Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 30, 1974. (Hearing Officer's Exhibit 1). The hearing in this cause was scheduled by notice dated April 18, 1975. (Hearing Officer's Exhibits 2, 3). 3, The Suwannee County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation TR 4). The United Teachers of Suwannee is an organization which is seeking to represent employees of the Public Employer concerning working conditions, including wages, hours, and terms of employment. The United Teachers of Suwannee was formed through a merger of two organizations, one of which had previously entered into a collective bargaining agreement with the Public Employer prior to the adoption of the Public Employees Relations Act. There is no contractual bar to the holding of an election in this case. (Stipulation TR 7, 8). There is no bargaining history under the Public Employees Relations Act which affects this matter. (Stipulation TR 8). Requests for recognition as the exclusive representative of persons in the unit described in the Petition, and the Public Employer's response to the requests are set out in correspondence which has been received in evidence as Joint Exhibits 1, 2, 3, and 4. Petitioner clearly requested recognition. The Public Employer did not comply with requests for meetings as promptly as requested by Petitioner; however, the request for recognition was not explicitly denied. PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 5). The Public Employer contends that Petitioner is not duly registered. The PERC registration file, PERC No. 8H-OR-744-1034, was received in evidence. The Public Employer sought to present the testimony of certain PERC officials with respect to its contention; however, Petitions to Enforce Subpoenas of these individuals were denied. 9, PERC has previously determined that the Petitioner filed the requisite Showing of Interest with it's Petition. (Hearing Officer's Exhibit 4). The Public Employer sought to offer evidence that the requisite Showing of Interest had not been presented to PERC; however, no direct evidence in support of the Public Employer's position was presented. The parties agreed that the unit designation set forth in the Petition is appropriate, except that the Public Employer would exclude guidance counselors, occupational specialists, and the school psychologist from the unit. Petitioner would include these persons within the unit. The Public Employer employs five guidance counselors. One guidance counselor is employed at Branford High School, one at the Vocational/Technical School, one at the Suwannee Middle School, and two at Suwannee High School. Guidance counselors are charged generally with responsibility for counseling students and assisting them in understanding the school and it's environment, in understanding themselves in relation to others, in understanding their progress in relation to their abilities and limitations, and in understanding themselves in relation to education and vocational goals. Guidance counselors assemble and interpret information about students, encourage and participate in case conferences with parents and/or teachers, participate in school standardized testing programs, and distribute occupational and vocational material to pupils. In addition to these functions, which are generally associated with the position of guidance counselor, guidance counselors employed by the Public Employer perform additional functions which are probably unique to Suwannee County. Indeed, the functions performed by guidance counselors within Suwannee County vary from school to school and from counselor to counselor. The broad range of duties performed by a guidance counselor in Suwannee County will depend to a great extent upon the personality of the individual counselor and his or her relationship with the school principal. All guidance counselors within the Suwannee County School system have Masters Degrees. It is necessary for a guidance counselor to have a casters Degree in order to be certified as a guidance counselor. Although a good number of teachers within the school system have Masters Degrees, this is not a requirement. Guidance counselors are certified in a different category than are teachers. Guidance counselors have the same base pay as teachers. A beginning guidance counselor would receive the same pay as a beginning teacher with a Masters Degree. Guidance counselors have the same contract as instructional personnel. No guidance counselors employed by the Public Employer perform instructional duties. Guidance counselors receive mail at the schools in the same manner as instructional personnel, share the teachers' lounge, and eat lunch in the school cafeteria with instructional personnel. All guidance counselors have offices. Many teachers also have offices, but all teachers do not have offices. Teachers are scheduled for five instructional work periods per day and one planning period. Guidance counselors work six periods per day without any planning period. Teachers are generally hired on a ten-month contract basis, while guidance counselors are hired on a twelve-month basis. Students frequently relate complaints with respect to their teachers to guidance counselors. The guidance counselors who testified at the hearing each handled these complaints in a different manner. Among the actions that a guidance counselor might take upon hearing a number of complaints about a teacher are to counsel with the teacher, or to inform the principal. Guidance counselors are responsible for assigning new students to classes. In making these assignments guidance counselors will consider class sizes and the personality of the teacher and the student. Guidance counselors can make an assignment despite objections of a teacher. Guidance counselors periodically meet as a group without any teachers present. These meetings might be called guidance counselor meetings, communications meetings, or policy meetings. Guidance counselors occasionally attend meetings with the superintendent and his staff and principals. Policy matters which affect the entire school system are discussed at these meetings, and decisions are made based upon these discussions. A new diploma policy was recently adopted within the school system as a result of such meetings. Guidance counselors do not have the power to hire, fire, suspend or discipline teachers or other instructional personnel. Henry Clay Hooter is the guidance counselor at the Vocational/Technical School. In addition to the duties discussed above, Mr. Hooter serves as the school's Assistant Principal. He has served as Acting Principal on several occasions. On one occasion while serving as Assistant Principal, Mr. Hooter was placed in the position of preparing the Principal's School Budget. In the absence of the principal Mr. Hooter has been called upon to sign leaves of absence for teachers. In the absence of the Principal Mr. Hooter is generally responsible for maintaining order at his school. Because he serves as Assistant Principal, Mr. Hooter has more contact with the Principal than teachers have. Lonnie Bob Hurst is one of the guidance counselors at Suwannee High School. In addition to the general duties and responsibilities set outs above, Ms. Hurst participates in preparing the master school schedule. A teacher's entire workday is set out in the master school schedule. Decisions made in preparing this schedule will determine whether a teacher will have advanced, medium, or slow courses, when the courses will be taught, when the teacher will have a free period, and when the teacher will take lunch. The master school schedule is ultimately adopted by the Principal. Both the Principal and the Assistant Principal work on the schedule along with Ms. Hurst. Ms. Hurst makes recommendations respecting courses that should be offered at Suwannee High School. Her recommendations are generally followed. The Principal at Suwannee High School frequently meets with the school's two guidance counselors and the Assistant Principal to discuss scheduling, and other policy matters. Guidance counselors at Suwannee High School play an active role