The Issue The central issue in this case is whether Respondent is guilty of the conduct alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner is authorized to operate, control and supervise all public schools within the School District of Dade County, Florida. At all times material to the specific charges in this case, Respondent, Norris L. Barker, was employed by Petitioner as a teacher with the Dade County school system. Pursuant to a one-year contract, the terms of which are not in evidence, Respondent was employed in September, 1987, as a math teacher at Miami Southridge Senior High School (Southridge). During the spring of 1987, prior to his employment with Petitioner, Respondent wrote to several school systems offering to donate Xerox memorywriters to the respective schools through a fund raising project which the various school systems were requested to endorse or promote. It was Respondent's goal to raise $8 million to be used to purchase the equipment. The Dade County Public Schools, through the then Superintendent, declined to endorse the fund raising project. After Respondent became employed with the Petitioner, he continued with his plan to raise money for education. Eventually, the project became known to Mr. Rodgers, the principal at Southridge, who advised Respondent that the school could not sanction the fund raising activities and that Respondent would have to obtain permission from a higher administrative source. Respondent did not receive permission to utilize the school name or the endorsement of the school district. As principal, Mr. Rodgers routinely makes informal observation visits to classrooms. These visits are intended as an informal review of the particular class or teacher. The duration of such visits is generally brief, lasting only a few minutes, and no written report or evaluation is made as a result of such visits. During Respondent's time at Southridge, Mr. Rodgers made several such informal visits to Respondent's class. Mr. Rodgers determined, as a result of the informal visits, that Respondent needed assistance with classroom management. This was indicated due to the number of students who were "off task" in Respondent's class. Mr. Rodgers felt that Respondent needed help in finding ways to keep the students working, not talking. On November 23, 1987, Respondent wrote a letter to Mr. Rodgers which expressed Respondent's concern that discipline problems among the ninth graders would adversely affect their performance on the SSAT. Apparently, Respondent believed the disruptive behavior of a few students was adversely influencing the learning conditions for the rest of the class. On November 24, 1987, William Machado, assistant principal in charge of the math department, performed a formal observation of Respondent. This observation was in accordance with the teacher assessment and development system and recorded Respondent's deficiencies in several specific areas of performance. It also provided a prescription plan for performance improvement which offered constructive comments to assist Respondent in deficient areas. Of the six areas evaluated, Mr. Machado found Respondent had problems and was deficient in four: knowledge of the subject, preparation and planning, classroom management, and techniques of instruction. Respondent was required to complete the prescription plan activities before January 11, 1988. All four of the prescription plan activities required Respondent to refer to the Prescription Manual which was available to Respondent. Further, with regard to Respondent's lesson plans, he was to seek the assistance of Jean Freedman, the math department head. Respondent talked briefly with Ms. Freedman and she offered him the benefit of her lesson book as an example of the type of plan Mr. Machado wanted Respondent to provide. As a means of further assistance, Respondent was to visit peer teachers' rooms to observe how the suggested activities might be incorporated into the teaching setting. Respondent did not submit the lesson plans in accordance with the prescription for performance improvement. There is no evidence as to whether or not he visited peer teachers' rooms. He did not observe Ms. Freedman's class as recommended. In the period immediately following Respondent's formal evaluation, he was absent from school a number of days the total of which exceeded his authorized sick leave. On December 19, 1987, Respondent climbed a 150 foot Southern Bell relay tower located on private property. It was Respondent's stated intention to remain atop the structure to raise $8 million for education. Respondent left a note stating that if the money were not raised by January 4, he would "meet God." Respondent did not have provisions for an extended stay. He was dressed in short pants, tennis shoes and a short-sleeved shirt. The weather conditions that evening were quite cool. Officer Collins responded to a call regarding Respondent's presence atop the tower. He unsuccessfully attempted to talk Respondent into coming down. When his efforts failed, Officer Collins requested negotiators who then talked with Respondent for several hours in further effort to have him voluntarily come down. These efforts also failed. After some four hours, the SWAT team came in to remove Respondent from the tower. Members of this team scaled the tower from Respondent's blind side and forced Respondent into the bucket of a fire truck extension ladder. Afterwards, Officer Collins took Respondent to the crisis intervention center where he was involuntarily committed for observation. He was released following a two day period of observation. The incident of Respondent's tower climbing was widely published in Miami newspapers and received coverage on local radio and television stations. These accounts of the incident identified Respondent as a Dade County high school teacher and, in some instances, identified Southridge. As a result of the media coverage, Mr. Rodgers received telephone calls from concerned parents and teachers regarding Respondent's conduct. On January 7, 1988, Mr. Rodgers recommended that Respondent be dismissed from employment at Southridge. The recommendation was based upon Respondent's performance in the classroom (TADS observation 11/24), Respondent's lack of professional judgment as shown by his conduct on December 19, 1987, the concerns expressed by parents and students regarding Respondent's emotional and mental fitness to regain control of students assigned to his classes, and the degree of public notoriety given to the incident of December 19. When Respondent attempted to return to Southridge on January 6, 1988, he was referred to the Office of Professional Standards and has not returned to the classroom.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order confirming the administrative decision to terminate the employment of Respondent for just cause stemming from his misconduct in office. DONE and RECOMMENDED this 21st day of November, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0599 Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted to the extent that it provides Respondent was employed by a one year contract and assigned to Southridge. It is presumed the year intended was the entire 1987-88 school year. Paragraphs 2-6 are accepted. Paragraph 3 is rejected to the extent that it concludes Respondent did not try to improve. While the evidence established Respondent did not complete lesson plans as requested, there is no evidence that he did not try to do so. Also, while he did not visit Mrs. Freedman's class, he may have visited other master teachers for assistance. The record does not establish whether or not he could have met the prescriptions had he not been absent or had he been able to return after the holidays. