Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 570975 issued by the State of Florida, Department of Education, covering the area of physical education. At all times material hereto, Respondent was employed by the Palm Beach County School Board and assigned to Santaluces Community High School. Incident to his teaching position at that school, Respondent also was one of the coaches for the male wrestling team and was a weight instructor. During the 1987-88 school year, Gina Marie Finnan attended the Respondent's third period personal fitness class at Santaluces Community High School. During the month of November, 1987, Finnan, then a sophomore born August 30, 1971, became a statistician for the school's wrestling team. As a statistician for the wrestling team, Finnan worked under Respondent and began to accept rides home from him following practice sessions and/or wrestling matches which were conducted either at the high school or at other sites within the community. The first physical encounter between Finnan and Respondent occurred at the conclusion of the Thanksgiving Sock Hop held at the school. Initially, Finnan had obtained possession of the Respondent's keys while they were in the school gym. The Respondent, in an attempt to obtain the return of his keys, made physical contact with her and ultimately ended up seated on the gym floor with his back resting against the bleachers and Finnan seated on his lap. With Finnan sitting on his lap, Respondent then placed his arms around her and kissed her. The only other person then present in the gym was Finnan's friend and classmate, Katherine Coffin. Coffin had been with Finnan for the sock hop and was prepared to proceed to lunch when she observed Respondent and Finnan "playing around" while fighting over Respondent's keys. During this time, several students attempted to enter the gym but were told to leave by Respondent. Respondent then went over and shut the doors to the gym, which caused the doors to automatically lock, thereby preventing anyone from entering the gym. Following this, Respondent and Finnan became silent, so Coffin walked around the bleachers and observed Respondent sitting on the floor with Finnan in front of him with her back to him. Respondent had his arms around Finnan. At that time, Coffin left the gym. Katherine Coffin did not feel that Respondent's conduct at the time was "right" for a teacher. The next time Respondent made physical contact with Finnan was near the end of November following a wrestling match on school grounds. At the time, all the equipment had been secured and the two of them were in the locker room Respondent kissed the student and touched her breasts and buttocks. This was followed by Respondent's offer to drive the student home. The student then called her mother to advise her that she need not come to school to pick her up in that Finnan had found another ride home. In route to the student's residence, Respondent parked his vehicle off the side of the road, and the two began kissing, with the Respondent "feeling" the student's breasts. This incident was followed by five or six other incidents when Finnan would accept rides home from the Respondent, and Respondent would kiss her and feel her breasts and buttocks. Shortly before the Christmas holidays, Finnan was approached by Respondent and advised that his wife would be away for the holidays and the student "should try to maybe stop by and see him and spend more time with him." Finnan solicited the help of another classmate, Robin Freedman, in hopes that she would help provide her with an alibi should the opportunity present itself for her to spend time with Respondent. This help consisted of Robin Freedman providing a "cover" for Finnan by telling Finnan's mother, should she call, that Finnan was there but unavailable to speak with the mother at the time. When Gina Finnan asked her to "cover" for her while she was visiting Respondent, Robin Freedman "didn't know what to say" in response to Gina's request so she went to her own mother for advice. During this time period, Gina Finnan received two letters from Respondent. Both of these letters were destroyed by Finnan, but, before their destruction, at least one of the two letters was shown to Katherine Coffin and to Robin Freedman. The one letter was described as a "fantasy letter" which talked about wanting to have sexual intercourse. Although the letters were not signed except for initials that did not correspond with those of the Respondent or Gina Finnan, Respondent, when questioned by Finnan, related to her that "it was in case anybody found them," and that Finnan was to throw them away.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the teaching certificate of Mark Miele be permanently revoked. DONE and ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, 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 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-2841 Petitioner's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 16-18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. The statements contained within the five unnumbered paragraphs of Respondent's proposed recommended order have been rejected as being contrary to the weight of the credible evidence in this cause. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Mark Miele 5350 Rosemarie Avenue North Boynton Beach, Florida 33437 Martin B Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399
The Issue Whether Respondent violated Subsection 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1)(2) and (3), Rule 6B- 1.006(3)(a), (b), (e), and (f), Rule 6B-1.006(4)(a) and (b), Rule 6B.006(5)(a), (c), (d), (e), (f), and (o), and Rule 6B- 1.001(1), (2), and (3), Florida Administrative Code, and, if so, what actions should be taken.