in determining which courses will be offered, and which teachers will teach the courses. Oscar Munch is the guidance counselor at Branford High School. Mr. Munch acts as Assistant Principal in the absence of the Assistant Principal. Mr. Munch was previously charged with the responsibility for drafting the master schedule, but the Assistant Principal now performs this function. Ms. Virginia Alford is the guidance counselor at Suwannee Middle School. The Principal at Suwannee Middle School, Mr. John Cade, relies upon Ms. Alford to perform numerous functions beyond those generally associated with the position of guidance counselor, and the duties and responsibilities discussed generally above. Mr. Cade has delegated the responsibility for developing the master school schedule to Ms. Alford. Mr. Cade has ultimate responsibility for approving the schedule, but he generally follows the recommendations of Ms. Alford. The guidance counselor at Suwannee Middle School is responsible for assigning students to teachers. In making these assignments the guidance counselor is expected to evaluate the student and the teacher. Mr. Cade relies upon Ms. Alford in preparing his evaluations of teachers. Ms. Alford does not fill out any formal evaluation form; however, Ms. Alford's observations respecting student complaints and the teacher's utilization of student files are solicited by Mr. Cade, and are used by him in rendering evaluations of teachers. Teachers make suggestions to Mr. Cade respecting the budget. Ms. Alford actually assists Mr. Cade in preparing the budget. She attends budget meetings with him, and is expected to give advice to Mr. Cade respecting overall school needs. Mr. Cade meets very frequently, approximately two times per week with his Assistant Principal and his guidance counselor. The guidance counselor's name is on the school stationery. Mr. Cade frequently takes his guidance counselor to meetings with the Superintendent and the Superintendent's staff. Limited negotiations were conducted between the Public Employer and a labor organization which ultimately merged with the Petitioner in this case. Guidance counselors, occupational specialists, and school psychologists did not participate in these negotiations on behalf of the school board. It is now the apparent intent of the Public Employer to place such staff members as guidance counselors, occupational specialists and school psychologists on the collective bargaining negotiating team on a rotating basis. The purpose this placement would be to have the persons who will ultimately have responsibility for administering an agreement participate in the negotiations. There are two occupational specialists employed by the Public Employer. The occupational specialists are not assigned to a particular school. Occupational specialists are charged generally with placing students who are leaving the school system in positions in business and industry. The occupational specialists follow up on students after graduation. The occupational specialists answer directly to the Director of Vocational Education. They prepare their own plan of operation and have a separate budget. Occupational specialists made specific recommendations to the Superintendent regarding items in their budgets. Occupational specialists perform no instructional duties. There is no requirement that an occupational specialist have a college degree. The school psychologist is a member of the Superintendent's staff. The school psychologist answers directly to the Superintendent. He has primary responsibility for the testing and placement of students within the school district. The school psychologist plays a major role in placement of students within the school system. He has a separate office and his own secretary. The school psychologist holds a "specialist degree", which is a level above a Masters Degree. The school psychologist plays a role in formulating school policy respecting special education programs. The school psychologist has virtually total discretion in administering budgetary funds which are allocated to him. ENTERED this 25 day of November, 1975 in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
The Issue The issue is whether Respondent's professional services contract with the Hernando County School Board should be terminated.
Findings Of Fact The School Board is the agency responsible for the administration of the school system in Hernando County. The School Board has employed Mr. Ellison almost continuously since 1979. In addition to teaching, he has coached students in various sports. Until September 16, 2005, he taught pursuant to a professional services contract at Central High School. On September 15, 2005, Mr. Ellison's 1996 Dodge truck was located at the school's auto shop. Mr. Ellison had driven it there. Students studying automobile repair were to attempt to repair his truck's air conditioner, which was not functioning. Mr. Ellison had provided the truck to the auto shop personally after having made arrangements with the automobile repair teachers the previous day. He was aware that the repair job was to be accomplished by students. Peter Koukos, the vocational instructor, informed Mr. Ellison, that in order to repair the air conditioner the glove box would have to be removed. Mr. Ellison assented to this procedure. While attempting to remove the glove box, students discovered a loaded Power Plus .38 special revolver in it. The students who found it duly reported its presence to Mr. Koukos, who took custody of it. It was eventually delivered to the school resource officer, Deputy Sheriff Debra Ann Miles, who placed it into evidence in accordance with Hernando County Sheriff's Office procedures. It is found as a fact that the revolver was owned by Mr. Ellison and it was he who had placed the weapon in the glove box of the truck and it was he who had driven it onto the Central High School grounds on September 15, 2005. Mr. Ellison had experienced a previous incident with this weapon on January 21, 2002. This incident was precipitated when a citizen reported to the Hernando County Sheriff's Office that a man was standing by a parked pick-up truck in the Fort Dade Cemetery with a handgun in the left front pocket of his jacket. A deputy was dispatched to the cemetery. The deputy stopped a truck as it exited the cemetery. The truck the deputy stopped was being driven by Mr. Ellison and it was the same 1996 Dodge that was involved in the September 15, 2005, incident. On the prior occasion Mr. Ellison related to the deputy that he was having domestic difficulties and the deputy, with Mr. Ellison's permission, seized the weapon which was in his possession. The weapon seized by the deputy was the very same .38 special revolver found at Central High School on September 15, 2005. The weapon was released to Mr. Ellison on February 12, 2002, because his actions with it on January 21, 2002, were completely lawful. He thereafter placed the weapon in the glove box of the 1996 Dodge. He forgot that it was there and if he had thought about it, he would not have left it in the glove box of the truck when he delivered it to the students in the auto repair shop on September 15, 2005. There was no intent to bring the weapon on campus. Mr. Ellison is aware of the harm that can ensue from carelessly leaving weapons in an environment where curious students might retrieve it and harm themselves or others. He has never denied that the gun was his or that anyone other than himself was responsible for the weapon being brought to the campus. Mr. Ellison knew that School Board Policy 3.40(6) provides that no one except law enforcement and security officers may possess any weapon on school property. This was explained to all of the teachers in a pre-school orientation session conducted August 1-5, 2005, which Mr. Ellison attended. Procedures to be followed in the event a gun or other dangerous weapon was found on campus were reviewed during this orientation session. These procedures are contained in the Central High School Blue Book, 2005-06 and Mr. Ellison knew this at the time he drove his truck onto school