Findings Of Fact Respondent, Moses Green, holds Florida Teaching Certificate No. 232099, Graduate, Rank II. He served as dean of students at Boca Ciega School during the 1976-1977 school year. Thereafter he was reassigned as one of three deans of students at Pinellas Park High School, and he served in this capacity during the 1978-1979 school year. Moses Green has been in the field of education since his graduation from Florida A & M University more than 21 years ago. After teaching several years in South Carolina and Georgia he came to Boca Ciega High School in Pinellas County in 1964 where he started as a teacher. He served as dean of students at Boca Ciega High School from 1974 until 1977 when he was transferred to Pinellas Park High School as a dean of students. In October 1976 enroute from his home to school in a vehicle described both as a van and a motor home, Respondent stopped to give a ride to Jacqueline Blackshear and Stephanie Bellamy, two ninth grade students at Boca Ciega High School. When they entered the van Jackie sat on the housing covering the engine between the two front seats facing the rear of the van and Stephanie sat in the front right-hand passenger's seat. Enroute to school Respondent commented that Jackie was growing up and placed his hand on the inside of Jackie's thigh. At the time, Jackie was enroute to school for cheerleader practice and was wearing shorts. Jackie looked and moved towards Stephanie and Respondent removed his hand. Before arriving at school Respondent again placed his hand on Jackie's thigh and removed it when she moved. Upon arrival at school Respondent told Stephanie to get out as he wanted to talk to Jackie. When Stephanie left the van, Respondent was standing facing Jackie whose back was to the closed door. Respondent grabbed Jackie and attempted to kiss her. She pushed away, opened the door and left the van. When she left the van, Jackie was upset and Stephanie suggested she tell her parent. Near noontime Jackiie went to Gail Weston, a physical education teacher at Boca Ciega High School and told her about the incident in Respondent's van. Stephanie accompanied Jackie on this visit. Ms. Weston described Jackie as nervous and upset. After a few minutes of conversation Ms. Weston realized that it was not something she could handle and she told Jackie and Stephanie that they needed to tell their story at the Dean's office and she took them to Jean Johnson, a dean of students at Boca Ciega High School. There both girls told their story to Ms. Johnson who prepared a statement for them to sign. The story repeated to Ms. Johnson was essentially the same told to Ms. Weston. After typing up their statements, Ms. Johnson told Mr. Demps, the principal. He had the girls brought to him, where the story was again repeated. Demps called Respondent in and confronted him with the story. He also advised his area superintendent and the director of personnel, who investigated the allegations made by these two girls. Demps also arranged for a meeting with Jackie's and Stephanie's parents the following day. Following the investigation, Green, on October 19, 1976 was issued a letter of reprimand (Exhibit 1) for his role in the events that had come to the school's attention regarding the two girls noted above and warned that a recurrence of such conduct would result in dismissal. By letter dated 9 November 1976 Respondent was sent another letter (Exhibit 2) regarding a reported and inappropriate remark made by Green to another female student, which Respondent had denied, and the letter suggested Respondent and the girl take lie detector tests. By letter dated December 29, 1976 (Exhibit 3) the Superintendent of Schools advised Respondent that the results of the polygraph test he had voluntarily taken indicated his answers were deceptive, while the girl's polygraph test indicated her responses were honest. Respondent was placed on probation for the remainder of the 1976-1977 school year and for all of the 1977-1978 school year. Although his principal at Boca Ciega High School, Mr. Demps, considered Respondent's effectiveness at Boca Ciega High School seriously impaired by the notoriety given to the events involving Respondent in 1976, he remained at Boca Ciega High School for the remainder of that school year. For the school year 1977-1978 Respondent was transferred to Pinellas Park High School as dean of students. Upon his transfer to Pinellas Park High School, Demps gave Respondent a good evaluation report. During Respondent's first year at Pinellas Park High School, no incidents were reported to form the basis of any of the charges here considered. This school year 1977-1978 included the probation period set by Exhibit 3. The school year 1978-1979, while Respondent was dean of students at Pinellas Park High School, produced the majority of complaints and testimony at this hearing regarding improper comments made to female students by Respondent, improper contact of a sexual nature with female students by Respondent, and corroboration of this testimony by other witnesses. Ten female students who attended Pinellas Park High School during school year 1978-1979 testified against Respondent regarding incidents between Respondent and these students of a sexual nature. Some of these incidents involved contact or attempted contact such as hugging, kissing or attempting to kiss, touching breasts or attempting to do so, and rubbing the front of his body against students' backsides when passing them when adequate room for passing without contact existed. Several testified to improper comments made to them by Respondent such as "You have a nice set of tits," "I'd like to get in your pants," "You have a nice pair of legs," "Why don't we go to a motel," "You drive an old man crazy," "You have a nice butt and look good in those pants," "One of these days it's going to be you and me," and similar comments regarding female students' anatomy. Much of this testimony was corroborated by other witnesses who overheard the remarks or observed the bodily contact. Additionally, some of the witnesses had complained to their parents or to other faculty members shortly after the incidents. Others first came forward with their complaints when they learned the police were investigating Green's conduct at the school and they became convinced their isolated incidents wouldn't appear unbelievable. Some of these students tolerated and perhaps encouraged the comments to provide them leverage to insure a cover-up for numerous "skips" of classes. Some of these witnesses skipped classes without punishment due to Respondent's position as dean and to whom their infractions were referred. Respondent denied each and every testimonial utterance of misconduct on his part while admitting the situation described by the witnesses, in which the improper actions of Respondent were said to have occurred, were real. During his testimony Respondent referred to school records which would corroborate his testimony, but he made no effort to produce these records or to account for their non-production. Respondent was subjected to three criminal trials on charges stemming from allegations of fact similar to those testified to in these proceedings. He was acquitted on charges alleging battery and false imprisonment and convicted of the offense of attempting to contribute to the delinquency of a minor. Those trials resulted in considerable publicity and the allegations became well-known throughout the Pinellas County School System. Several witnesses testified that Respondent's effectiveness in the Pinellas County School System was totally destroyed by virtue of the notoriety gained by Respondent due to this adverse publicity.