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraphs 10, 11, 12, 13 and 14 are accepted. Rulings on Respondent's proposed findings of fact: Respondent's paragraphs while not identified as findings of fact will be treated as such and considered in order as presented. The first paragraph is rejected as argument, or conclusions unsupported by the record. The first two sentences of the second paragraph are accepted. The remainder of that paragraph is rejected as speculation, unsupported by the record in this cause. With regard to the numbered paragraphs the following rulings are made: Paragraph 1 is rejected. While it is clear that the evaluation cannot be considered proof of Respondent's inadequate knowledge of the subject matter, there is no evidence as to how the computation was made to reach that conclusion (the TADS criteria) nor is there evidence that Mr. Machado was "over zealous." The deficient area was one of four which Respondent would have had to work on had he chosen to refrain from other conduct which further eroded his effectiveness as a teacher. Paragraph 2 is rejected as unsupported by the record. Paragraph 3 is rejected as argument, unsupported by the record. Paragraph 4 is accepted. Paragraph 5 is rejected as, contrary to the weight of the evidence. Paragraph 6 is accepted only to the extent that it suggests the fund raiser was not done in the name of the school or the board. When a private interest is pursued, the teacher must take reasonable steps to assure that the activity is not associated with the employer. To the extent that failing to take reasonable precaution would lead to public notoriety and adverse publicity, Respondent is accountable. Paragraph 7 is rejected as comment, argument or contrary to the evidence admitted in this cause. There is, however, no finding that Respondent wrongfully utilized the school name or misrepresented the board's interest in his project. Paragraph 8 is rejected as contrary to the weight of the evidence. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is rejected as conclusion or argument. No finding has been made to suggest Respondent suffers from a mental illness. Paragraph 11 is rejected as conclusion or argument. Paragraphs 12-17 are rejected as conclusions or argument in some instances unsupported by the record or contrary to the weight of the evidence presented. COPIES FURNISHED: Norris L. Barker 420 Northeast 18th Avenue, Unit #9 Homestead Florida 33030 Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building Annex 1550 North Miami Avenue Miami, Florida 33136
The Issue Whether Respondent should be dismissed from her employment with the Dade County School System for alleged incompetency, insubordination, and willful neglect of duty, pursuant to Section 231.36(6), Florida Statutes. Respondent is a teacher on continuing contract status at Charles R. Drew Elementary School, Miami, Florida, where she has been employed by Petitioner since 1963. On March 10, 1978, she was advised by Petitioner's Assistant Superintendent for Personnel that charges of incompetency, insubordination, and willful neglect of duty had been brought against her by her Principal, Frederick Morley, which would be presented to the Superintendent for his recommendation to the School Board of Dade County. By letter of March, 1970, Respondent was advised that the Superintendent would recommend her suspension and subsequent dismissal from the Dade County Public Schools to the Dade County School board. By letter of March 23, 1978, she was provided official notification that the School Board had suspended her on March 22, 1978, and that her dismissal would be recommended to the Board on April 12 if she did not request a hearing within ten days. She did so on March 28, and on May 8, she was provided with a Notice of Charges consisting of seventeen separate charges alleging grounds for dismissal. At the hearing, Petitioner withdrew Charge 3, 5, 6, 12 and 15.
Findings Of Fact During the 1976-77 school year, Respondent was employed as a teacher of the fifth grade at Charles R. Drew Elementary School, Miami, Florida. The Principal of the school was Frederick A. Morley. On or about October 8, 1976, the Respondent failed to pick up the children of her class at the end of their physical education period. Although Respondent admitted that she was not at the designated place on time, she could not recall why she had been delayed on that particular date. (Testimony of Respondent, Morley) At the beginning of the 1976-77 school year at Charles R. Drew Elementary School, Principal Morley distributed an "Opening of School Bulletin" to all faculty members at a meeting which was attended by Respondent. This bulletin contained school policy on student discipline and corporal punishment. It provided that if such punishment became necessary, the teacher must consult with the principal or his designee prior to its use, and that one of those individuals would determine the necessity for corporal punishment and the time, place and person to administer the same. The policy statement further included the requirement that a third party adult must be present at the time the punishment was administered. Specifications to the size of the wood "instrument" for administering such punishment were set forth in the written policy as well as other guidelines as to the amount of maximum punishment, notification of parents, and the like. (Testimony of Morley, Petitioner's Exhibit 1) On November 1, 1976, Morley saw Cynthia Blue, one of Respondent's fifth grade students, crying in the hall. She informed him that Respondent had paddled her in the classroom. Respondent admitted to him that she had administered punishment to the student and he reminded her of the school policy concerning consultation with him or his designee prior to any such action. He confirmed this admonition with a written note on the same day. Respondent conceded at the hearing that, although she could not recall the incident, it was possible that she gave the student a "lick." She further testified that Cynthia Blue was an unruly student who broke rules with impunity. (Testimony of Morley, Respondent, Petitioner's Exhibit 4) Morley had a conference with Respondent on November 8, 1976, and reminded her at that time that she was obliged to follow the school guidelines on paddling students in the future. At this conference, Respondent conceded that she had not followed the school policy in this regard. However, on three separate occasions thereafter, Respondent again physically punished students without obtaining permission of the Principal or his designee. On November 17, 1976, and on January 18, 1977, she paddled students Monica Morrison and Eddie Byrd in the classroom. On both occasions, she admitted doing so to Morley and he again reminded her by written notes of her failure to follow proper procedures. (Testimony of Morley, Petitioner's Exhibits 2-3) Approximately a year later, on January 9, 1978, Respondent advised Morley that she wished to bring her student, Laurena Butler, to his office for corporal punishment. Apparently, when she arrived with the student, Morley was not there and Respondent therefore asked a nearby aide of one of the school officials to come into Morley's office and witness the spanking. Respondent then took Butler into the Principal's