Findings Of Fact Mr. Jenkins holds a Florida Educator Certificate. At all times pertinent to this proceeding, he was employed as a physical education teacher at Pasedena Lakes Elementary School (Pasedena Lakes) in the Broward County School District, where he had been teaching for 15 years. Mr. Jenkins was a Master Steward for the teachers' union. He was also a member of the School Advisory Council (SAC) and was chair of the Safety and Discipline Committee, which is a part of SAC. Jill Wilson has been the principal at Pasedena Lakes for six years and has a total of 29 years of educational experience. The assistant principal at Pasedena Lakes is Charlene Hogan, who has been at Pasedena Lakes for five years and has a total of 28 years of experience in the field of education. On October 29, 1998, at approximately 5:00 p.m., Mr. Jenkins came to Ms. Wilson's office and yelled at her, accusing her of discrediting him and making things worse at the school. During this incident, Donna Blank, a former employee of Pasedena Lakes, was leaving the building and, through a window, observed Mr. Jenkins pounding on Ms. Wilson's desk and saying, "You're not my boss." Ms. Blank went to her car, but returned to the building because she felt that she could not leave Ms. Wilson alone in that situation. When Ms. Blank went to Ms. Wilson's office, Ms. Wilson was visibly shaken. Ms. Wilson felt intimidated by Mr. Jenkins and, as a result of the incident, issued a memorandum to Mr. Jenkins dated October 30, 1998. The memorandum outlined the events that had taken place in Ms. Wilson's office on October 29, 1998, advised Mr. Jenkins that his actions were inappropriate, and required him to schedule future meetings with her secretary so that she could have another staff member present when they met. Pasedena Lakes has about 900 elementary students. Parking was a problem at the school, as well as traffic congestion when parents dropped off students in the mornings. Parents would park in the teachers' parking spaces, and there would be disruptions in the flow of traffic when the parents would take time to dole out lunch money, dress the children, say farewells, and otherwise take up additional time as they were dropping off the students. Mr. Jenkins volunteered to help direct traffic in the mornings in order to reduce the congestion in the parking lots. His mode of directing traffic was more aggressive than the methods that had been used previously by the other teachers. Mr. Jenkins used a bull horn to shout at the parents to move the traffic along and to tell them to kiss their kids at home and not at school. At first his efforts were commendable, but he began to become frustrated with the job. Mr. Jenkins would yell at the parents and the students, upsetting both the parents and the students. On one occasion while on traffic duty, Mr. Jenkins, using his bullhorn, called another teacher "Deadwood," belittling her in front of students, parents, and other staff members. Sometime during the fall of 1999, Patricia Lewis was bringing her two children to the school. Ms. Lewis needed to talk to one of her children's teachers, so she dropped her children off and told them to wait for her while she parked the car. While she was parking the car, Mr. Jenkins yelled at her children, "You little monkeys, hurry up and get back to class." Ms. Lewis, a Haitian-American, was upset at his remarks and confronted him. She told Mr. Jenkins, "My kids have a name. You do not call them that." Mr. Jenkins replied, "If you don't like it, go get a lawyer, and my lawyer will win." Visibly upset, Ms. Lewis went to the school administration's office and asked to speak to the principal. She talked with Ms. Wilson and explained what had happened in the parking area. Ms. Wilson assured her that she would take care of the matter and talk to Mr. Jenkins. Ms. Lewis left the office and went to find her child's teacher to talk with her as originally planned. She ran into Mr. Jenkins in the hallway. Mr. Jenkins said, "Oh, you're the one who went to the principal." Ms. Lewis told him that she did not want to talk with him and turned away. Mr. Jenkins began to yell at her, and she went back to the office in tears. When she got to the principal's office, Ms. Lewis was loud and upset. Again Ms. Wilson calmed her down. In the fall of 1999, the Safety and Discipline Committee had concerns over the traffic problems at Pasedena Lakes and over unauthorized visitors on campus. A meeting of SAC was scheduled for November 9, 1999, to discuss these issues. The Safety and Discipline Committee met and drafted a letter which was to be sent to the parents asking them to come to the meeting and outlining the concerns which would be discussed. Ms. Hogan was on the Safety and Discipline Committee, and she edited the draft letter with input from other committee members so that the letter would fit on one sheet of paper. Mr. Jenkins was not happy with the edited version, but he did not tell Hogan of his displeasure at the time the letter was rewritten. Mr. Jenkins helped distribute the letter to the parents in the parking lot. Alice Lacy, a teacher at Pasedena Lakes, was the chair of SAC, and Hogan was co-chair. On November 1, 1999, Mr. Jenkins told Ms. Lacy that he wanted to have a meeting prior to the SAC meeting scheduled for November 9, 1999, in order to get the teachers to form a coalition and come to the November 9 meeting to support him. As chair of SAC, Lacy told Mr. Jenkins that it would be better to send a memorandum to the teachers rather than schedule a separate meeting. Later on the same day, Mr. Jenkins told Ms. Lacy that he was demanding that the teachers come to the November 9 SAC meeting. He became angry with Ms. Lacy and told her that it was a personal issue and that the teachers owed it to him. He stormed away from Ms. Lacy. Ms. Lacy became concerned about the November 9 SAC meeting and felt that Mr. Jenkins should clarify his intentions prior to the meeting. She sent Mr. Jenkins a memorandum, requesting that