The Issue Whether or not Respondent is guilty of misconduct and/or immorality in office (in the nature of suggestive and degrading sexual innuendoes and remarks to several female students) pursuant to Section 231.36(6)(a) F.S. and Rules 6B- 1.001, 6B-1.006, and 6B-4.009 F.A.C. so as to be subject to dismissal by the Nassau County School Board. Although some evidence of other years was presented, the August 8, 1991 Statement of Charges herein covers only the 1990-1991 school year. Accordingly, only evidence from that school year may be considered for purposes of discipline in this proceeding.
Findings Of Fact At all times material, Respondent was a teacher at the Hilliard Middle- Senior High School and the holder of a professional services contract with Petitioner Nassau County School Board. He is certified by the State of Florida in the areas of mathematics, psychology, and broad field social studies. Respondent had been employed by Petitioner for the nine years immediately preceding his suspension for the charges involved in this case. During the whole of that time he received good job evaluations. He has had no prior disciplinary charges against him. On or about May 9, 1991, Petitioner, pursuant to the recommendation of the Nassau County Superintendent of Schools, suspended Respondent without pay. This followed the Superintendent's suspension of Respondent with pay on May 2, 1991. During his employment with Petitioner, Respondent has taught geometry, algebra II, trigonometry, one class of general math, and a class of compensatory mathematics. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine; you're hot." None of the comments were exclusive to any particular female student. All comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students. There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material. One female student who testified that she found the foregoing practice objectionable was Shannon Lysitt, a student of Respondent's during both the 1989-1990 and the 1990-1991 school years. Ms. Lysitt testified at formal hearing that she "took [these comments] to be sexual but not as in a sexual manner." She considered the comments embarrassing and a display of inappropriate conduct by a teacher but knew Respondent was being friendly and joking. Ms. Lysitt admittedly never told Respondent she felt embarrassed or asked him to stop making such comments. Although she was used to his comments from the previous school year, Ms. Lysitt did not request to be assigned to another class for the 1990-1991 school year. In one isolated conversation, Respondent told Ms. Lysitt that, due to her poor math grades, she would probably wind up as a secretary being chased around a desk by her boss instead of achieving her desired career of psychiatrist. The Respondent denied making that comment specifically, but testified that he had made chiding or derrogatory comments about career plans of college preparatory students to motivate them to do better on tests when they had been doing poorly. By all accounts, Ms. Lysitt was doing all right in Respondent's course but could have done better. Ms. Lysitt's testimony was credible as to what was said, but Respondent's testimony was equally credible as to why he said it. Upon the evidence as a whole, it is found that the Respondent's comment may have been temporarily embarrassing to Ms. Lysitt, and may have, as she testified, made her feel bad or stupid for a short time, but that it did not degrade or humiliate her or adversely affect her classroom performance or overall self-image. Sherry Meziere was a student in Respondent's fourth period general math II class during the 1990-1991 school year. She also was embarrassed by Respondent's compliments to her, but she never told him so. When Ms. Meziere complained to Respondent that her semester grade was a "C" rather than the "B" she wanted, he told her she could stay after school and she would get her "B". Ms. Meziere is a particularly sensitive and shy teenager, and she took offense at the Respondent's comment because she interpreted it as a sexual come-on. Respondent denied having any sexual intent behind his comment to Ms. Meziere. At formal hearing, he explained that Ms. Meziere would have been entitled to a "B" if she had turned in all her homework, as required, but she had not. Because her grade was borderline due to the missing homework, Respondent had meant by his remark to Ms. Meziere that if she would come to the classroom after school and work the homework problems in his presence, he would retroactively give her credit for doing the homework and turning it in and this would accordingly alter her semester grade to a "B". Respondent's explanation for why he took this approach is reasonable: he would not accept students bringing in the homework later from home because it might be done anew or copied from someone else. Perhaps Respondent fell short in not clearly indicating all his reasoning and purpose to Ms. Meziere, but he also had no notice from her that she had misunderstood his offer. On balance, Ms. Meziere's explanation of why she took Respondent's neutral remark sexually is weak. She testified, A: I took it sexually. I don't know. Q: Why did you take it sexually? What is it about it that made you think that because you would agree, wouldn't you, that that could also be nonsexual the way you stated it, correct? A: Yes. Q: So what was it about the way he said it that made you think that it was sexual? A: I don't know. I just didn't feel comfortable with it. Q: But he didn't say anything explicit-- A: No. Q: --about sex or anything like that? A: No. (Exhibit P-2, page 10) Ms. Meziere considered Respondent a good teacher, not really