office and paddled her once after first missing her entirely and knocking a wooden tray off the desk and damaging it slightly. (Testimony of Morley, Respondent, Petitioner's Exhibit 5) Respondent's explanation at the hearing for her unauthorized administration of corporal punishment was that Morley was "wishy-washy" on the subject of student discipline and would never authorize her to paddle a student, or do so himself. She claimed that 75 percent of the other teachers paddled much more frequently than she, and that none of them understood the punishment policy of the school. On the one hand, she believed that she could punish a child if a third party was present, but she also testified that she understood the guidelines that required the Principal or his designee to authorize punishment. Respondent's testimony in the above regard was partially refuted by the testimony of her former students. One stated that on two occasions when he was sent to Morley for punishment by Respondent, he was paddled. Another student stated that he had been sent by other teachers to the Principal's office and been paddled about four times. These students had never seen Respondent paddle anyone, but had seen other teachers do so. They testified that she had "bad kids" in her class who made trouble by getting into fights, throwing erasers, and the like. Respondent testified that one of her problems was that she did not have the strength to paddle a child effectively and that they would laugh at her when she attempted to do so. However, she claimed that in telephone conversations with Parents of the students, she learned that they desired that their children be disciplined at school. She further stated that Morley had observed over the years that her discipline efforts were not of the best so he placed her successively in the second, fourth, fifth, and sixth grades. She believed that this made her task more difficult by having to deal with the older children. A former principal of Drew Elementary School testified that Respondent had had difficulty as a disciplinarian, as most teachers did, but that she was more effective in that regard than some of the teachers, except in instances of paddling where she had difficulty and generally produced unsatisfactory results. (Testimony of Respondent, Ford, Jones, Trimmings, Hooks). On or about September 27, 1977, a student threw a cookie box and struck Respondent while she was writing at the blackboard. The next day school security personnel questioned her on whether she had scratched the student in the altercation. She mistakenly assumed that she, rather than the student, was being investigated and became upset when discussing the matter with Morley on the day after the incident. During the course of the conversation, she uttered a vulgar word in his presence. (Testimony of Respondent, Morley, Hooks) Respondent admitted at the hearing that on or about September 28, 1977, she permitted her sixth grade class to go to their art class unsupervised. Although she did not precisely recall the incident, she theorized that it was possible that she had walked them part of the way and then gone to the school office and let them proceed alone the remaining 100 feet to the classroom. (Testimony of Respondent) On October 6, 1977, while Respondent was out of her classroom her students were noisy and disruptive, thus interfering with instruction in an adjoining classroom. Although Respondent did not recall the specific incident at the hearing, she surmised that she had been out of the room for legitimate reasons and normally would have appointed a student monitor to take charge. (Testimony of Green, Respondent.) On January 19, 1978, Respondent was informed by one of her students that the class was supposed to attend a special program in the auditorium. Respondent took the class to the cafeteria where such programs took place and found the door locked. Respondent went to the school office to ascertain whether or not a program was to take place. During this time the children were left unsupervized for several minutes and became noisy and ran in the halls. While Respondent was gone, Morley arrived and restored order. He sent for Respondent and upon her arrival asked her about the matter. Respondent, in a loud voice, said "If you would paddle these children, this wouldn't happen," shaking her finger in front of his face. A number of faculty members were present at the time. (Testimony of Respondent, Morley, Knight, Jones) Teachers are required to prepare weekly lesson plans for each subject. Those on continuing contract, such as the Respondent, are called upon to turn them in to the office several times a year without prior notice. On one occasion during the 1977-78 school year, Respondent failed to turn in her lesson plans on time. Respondent testified that she customarily prepared such plans, but on the occasion in question, had simply been late in preparing them due to the fact that she had given priority to the preparation of report cards. (Testimony of Reich, Respondent) On March 13, 1978, the aunt of one of Respondent's students, Cynthia Blue, asked Respondent if she could see the "progress folder" containing homework papers of her niece. Respondent was in the process of taking the class roll at the time and therefore did not act immediately upon the request. Cynthia's aunt thereupon summoned Morley to the classroom. Morley had told Respondent earlier that day that her class had been quiet during the preceding week when a substitute teacher was present during Respondent's absence. Respondent assumed that the children had been paddled by the substitute to insure their good behavior. Therefore, on March 13, when Morley came to the classroom regarding the question of the child's homework folder, Respondent inquired of the class if they had been paddled during the previous week. They were quiet for a moment, then burst into laughter. Respondent and one of her students testified that Morley joined in the laughter, but he denied the same. In any event, Respondent felt that she was being ridiculed and, having previously received notice that she was to be suspended on March 22, she informed Morley that she was leaving the classroom. In spite of Morley's request that she remain, Respondent departed from the school and did not return thereafter. Although approximately six school days remained prior to the effective date of her suspension of March 22, Respondent made no effort to request administrative leave of absence from School Board officials. (Testimony of Lawrence, Morley, Respondent, Trimmigs) During the period 1971-77, Respondent had satisfactory ratings on her annual evaluation forms for maintaining good discipline except for the 1971-72 school year and the 1976-77 school year, at which times they were 3.0 and 2.0 respectively, out of a maximum rating of 5.0. As found heretofore, Respondent's prior Principal had indicated that Respondent was unable to physically punish students satisfactorily, but that her overall discipline efforts over the years were similar to that of other teachers. The prior Principal was also of the opinion that Respondent was well-trained and could produce results in the classroom. (Testimony of Ford, Petitioner's Composite Exhibit 7, Respondent's Composite Exhibit 1) Respondent attributed her difficulties at the school to the existence of a personality conflict with Principal Morley and her feeling that he had singled her out for adherence to standards that he did not require of other teachers. She had requested a transfer approximately a year ago, but it was denied. Morley denied any special treatment of Respondent and the evidence fails to reveal actions on his part that were not precipitated initially by Respondent. (Testimony of Respondent, Morley)