he provide her with an agenda by November 5. Mr. Jenkins did not supply an agenda. Ms. Lacy heard him yelling at teachers outside her classroom on November 5, but did not know what he was discussing with the teachers. Ms. Lacy became concerned and sent a memorandum dated November 5, 1999, to Ms. Wilson and Ms. Hogan, urging that the November 9 SAC meeting be postponed until the issues involving Mr. Jenkins could be resolved. The administration met with Mr. Jenkins, and Ms. Lacy was assured that Mr. Jenkins understood that the SAC meeting would be under Ms. Lacy's direction, the agenda would be followed, and the meeting would take place in the media center. When Ms. Lacy went to the media center on the evening of November 9, 1999, she found that the media center was locked and that Mr. Jenkins was setting up the meeting in the cafeteria, where he could have teachers sit on stage with him to lend him support. Lacy confronted Mr. Jenkins and told him that the meeting would take place in the media center as planned. Mr. Jenkins shook his finger at Ms. Lacy and told her that she was making a big mistake. When Ms. Lacy was calling the meeting to order, Mr. Jenkins called out of turn and said, "I motion to move this meeting to the cafeteria." Ms. Lacy called Mr. Jenkins out of order. There was a large turn-out for the SAC meeting, and it was agreed that each speaker would be limited to two minutes. When Mr. Jenkins began to make his presentation for the Safety and Discipline Committee, Ms. Lacy felt that he was unprepared and was improvising. Several times Mr. Jenkins spoke and went over his two-minute limit. When he did, Ms. Lacy would cut him off and go on to the next speaker. After this happened three times, Susie Ruder, a teacher at Pasedena Lakes, sent a note to Ms. Lacy, telling Ms. Lacy that she felt Ms. Lacy was being rude to Mr. Jenkins. After Ms. Lacy received the note, she gave Mr. Jenkins more time to speak. The day after the meeting, Mr. Jenkins ran into Ms. Hogan and Cathy Greenspan, a reading resource specialist at Pasedena Lakes, on the school campus. Mr. Jenkins shook Ms. Hogan's hand and commented that the SAC meeting had been a good meeting. Approximately ten minutes later, Mr. Jenkins went to Ms. Wilson's office. He was wearing shorts, a shirt, and a fanny pack. His purpose for the visit was to discuss sending flyers to parents advising them of the decision of SAC to require parents to obtain a visitor's pass to come on the school campus. Ms. Wilson told him that the passes had been ordered but had not arrived and that she did not want the flyers to be sent until the passes had arrived. Mr. Jenkins shifted the conversation and told Ms. Wilson that she was responsible for the rumor mill around school and accused her of changing a letter that had been written by the Safety and Discipline Committee in October to advise the parents of the November 9 SAC meeting. Mr. Jenkins said the letter that went home to the parents was not the letter the Safety and Discipline Committee had agreed upon. Ms. Wilson did not know about the changes to the letter and called Ms. Hogan to come into the office to discuss the letter. Ms. Hogan brought in the disc on which the letter had been saved, and they viewed it on the computer. Mr. Jenkins again shifted the conversation to the November 9 meeting and held Ms. Wilson responsible for the rudeness he felt Ms. Lacy displayed at the SAC meeting. Mr. Jenkins then shifted the discussion again and wanted the South Area Office to look into what Ms. Wilson's role was on SAC. Mr. Jenkins started to yell and point his finger in Ms. Wilson's face. His face got red, and his voice became louder. He told Ms. Wilson that she would be in charge of damage control. Ms. Hogan told him not to point his finger at Ms. Wilson. Mr. Jenkins turned to Ms. Hogan and said, "I've got an attorney, I've got the union, and I've got a gun." Both Ms. Wilson and Ms. Hogan asked Mr. Jenkins what he said. He replied that he did not know what he said and that he had been interrupted. Either Ms. Wilson or Ms. Hogan told him that he had said, "I've got a gun." Mr. Jenkins became flustered and walked out of the office. Both Ms. Wilson and Ms. Hogan were shocked by Mr. Jenkins' outburst. Neither woman could tell whether Mr. Jenkins actually had a gun in his fanny pack. A conference room was located next to Ms. Wilson's office. Cathy Greenspan, Donna Blank, and Barbara Perkins were in the conference room when Mr. Jenkins was meeting with Ms. Wilson and Ms. Hogan. Both Ms. Blank and Ms. Perkins heard Mr. Jenkins say the word, "gun." Ms. Greenspan heard Mr. Jenkins say, "I've got a gun." After Mr. Jenkins left the administration office, Ms. Hogan called the Special Investigative Unit (SIU), which is the school police, and requested assistance. Investigator Evelyn McCabe came to the school. Ms. Hogan was afraid of what Mr. Jenkins might do and locked herself in her office until Investigator McCabe arrived. Mr. Jenkins returned to the administration office with Sydna Satterfield, a teacher at Pasedena Lakes and a friend of Mr. Jenkins. Mr. Jenkins, Ms. Satterfield, Investigator McCabe, Ms. Wilson, and Ms. Hogan went into to Ms. Wilson's office. A few minutes later Susie Ruder, another teacher and friend of Mr. Jenkins, joined them. Mr. Jenkins denied saying that he had a gun and then stated that he did not know what he said. He threw his keys on Ms. Wilson's desk and asked to be transferred to an "F" school. He walked out of the office but returned and said that he wanted an investigation. Ms. Wilson told him to think about whether he wanted an investigation or wanted to work out things. She advised him that she was willing to work with him on their problems. Mr. Jenkins said he did not know what he said, but apologized for whatever he had said. Mr. Jenkins and Ms. Wilson hugged, and they agreed to try to work together. That evening and the next morning, Ms. Wilson received calls from staff members who feared for their safety and the safety of