strict, and pretty friendly. She felt he was giving her and one of her girl friends many more compliments of the nature described above in Finding of Fact 5 than he was giving other female students in their particular class. Respondent conceded that perhaps he had complimented Ms. Meziere more than some other female students in her class because he had tried to build up Ms. Meziere's self-esteem while the class was going to and from the cafeteria during the lunch recess which occurred in the middle of that class period, so that she would eat and not diet excessively. When she felt "uncomfortable" about Respondent's offering to see her after school, Ms. Meziere was not aware that Respondent frequently tutored students after school. Shanna Higginbotham, another one of Respondent's female students, confirmed that she had been tutored by him after school on several occasions, without any sexual innuendoes or overtures. Although what Respondent did not do with Ms. Higginbotham is not corroborative of Respondent's testimony that he did not intend his remark to Ms. Meziere to be sexual, it is supportive of his testimony that he was in the habit of having one or more students in his classroom after school. It also supports a reasonable inference that the Respondent's classroom was hardly the place for a private rendezvous. Respondent was approached during an inactive period in one of his classes by a senior mathematics student named Monica Adamczewski, who was simultaneously taking a college-level psychology class in child development at Florida Community College, Jacksonville, Florida. Ms. Adamczewski, knowing of Respondent's background in psychology, addressed a question to Respondent involving Freudian theory and child psychology on the issue of whether or not little children have sexual feelings, as hypothesized by Freud. Respondent responded by describing how he had handled an incident involving his own four year child's masturbation. Although the conversation was conducted in low tones with Ms. Adamczewski and Respondent in their respective desks, another student, Darlene Kelly, came up to Respondent's desk in the course of the conversation and heard only part of the conversation. Ms. Kelly was not aware of the context in which the subject arose, did not approve of certain language Respondent employed in discussing his child's activity, and felt it was an inappropriate conversation for the classroom, but Ms. Kelly also testified that the conversation did not embarrass her. There is conflicting evidence as to whether the foregoing incident occurred during the period covered by the Statement of Charges in this case. It is found that it did not occur during the period of time covered by the charges and accordingly that it cannot constitute grounds for disciplining Respondent in this proceeding. Jessica Smith testified to three incidents that allegedly occurred during the 1989-1990 school year. Because the Statement of Charges against the Respondent is silent as to any allegations of misconduct or immorality that occurred other than during the 1990-1991 school year, these incidents may not be used to discipline Respondent in this proceeding. 1/ Tammy McClamma graduated from Hilliard Middle-Senior High School in May 1990. She was not one of Respondent's students in either her junior or senior year, but she knew him from being around school. The events she described also could not have occurred during the time frame set out in the Statement of Charges and therefore cannot be used to discipline the Respondent in this proceeding. 2/ Respondent acknowledged that he may have been careless and used poor judgment in some of the statements he made to his female students. However, he never intended to harm or embarrass any of them and was simply guilty of allowing himself to get too close to the students as friends rather than maintaining the appropriate distance required of the student-teacher relationship. All the student witnesses, including those who were offended by isolated remarks they regarded as inappropriate, agreed that Respondent has a friendly and jocular manner in and out of the classroom. Respondent's classroom clearly has a "laid back" style. Overall, his students seem to appreciate and enjoy his familiar manner and to learn well in his classes. The consistent testimony of the students was that he is generally well-regarded and "everybody's favorite teacher." Superintendent Marshall opined as a professional educator that the Respondent's effectiveness as an educator had been undermined and eliminated by a continuing pattern of serious misconduct. However, no evidence of lost effectiveness beyond the temporary embarrassment and self-doubt experienced by Ms. Lysitt appears of record, and Mr. Marshall's opinion as rendered at formal hearing was based in part upon incidents outside the dates alleged in the Statement of Charges and also based in part upon the total investigation of this case, which investigation clearly included material not in evidence here.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Nassau County enter a final order dismissing the charges against Respondent and returning him to full duty with all back pay and benefits retroactive to May 9, 1991. RECOMMENDED this 5th day of March, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 5th day of March, 1992.
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
The Issue In Case No. 88-3425, Mr. Bradley Thomas challenges the termination of his employment at the Florida School for the Deaf and the Blind. The issue is Case No. 88-5675 is whether Mr. Thomas committed the acts alleged by the administrative complaint, and, if so, what penalty may be appropriate.
