that she allowed J.L. to go to the bathroom unsupervised, and stated that she was training J.L. to go to the bathroom by herself. If that was the case, doing so was directly contrary to Mr. Messick’s email of August 22, 2017, and to the requirements of J.L.’s IEP. Ms. Velez had approximately 18 students in her classroom. Her focus, according to her, was on providing instruction to the students in her class. She denied losing track of time, but stated that once the students were engaged, she took her time with the lesson, which “led me to not noticing what time it was as normally as I should,” and she “possibly got distracted.” She did not take any responsibility for her actions. Instead, she blamed the situation on the fact that, at the time of the incident, she did not have a full- time paraprofessional assigned to her classroom. While the paraprofessional position for her class was not filled at the time of this incident, Ms. Kirkland traveled with the class and was present in Ms. Velez’s class when J.L. was allowed to leave the classroom. Ms. Velez also appeared to minimize the importance of providing increased supervision for J.L., and claimed that she was training her to go to the bathroom by herself. Yet, she described the class as a whole as one that needed “eyes on them” at all times. Further, J.L.’s parents clearly felt the increased supervision was crucial, and called early in the school year to make sure that staff knew J.L. was not to be left alone. Ms. Velez gave no explanation as to why she would “train” J.L. to leave the room unsupervised (and one wonders what training could be taking place, if the child is allowed to go alone outside the classroom), when she knew that to do so was clearly contrary to J.L.’s parents’ wishes. On January 22, 2018, the Duval County School District (the District) began an investigation into the incident concerning J.L. that occurred on January 11, 2018. During the District investigation, Ms. Raulerson notified the Department of Children and Families (DCF) and law enforcement of the incident. Both entities conducted investigations. The results of those investigations are not part of this record. On March 16, 2018, the District reprimanded Respondent and suspended her for 30 days for failing to provide adequate supervision of her students. The School Board’s approval of the suspension and the basis for it was reported in the press.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rule 6A- 10.081(2)(a)1. It is further recommended that Respondent pay a fine of $750, and that her certificate be suspended for a period of one year, followed by two years of probation, with terms and conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 29th day of October, 2020, 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 29th day of October, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephanie Marisa Schaap, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division) was the state agency in Florida responsible for licensing real estate brokers and salespersons and for the regulation of the real estate profession in this state. Respondent was licensed as a real estate broker, but his license had been suspended effective October 13, 1996 On May 17, 1994, after Respondent had requested but failed to appear at an informal hearing on his alleged misconduct, the Florida Real Estate Commission (Commission) issued a Final Order in which it ordered Respondent be reprimanded and pay a $500.00 administrative fine within thirty days of the filing of the order on pain of suspension of his broker's license until the fine was paid. In addition, the Commission placed Respondent's license on probation for one year with the requirement that, inter alia, he enroll in and satisfactorily complete a sixty hour post-licensure education course for brokers within one year of the filing of the order. Though in collateral communications to Petitioner's counsel, to an investigator, Ms. May, and to the prior Judge assigned in this matter, all of which are a part of the file in this case, Respondent claimed not to have received the Final Order in issue, Mr. James, another investigator for the Department of Business and Professional Regulation (Department), in his visit to Respondent's office on June 28, 1995, found a copy of the order in Respondent's office files. The prior misconduct by Respondent bears on the instant case only in so far as it supports the action taken with respect to it by the Commission. As it appears, Respondent failed to file his monthly escrow account reconciliation on the required form though he had received and had a copy of the required form in his file. He claims, in his correspondence, and there is no evidence to refute his claim, that because of his poor memory at the advanced age of eighty years, he forgot the new form had become required and continued to use the previously approved form he had used over his prior twenty-eight years in the real estate business. It appears that when that discrepancy was found by the former investigator, Ms. Mays, Respondent was issued a citation calling for a fine of $100.00 and 30 hours of continuing education, but considering that proposed penalty too severe for a "minor" offense resulting from a lapse of memory, especially when no loss was occasioned to any client, he rejected the citation and demanded a hearing. He then did not attend the informal hearing scheduled. Thereafter, the commission entered the Final Order alleged in the instant Administrative Complaint, the terms of which were described above. The required $500.00 administrative fine has not been paid nor has the required post-licensing education been completed. Respondent still contends the fine is too severe and because of his age and inability to drive at night, he is unable to take the required course. On June 28, 1995, Mr. James, an investigator for the Department, acting on a report that Respondent was continuing to operate his brokerage even though his license had been suspended, went to the Respondent's office located at 56 Harvard Street in Englewood, Florida. At that address Mr. James found Respondent operating two businesses from the same office. One was Englewood Realty and the other was a dry ice company. During the interview held on June 28, 1995, Respondent admitted he had received the Final Order but considered it unfair. Respondent also admitted he was actively engaged in the practice of real estate and wanted to keep the brokerage open until he could sell his own property, and "just in case something else came up." While Mr. James was at the Respondent's office, Respondent was visited by a female representative of an advertising publication who spoke with him about his advertisement for the sale of some real estate. Also during the visit, as James recalls, Respondent received at least one telephone call which seemed to relate to the sale of real property. In both cases, however, it appeared to Mr. James that Respondent was referring to his own property. James did not discover any reference to sales or dealing relating to property owned by anyone other than Respondent. James also reviewed Respondent's books for the brokerage and it appeared to him that Respondent was operating at a loss. Nonetheless, at no time did Respondent fail to identify himself as a real estate broker either to the advertising representative or in response to the telephone call. In light of Respondent's refusal to comply with the earlier suspension, his apparent unwillingness to cease operations as directed until it suited his purpose, and his unfavorable financial position as to the brokerage, the Petitioner recommends only that Respondent's license as a real estate broker be revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Real Estate Commission enter a Final Order in this case revoking Respondent's license as a real estate broker in Florida. RECOMMENDED this 2nd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1996. COPIES FURNISHED: Raymond J. McGinn Englewood Realty 56 Harvard Street Englewood, Florida 34223 Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