their children as a result of the incident with Mr. Jenkins. Ms. Wilson began to think about what had happened and the complaints from staff. She also saw an article in the newspaper concerning a colleague who had not contacted authorities concerning an incident that had happened at his school and had tried to resolve the situation by himself. She felt she had to get assistance. Ms. Wilson called Bruce Wagar, who is in charge of professional standards. He advised her to file a complaint with SIU, which resulted in an investigation. As part of the investigation, Mr. Jenkins underwent a psychological evaluation in April 2000 by Dr. Joel Kimmel. The evaluation report stated: Personality tests and behavioral observations indicate that Mr. Jenkins is a frustrated individual who believes he is being prevented from doing his job. His responses to the personality tests indicate that he tends to define his identity based upon his position and derives a lot of satisfaction from his job. He enjoys working with students and motivating them to achieve their potential. He likes the status and recognition he receives from his position and may have a lonely life outside his job. He also appears to be somewhat incompetent, or inefficient. When frustrated, he can escalate and demand his way. However, there are no signs of any violent behaviors in any of his responses suggesting that he probably will not act out when frustrated. He does believe in the benefit of talking things out. However, he does want to do things his way and may not respect others if they disagree with him. He also does appear to have some boundary issues in terms of not understanding where his authority ends and being able to accept the authority of others. His greatest fear is that of failure and losing his job which could represent a failure for him. His provisional diagnosis would be Adjustment Disorder with Mixed Emotional Features (DSM IV 309.28). It is highly recommended that Mr. Jenkins participate in sensitivity training and interpersonal relationship programs in order to develop his capacity to tolerate others' viewpoints as well as decrease his frustration. A stress reduction program would also be helpful in improving his ability to control his frustration and developing more patience. Meetings between he [sic], his principal, and a counselor may be of assistance in improving their relationship. Mr. Jenkins has demonstrated inappropriate behavior on different occasions involving his students. He showed his paycheck to a first grade class and asked them if that was not a lot of money. Another time, he read an article from a newspaper to a kindergarten swim safety class about a student who had drowned and told the class that they could drown. Mr. Jenkins left his physical education class outdoors unattended when their regular classroom teacher failed to pick them up on time. On November 17, 1999, Ms. Wilson inadvertently referred to Mr. Jenkins during a morning announcement as Thomas Wilson rather than Thomas Jenkins. Mr. Jenkins and his wife composed a letter to show how one word could be misconstrued. The letter, which Mr. Jenkins referred to as a private joke, stated that Mr. Jenkins thinks that Ms. Wilson fantasizes about him being her husband, that she wants his body, that Ms. Wilson was a "horny lady," and that she might lose control and have sex with him. Mr. Jenkins' wife shared the letter, which Mr. Jenkins called a "nothing" letter, with other employees of Pasedena Lakes. Both teachers and parents testified that they were fearful of Mr. Jenkins based on his past conduct and that he had created a hostile work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that just cause exists for suspending Thomas Jenkins, finding that Thomas Jenkins is guilty of immorality and misconduct in office, and suspending Thomas Jenkins for 60 days. DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 30th day of March, 2001. COPIES FURNISHED: Randy A. Fleischer, Esquire 4801 University Drive, Suite 3070 Davie, Florida 33328 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Frank L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
The Issue Issues for consideration in this case include whether there exists an adequate factual basis for Petitioner Duval County School Board (the Board) to terminate Respondent's employment as a principal and teacher for those violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, 1941, as amended (the Act), which are alleged by the Board's Notice of Dismissal; and whether there exists an adequate factual basis for the Education Practices Commission (EPC) to revoke or suspend Respondent's teaching certificate or otherwise discipline Respondent for violations set forth in the Amended Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator's Certificate number 263958, covering the areas of physical education and school principal (all levels). The certificate is valid through June 30, 2001. Respondent is a certified teacher who, on the basis of his long-term employment by the Board, has tenure as a result of the length of his service in a satisfactory capacity. Respondent was employed as the Principal at Sandalwood High School by the Board from 1988 through the spring semester of 1994. Commencing in the summer of 1994 and continuing through October 20, 1995, Respondent was employed by the Board as Principal at Forrest High School. Respondent has been removed from his position as Principal of Forrest High School, but continues as a salaried employee of the Board pending resolution of the charges which form the basis for this proceeding. During Respondent's tenure as Principal at Forrest High School, he supervised teachers Julie T. Lee, Kimberly L. Smith, Pamela W. Bean, and Karen E. Jones. Julie T. Lee, Teacher During the 1994-1995 school year, Lee was both the Student Activities Director and the Cheerleading Coach for Forrest High School. In addition, she taught two classes on the subject of ecology. As Student Activities Director, she had an office