property. Mr. Ellison was and is familiar with the Code of Ethics and Principles of Professional Conduct that addresses the behavior of teachers. He is aware that he has a duty to make a reasonable effort to protect students from conditions that may be harmful. Ed Poore, now retired, was an employee of the School Board for 31 years. He served in the district office as administrator of personnel and human resources, and specifically, was involved with the administration of discipline and the enforcement of School Board policy. Mr. Poore stated that intent was not a factor in determining whether a violation of School Board Policy 3.40(6) had occurred. He further noted that the Policy does not provide for a sanction for its violation. He testified that in determining a sanction for a violation of this section, he had observed in the past that the School Board had considered the sanction imposed on others in similar situations, the individual person's time and service as a teacher, and any other pertinent mitigating circumstances. Mr. Ellison's character was described by several witnesses as follows: Brent Kalstead, the Athletic Director at Hernando High School, who has been a teacher for 18 years, stated that he had coached with Mr. Ellison and that he had entrusted his son to him so that he could teach him baseball. He said that Mr. Ellison was dedicated to the youth of Hernando County. Marietta Gulino, is Mr. Ellison's girlfriend and a school bus driver. She stated that Mr. Ellison often takes care of children after working hours. Richard Tombrink has been a circuit judge in Hernando County for 17 years. He has known Mr. Ellison for 15 years as a baseball coach and at social events. He said that Mr. Ellison is committed to educating children and has great character. Lynn Tombrink is the wife of Judge Tombrink and is a teacher at Parrott Middle School and has known Mr. Ellison for 20 years. Ten years ago she taught in the room next to him. She would want him to teach her children. Regina Salazo is a housewife. She stated that Mr. Ellison was her son's pitching coach and that he loves children and they love him. Timothy Collins, a disabled man, said that his grandson and Mr. Ellison's grandson play baseball together and that he knows Mr. Ellison to be professional, a no nonsense type of person, and a gentleman. It is his opinion that the School Board needs people like him. Gary Buel stated that Mr. Ellison was his assistant baseball coach and that Mr. Ellison was dedicated and motivated. He described him as selfless. The parties stipulated that if called, the following witnesses would testify that they know Mr. Ellison to be a good, decent, honorable man; that they know him to be a good educator and coach; that they are aware of the circumstances surrounding the gun being in his truck on School Board property; that they do not believe that termination is the appropriate action in this case; and that he would remain an effective teacher: Carole Noble of Ridge Manor; Rob and Vickie Fleisher of Floral City; Vinnie Vitalone of Brooksville; Tim Whatley of Brooksville; Rick Homer of Brooksville; Rob and Candy Taylor of Spring Hill; Robbie Fleisher; Mark Frazier of Brooksville; Miya Barber of Brooksville; Nate Dahmer of Brooksville; Hank Deslaurier of Spring Hill; John and Mary Jo McFarlane of Brooksville; Pete Crawford of Brooksville; Patrick Ryan of Tampa; Ed Bunnell of Spring Hill; and Alan and Cecilia Solomon of Brooksville. It is found as a fact, based on the record of hearing, that Mr. Ellison is an excellent teacher who works well with children and whose character is above reproach. He is not the type of person who would consciously bring a weapon onto school grounds or commit any other purposeful act which might endanger students. Mr. Ellison has not been the subject of prior disciplinary actions.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order imposing a 30-calendar-day suspension without pay be imposed as a penalty in this cause, and that Respondent, Michael Ellison, be reinstated to a teaching status and be awarded back pay and benefits to which he would have otherwise been entitled since November 15, 2005, less the 30-calendar-day suspension without pay. DONE AND ENTERED this 23rd day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 23rd day of February, 2006. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Wendy Tellone, Ed.D. Superintendent of Schools Hernando County School Board 919 North Broad Street Brooksville, Florida 34601-2397
Findings Of Fact On February 15, 1980, the Petitioner held a current, valid Florida Teaching Certificate, was employed by the Duval School Board, and held tenure under the Duval County Teacher Tenure Act. The Petitioner was charged by the School Board with violating the provisions of Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and policies set out at Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund of the Duval County School Board. By Order entered March 17, 1980, the Petitioner was found guilty of all of the charges, and was discharged as a teacher in the school system. [Petitioner's Exhibits 2 and 4] Section DKHA of the Policy Manual establishes procedures for collecting and depositing money that is taken in connection with school activities. Section DKHB establishes procedures for disbursement of funds by classes or clubs at the schools. Section JHC sets procedures for charging admission to entertainment functions sponsored by schools or allied organizations. The polices set out at Pages 12, 30, 37, 40 and 43 of the Operational Manual set more specific guidelines and procedures to be followed in taking and collecting money in connection with school activities. [Petitioner's Exhibit 1] The Duval County School Board Policy Manual, including those sections at issue in this proceeding, were adopted by the School Board after a public hearing was conducted on December 16, 1974. Notice of a public hearing was published in the legal notice section of the Florida Times-Union newspaper in its issues of December 6, 7 and 8, 1974. The manual was not filed with the Department of State, and was not published in either the Florida Administrative Weekly, or the Florida Administrative Code. No citations of authority for the various policies are set out in the manual. [Petitioner's Exhibit 3, testimony of Larry J. Paulk] The Operational Manual for Internal Accounts Activity Fund, including the pages thereof at issue in this proceeding, were adopted by the School Board at a meeting on June 1, 1974. No notice was published, no public hearing was conducted, and no effort was made to promulgate the manual as a rule. The School Board construed the policies as guidelines which implemented rules, rather than as rules. [Testimony of Larry J. Paulk] Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund constitute "rules" as defined in Section 120.52, Florida Statutes. [Petitioner's Exhibit 2]