Findings Of Fact Bradley Thomas holds Florida Teaching Certificate #486268, valid through June 30, 1993. Mr. Thomas is certified to teach secondary levels, vocational education and printing, and was initially employed by the Florida School for the Deaf and the Blind (FSDB) in 1980. Mr. Thomas taught phototypesetting in the FSDB Vocational Department. Mr. Thomas was described by his immediate supervisor as highly-motivated and conscientious. He has received satisfactory and above-satisfactory performance evaluations. Mr. Thomas is 57 years old and has been deaf since the age of 12. He communicates through signing and speech. According to section 242.331(4), Florida Statutes, the Board of Trustees of the Florida School for the Deaf and the Blind is authorized to appoint and remove teachers "as in its judgement may be best". By Rule 6D- 4.002(2)(b), Florida Administrative Code, the Board of Trustees has delegated responsibilities related to employment and termination of academic personnel to the President of FSDB. By letter from FSDB President Robert Dawson, dated February 15, 1986, such authority has been delegated to Samuel R. Visconti, Director of Personnel for the FSDB. The Board of Trustees has entered into a collective bargaining agreement with the Florida School for the Deaf and the Blind Teachers United, an affiliate of the Florida Teaching Profession-NEA and the National Education Association. Article 13, section E, of the 1986-89 agreement between the Board of Trustees and the FSDB Teachers United, FTP-NEA, in relevant part, provides that Mr. Thomas may not be discharged from employment by the Board of Trustees except for "just cause", which is defined to mean job- related incompetence or misconduct. The professional competence of Mr. Thomas as a teacher is not at issue in this proceeding. During the second semester of the 1986-87 school year, Holly Middlebrooks was enrolled with five other students in Mr. Thomas' class. At the time of the hearing, Ms. Middlebrooks was 19 years old and a senior at FSDB. On more than one occasion, Mr. Thomas "rubbed" Ms. Middlebrooks' back and shoulders during class, in a massaging manner, which made her uncomfortable and confused. The contact occurred while Ms. Middlebrooks was seated at and using a computer terminal and while she entered and left the classroom. Although she attempted to convey her discomfort with Mr. Thomas' touching by repositioning herself in her chair as she worked at the computer, she did not instruct Mr. Thomas to stop. Ms. Middlebrooks saw Mr. Thomas touch other students in a similar manner. Although other students indicated to Ms. Middlebrooks that Mr. Thomas discussed sexual topics in class, she did not hear and could not recall specific incidents of sexually-oriented language on Mr. Thomas' part. Nadine Lents was enrolled with four or five other students in Mr. Thomas' class during the second semester of the 1986-87 term and for the full 1987-88 school year. At the time of the hearing, Ms. Lents was 18 years old. On occasion, Mr. Thomas would massage Ms. Lents' neck and shoulders while she worked at the computer terminal. At times she feared that he would touch her breasts but he did not. She did not instruct him to stop. On at least one occasion, Mr. Thomas rubbed her leg while she sat at the terminal and she instructed him to stop, to which he replied that there was no cause for her concern. Mr. Thomas "often" hugged Ms. Lents, sometimes pressing himself against her breasts or in a manner which she found to be "too hard", and she would push Mr. Thomas away. Ms. Lents sometimes would lightly hug Mr. Thomas as a means of greeting, but was careful to maintain distance. Mr. Thomas discussed sexual matters with Ms. Lents. He asked her if she "liked oral sex", talked about the size of her breasts, and discussed other sexual matters in vulgar terms. The sexual discussions sometimes made Ms. Lents uncomfortable and embarrassed. During both the 1986-87 and 1987-88 school terms, Karen Warfel was enrolled with "about six" other students in Mr. Thomas' class. At the time of her testimony at the administrative hearing, Ms. Warfel was 20 years old and had graduated from the FSDB. More than once, Mr. Thomas rubbed her back under blouses which she described as "loose". Once, Ms. Warfel instructed Mr. Thomas to stop, and he complied with her request, but Mr. Thomas subsequently resumed touching Ms. Warfel in a similar manner and she did not stop him. Mr. Thomas also occasionally rubbed Ms. Warfel on her leg, "above the knee", in an attempt "to calm me down when I get frustrated on the computer". The physical contact with Mr. Thomas made her feel uncomfortable. Ms. Warfel would, on occasion, request a piece of candy from a supply which Mr. Thomas kept in his desk drawer. Mr. Thomas would ask Ms. Warfel to kiss his cheek prior to giving her candy, and Ms. Warfel would comply with his request. Sometimes Mr. Thomas would tickle Ms. Warfel near her rib cage or below her belt and to the sides of her abdomen, in an area Ms. Warfel described as near her ovary. Mr. Thomas discussed sexual matters in the classroom in Ms. Warfel's presence, including discussing his sexual relationship with his wife. Ms. Warfel was embarrassed by Mr. Thomas' conduct. Marisol Eschevarria-Sola was enrolled in Mr. Thomas' class during the first semester of the 1986-87 school year and the first semester of the 1987-88 school year. There were approximately five students in the class. At the time of her deposition, Ms. Eschevarria-Sola was 20 years old. Mr. Thomas, at least once, touched or stroked Ms. Eschevarria-Sola's leg, around her knee and thigh, and also touched her back. The physical contact, which occurred while she was seated at the computer console, made her