centrally located, apart from the classroom she used. In November of 1994, Respondent called Lee into his office. He shut and locked the door. He asked Lee to sit down in a chair that Lee noted had been turned and was out of place. She sat down. Respondent then went behind her and proceeded to rub her shoulders. Lee was uncomfortable and did not welcome or encourage Respondent's actions. On February 6, 1995, Respondent again called Lee into his office and shut and locked the door. After a conversation with Lee, Respondent approached Lee and said he need a hug. He proceeded to hug Lee without her consent. In May of 1995, while Lee was using the telephone in the Principal's office for a long distance call, Respondent returned unexpectedly, shut and locked the door, and sat down in a chair behind Lee. He proceeded to grab Lee about her hips and pull her down to sit in his lap. He told her if she would take care of him, she could have anything she wanted at the school. Lee got up, said she would take care of student activities and left. About a week later, Respondent encountered Lee outside her office and asked her if she had thought about his offer. Lee acted as if she didn't know what Respondent was talking about. Later, before the end of the school year, Respondent informed Lee that he was moving her office. The new location for Lee's job as Student Activities Director was a weight room near the school gym. The room was bright red, smelled of sweat, and was located in an out of the way place for purposes of student activities. Lee commenced using the new location prior to the end of the school year for a period of approximately four weeks. At the end of the four week period, Respondent came to Lee's office and told her that she had one hour in which to move. The new office was a former special education classroom at the other extreme end of the building, away from a central location, flooded with water and dirty. A few days thereafter, Respondent also told Lee that she would have to teach three out-of-field social studies classes in addition to the Cheerleading Coach and Student Activities Director jobs. Lee felt she could not do all three jobs under any circumstances. Further, she felt that teaching a majority of out- of-field classes would subject her to being surplussed the following year unless she became certified in those areas in the interim. Lee did not accept the justification that the additional class assignment was purely the result of budgetary constraints and felt that she was being subjected to retaliation for not meeting Respondent's sexual overtures. She talked with Mark Scott, a music teacher, about the matter on September 18, 1995. Scott had heard about difficulties that another teacher was having with Respondent. Scott revealed his discussion with the other teacher, Kimberly Smith, to Lee. Lee subsequently contacted Smith. Kimberly Smith, Teacher Sometime near the middle of the 1994-1995 school year, Respondent walked up behind Smith in the school library and massaged her shoulders. Smith did not welcome or invite Respondent's conduct. On or about June 14, 1995, Respondent asked Smith into his office and locked the door. After a conversation relating to her resignation as basketball coach, Respondent asked Smith for a hug. As Smith attempted to pull back from the hug, Respondent pulled Smith against his body and with his face on her neck told her that she smelled good. Respondent then told Smith to get out of there before he forgot who he was. The next school year, on September 18, 1995, Respondent approached Smith in the hallway near the library and after some conversation grabbed her arm, pulled her to him and requested that Smith come to his office and give him "some tender loving care." If she complied, Respondent promised to "see what I can do for you." Smith told Jon Nerf, an English teacher at Forrest High School, about the September 18, 1995 incident shortly after it occurred. Nerf's testimony establishes that Smith was emotionally upset by Respondent's action. Pamela W. Bean, Teacher In April of 1995, Respondent asked Pamela W. Bean, a teacher, to come into his office when she asked to talk with him. He closed the door. After she was seated and talking, Respondent told Bean that she "looked stressed." He stepped behind her and began to rub her shoulders. When Bean got up, Respondent told her that he "needed a hug." Bean, nonplussed by the unsolicited and unwelcome advance of Respondent, complied with a brief hug and left. The next day, a similar incident with Bean occurred in Respondent's office. Again, Respondent's back rub and hug overtures were unsolicited by Bean who complied again with Respondent's request for a hug. Karen Jones, Teacher In the spring of 1995, Karen E. Jones, another teacher, asked to speak with Respondent. He asked her into his office and closed the door. Respondent then told Jones "I need a hug" and proceeded to hug her. After hugging Jones, Respondent told her that "we need to do that more often." In the first half of September of 1995, Respondent asked Jones to come into a room near his office called "Trawick's Trough." After entering the room, he again asked for a hug and hugged Jones. Jones did not solicit or welcome the hug. Jones later confided prior to initiation of any formal charges against Respondent in her long-term friend, Susan Ingraham, who is a school board employee, regarding Respondent's overtures. Julie A. Gray, Teacher Julie A. Gray was a first year teacher of Spanish and the yearbook sponsor at Sandalwood High School during the 1991-1992 school year when Respondent was her supervisor and the Principal at that school. Respondent approached Gray in the hallway during the early part of that school term. Respondent told Grey that he liked to get hugs from his faculty members. Gray patted him lightly on the shoulders. Respondent then said,"oh, I didn't mean here. I meant in my office." Later in the school term, Gray went to report to Respondent that all the yearbooks