The Issue Whether the Respondent should be discharged from her employment as a teacher with the Duval County public school system for professional incompetency as provided in Section 4(e) of the Duval County Teacher Tenure Act?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida to teach in early childhood, biology, science, junior college and driver's education. The Respondent's license to teach is current, in full force and effect and valid through 1998. The Respondent received a bachelor's degree in biology and chemistry from Florida A & M University in 1970 and a master's degree in early childhood education from Antioch College in 1976. The Respondent has been employed as a teacher by the Petitioner since 1977. At all times relevant to this proceeding, the Respondent was employed as a tenured teacher with the Petitioner. Beginning with the 1977-78 school year, the Respondent was assigned to teach at Paxon Senior High School (hereinafter referred to as "Paxon"). The Respondent continued to teach at Paxon through and including the 1984-85 school year. Through the 1983-84 school year the Respondent received satisfactory evaluations of her performance as a teacher from the principal of Paxon. For the 1984-85 school year Mr. Frank Castellano was assigned as the principal of Paxon. This was Mr. Castellano's first year as principal of Paxon. During the 1984-85 school year, the Respondent was observed teaching by Mr. Castellano, Mr. William Jackson, the Vice-Principal of Paxon, and Dr. Jed R. Klein, the Director of Science and Environmental Studies of the Petitioner. On March 15, 1985, the Respondent was rated unsatisfactory on a Mini Evaluation Form by Mr. Castellano. This evaluation was based upon the observations of Mr. Castellano and the other individuals that had observed the Respondent listed in finding of fact 8. On April 26, 1985, the Respondent was again rated unsatisfactory by Mr. Castellano. The form used for this evaluation was a more detailed form which listed 36 factors. Mr. Castellano rated the Respondent "satisfactory" on 13 of the factors, "needs to improve" on 14 of the factors and "unsatisfactory" on 9 of the factors. The unsatisfactory factors were included in the general categories of classroom management and teaching effectiveness. Prior to evaluating the Respondent, Mr. Castellano reviewed the Respondent's previous evaluations back to 1980. Those evaluations do not note similar deficiencies to those noted by Mr. Castellano. The Respondent had had no problems with administration in the past. Although Mr. Castellano did not implement a specific program of remediation for the deficiencies he had observed in the Respondent's teaching performance, efforts were made to assist the Respondent in correcting noted deficiencies. The Respondent was provided with written summaries of the various observations and conferences were held between the Respondent and the individuals observing her. Following the unsatisfactory evaluations by Mr. Castellano, the Respondent was informed by Mr. Castellano that she had the right to transfer to another school for the 1985-86 school year. Mr. Castellano was required to inform the Respondent of this option pursuant to the Duval County Teacher Tenure Act (hereinafter referred to as the "Tenure Act"). Mr. Castellano told the Petitioner that if she did not believe that she would be treated fairly at Paxon, she might want to transfer. Mr. Castellano did not, however, try to convince the Respondent that she should transfer. Mr. Castellano recognized that the decision could only be made by the Respondent and so advised her. Although the Respondent had been at Paxon for 7 years before Mr. Castellano arrived and did not want to leave, she made the decision to request a transfer. The Respondent's decision was based upon her conclusion that she would not receive fair treatment if she remained at Paxon. The Respondent was transferred to Ed White Senior High School (hereinafter referred to as "Ed White"), where she taught during the 1985-86 school year. The Respondent was given no choice as to what school she was transferred to. Such a choice is not mandated by the Tenure Act. Nor is it a policy of the Petitioner to give such a choice. Mr. James Jaxon, the Principal of Ed White, was aware of the Respondent's unsatisfactory evaluation by Mr. Castellano. Mr. Jaxon met with the Respondent on August 23, 1985, in a pre-planning conference. In a memorandum dated August 26, 1985, Mr. Jaxon memorialized the steps that Mr. Jaxon and the Respondent had agreed on August 23, 1985, would be followed to attempt to improve the Respondent's teaching performance. Mr. Jaxon did not request that the Respondent be transferred to Ed White and would not have hired her if she had applied for a position. Mr. Jaxon was not "out to get the Respondent" as suggested by this finding of fact being proposed by the Respondent. Mr. Jaxon attempted to assist the Respondent in improving her teaching skills and provided her with an opportunity to improve her performance. The Respondent was provided in-service training during the 1985-86 school year as required by Section 4(e)(3) of the Tenure Act. The primary source of the Respondent's in-service training was provided by Ms. Gloriden J. Norris. Ms. Norris is a Teacher Education Center Consultant. She is employed by the University of North Florida and not the Petitioner. Mr. Jaxon and Ms. Norris met with the Respondent on September 4, 1985. The Respondent was informed in a memorandum dated September 5, 1985, of the steps that would be followed in assisting the Respondent. During the 1985-86 school year, Ms. Norris observed the Respondent's class on 6 different occasions: September 19, 1985, October 7, 1985, November 26, 1985, December 4, 1985, January 21, 1986 and April 25, 1986. Ms. Norris also conducted approximately 8 to 10 conferences with the Respondent, gave her written materials to assist her in improving her teaching skills and talked to the Respondent on the telephone. In addition to Ms. Norris' observations, the Respondent was observed by Mr. Jaxon (October 13 and 22, 1985, February 3 and 13, 1986 and March 5, 1986), Mr. George Paugh, the Assistant Principal/Student Services at Ed White (September 3, 5 and 26, 1985) and Dr. Klein (March 18, 1986). Written comments concerning most of the observations of the Respondent during the 1985-86 school year were provided to the Respondent. Conferences were also held with the Respondent throughout the school year. The Respondent followed up on some of the suggestions Mr. Jaxon made to her concerning improving her teaching skills and she asked about an in- service workshop. The Respondent did not sufficiently implement recommendations for improvement made to her. Ms. Norris was not able to establish a rapport with the Respondent and therefore her ability to assist the Respondent was diminished. This lack of rapport was a result of the Respondent's attitude toward those who were attempting to assist her in improving her teaching abilities. The Respondent evidenced a belief that she was being treated unfairly and that she had no significant problems as a teacher. This attitude of defensiveness hampered the efforts of Ms. Norris and others to assist the Respondent. After January 21, 1986, Ms. Norris did not check to see if the Respondent had incorporated her suggestions as to the development of a lesson plan. On October 30, 1985, Mr. Jaxon rated the Respondent's performance as unsatisfactory. Mr. Jaxon also rated the Respondent's performance unsatisfactory on March 27, 1986. Respondent's deficiencies were in the areas of classroom management and teaching effectiveness. The following deficiencies concerning the Respondent's classroom management were observed during the school years in question: The Respondent was late to class or in starting class (according to Mr. Jackson, Mr. Castellano, Mr. Jaxon and Ms. Norris); Students were late to class (according to Mr. Jackson, Dr. Klein and Mr. Jaxon); The students were allowed to dismiss themselves (according to Dr. Klein and Ms. Norris); No roll was taken (according to Mr. Jaxon); On numerous occasions students were not paying attention -- they talked, combed their hair and put on makeup, read unrelated materials including magazines and paperback books, daydreamed and slept (according to Mr. Jackson, Mr. Castellano, Dr. Klein, Mr. Paugh and Mr. Jaxon); and Some students did not have their textbooks with them (according to Mr. Jaxon). The following deficiencies concerning the Respondent's teaching effectiveness were observed during the school years in question: The Respondent did not have her lesson plans with her in the classroom (according to Mr. Castellano) or were not followed (according to Dr. Klein); The Respondent failed to check to see if students understood directions (according to Ms. Norris); Only low order questions (those dealing with facts and knowledge) were asked. No high order questions (those requiring reasoning, justification, comparison or analysis) were asked (according to Ms. Norris); The Respondent allowed group responses to questions. She did not call on one student to answer a question. This resulted in incorrect responses not being corrected (according to all those who observed the Respondent); The Respondent did not give summaries or reviews to place