uncomfortable. She expressed her discomfort when such touches occurred. Mr. Thomas explained that he was attempting to warm his hands. She saw Mr. Thomas touch other students in her class in like manner. At least once, Mr. Thomas requested that Ms. Eschevarria-Sola kiss him in exchange for a pencil she wanted to borrow. Although she was uncomfortable with the situation, she complied with his request. On another occasion, Mr. Thomas requested that he be permitted to kiss her and she complied. Ms. Eschevarria-Sola recalled Mr. Thomas discussing sexual matters in class, including his relationship with his wife, but could not specifically recall the details of the discussion. Mr. Thomas also joked about the bodies of the students in his class. Ms. Eschevarria-Sola was embarrassed by the jokes or language. Students at the FSDB are required to attend a course entitled "Talking About Touching", which provides instruction related to self-protection from potential physical abuse. Students are taught to classify physical contact as "good", "bad" or "confusing". "Good" touches would include such positive contact as a pat on the back. "Bad" touches would include touches which are physically uncomfortable and negatively perceived by the recipient, such as slapping or inappropriate sexually-oriented contact. "Confusing" touches are those which may be positively intended but which are perceived by the recipient to be inappropriate or which make the recipient uncomfortable. Students are taught that "confusing" and "bad" touches should be reported to responsible authorities at the school. The record is unclear as to whether the students alleging that Mr. Thomas' touches were "confusing" had taken the course prior to being in Mr. Thomas' classroom. Some students at the FSDB may have reached majority. Students may remain enrolled at the FSDB beyond the age of students enrolled in other high schools. A teacher is held to the same standards of classroom behavior regardless of the students ages. Mr. Thomas had been present during an FSDB staff meeting during which reference to appropriate and inappropriate classroom conduct was made by supervisory personnel, and consequences of improper conduct were discussed. Officials at the FSDB became aware of allegations related to the classroom conduct of Mr. Thomas, when, on May 24, 1988, the allegations were reported to Mr. Robert Dawson, President of the FSDB, by a female student, Marisol Eschevarria-Sola. Ms. Eschevarria-Sola had, on the previous evening, participated in a dormitory gathering with other female students during which Mr. Thomas' conduct was discussed. (Some students are enrolled at the FSDB on a residential basis and live in dorms at the school.) At the direction of the FSDB President Robert Dawson, the allegations were immediately investigated by Ms. Debra Boles, Assistant Principal for Academic Instruction. Ms. Boles initially interviewed five hearing-impaired female students, including Ms. Eschevarria-Sola and Ms. Warfel, who provided information substantially similar to their testimony at the administrative hearing. The initial interviews were solely between the individual students and Ms. Boles, who is skilled at signed communication. The student interviews indicated that some students were "confused" by Mr. Thomas' conduct. Ms. Boles immediately reported her findings to Mr. Dawson, who directed that Mr. Thomas be placed on administrative leave with pay pending further inquiry into the allegations. On May 24, 1988, Ms. Boles verbally informed Mr. Thomas and his immediate supervisor that Mr. Thomas was being placed on administrative leave with pay pending further investigation. Ms. Boles explained that there were allegations of inappropriate physical contact made by unidentified female students of Mr. Thomas. Ms. Boles informed Mr. Thomas that such inappropriate contact included touching female students "on the back, on the shirt or on the thighs. " By letter dated May 24, 1988, Mr. Dawson confirmed that Mr. Thomas was placed on administrative leave with pay, effective May 25 through June 8, 1988, while under investigation for "inappropriate Staff/Student Relationships" constituting violation of referenced sections of the Florida Administrative Code related to the Code of Ethics of the Education Profession in Florida. At Mr. Dawson's direction, Ms. Boles, on or about May 27, 1988, interviewed 29 students, all of whom are hearing-impaired, who had been students of Mr. Thomas at some time during their enrollment at the FSDB. The interviews were conducted individually. The interviews between Ms. Boles and the individuals were conducted through a registered interpreter. Of the 29 interviewed, 22 of the students expressed no concern related to Mr. Thomas' classroom conduct. Among the students interviewed were Ms. Middlebrooks and Ms. Lents, who provided information substantially similar to their testimony at the administrative hearing. Ms. Boles provided the information gained through the student interviews to Mr. Dawson. The matter was referred to the FSDB Personnel Director for further action. Pursuant to the aforementioned letter of delegation, Samuel R. Visconti, Director of Personnel for the FSDB, is responsible for employee disciplinary actions, including employment termination procedures. At the time Mr. Visconti was informed of the allegations, Mr. Thomas had been placed on administrative leave and the school was investigating the matter. Mr. Visconti was aware of the recommendations made by Dr. Randall, Mr. Dawson and Ms. Boles. Ms. Boles recommended that Mr. Thomas' employment at the FSDB be terminated for violation of professional standards. Dr. Randall recommended that Mr. Thomas' employment at the FSDB be terminated due to inappropriate conduct in the