had been sold. Gray found Respondent near the bookkeeper's office and started talking to him. He leaned over and tried to kiss her on the mouth. When she backed away, Respondent tried to hug Gray. She was embarrassed by the incident and informed Peggy Clark, a professional support staffer for new teachers, that Respondent had made remarks of a sexual nature to Gray. Gray's roommate was also informed by Gray regarding Respondent's attempt to kiss Gray. The Teachers As a result of Lee's conversation with Mark Scott, Lee subsequently compared experiences with Smith. Bean, assigned by Respondent to sit in the student activity office during one of Lee's social studies classes also had a discussion with Lee. The three, Lee, Smith and Bean, decided to lodge complaints with the school administration and did so in early October of 1995. Lee felt she had not choice if she did not want to lose her job. Smith would have reported Respondent's behavior toward her earlier, but felt that she was alone and could not succeed. Bean, likewise, had felt she was alone and would not be believed over the word of a principal. Jones learned about the other teachers and their grievances a couple of weeks following Respondent's last advance toward her and decided to join the others in making a complaint. Gray had considered bringing sexual harassment charges against Respondent in the spring of 1992, but felt it would simply be her word against Respondent. She decided to come forward with her allegations in response to requests by the Board's representative who had learned of Respondent's behavior in 1992 toward Gray. Based on their candor and demeanor while testifying, as well as the consistency of their testimony with earlier statements made by them to persons with whom they spoke following various incidents, the testimony of all five teachers, Lee, Smith, Bean, Jones, and Gray, is fully credited and establishes that Respondent's conduct toward them was intimidating and adversely affected their abilities and enthusiasm for teaching in such situations. Stefani Powell, Contract Manager Stefani Powell was a district supervisor for ARAMARK, the operator of the Board's food service in the school system during the 1994-95 school year. In her capacity, Powell managed 14 school cafeterias, including the one at Forrest High School. Respondent, as the Principal at Forrest, was a client of ARAMARK's, oversaw what happened in the cafeteria, and approved certain aspects of the cafeteria's functioning. In meetings with Powell in his office, Respondent began closing and later locking the doors, commencing in October of 1994. He initiated hugs with Powell at the end of these meetings. On approximately eight to 10 occasions, the last in January or February of 1995, Respondent hugged Powell. Initially, the hugs were light, but progressed and grew stronger with Respondent eventually placing his hand on Powell's back and pushing inward. On the last occasion, Respondent kissed Powell on the cheek. None of these attentions by Respondent was solicited by Powell and were unwelcome. Since Respondent's advances made Powell uncomfortable, she eventually confided in her supervisor who advised that Powell always take someone with her or ensure the presence of a third person at conferences with Respondent. Powell followed this practice with regard to future meetings with Respondent. After reading in the newspaper of the allegations of the teachers at Forrest High School, Powell told her mother, a school board employee, of her experiences with Respondent. As a result, Powell was put in touch with the Board's investigator and her complaint against Respondent followed. Due to her candor and demeanor at the final hearing, as well as consistency of her testimony with statements made by her to others, Powell's testimony is totally credited. Dishonesty In The Course Of Employment Carol Abrahams was a clerk one at Forrest High School during the 1994-1995 school year. She shared a social relationship with Respondent and his wife. In April of 1995, Respondent made Abrahams the Principal's secretary. Abrahams was a clerk one. A clerk three is the customary rating and higher paying position normally assigned duties as a Principal's secretary. Respondent sought to augment Abrahams' pay since she was paid less than a Principal's secretary would normally receive. Respondent directed the use of Community School funds to pay Abrahams for work after the normal school day hours. Commencing with the beginning of the 1995-1996 school year, Abrahams was paid $9.50 per hour for the hours of 3:30 p.m. to 6:30 p.m. each day that Community School functioned, Monday-Thursday, through September of 1995. Abrahams did not work during all the hours for which she claimed payment for the period of August 23, 1995 through September 28, 1995. Specifically, Abrahams went to an aerobics class conducted at Forrest High School from 3:30 until 4:30 p.m. almost every Monday, Wednesday and Thursday of each week during August and September, 1995. On three payroll hour certifications signed by Respondent, payment was made to Abrahams for a total of 16 hours during 16 days that were not actually worked at the times claimed. Respondent knew that Abrahams was attending the aerobics classes, but it was assumed by he and others that Abrahams would make up the missed hours. Abrahams testimony that she did school work at home, on weekends and at other times in an amount of hours sufficient to more than make up for the hours claimed on the subject pay roll certifications, while creditable, is not corroborated by any record of such "comp" time and cannot serve to extinguish the commission by Respondent of the technical violation of approval of those time sheets for subsequent payment when he knew those records were not accurate. Conduct And Effectiveness Respondent's misconduct, as established by the testimony of Lee, Smith, Bean, Gray, Jones and Powell, constitutes personal conduct reducing Respondent's effectiveness as an employee of the Board.