lessons in perspective (according to Mr. Jaxon and Dr. Klein); Lag time or dead time was allowed at the end of the classes. This resulted in students having nothing meaningful to do (according to Mr. Paugh and Ms. Norris); and The Respondent was unable to justify grades she had given to some students who complained (according to Mr. Castellano and Mr. Jaxon). The Respondent timely prepared her lesson plans. On the occasions when she did not have her lesson plans in the classroom with her they had been prepared but she did not have them with her. She had turned them in as required on Friday for approval by the principal and they had not yet been returned. The plans were not always approved by the following Monday. The Respondent had been instructed, however, that if the plans had not been approved by the following Monday, the plans were to be picked up before class anyway. The lesson plans prepared by the Respondent were "good" according to Don Price, Dean of Boys of Paxon. Mr. Price so advised Mr. Castellano. Mr. Price also advised Mr. Castellano that the Respondent was a "good teacher." During the school years in question, the Respondent did not demonstrate the ability to plan and teach a meaningful lesson. Ms. Norris attempted to assist the Respondent in demonstrating this ability. Neither Mr. Jaxon nor Ms. Norris ever saw the Respondent teach a lesson in the manner suggested by Ms. Norris. Based upon Dr. Klein's observation of the Respondent during the 1985- 86 school year, the Respondent did not materially improve her abilities from the time he observed her during the 1984-85 school year. Dr. Klein did believe that the Respondent had improved her ability to discipline a little. During the 1984-85 school year, students were taken out of the Respondent's classes to equalize class loads. Except for slightly larger classes during the first part of the 1984-85 school year, there was nothing unusual about the size or makeup of the Respondent's classes. Because students must be scheduled to take certain courses in secondary schools as opposed to one teacher having the same group of students for the entire year, school administrators have less control over the size or composition of classes. During the 1985-86 school year the Respondent taught in an "open school." A large area was divided into several classrooms creating problems with noise and other distractions. These problems were not proved to be sufficient to account for the Respondent's deficiencies as a teacher. Other teachers are able to teach effectively in these circumstances. During the 1985-86 school year the Respondent was assigned to teach marine biology for the first time. The Respondent had never had any courses in marine biology. Marine biology is, however, a subject within the Respondent's areas of certification. The evidence did not prove that the additional effort required of the Respondent in teaching marine biology was the cause of the Respondent's deficiencies. During the 1984-85 and 1985-86 school years the Petitioner provided the Respondent with detailed statements concerning her deficiencies, as required by Section 4(e)(1) of the Act. Most of the 30 exhibits offered by the Petitioner are letters or memoranda written to the Respondent in an effort to inform the Respondent of her perceived deficiencies and to offer suggestions for improvement. The Respondent responded to most of these documents in writing. By certified letter dated May 16, 1986, Herb A. Sang, the Superintendent of Duval County Public Schools, brought charges against the Respondent seeking her discharge for professional incompetency during the 1984- 85 and 1985-86 school years. The Respondent was informed of her right to a hearing pursuant to Chapter 120, Florida Statutes, as required by Section 4(e)(4) of the Tenure Act. The Respondent was given the right to a speedy and public hearing, she was informed of the nature and cause of the accusations against her, she was confronted with accusing witnesses, she was allowed to subpoena witnesses and documents and she had the assistance of counsel in compliance with Section 4(e)(5) of the Tenure Act. No definition of "professional incompetency" is provided in the Tenure Act.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be dismissed as a tenured teacher within the Duval County public school system, effective immediately. DONE and ORDERED this 10th day of April, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3564 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection RO 1 and 4. RO 4. 3 RO 9-10, 31 and 42. 4 RO 45. Conclusion of law. RO 10 and 31. 7 RO 32. 8 RO 33. 9 RO 20. 10 RO 21-22. RO 24 and 28. Not supported by the weight of the evidence. Not a proposed finding of fact. 14 RO 38. 15 RO 39. 16 RO 40. 17 RO 26 and 41. 18 RO 13, 15 and 17. 19 RO 43-44. 20 RO 44. RESPONDENT'S PROPOSED FINDINGS OF FACT: 1 RO 3. 2 RO 1-2. 3 RO 4. 4 RO 5. 5 RO 6. 6 RO 7. 7 RO 9-10. 8 RO 8. 9 RO 33. 10 RO 34. 11 RO 35. 12 Hereby accepted. 13 RO 11. 14 RO 12. 15 RO 13-14. 16 RO 11 and 15. 17 RO 15. 18 RO 16 and 18. 19 RO 23. 20 RO 24. 21 Irrelevant. 22 RO 24 and 26. 23 RO 29-30. 24 RO 25 and 35. 25 RO 36. 26 RO 19. 27 Mr. Jaxon did testify that he could find deficiencies in nearly any classroom teacher. He also testified thatit would be unusual for a large numberof teachers to suddenly become incompetent. 28 RO 37. Hereby accepted. The first sentence is hereby accepted. The second sentence is rejected as not supported by the weight of the evidence. 31-33 Irrelevant or not supported by the weight of the evidence. 34 RO 41. 35 RO 27. COPIES FURNISHED: Mr. Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Gary E. Eckstine, Esquire Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Phil J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner's application for a Florida Teacher's Certificate should be granted or denied. The Respondent contends that Petitioner's Teacher's Certificate was permanently revoked in 1978, and that the Respondent has not presented evidence that would justify the reissuance of a Teacher's Certificate. Petitioner contends that permanent revocation was not originally justified, and that his past conduct does not justify his being permanently removed from the teaching profession.
Findings Of Fact Petitioner has submitted an application for a Florida Teacher's Certificate. His application was denied by the Department of Education, and he has appealed that denial to the Education Practices Commission. Petitioner is qualified by age and academic background for certification as a teacher. The Department of Education contends that his application for certification should be denied because he is not of good moral character and has committed acts which would authorize the revocation of his Teacher's Certificate. On or about September 21, 1971, Petitioner was adjudicated guilty by the County Court in Duval County, Florida, of contempt of court. He was fined fifty dollars. The contempt adjudication related to the Petitioner's failure to pay numerous parking fines. On or about July 2, 1973, the Petitioner was arrested and charged with carrying a concealed firearm, breach of the peace, and public intoxication. On September 5, 1973, Petitioner entered a plea to the offense of breach of the peace. The other charges were dismissed, and Petitioner was placed on unsupervised probation for a period of six months. On or about September 20, 1976, Petitioner was adjudicated guilty of the offense of driving while intoxicated and ordered to serve ten days in the Duval County Jail. On March 15, 1977, Petitioner was adjudicated guilty of the offense of driving with a revoked driver's license and fined the sum of one hundred dollars plus court costs. On December 6, 1977, Petitioner entered a plea of no contest to the offense of "consuming alcohol where sold on lot" and was placed on unsupervised probation for a period of one month. On August 24, 1973, Petitioner submitted an application for employment with the Duval County School System. The following question was set out on the application: "Have you ever been arrested for any offense other than minor