classroom. Dr. Randall has substantial experience with the deaf and observed that the physical contact which occurred in Mr. Thomas' classroom was not of the type which one hearing- impaired person would use to gain the attention of another. Mr. Dawson recommended that Mr. Thomas' employment at the FSDB be terminated. Mr. Dawson, who has extensive experience with the deaf, believed that the physical contact, sexual discussions, and attempted equalization of the teacher-student relationship had rendered Mr. Thomas ineffective as a teacher. According to Mr. Visconti, the termination procedure at FSDB requires notification to the employee of the intended action which is predicated on the allegations of either incompetence or misconduct. Prior to termination, the employee may or may not be placed on administrative leave during the school's inquiry into the allegations. Following the school's investigation, the employee is contacted and offered the opportunity for a predetermination hearing at which the employee may provide information relevant to the proposed disciplinary action. Within five days following the hearing, the employee is notified in writing, and perhaps verbally, of the school's decision. Mr. Visconti contacted Mr. Thomas either late in the afternoon of June 6 or early in the morning of June 7, 1988, to arrange a predetermination hearing. The communication between Mr. Visconti and Mr. Thomas was through telephone and TDD, a device that permits the transmission of apparently written communication through telephone lines. Mr. Visconti is not hearing-impaired. The record does not indicate whether Mr. Visconti understands signed communication. By agreement between Mr. Visconti and Mr. Thomas, the conference was scheduled for the afternoon of June 7, 1988. During the TDD communication, Mr. Visconti explained to Mr. Thomas that the school had completed the investigation of the allegations of improper classroom conduct, and restated the allegations. Mr. Visconti explained that Mr. Thomas was being offered the opportunity to meet with Mr. Visconti and present "his side of the story...." Mr. Thomas was informed that he could provide information orally or in writing, and was further informed that he could "bring anyone with him that he felt would help him in supporting anything that he wanted to present...." Mr. Thomas and Mr. Visconti agreed that Dr. Randall would serve at the meeting as interpreter. Mr. Visconti received from Ms. Boles, a package of materials, dated June 7, 1988. The package included Ms. Boles' notes taken during or subsequent to her interviews with the students. Present at the June 7 meeting were Mr. Visconti, Mr. Thomas, Dr. Randall, and Mr. Thomas' wife. Prior to the meeting, Mr. Visconti informed Mr. Thomas that the sexually-related allegations would be specifically addressed and inquired as to whether Mrs. Thomas would be embarrassed. Mr. Thomas indicated that the meeting could proceed. At that time, Mr. Visconti restated the incidents of inappropriate conduct upon which the school intended to base the disciplinary action and explained the authority under which the FSDB was acting. Mr. Thomas attempted to address the allegations at that time, but offered no witnesses. At the conclusion of the meeting, Mr. Visconti informed Mr. Thomas that a decision would be issued within several days. On the morning of June 8, 1988, Mr. Thomas contacted Mr. Visconti and requested an additional meeting to offer further explanation. The meeting, held that afternoon, was attended by Mr. Thomas, Mr. Visconti, and Dr. Randall. Mr. Thomas offered a typewritten statement, suggesting a rationale for the accusations made against him, which apparently reiterated information he had provided at the prior conference. Upon the conclusion of the June 8, 1988 meeting, Mr. Visconti terminated Mr. Thomas' employment, effective immediately. Mr. Thomas was officially dismissed by letter of June 10, 1988 from Mr. Visconti. The June 10 letter states that he was dismissed from employment for "doing the following to female students: rubbing backs, tickling backs under student's blouses, rubbing student's thighs, asking sexually related questions of students, discussing sexually related topics regarding your personal life, and asking for kisses in exchange for items such as pencils or pieces of candy." The letter informed Mr. Thomas of his right to appeal the determination through the administrative process and his union grievance procedure. Mr. Visconti determined that, based upon the information and recommendations presented to him by Dr. Randall, Mr. Dawson, Ms. Boles and Mr. Thomas, that just cause existed for the termination of Mr. Thomas' employment at the FSDB. Mr. Visconti determined that Mr. Thomas had violated the Code of Ethics as set forth in administrative rules and that the improper classroom conduct had rendered Mr. Thomas ineffective as a teacher and had placed students at risk. At the administrative hearing, Mr. Thomas sought to explain the physical contact as serving to gain the attention of, or to calm, hearing- impaired students. Mr. Thomas claims that he touched Ms. Middlebrooks' back as a means of addressing the frustration she supposedly felt at the difficult computer work required in the class and stated that he did not know she found it objectionable. Mr. Thomas testified that Ms. Lents instigated the hugging incidents, and that he told her to stop, but she continued. Mr. Thomas claimed that he once touched Ms. Warfel's back under her blouse on a day when Ms. Warfel wore a prohibited bare midriff blouse to class and that his hand accidently touched her bare skin while he was reminding her that such blouses were prohibited. Mr. Thomas denied that he requested a kiss from Ms. Warfel, but