Recommendation It is recommended that Respondent be reinstated without payment of back salary for the period of her suspension and that she be transferred to an appropriate instructional position in another school within the Dade County School System. It is further recommended that Respondent be issued a letter of reprimand by the School Board of Dade County for the established derelictions set forth in the foregoing conclusions of law and that she be admonished therein concerning a repetition of such conduct. DONE and ENTERED this 26th day of October, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael R. Friend, Esquire 44 West Flagler Street, Penthouse Miami, Florida 33130 Elizabeth du Fresne, Esquire 1782 One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 Phyllis O. Douglas Assistant School Board Attorney Lindsey Hopkins Building 1210 Northeast 2nd Avenue Miami, Florida 33132 =================================================================
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Petitioner employed Respondent as a secretary at Lindsey Hopkins Prior to 2010, school administrators at Lindsey Hopkins had received numerous complaints from school employees that Respondent had verbally harassed them. On February 8, 2010, Esteban Sardon was working as Assistant Principal of Lindsey Hopkins. On that date he was in one of the school's administrative offices and Respondent was also present. Mr. Sardon coughed while in the office. Almost immediately, Respondent accused Mr. Sardon of having spit on her. Respondent sent Dr. Rosa Borgen, the principal of Lindsey Hopkins, a letter on February 10, 2010, that alleged that Mr. Sardon had deliberately twice spit and coughed in her face. In her letter, Respondent described "[t]wo big huge cough breath [sic] rate were [sic] about 70 to 80 wind speed with a [sic] some saliva." Respondent also sent Mr. Sardon a memorandum calling his behavior "unprofessional" and alleging that she was going to contact "CRC" (the Civil Rights Compliance Office). Mr. Sardon denied, credibly, that he spat on Respondent. The more credible evidence established that he did cough twice in Respondent's presence, but the coughs were dry coughs and not in the direction of Respondent. Respondent fabricated the allegation that Mr. Sardon had purposefully spat on her. In an attempt to resolve the issues related to Respondent's allegations that Mr. Sardon had spat on her, Mr. Gornto, a district administrator, decided that the school administrators should meet with Mr. Sardon and Respondent. On March 9, 2010, Pamela Johnson, an instructional supervisor, from Mr. Gornto's office, met with Mr. Sardon, Respondent, Dr. Borgen, and another assistant principal of Lindsey Hopkins. At the meeting, Respondent presented a document entitled "What Would Make Me Happy" and asked Mr. Sardon to sign it. The "demands" were as follows: I will never ever to [sic] use you're [sic] inside waste on me [sic]. Meaning neither your breath, nor your saliva. I am not a toilet. I am Human [sic]. A Human Being [sic]. Not to try to embarrass me in front of my co-workers. Not to retaliate against me after this incident. Big apology. Mr. Sardon offered an apology to put the matter at rest, but he refused to sign the document. Shortly after the "spitting" accusation, Respondent had conflicts with Drusilla Sears and Donna Wallace, both of whom worked closely with Mr. Sardon. On March 2, 2010, Ms. Sears, a school account clerk, asked Respondent if she was finished using a copy machine. Respondent told her that she had asked a "stupid question," thereby starting a verbal altercation that included finger- pointing by Respondent and by Ms. Sears. The greater weight of the credible evidence established that Ms. Sears did not threaten physical harm to Respondent. This run-in upset Ms. Sears. On March 3, 2010, Respondent sent another letter to Dr. Borgen claiming that Ms. Sears had tried to beat her up. In the letter Respondent also stated, in all capital letters, the following: "I AM NO FOOL. I KNOW SOMEONE TOLD DRUSILLA TO DO THIS TO ME." There was no credible evidence that anyone had instructed Ms. Sears to do anything to Respondent. To the contrary, the greater weight of the credible evidence established that Respondent provoked the incident with Ms. Sears. On March 5, 2010, Respondent wrote another letter to Dr. Borgen. That letter referenced the incidents with Mr Sardon and Ms. Sears and also asserted that someone had placed child pornography on her school computer. There was no credible evidence that anyone had placed pornography on Respondent's computer.1 On March 16, 2010, Mr. Gornto sent Respondent a memorandum related to an earlier correspondence he had received from Respondent. In the letter Mr. Gornto told Respondent that any future complaints regarding employees should be made to Dr. Borgen, to the CRC, or to the school police department. Despite this directive from Mr. Gornto, Respondent continued to contact Mr. Gornto. These contacts (Petitioner's Exhibits 9, 12, and 17-21) were in the form of emails that contained false (and often nonsensical) allegations of employee wrongdoing against her. Each of these emails constituted separate and distinct acts that contradicted Mr. Gornto's directives to Respondent. A recurring theme in those emails was that Dr. Borgen and other school employees were trying to "destroy" her or make her "miserable." In one email, Respondent alleged that one of Mr. Gornto's subordinates had been impersonating Mr. Gornto. In April 2010, Respondent approached school clerk Donna Wallace and accused her of saying something about Respondent to a school counselor. Ms. Wallace denied, credibly, that there was a factual basis for the allegation. Respondent told Ms. Wallace to "watch her back" and threatened to sue her for slander. The incident made Ms. Wallace feel uncomfortable and embarrassed. On April 13, 2010, Respondent engaged in a verbal altercation with Shundra Hardy, a data input specialist. Ms. Hardy worked in the student registration department. When Mr. Sardon was made aware of this incident, Mr. Sardon told Respondent that she was only to visit the registration area as long she did not disturb other employees. This directive caused Respondent to yell and confront Mr. Sardon in his office, As a result of that confrontation, Mr. Sardon called school security. On May 18, 2010, a conference for the record (CFR) was held with Respondent. Dr. Borgen, Mr. Gornto, and Dr. Anna Rasco (Administrative Director of Petitioner's Office of Professional Standards) represented Petitioner. The recent conflicts involving Respondent prompted a decision that she would have to undergo a fitness for duty evaluation. During the time the evaluation was to be completed, Respondent was placed on alternate assignment at her home. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for the evaluation, and she was directed not to contact the school (other than through the principal's office to report her attendance) while on alternate assignment. By letter dated August 10, 2010, Stephen Kahn, M.D., advised Dr. Rasco that Respondent was not fit for duty due to her mental status.2 By letter to Dr. Rasco dated September 4, 2010, Richard S. Greenbaum, Ph.D., a psychologist, opined that Respondent could return to work if she continued to see a psychotherapist.3 On October 4, 2010, Respondent called Lindsey Hopkins and spoke with two employees. These contacts were in direct violation of the directives that had been issued to her.4 On October 14, 2010, a CFR was held with Respondent. Ms. Nyce Daniel (who had replaced the retired Dr. Borgen as Principal of Lindsey Hopkins), Mr. Gornto, and Dr. Brasco represented Petitioner. This CFR was held to address Respondent's non-compliance with the terms and directives given to her while on alternate assignment. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for a fitness evaluation. Respondent was also advised that she would not be permitted to return to work because of the conflicting opinions between Drs. Kahn and Greenbaum. Respondent selected Joseph W. Poitier, Jr., M.D., to conduct her third evaluation. By letter to Dr. Rasco dated March 14, 2011, Dr. Poitier opined that within a reasonable medical certainty Respondent was able to return to work without restriction.5 On March 30, 2011, a CFR was held with Respondent. Ms. Daniel, Mr. Gornto, and Dr. Brasco represented Petitioner. Based on Dr. Poitier's opinion, Respondent was advised that she could return to work on April 4. Respondent was again given directives that included explicit directives to refrain from the behaviors that had caused the need for her fitness for duty evaluations. Specifically, Respondent was instructed to avoid altercations with school staff. On April 5, 2011, with people present in the office, Respondent, using vulgar language, told Cassandra Johnson (a teacher at Lindsey Hopkins) that her husband, Charles Johnson (the head custodian) had engaged in a sexual affair with Dr. Borgen and that Dr. Borgen had been "doing all the guys in school." Ms. Johnson attempted to distance herself from Respondent, but Respondent pursued Ms. Johnson down the hall and continued her verbal tirade. Ms. Johnson was humiliated and upset by the incident. Respondent's actions disrupted Ms. Johnson's ability to perform her duties that day. Mr. Johnson was very upset by Respondent's accusation and denied, credibly, that he had ever had a sexual relationship with Ms. Borgen. Mr. Johnson was concerned that the accusations could hurt his marriage, and he was concerned because his wife was very upset. On April 7, 2011, Respondent confronted Thomas Nunn (an automotive instructor at Lindsey Hopkins) and implied that he had been in an intimate relationship with Dr. Borgen. Mr. Nunn was not offended by Respondent's comments. However, Ms. Daniel learned of Respondent's comments to Mr. Nunn. On April 8 Ms. Daniel directed Respondent to refrain from such conduct. At the time Ms. Daniel gave those directions to Respondent, Ms. Daniel did not know about the incident involving Mr. and Ms. Johnson. On April 8, 2011, Respondent called Mr. Gornto's office to ask permission to take half-day leave. This call was in violation of the directives Mr. Gornto had given to her as to how she was to communicate with her supervisors. On April 11, 2001, Ms. Daniel learned of the incident involving Mr. and Mrs. Johnson. On or about April 28, 2011, Respondent complained to the CRC that Erinn Gobert (the ESOL chairperson at Lindsey Hopkins) and Sophia Hall (an assistant principal at Lindsey Hopkins) had been harassing her. She stated that they were mumbling things about her, taunting her, and teasing her. She further reported that Ms. Gobert and Ms. Hall made gestures that they wanted to fight with Respondent. Respondent's accusations of harassment triggered an investigation. Respondent's accusations were complete fabrications. Neither Ms. Gobert nor Ms. Hall had any meaningful contact with Respondent. On May 18, 2011, a CFR was held with Respondent to address her gross insubordination and violation of other school board rules. Ms. Daniel, Mr. Gornto, and Dr. Rasco represented Petitioner. As a result of her behaviors, Ms. Daniel had to constantly give Respondent specific tasks to minimize Respondent's interaction with other employees. Despite Ms. Daniel's efforts, Respondent's run-ins with co-workers were throughout the school and reached outside of Respondent's assigned work area. Many of her co-workers were not comfortable working with or near Respondent. The efforts to shield co- workers from Respondent created extra work for Ms. Daniel. Respondent's repeated contacts with Mr. Gornto and her baseless accusations towards co-workers disrupted his work and consumed an inordinate amount of his time. Respondent's behavior negatively impacted employee morale at Lindsey Hopkins and disrupted its operations. Respondent repeatedly refused to obey administrative directives that were reasonable in nature and given with proper authority.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 17th day of October, 2011.
The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether the Respondent should be dismissed from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the administration and operation of the public schools within the Miami-Dade County Public School District. Such responsibility includes the discipline of teachers employed to work in the public schools of the district. At all times material to the allegations of this case, the Respondent, Iman Abd Al-Quddus, was employed as a math teacher by the Petitioner. The Respondent was assigned to Allapattah Middle School for the 1997-1998 school year pursuant to a professional service contract. On January 15, 1998, the Respondent grabbed a sixth grade student in her class named Raymond White. According to Raymond the Respondent pushed him against the wall and attempted to choke him. Raymond started crying and was upset. He immediately went to the office to report the incident and spoke with the Assistant Principal, Mr. Bonce. As a result of the foregoing incident, the student's neck became swollen. He was later taken to a hospital and examined. After the incident described above, Raymond's mother filed a complaint with the School Board. The complaint prompted a school police investigation of the incident. On May 13, 1998, during a conference for the record (CFR) with the Respondent, the school principal directed the Respondent to refrain from any conduct which could be perceived as inappropriate and from discussing the choking incident with others. Unrelated to the foregoing, on May 6, 1998, a parent complained that the Respondent used profanity in the presence of students. School administrators heard the Respondent use profanity in her classroom. They were able to overhear the Respondent's inappropriate language from the hallway outside her classroom. On May 18, 1998, Raymond's mother complained to school officials that the Respondent had announced that Raymond would receive a failing grade in the class. On another occasion, the parent advised the school officials that the Respondent had threatened to punish students who reported the Respondent's use of profanity. Given the number of incidents between the Respondent and students in Raymond's class, Mrs. White became concerned that the Respondent was not exhibiting appropriate professional conduct in the class. Delicia Johnson was a sixth grade math student in the Respondent's class during the 1997-1998 school year. According to this student, the Respondent used profanity on numerous occasions in the classroom. Delicia described the Respondent's treatment of students as "very bad." She observed the Respondent hit students and heard her describe them as "stupid," "dumb," "idiots," or "morons." Delicia earned an "A" grade but was given a "C" by the Respondent. Later the grade was changed to reflect the correct grade. According to Delicia, the Respondent's use of derogatory terms made the students feel uncomfortable. Delicia's mother filed letters with the Petitioner to complain of the Respondent's treatment of the class. She was concerned about the Respondent's use of profanity and demeaning treatment of students. Gilberto Bonce was the assistant principal at Allapattah during the 1997-1998 school year. Mr. Bonce counseled the Respondent on more than one occasion regarding her language in the classroom. Mr. Bonce also advised the Respondent to not speak with students regarding an ongoing investigation. According to Mr. Bonce the Respondent did not comply with these directives. On one occasion, the Respondent started screaming at Mr. Bonce and refused to calm down. He requested that she return to her classroom which had been left unsupervised. Mr. Bonce conceded that the Respondent knows her subject matter but failed as a teacher because she was unable to maintain discipline in the class, reverted to the use of derogatory names and profanity toward the students, and could not be effective in the classroom setting. Based upon the notoriety of the Respondent's classroom behavior, her demeaning treatment of students, and her physical attack on Raymond White, the Respondent's effectiveness as a teacher in the Miami-Dade County Public School District has been seriously impaired. Official recognition has been taken of the following provisions: School Board Rules 6Gx13-4A-1.21, 6Gx13-4-1.08, 6Gx13-5D-1.07, and 6Gx13-5B-1.04; and Rules 6B-1.006, 6B-1.001, and 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade School Board enter a final order affirming the suspension and dismissal of the Respondent from her position as a teacher with the School District. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2000. COPIES FURNISHED: Luis M. Garcia, Esquire School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Iman Abd Al-Quddus 181 Chafin Avenue Ewing, New Jersey 08638 Roger C. Cuevas, Superintendent Dade County Schools 1450 Northeast Second Avenue Room 912 Miami, Florida 33132-1308 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a high school teacher assigned to Miami Norland Senior High School. Respondent holds a continuing contract. Respondent began teaching for the Dade County Public Schools during the 1968-69 school year. During that school year, the annual evaluation form utilized by Petitioner provided that a score of below 3.5 indicated unsatisfactory work. During that, his first year of teaching, Respondent received a score of 3.2 on his annual evaluation. For the next 15 years thereafter, Respondent was rated as being acceptable on his annual evaluations for each and every year. During the 1984 summer session, an incident occurred between Respondent and one of his students. As a result of Petitioner's investigation into the allegation that Respondent had committed a battery on that student, conferences were held between Respondent and administrative personnel. Respondent requested a leave of absence for the 1984-85 school year due to personal reasons, and his request for leave of absence was granted. Respondent was required, however, to undergo a psychological evaluation prior to returning to his duties as a classroom teacher. During that school year while Respondent was on leave of absence, he was evaluated by Dr. Gail D. Wainger, a psychiatrist to whom he was referred by Petitioner. Respondent thereafter saw Dr. Albert C. Jaslow, a private psychiatrist, on two occasions. Dr. Jaslow submitted two reports which contained, inter alia, a recommendation that Respondent be transferred to a different school. Dr. Wainger reviewed Dr. Jaslow's reports and her own earlier report and, on May 21, 1985, submitted a report to Petitioner stating, inter alia, that there was no barrier to Respondent's being reinstated into active teaching. Based upon that evaluation, Petitioner permitted Respondent to return to the same teaching position previously held by him for the 1985-86 school year. At the conclusion of that school year, Respondent was rated as being acceptable on his annual evaluation. Respondent again received acceptable annual evaluations for the following two years, i.e., the 1986-87 and the 1987- 88 school years. On his annual evaluation for the 1988-89 school year Respondent was rated as being unacceptable in the area of classroom management, one of the six categories of classroom performance. Pursuant to the rules governing the TADS evaluation system, a rating of unacceptable in any of the categories covered by the annual evaluation instrument requires an overall rating of unacceptable. On his annual evaluation for the 1989-90 school year Respondent was rated as being acceptable in all six categories of classroom performance, including the area of classroom management. It was specifically noted on his annual evaluation form that Respondent had performed satisfactorily during both of the official observations made of his classroom performance. However, Respondent was rated as unacceptable in the non-classroom category entitled professional responsibility. That rating of unacceptable in that one category required that Respondent's overall rating be unacceptable. The basis for the unacceptable rating in the area of professional responsibility involved the determination that Respondent had been disrespectful to students on two separate occasions. On April 16, 1990, one of Respondent's students called another of his students who had an unusual skin pigmentation condition "two-toned." Respondent immediately told the offending student, "do not call the girl two-toned." A conference for the record was conducted with Respondent on April 30, 1990, and Respondent was given a supervisory referral to the Employee Assistance Program. During the week of May 7, 1990, one of Respondent's students was being verbally abusive to the other students, and Respondent told him to stop. That student thereupon began being verbally abusive toward Respondent and using profanity. Respondent then said to that student, "you should talk. You look like Mr. Spock from Star Trek." A conference for the record was conducted with Respondent, and he was issued a formal reprimand. The summary of the conference for the record dated June 1, 1990, prepared by the principal of Miami Norland Senior High School states that the student involved has physically-deformed ears. On his annual evaluation for the 1990-91 school year Respondent was rated as being unacceptable in the areas of classroom management, techniques of instruction, and professional responsibility. Accordingly, he received an overall evaluation of unacceptable. During the 1990-91 school year there were no reported incidents of Respondent allegedly making disrespectful remarks to students. That basis for being rated unacceptable in the area of professional responsibility during the prior academic year was cured. The rating of unacceptable in the area of classroom management was based upon a number of observations of Respondent during the school year wherein the observers noted a lack of control in the classroom, Respondent's failure or inability to re-direct students who were off-task, Respondent's failure or inability to enforce classroom rules, and Respondent's failure or inability to deal with students who were tardy in coming to his class. As to his techniques of instruction, observers during that school year noted that