traffic violations?" Petitioner responded that he had not been. This response was untrue. He had in fact been arrested and adjudicated guilty of contempt of court and, less than a month prior to submitting the application, had been arrested on other charges that were not minor traffic offenses. Petitioner's explanation for responding to this question in the negative was that he considered the contempt citation to be for minor traffic offenses and that he had not yet been adjudicated guilty with respect to the other arrest. The explanation is not worthy of being credited. Petitioner was employed with the Duval County School System based upon his application. On September 19, 1973, Petitioner submitted an application for a State of Florida Teacher's Certificate to the Department of Education. The following question was set out on the application: "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation?" The Respondent answered "No." The answer was false. A teaching certificate was issued to the Petitioner based upon the application. While he was employed with the Duval County School System, the Petitioner falsified a request for leave. He submitted a leave request stating that his daughter was ill on September 20, 1976. In fact, Petitioner's daughter was not ill. He needed leave in order to appear in traffic court for sentencing for the criminal offense of driving while intoxicated. By Order entered July 19, 1978, the State Board of Education permanently revoked Petitioner's Florida Teacher's Certificate. The revocation was based upon Petitioner's criminal convictions, Petitioner's falsifying his employment application, Petitioner's falsifying his application for a Florida Teacher's Certificate, and Petitioner's falsified leave request form. On April 1, 1981, Petitioner entered a plea of guilty to the offense "unemployment compensation fraud" in the Circuit Court of Duval County, Florida. Adjudication of guilt and imposition of sentence were withheld, and Petitioner was placed on probation for a period of one year. Petitioner's personal conduct as set out above seriously reduces his effectiveness as a teacher. It does not appear that the Petitioner has in any way rehabilitated himself since his Teacher's Certificate was revoked in 1978. Indeed, he has since that time committed a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
Findings Of Fact The facts clearly show that the Charging Party was certified by PERC as bargaining agent for instructional personnel of the Hillsborough County School Board System on April 18, 1975, and that the public employer was the Hillsborough County School Board. Since 1969 there had bean negotiations between the HCTA and the HCSB. These negotiations had resulted in mutual agreements which had been approved as the policy of the Board for the year 1969 until 1973. Among the items negotiated during these years were a series of pay schedules. These schedules were based on training as reflected by pay differentials dependent on the individual teacher's degree, and experience, as reflected in pay differentials based on the individual teacher's years of service. After the agreement reached for 1970-71, later agreements stated that the salary schedules were based on training and experience. Compare Negotiations Agreement, 1970-71, p. 61, Salaries (Exhibit 1) with Instructional Personnel Policies, 1971, Item B-17 (Exhibit 2) and Agreement, 1973-74 and 1974-75, p. 12, Item B-8.3 (Exhibit 4). Under the terms of the 1973-75 Agreement, it was to remain in effect until June 30, 1975 and thereafter from year to year unless at least 120 days prior to June 30, 1975, either party serves written notice upon the other of its desire to terminate or makes changes to the Agreement. HCTA gave notice to the Board by a letter from Sam Rosales, President, to Dr. Raymond O. Shelton, Superintendent of Schools, Hillsborough County, (Exhibit 6) of its desire to make changes in the Agreement. On or about May 27, 1975, the Board and HCTA commenced negotiations on a new collective bargaining agreement which negotiation continued until August 19, 1975. During the month of June, 1975 it became necessary for the Board to take action to issue contracts of employment to all instructional personnel to be employed in the upcoming school year. See F.S. 230.23(5)(c)(d) and (e). The provisions mandate among other things that each contract shall state in writing definite salary amounts and definite tires of service. Section 236.02(3) provides that all instructional personnel shall be provided written contracts at least one (1) month before school begins providing for a definite salary as provided by law. The Board therefore had a legal obligation to reissue contracts in late July or August, and had to reach some decision regarding the salary amounts to be stated in the contracts. The Board's minutes for June 24 and July 1, 1975 were introduced and reflect that the Board was concerned about its fiscal position in the upcoming school year and whether it could reemploy all of the teachers who it had employed in the 1974-75 school year. It was clearly the Board's position that its foremost consideration was to prevent the necessity of any layoffs. Further, the minutes reflect that the best fiscal data available indicated that the Board would not have sufficient revenue available to pay increased salaries and pay the longevity increases. The debate on the Board clearly indicates that it would have been necessary to cut the pay of all teachers 2 percent if the step increases were implemented to stay within its budget. The comments of the Board members and Mr. Sam Rosales, who was present at both meetings, reveal that they felt the salary negotiations would be complete and the new salary schedule worked out and the contracts amended prior to the time most of the teachers would receive their step increases. The Board voted to issue reemployment contracts to all instructional staff at the same salary as the 1974-75 year and not to implement the longevity pay increases as an interim measure pending negotiations of the new salary schedule. The General Counsel and Charging Patty allege that the Board's action unilaterally set salaries for the 1975-76 year which were a subject of collective bargaining which was then in progress and therefore violated Section 447.501 (a) and (c), F.S. Their allegation is based upon the argement that the longevity pay increases were a condition of employment which remained in effect during the period of negotiation. In support of its position the General Counsel and Charging Party cite Triborough, Poughkeepsie, and Massapequa. 1/ These cases indicate that a term or condition of employment stated in a previous contract will remain in effect during the course of negotiations even if the preceding contract terminates. Further that the act of changing such a condition without consultation with the union is per se a unilateral act. The Hearing Officer would agree generally with the application of the principle stated in these cases and their applicability to the present facts. Certainly, the longevity pay increases which had been negotiated had bean paid in the past. Although the Board's affirmative action in approving reemployment contracts had been required in earlier years, this approval as generally given and the statutes would indicate the Board could only withhold approval for good cause. However, the Hearing Officer finds that the Board had a legal obligation to issue the contracts one month before the opening of school, and that the contracts had to state an exact salary amount and term of service. There was, however, no impediment from the Board consulting with the HCTA prior to its action at the negotiating session and attempting to reach some agreement. Had no agreement been reached, then the Board would have bean justified in taking unilateral action. The Board could have issued the contracts reflecting the longevity pay increases and if later it had lacked the funds, reduced the payment asserting inability to pay as another alternative solution. The General Counsel has cited the earlier decision of Pasco CTA