suggested that Ms. Warfel kissed him because he was her "favorite teacher". Mr. Thomas denied tickling Ms. Warfel. Mr. Thomas explained that he possibly touched Ms. Eschevarria-Sola's leg as a means of gaining her attention while she sat at the computer console, but claimed he never touched the inside of her thigh. Mr. Thomas denied that Ms. Eschevarria-Sola kissed him or that he kissed her. As to sexually-oriented conversations, Mr. Thomas denied having made such remarks. Mr. Thomas' testimony was less credible than that of the students who testified at the hearing. At the administrative hearing, Mr. Thomas offered no rationale to suggest the reason behind the student's allegations. The typewritten statement provided to Mr. Visconti on June 8 by Mr. Thomas suggests that the allegations were the work of Senior class students, supposedly disappointed with his decision not to invite them to his home for a social event, as he had apparently done on an occasional and irregular basis in previous years. However, those students testifying generally had favorable opinions of Mr. Thomas, other than as to his specific conduct to which they objected. There is no evidence to support the inference that the allegations were untruthful and that they were intended as retribution for the omitted social activity. Evidence was introduced indicating that hearing-impaired persons are more likely to touch each other than are non-hearing-impaired persons. Such touches are to gain another's attention or to express emotion. The evidence does not support the suggestion that Mr. Thomas' classroom conduct was designed to gain the attention of the students or express emotion. Ms. Boles testified that some of Mr. Thomas' classroom behavior indicated the potential for sexual abuse by Mr. Thomas, however, the testimony to this point was not persuasive. Ms. Boles' opinion was, at least in part, based upon her discussions with an independent psychologist who serves as a consultant to the school on matters related to sexual abuse prevention. According to Ms. Boles, the consultant stated that a "psychosexual evaluation" of Mr. Thomas was necessary to determine the potential for sexual abuse. The school did not follow the consultant's recommendation. Although Mr. Thomas' behavior was inappropriate, the evidence does not suggest that Mr. Thomas sexually abused students and the testimony related to Mr. Thomas' potential for sexual abuse is not credible.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees for the Florida school for the Deaf and the Blind enter a Final Order finding that just cause exists for terminating the employment of Bradley Thomas. It is further RECOMMENDED that the Education Practices commission enter a Final Order permanently revoking teaching certificate, #486268, held by Bradley Thomas. DONE and RECOMMENDED this 19th day of September, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of September, 1989. APPENDIX CASE NOS. 88-3425 and 88-5675 Proposed findings of fact were filed by the Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 and Betty Castor, as Commissioner of Education, Petitioner, Case No. 88-5675. The following constitute rulings on proposed findings of facts submitted by the parties. The proposed findings of fact are adopted as modified in the Recommended Order except as follows: Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 4. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 6. Reference to the Department of Health and Rehabilitative services rejected, immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Rejected, irrelevant. Last sentence rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. 20. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. 26. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, not supported by the weight of the evidence. The testimony cited does support the proposed finding. Reference to the Department of Health and Rehabilitative Services rejected, immaterial. Betty Castor, as commissioner of Education, Petitioner, Case No. 88-5675 7. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 9. Reference to the Department of Health and Rehabilitative Services rejected as immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, unnecessary. 29. Characterization of testimony as evasive and inconsistent is rejected, unnecessary. COPIES FURNISHED: William J. Sheppard, Esq. 215 Washington Street Jacksonville, FL 32202 Barbara J. Staros, Esq. State Board of Education Knott Building Tallahassee, FL 32399 Betty J. Steffens, Esq. 106 South Monroe Street Post Office Box 11008 Tallahassee, FL 32302 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, FL 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, FL 32399 Robert Dawson, President Florida School for the Deaf and the Blind 207 San Marco Avenue St. Augustine, FL 32084
The Issue The issues are whether Respondent is guilty of inappropriate sexual conduct with a female student, so as to constitute gross immorality, in violation of Section 231.2615(1)(c), Florida Statutes; personal conduct that seriously reduces Respondent's effectiveness as an employee of the School Board, in violation of Section 231.2615(1)(f), Florida Statutes; failure to make a reasonable effort to protect a student from conditions harmful to learning or her mental health or physical safety, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code; intentional exposure of a student to unnecessary embarrassment or disparagement, in violation of Rule 6B-1.006(3)(e), Florida Administrative Code; or exploitation of a relationship with a student for personal gain or advantage, in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. If guilty of any of these violations, an additional issue is what penalty that Petitioner should impose.