Respondent was teaching from sub-standard books (without noting whether that was a matter within Respondent's control), that the students were confused by Respondent's directions on several occasions, that the students did not understand the lessons being taught, and that on several occasions Respondent made errors in math when writing examples on the board. Some of the observers also noted that Respondent spent too much time on some of the lessons that he was teaching. Numerous prescriptions were given to Respondent during that school year to improve his instruction and to manage his classroom, such as reading sections of the TADS manual and observing other teachers. Respondent complied with each and every prescription given to him. As to being unacceptable in the area of professional responsibility, Respondent failed to properly maintain student folders reflecting their work to justify grades being given to the students, and there were errors in Respondent's gradebook. It also became apparent that Respondent was not making parental contact for students that were performing unsatisfactorily. By March of the 1990-91 school year Respondent was directed in writing to make parental contact as required by Dade County Public School policy. By memorandum dated June 3, 1991, Respondent was notified that he was required to produce within 48 hours a complete up-to-date gradebook, a parent contact log substantiating parent contacts for the entire school year, and all student folders substantiating Respondent's gradebook. He was advised that if he did not do so, he would receive an unsatisfactory rating in the area of professional responsibility. The principal and assistant principal understood the directive to mean that Respondent must produce those documents by noon on June 6, and Respondent understood the directive to mean that he was to produce the documents on June 6. At noon, the principal was not available to Respondent. Respondent did produce many of the documents later that day. There was, of course, no parental log for the entire year since one did not exist. At the end of the 1990-91 school year a recommendation for dismissal was made. Based upon that recommendation, the School Board of Dade County, Florida, suspended Respondent from his employment effective at the close of the workday on July 25, 1991, for incompetency and gross insubordination. In 1984 Respondent filed a grievance against Assistant Principal Wessel and Principal Fowler at Miami Norland Senior High School. The subject of the grievance was that Assistant Principal Wessel had in a loud voice and in a demeaning manner criticized Respondent's lesson plans in front of other teachers, staff and students. The grievance was also filed against Principal Fowler to enlist his assistance in making Wessel refrain from repeated conduct of that nature. The Union considered the grievance to be valid and processed it through the grievance procedures. Thereafter, Respondent was advised by Fowler and Wessel that he had made a big mistake and he would be sorry for having filed that grievance. Respondent began to believe that he had lost the support of the administration and that his job was in jeopardy. When Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year he was moved to a classroom directly across from the main office. Respondent considered that action to be demeaning. He still achieved acceptable evaluations for that year and the following year. During the next school year, in the middle of February, the administration moved Respondent to an old metal shop room and gave his classroom to a new teacher. He still achieved an acceptable annual evaluation that year. For the following school year the administrators assigned Respondent to teach five low-level math classes using five different classrooms. For the last three years of his teaching career, the ones during which he received unacceptable ratings in different categories, Respondent was required to teach all low-level math classes. Although administrative personnel testified that some teachers like low-level classes, Respondent repeatedly made it clear that he did not want that assignment. Further, there is a specific contract provision between the Dade County Schools and the teachers' union prohibiting teachers from being locked into low-level classes year after year, as Respondent was. During the last several years while Respondent was achieving unsatisfactory ratings in some categories, while he was being switched from classroom to classroom, and while he was being required to teach only low-level classes year after year, the administrative staff actively undermined Respondent's authority and demeaned him in front of students and other teachers. They told teachers and students that they were trying to get rid of Respondent and that Respondent was a bad teacher. When Respondent referred disruptive students to the office, the administrative staff laughed or simply refused to take any follow-up action. On one occasion when Respondent referred a student to the office for throwing an eraser at another student, an assistant principal told the misbehaving student that he should have thrown the eraser at Respondent instead. Respondent "lost face" around the school. It became known that the students could misbehave in Respondent's classes with impunity. Even the students understood that Respondent was assigned only the most difficult of students. Although there was a new principal at Miami Norland Senior High School during Respondent's last year of teaching, the new principal, coincidentally, had been the principal for the 1984 summer session at Parkway Junior High School where Respondent had been involved in an incident with a student prior to taking his year's leave of absence from teaching. Under the new principal's administration, Respondent was retained in his assignment of five low-level math classes and was moved to the classroom directly across from the office. No evidence was offered that the new principal understood that efforts had been made to keep Respondent's authority undermined and to make him quit. It is clear, however, that no steps were taken to stop or reverse the damage to Respondent's reputation and ability to teach. In response to Respondent's referral to the Employee Assistance Program, Respondent did make the contact required of him. In fact, there were numerous contacts between Respondent and the personnel involved in that program. Additionally, Respondent was seen by Dr. Goldin, a mental health professional, on four occasions between April and June of 1990. Between June and September of 1990, he also saw an associate of Dr. Goldin eight times in individual sessions and four times in joint sessions with his wife. Respondent repeatedly requested transfers from his teaching assignment at Miami Norland Senior High School. Some of the requests were made to his principals and some of them were sent to the Office of Professional Standards. From the time that Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year, he requested transfers each and every year. He requested a transfer at least twice during his last year of teaching. Some of the requests for transfer were hardship requests and others were normal requests. Additionally, both Dr. Jaslow in 1985 and Dr. Goldin in 1990 recommended to the Office of Professional Standards that Respondent be transferred to a different school. All requests for transfer were ignored. During the last years of Respondent's teaching career, in addition to the stress placed upon him by the