vs. School Board of Pasco County, in which PEPC stated with regard to the defense of F.S. Subsections 230.25(5)(c-e) and 236.02(3) and (4): "We are not persuaded by Respondent's argument especially in light of the fact that it admittedly made no attempt whatsoever to notify the Charging Patty of its planned action or, indeed, inform the Charging Party that salary matters would be on the School Board's agenda. Thus, even assuming a legitimate necessity for its action, although the facts herein persuade us otherwise, the Respondent's ex parte action is sufficient to violate its duty to bargain." (emphasis supplied) The facts here reflect that Rosales was present on June 24, 1975 at the Board's meeting when the matter was first raised and spoke persuasively to convince the Board to postpone action until July 1, 1975. Rosales was again present on July 1, 1975 and again addressed the Board. Certainly HCTA was aware of the pending action by the School Board, unlike the Pasco County Case, although the Board acted without consulting HCTA at the negotiating table. The Pasco County case, while deciding against the Board on the facts, does apparently reflect PERC's recognition of the Wappinger doctrine as indicated by the emphasized portion of the quote above. In the Matter of Central School District No. 1 (Wappinger), 5 PERB 3124 (Dec. 15, 1972), the PERB recognized that there are some terms and conditions of employment which must be finalized by the beginning of the school year which must be allowed while negotiations continue. However, the Wappinger doctrine clearly does not apply in this instance because sufficient time was available to consult with HCTA on the matter. In summary the Hearing Officer finds as a matter of fact that: HCTA was a certified bargaining agent and the Board was a public employer. HCTA and the Board were negotiating a new collective bargaining agreement in June and July, 1975. The School Board had to let the contracts in July and state therein the specific amounts available pending resolution of its fiscal picture and negotiation of the contract. The school Board did notify the HCTA through Sam Rosales, who was aware of the pending proposal at least one week prior to its adoption. The terms of the 1973-75 agreement remained in effect during negotiations, and subsequent to June 30, 1975. The Board failed to raise the issue at the bargaining table in any attempt to reach a compromise and to present evidence of its fiscal inability to meet the 1973-75 contract terms. The action of the Board did not maintain the status quo, but resulted in a salary reduction under terms of the 1973-75 agreement. As to the, law, the Hearing Officer finds that: The Board, by falling to raise the matter at negotiations and by failing to present any evidence at negotiations of its inability to meet the 1973-75 contract terms, acted unilaterally to set salary terms during negotiations. Although the Hearing Officer is of the opinion that the Board acted without malice, the Board's action in unilaterally setting teachers' salaries is per se a violation of Section 447.501(1)(a) and (c), F.S. The damages are the difference between what the employees did receive between July 1, 1975 and the effective date of the new contract and what they would have received if the longevity pay increases had been paid. DONE and ORDERED this 30th day of April, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact At all times pertinent hereto, Respondent, William B. Bailey, was a certified teacher in Florida employed by the Broward County School System (BCSS). He has been a teacher for 22 years and has taught at Markham Elementary School, (Markham) for 18 or 19 years. Respondent has generally had a good rapport with young boys. He has an adopted 26 year old son who was recently promoted to Captain in the U.S. Air Force. Allean Jones has known Respondent and his parents for many years. Several years ago she became the guardian of her grandson, Earl Edwards, who, for a long time, had disciplinary and behavior problems at home and at school due, at least in part, to his difficult home life with his natural mother who bore him at age 14. For some time, several years ago, Earl Edwards was a student at Markham of Respondent who developed a good relationship with him. While the student-teacher relationship existed, on numerous occasions, Earl went to Respondent's home where he swam, ate, played, and spent nights, always with Mrs. Jones's permission. She feels Respondent, who bought Earl clothes and paid his dental bills, is a good influence on him and she has offered to let Earl stay with him on a permanent basis. At no time did she object to Respondent's relationship with her grandson, and felt it to be beneficial rather than detrimental to his best interests. Unfortunately, Earl has left school since he graduated from Markham and she does not know where he is now. Mr. William Bell, who was principal at Markham at the time, heard about Respondent's relationship with Earl from two staff members and, without any investigation of the situation and without checking with Earl or his grandmother, concluded that since Respondent was an unmarried male, his off- campus contacts with a young male student were inappropriate and he asked Respondent to cease contact with his student off-campus or before or after school and on weekends. Had Respondent been married, Mr. Bell's reaction might well have been different. Mr. Bell believes that the Teacher Code of Ethics conflicts with off-campus contacts in such a manner as would interfere with teacher effectiveness, and parental approval would make no difference. This request to cease contact with Earl Edwards, in 1980 or 1981, somehow became a part of Respondent's record in the BCSS. No copy of any written request was produced by Petitioner, however, nor was any record reflecting it. Both Bell and Dr. Thomas Johnson, Associate Superintendent for Human Resources in the system, recall the incident, though. When requested to cease off-campus contacts with Earl, Respondent complied. In the Spring of 1986, the new principal, Ms. Dorothy Wooten, was approached by a teacher, Ms. Denise Wright, and the school counselor, who requested that she tell Respondent to leave some of her students alone and stop socializing with them when they should be in Ms. Wright's class. The students in question were Sedaniel Allen and Willie McCloud, who, apparently, would leave her class without permission and, she believed, go to visit with Respondent in his planning area. She believed this is where they went because, though she did not check on them to see where they were going, they told her that's where they were going when they asked her for permission to leave. She periodically gave it and therefore assumed that they would visit Respondent when they left without permission. Ms. Wooten did not investigate the situation herself, but, as a result of Ms. Wright's request, called Respondent in and spoke with him about the situation in the presence of the students in question and both complainants. Respondent seemed as though he would comply and she took no formal action. It appears, however, that the situation continued and a short while late, she talked with Respondent again about the same students and again he seemed to agree. It was after the second meeting that she wrote a memo summarizing the situation. After this second conference, she spoke with Ms. Linda Gaines, Sedaniel's mother, who indicated that Sedaniel had spent the night at Respondent's home without her permission or knowledge, and neither Sedaniel nor Respondent had called her to let her know he was there. When Sedaniel went to Respondent's home a second time without her permission, Sedaniel's step-father went to Respondent's home and got him. Further discussion of these incidents is found in paragraph 15 et seq. infra. After Ms. Wooten received this information from Sedaniel's mother, she wrote Respondent a letter on May 1, 1986 recounting the substance of the interview with Ms. Gaines and advised him she was referring the matter to the Internal Affairs Division, (IA), of BCSS. A week