Findings Of Fact Respondent is a certified teacher, holding certificate number 649196. He was first employed by the Miami-Dade School District in January 1989. After working as a substitute teacher, Respondent was hired in a permanent capacity in 1990 or 1991. At the time of the alleged incidents, Respondent was a teacher at Coral Reef Senior High School, where he was the head basketball coach and assigned to teach English classes in the Center for Student Instruction. In the summers of 1998 and 1999, Respondent taught in the Summer Youth Employment Program that took place at Coral Reef. In this program, high-school students from Coral Reef and elsewhere attended classes to develop job skills and received monetary compensation while so enrolled. B. L. was born on November 3, 1982. She graduated from Coral Reef in 2000. During the summers of 1998 and 1999, B. L. took classes at Coral Reef that were sponsored by the Summer Youth Employment Program. The first summer she took a class in business and finance, and the second summer she took a class in legal and public affairs. Respondent was a coinstructor for both classes. During the summer of 1998, B. L., who was not a discipline problem, engaged in an argument with two other classmates, who were sisters. Respondent and his coinstructor intervened before any blows were exchanged. The coinstructor took the sisters and counseled them, and Respondent took B. L. and counseled her. Respondent removed B. L. from the classroom momentarily to talk to her outside of the hearing of her classmates and advise her that he was disappointed in her because she was one of the top-performing students and she should not "lower her standards" to the level of the sisters with whom she had been arguing. Respondent told B. L. that she was a "bright student, . . . articulate," that she was a "beautiful young lady [with] a lot going for her," that she seemed to have come from a "good family" and "had good standards," and that Respondent did not think that she should conduct herself like that in class. In the context in which it was said, "beautiful" refers to the totality of a person, including intelligence, attitude, and personality," and is not an inappropriate focus upon a person's physical appearance. After a couple of minutes of talking to B. L. outside the classroom, Respondent returned her to the classroom. He then spoke to the coinstructor and reported the incident to the counselor who dealt with classroom discipline. Respondent was unaware of what, if any, further action the counselor took against B. L. or the sisters. Respondent's other contact with B. L. was unremarkable that summer. A couple of times, he and the coinstructor cited B. L. for violations of the dress code. Generally, though, he taught her and treated her as he did the other students in his class. The following summer, B. L. signed up for Respondent's legal and public affairs class. Concerned that B. L. would be duplicating some of the material that they had covered the previous summer, Respondent spoke with the job counselor, who worked in his classroom. She and Respondent then advised B. L. to transfer to another class, but B. L. refused to do so. During this summer, B. L. confided in a classmate that she had a crush on Respondent and that her relationship with her current boyfriend was unsatisfactory. Nothing significant occurred during that summer between B. L. and Respondent, who again treated her as he did his other students. Obviously, B. L. has testified differently. She testified that, during the first summer, when Respondent had her out in the hall, he told her that a blue dress that she had worn the prior day had been driving him "crazy." She testified that Respondent asked her if she felt attracted toward him, and she said that she did not. B. L. testified that Respondent concluded the conversation by saying words to the effect, "if you're 'bout it 'bout it, you know where I am." B. L. testified that this meant that if she was serious about getting intimate with Respondent, such as kissing him, he would be available. B. L. testified that this was the only inappropriate conduct the first summer. B. L. testified that the following summer, she and Respondent happened to see each other outside of school at a shopping mall while B. L. was with her boyfriend. She testified that they exchanged brief greetings. B. L. testified that the following week at school Respondent brought up their chance encounter and asked if she recalled their conversation last year. She testified that she answered that she did, and he added, "if you want to talk about it, we can talk about it in a private conversation." B. L. testified that this was the only inappropriate conduct the second summer. B. L. testified that Respondent's conduct made her feel "weird," but she was not scared. She testified that her boyfriend was jealous of Respondent; she testified that he probably thought that she was tempted to engage in an inappropriate relationship with Respondent. She testified that she told her boyfriend of Respondent's advances, and he threatened to tell B. L.'s parents and a school counselor if she did not complain about Respondent. One time, while talking to her boyfriend about this matter on the phone, B. L. began to cry and her parents overheard enough of the conversation to learn of B. L.'s claims against Respondent. Several problems preclude crediting B. L.'s testimony. First, she acknowledged that Respondent and the job counselor advised her to change classes the second summer, but she declined to do so because it was too much trouble. Second, she denied having a crush on Respondent, but she described any attention from him as though it came from a "movie star." There is no doubt that she had a crush on Respondent based on her description of Respondent at the hearing, the testimony of the friend in whom she confided, and the testimony of the job counselor, who added that B. L. was breathless and "lovesick" and that she told B. L. that Respondent was happily married and to "get over it." It is likely that B. L.'s obvious infatuation with Respondent bothered her boyfriend. It is plausible that stories of resisted advances would gain B. L. credibility with her boyfriend, although B. L.'s motivation in fabricating these claims against Respondent necessarily remains unknown. Additionally, B. L.'s demeanor while testifying did not add to her credibility. Frequently, her tone and expression suggested that she felt uncomfortable testifying, but her discomfort was not due to victimization by Respondent. Unable to describe her emotions at the time of these claimed advances, B. L.'s discomfort was more likely attributable, at best, to a feeling that Respondent's inappropriate behavior was too trivial for this much attention or, at worst, to an admission of guilt over fabricating these stories and causing Respondent so much trouble. After considering the above-discussed factors, the latter explanation of B. L.'s tone and demeanor is more likely than the former. In any event, Petitioner has failed to prove that Respondent behaved inappropriately toward B. L. at any time.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 20th day of December, 2002. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316-1924 Leslie A. Meek United Teachers of Dade Law Department 2200 Biscayne Boulevard, Fifth Floor Miami, Florida 33137