administrative staff's efforts to undermine and ridicule him, he experienced additional stress as a result of his wife's serious illness. He told a number of the administrative staff about the problem at home. The difficulty under which that placed him was part of the reason for the referral to the Employee Assistance Program. During those last years, during conferences with administrative staff regarding his performance, Respondent exhibited anxiety and showed signs of stress. He accused the administration of undermining him and of treating him unfairly. He even attributed some of the problems he was experiencing in the classroom to the administrators. Their reaction to Respondent's accusations was to accuse Respondent of being paranoid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent without pay for the 1990-91 school year and reinstating him as a full-time classroom teacher thereafter at a school other than Miami Norland Senior High School. DONE and ENTERED this 27th day of January, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4936 Petitioner's proposed findings of fact numbered 1, 4, 33, 35-37, 65, 67, 68, 72, and 74 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2, 3, 8, 11, 19, 32, 38, 58, 71, 75, and 77 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 5-7, 9, 10, 12-18, 20-31, 39-57, 59-64, 66, 69, 70, 73, and 76 have been rejected as being unnecessary in determining the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 34 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1, 4-11, 13, and 14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Copies furnished: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire 1450 N.E. Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. For the 1988-89 school year, Respondent was assigned to teach algebra and general math at Miami Agricultural School, one of the schools in the Dade County public school system. During a part of the 1988-89 school year, Respondent lived with Sandra Wilkenson and with the child they had parented. The child was two years old at the time of the hearing. On November 21, 1988, Respondent and Ms. Wilkenson met at her place of employment at the Aventura Mall in Miami, Florida. Respondent was in a hurry because he had several errands to run in preparation for his planned trip to St. Croix, Virgin Islands, to visit his family and to attend to a family business matter. Respondent and Ms. Wilkenson planned for Respondent to return to the mall so that he could drive her to the apartment they shared after she had completed heir work day. Later in the day of November 21, 1988, Respondent returned to the Aventura Mall to take Ms. Wilkenson to their apartment. Ms. Wilkenson met Respondent in the public parking area of the Mall where he had parked. For reasons unknown to Respondent, Ms. Wilkenson refused to ride to their home with him. This refusal made Respondent very angry and started a loud argument between them that lasted between five and ten minutes. Respondent tried to lead Ms. Wilkenson to the car by pulling her hand, but there was no evidence that he injured her in any way or that he committed any criminal act during the course of the incident. When she continued to refuse to accompany him, Respondent got in his car and left the parking area. A man in a uniform observed the dispute, but he did not speak to Respondent or attempt to intervene in the dispute. After the incident at the Aventura Mall, Respondent travelled to St. Croix as he had planned. While in St. Croix, Respondent spoke to Ms. Wilkenson by telephone, but she did not indicate that she considered anything to be wrong. While Respondent was in St. Croix, criminal charges stemming from the incident at the Aventura Mall were brought against him by Ms. Wilkenson. Respondent was charged with aggravated assault with a firearm, using a firearm during the commission of a felony, and battery on the person of Sandra Wilkenson. While Respondent was still in St. Croix, three police officers visited the campus of Miami Agricultural School searching for Respondent. Two of the police officers were in plainclothes and one was in uniform. The police officers spoke to the Principal, Mr. Lewis and to the Secretary, Ms. Scott, in private. While the visit of the police officers aroused the curiosity of a one or two faculty members and a few students, the visit did not cause a disturbance or disrupt the educational process. When Respondent returned to Miami from St. Croix, he found a note on his automobile asking that he contact the police detective who had left the note. Upon calling the police detective, Respondent learned that he was to be arrested. Respondent voluntarily surrendered himself to the police. Respondent spent four days in jail before he was arraigned. At arraignment, he entered a plea of not guilty. Respondent was released from jail after Ms. Wilkenson posted his bond. Respondent informed the principal of Miami Agricultural School of his whereabouts while he was in jail. After his release from jail, Respondent was transferred from his classroom to an administrative assignment away from the campus of Miami Agricultural School. Several students and faculty members at Miami Agricultural School became curious because of Respondent's absence. Although one student indicated to the principal that he knew that Respondent had been in jail and the administration at the school had information as to what had happened, the incident and subsequent arrest did not become common knowledge at Miami Agricultural School or in the community. Respondent's conduct was not sufficiently notorious to bring either Respondent or the education profession into public disgrace or disrespect. His conduct did not impair his service to the community. On March 22, 1989, Petitioner suspended Respondent without pay and instituted proceedings to terminate his annual contract. Respondent timely demanded a formal hearing of the matter On April 25, 1989, all of the criminal charges that had been filed against Respondent were nolle prossed and the criminal case against him was closed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Respondent, Michael Durrant, not guilty of immorality, and which reinstates his annual contract for the 1988-89 school year with back pay. DONE AND ENTERED this 30th day of January, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division f Administrative Hearings this 30th day of January, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-1725 The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 of the Recommended Order. Those proposed findings of fact not adopted are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraph 4 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 4 of the Recommended Order. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in part by paragraphs 5 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 9 are adopted in part by paragraph 5 of the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by paragraph 14 of the Recommended Order, are rejected in part as being subordinate to the findings made, and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in part by paragraph 10 of the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 15 are adopted in material part by paragraphs 11 and 14 of the Recommended Order. 16.-18. The proposed findings of fact in paragraphs 16, 17, and 18 are rejected as being subordinate to the findings made. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Mr. Tee Greer Acting Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