Recommendation Pursuant to provisions of disciplinary guidelines contained within Rule 6B-11.007, Florida Administrative Code, it is RECOMMENDED that a final order be entered by EPC revoking Respondent's teaching certificate for a period of two years, with recertification at the conclusion of that time conditioned upon Respondent's acceptance of a three year probationary period upon terms and conditions to be established by the EPC, and it isFURTHER RECOMMENDED that a final order be entered by the Board dismissing and discharging Respondent from his position of employment with the Board.DONE AND ENTERED this 13th day of December, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 600 City Hall 220 East Bay Street Jacksonville, Florida 32202 J. David Holder, Esquire 14 South 9th Street DeFuniak Springs, Florida 32433 William J. Sheppard, Esquire Sheppard and White, P.A. 215 Washington Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8154
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-certified teacher authorized to teach mathematics. She holds Florida Educator's Certificate No. 801286, which covers the five-year period ending June 30, 2003. Respondent was a teacher for more than a decade in Michigan before moving to Florida. She began teaching in Florida in or around September of 1998, when she was hired to teach mathematics at Deerfield Beach High School (DBHS). Respondent taught at DBHS only into the early part of the second semester of the 1998-1999 school year, when she was removed from the classroom following her arrest, during the early morning hours on January 17, 2002, for lewd and lascivious conduct. The arrest occurred at Athena's Forum, a club that Respondent and her then fiancée, William Markowitz, had read about in a magazine article about "swing clubs." The article "peaked [their] interest to go in[to one of these clubs] and see what it was all about." Respondent and Mr. Markowitz entered Athena's Forum at approximately 9:30 p.m. on Saturday, January 16, 1999. Neither she nor Mr. Markowitz had been to the club before. They were stopped in the vestibule and asked to fill out and sign a membership application and to pay a membership fee of $75.00, which they did. They were then allowed to go into the interior of the building. There were signs posted in the vestibule and elsewhere in the club cautioning that those who might be offended by "sexual activity or nudity" should not enter the club. Upon entering the interior of the building, Respondent and Mr. Markowitz went to the bar and ordered drinks. They later went to the buffet area where food was being served to get dinner. They brought their dinner to a table "at the stage level," where they sat down and ate. It was "very dark" there. They spent the rest of the evening sitting at their table (next to each other) listening to music and watching "people coming and going throughout the club." On occasion, they got up to dance. There were at least 50 people in the club that evening, some of whom were in various states of undress, being "fondl[ed]" and "touch[ed]" by others. Respondent and Mr. Markowitz, however, both remained clothed throughout their stay at the club. Among the other people in the club that evening was Deputy John Duncan of the Broward County Sheriff's Office (BCSO). Deputy Duncan was there, along with eight to 12 other law enforcement officers, as part of a BCSO undercover operation. Deputy Duncan had been to the club on a prior occasion to conduct "surveillance." He had gone there at the direction of his supervisor, Sergeant Barbara Stewart. Sergeant Stewart had advised Deputy Duncan and the other participants in the undercover operation that a "tip" had been received that "lewd activity was supposedly going on inside the club" and that they "were going in there to look for" such activity and to see if "any narcotics [were] being sold." During that first visit, the club was "dead." The bartender, however, told Deputy Duncan that there were other times, including "certain nights [designated as] couples nights, that things [did] go on" at the club. Among these "things," according to the bartender, was "sexual activity." Deputy Duncan returned to the club at approximately 10:00 p.m. on January 16, 1999. He gained entry to the interior of the building after showing his "membership number" to a woman "at the front desk," giving the woman a "bottle of liquor" he had brought with him, and having his "cover charge" paid (by a fellow undercover officer). Deputy Duncan, along with Sergeant Stewart, who was part of the BCSO undercover operation at the club that evening, proceeded to the "northwest section of the bar," where they sat down. Next to the bar was a "dance floor." There were tables and chairs surrounding the "dance floor." Approximately 30 feet from where he was seated at the bar, in the area of the "dance floor," Deputy Duncan observed a "white female," 3/ standing up, straddling the right leg of a "gentleman" sitting on a chair. The "white female" was wearing a tight-fitting, black spandex dress. Deputy Duncan saw the "gentleman" "lift her dress up" above her vaginal area. It appeared to Deputy Duncan that the "white female" did not "have any underwear on." The "gentleman" then proceeded to fondle the "white female's" vaginal area. This went on for two to five minutes. At no time did the "white female" attempt to pull down her dress or otherwise cover her vaginal area. Neither she, nor the "gentleman," made any effort to hide what they were doing. Although Deputy Duncan considered the "white female's" and the "gentleman's" conduct to be lewd and lascivious, he did not immediately place them under arrest inasmuch as the undercover operation had not concluded. Before the club was "raided" later that evening and arrests were made, Deputy Duncan observed other instances of people in plain view engaging in activities of a sexual nature. He saw, among other things, "women with other women where they were fondling the breast," "women with men doing dirty dancing," and "men and women in corners." In the "back area" of the club, he saw "hot tubs with several naked individuals inside" and rooms where people were "engaging in open intercourse." There were approximately 38 people arrested as a result of the BCSO undercover operation at Athena's Forum that evening. Respondent and Mr. Markowitz were among those arrested. Respondent's and Markowitz's arrests were for lewd and lascivious conduct. The arrests occurred at 1:30 a.m. on January 17, 1999 (after the club had been "raided"). Deputy Duncan was the arresting officer. He believed that Respondent and Mr. Markowitz were the "white female" and "gentleman," respectively (referred to above) whom he had observed earlier that evening in the area of the "dance floor" engaging in conduct that he considered to be lewd and lascivious. Deputy Duncan, however, was mistaken. Respondent was not the "white female" 4/ and Mr. Markowitz was not the "gentleman" 5/ Deputy Duncan had seen. At no time that evening at the club had Mr. Markowitz pulled Respondent's dress up or fondled Respondent's vaginal area. Respondent's and Mr. Markowitz's arrests were two of the "many" arrests Deputy Duncan made at "swing clubs" in the county. Respondent's arrest was reported in the media. It was common knowledge at DBHS that she had been arrested for lewd and lascivious conduct at a "swing club." The Broward County School Board initiated disciplinary proceedings against Respondent. It removed her from the classroom and reassigned her to a "security guard" position pending the outcome of the disciplinary proceedings. Respondent thereafter submitted a letter of resignation, dated January 24, 2000, to the Broward County School Board. In her letter, she stated, among other things, the following: Broward County showed me a warm welcome by taking away my civil rights to privacy and making my entire ordeal a Nationwide joke. No one, except my attorney and my future husband knew of my arrest on January 17, 1999, until the School Board . . . gave information to the local and national media. . . . . The Broward County School Board showed an excellent, motivated and experienced educator that they are more interested in what teachers do after hours than the students' well-being. I was wrongfully arrested on January 17, 1999 in a private club where no children were present. It was not near or on any school grounds and it did not impair my ability to teach. As of this letter, it seems that the criminal charges against me will be dismissed. On February 17, 1999, I was handed a letter that will forever change my life, when I was pulled and submitted to complete ridicule in front of my 4th Period class with only forty minutes to the end of the day. I successfully taught for four weeks and would have continued to successfully teach if the Board had not release[d] my name to the media. After a national debate on the right to privacy my career was destroyed, as well as my life. . . . In August 1999 I was placed on administrative reassignment with pay. I was informed that I would receive a "meaningful" job that would justify my paycheck while we awaited the Administrative Hearing. Once assigned a position, displayed for the world to see, as a security guard for the main School Board Building, I reported my health issues and repeated harassment from the media, school board employees, teachers, and parents. I was informed by Carmen Rodriguez, attorney for the School Board, that the position I was assigned would involve "little or no participation." I asked for a different position but the request was denied. . . . At this point I am unable to return to work due to illness . . . . Therefore, due to the cost to my personal health, lack of financial resources, lack of union support, the fact that I am only an annual contract teacher, being refused a position change, and being denied a Leave of Absence, and the pride to not submit myself to the degrading way you treated my fellow educator, I must with great hesitation resign as an educator in Broward County. I am giving up the battle in the administrative courts to win the war of public opinion. The criminal charges that had been filed against Respondent following her arrest were "dropped by the court" on or about July 18, 2000. Respondent married Mr. Markowitz, but they were later divorced. They still keep in touch with one another, however. Mr. Markowitz tried to help Respondent make the necessary arrangements to attend the final hearing in the instant case, but due to the expense involved and the fact that Respondent had an examination to take, she was unable to be at either of the hearing sites. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 14th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of October, 2002.
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of September, 1983.
The Issue Whether Respondent, a school teacher, committed the offenses set forth in the Administrative Complaint
Findings Of Fact Respondent currently holds Florida teaching certificate 716424, covering the area of Economics. This teaching certificate is valid through June 30, 1995 (sic). During the 1993-1994 school year, Respondent was employed as a teacher at Ft. Pierce Westwood High School, in St. Lucie County School District. On or about December 15, 1993, Respondent showed an "R" rated video, Posse, to her students. The video contained profanity, nudity and scenes depicting sexual acts. On or about January 6, 1994, Respondent was issued a Letter of Reprimand and was suspended for one (1) day without pay effective June 9, 1994, for demonstrating poor judgment and violating school procedures in showing the video.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is FURTHER RECOMMENDED that Respondent be issued a written reprimand for violating Rule 6B-1.006(3)(a), Florida Administrative Code, and Section 231.28(1)(i), Florida Statutes. DONE AND ENTERED this 15th day of May, 1996 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 of Administrative Hearings this 15th day of May, 1996. COPIES FURNISHED: Carl J. Zahner, II, Esquire Ronald G. Stowers, Esquire Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Monique Carter 1901 Valencia Avenue Fort Pierce, Florida 34946 Sam Carter 1901 Valencia Avenue Fort Pierce, Florida 34946 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen P. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