later, she wrote another letter to Respondent requesting that he restrict his contact with Sedaniel and Willie to the scheduled class time and "strongly advised" him to have no other contact with them. In a subsequent meeting held with Ms. Wooten, the students' parents, and Mr. Joseph Viens, an investigator with IA, at the investigator's suggestion, at least some of the parents indicated they did not want the Respondent to have any off-campus or extra-class contact with their children. At this point, Respondent indicated he would talk with his attorney before discussing the matter any further. Respondent took that position only after the investigator accusatorily pointed his finger at him and called him a faggot. Respondent strongly denies being a homosexual and there is no evidence to suggest otherwise. By the same token, Respondent's recounting of the investigator's public accusation was not contested either and is found to have occurred. Having done all she felt was required by reporting the matter to IA and by advising Respondent in writing to refrain from further off-campus contact, Ms. Wooten felt she was out of the matter until one day in October, 1986 when she noticed Sedaniel and Willie loitering after school and not going home. When she looked into it, she found Willie sitting in Respondent's classroom with Respondent and another person. She called both Respondent and Willie to her office where she recalled her instructions to Respondent to avoid extra-class period contacts with these boys and again stated her requests. In response, Respondent stated Willie had been injured and he was going to take him home. Willie confirmed he had been injured one day around this time in an afternoon ball game and the following day, aggravated the injury at recess. When he reported this to his teacher, Mr. Collins, this individual did not consider it serious and refused to let Willie do anything about it. It got worse during the day and swelled up and after school, Willie went to Respondent's room where he saw Mrs. Ruise, Respondent's team teacher. Respondent was at a meeting away from the area. Mrs. Ruise saw that Willie's ankle was injured, but did nothing for him and when staff departure time came, left the school locking the classroom door and leaving Willie out in the hall. When Respondent came back to his classroom somewhat later, he found Willie curled up on the hall floor outside the room crying. Willie's ankle looked bad but Respondent nonetheless questioned him in a forceful tone to find out what had happened. Willie said he needed a ride home. After some serious questioning and initial refusals, Respondent ultimately relented and agreed to take Willie home even though he knew he was not supposed to have contact with him. He saw Willie at school the next day and attempted to talk with him about his ankle in the cafeteria, but was unable to do so. After school, during a conversation with Mrs. Ruise, he again saw Willie who once more asked for a ride home. When, upon questioning, Willie told him he had gotten a ride to school that morning because of his ankle, Respondent gave him a tongue lashing and told him to get someone else to take him home. As Willie told him there was no one else around to do it, Respondent reluctantly agreed and did take him home, but that was the last contact he had with Willie. It must be noted here that Respondent, on both occasions, agreed to give Willie a ride without checking around the school to see if someone else was available to do so. There was some question whether Willie was actually injured at this time and needed a ride. Ms. Wooten heard from other staff members that Willie did not seem to be nor did he complain of being hurt. By far the better evidence, however, clearly indicates that Willie was hurt on this occasion and needed transport and it is so found. Respondent used poor judgment in not looking for someone else to take Willie in light of the injunction he was under and in not reporting the contact after the fact. There is also some issue that Willie may have hidden in the car at Respondent's direction when Respondent drove him home. This is not established. Even according to Willie, it was his idea to hide to keep from being seen because of the fact that Respondent had been instructed not to be with him away from class. There is no evidence that Respondent attempted to conceal any of his actions with regard to Willie. As a result of all the above, on October 7, 1986, Ms. Wooten again sent Respondent a memo to advise him that all future incidents of unauthorized contact would be reported to IA. She was informed by IA that Respondent had had off-campus contacts with other students in addition to Sedaniel and Willie. These included Reggie Nixon, Andre Murray, and Trenton Glover among others. It was reported to her that Respondent would instruct them to meet him at a shopping center from which he would take them to his home where they would do chores for him there and at his nightclub. She felt this reported behavior, which she did not disbelieve, was inappropriate because (1) it was an abuse of his position as a teacher, and (2) a nightclub is no place for children. Ms. Wooten believes Respondent's effectiveness as a teacher has been adversely affected because she has heard the students are questioning his ability to control his students and are making moral judgments about his behavior in regard to Willie and Sedaniel. She has heard no specific comment by any student, however. During the period she has worked with Respondent, she does not feel there have been any conflicts which would create animosity on either his or her part. In fact, she has recommended him for several special projects which would be to his benefit. Ms. Wooten is convinced that Respondent has an ability to relate to troubled children who tend to seek him out. In fact, former students often come back to school to see him. This is both good and bad. Initially, she favorably commented on this in an evaluation of Respondent but after some of these students began making trouble, and after, at a course she took, she learned that this conduct may indicate inappropriate luring of children for improper purposes, she began to look at it differently and tried to put a stop to it. With regard to Sedaniel Allen, Ms. Gaines' dissatisfaction with Respondent arose out of an incident in April, 1986, when Sedaniel had spent the night at Respondent's home without either Respondent or Sedaniel calling to let her know he was going to do that. Prior to the weekend in question, Respondent, acquiescing in Sedaniel's request to be allowed to come over with some other boys, wrote her a note requesting permission for Sedaniel to come to his house to work for him for pay. She agreed to this and signed the permission slip but never returned it to the Respondent. Had Sedaniel returned home on Saturday night, she would not have been upset. In fact, however, Sedaniel did not come home until Sunday evening when Respondent dropped him off. Ms. Gaines and her husband were angry over this and told Sedaniel they didn't want him to go back to Respondent's house ever again. They did not pass this information on to the Respondent, however. Nonetheless, two weeks later, on a Saturday morning, Sedaniel disappeared again. When she checked around, she found that Respondent had picked him up again at the "Gate" of the housing project in which they lived. That evening, Mr. Gaines went to Respondent's house in Deerfield Beach where he found Sedaniel watching television. On this occasion, Respondent had not sent home a permission slip, but subsequent inquiry showed it was Sedaniel who initiated the visit and who had told Respondent that he had permission to be there. He had also told Respondent he had permission to spend the night on the first visit. On these visits the boys would swim, watch television, wrestle (with, on occasion, Respondent) and generally have a good time. Sedaniel indicates that he met with Respondent in his classroom after class on several occasions to discuss what would be done when he was at the Respondent's house. Some other teacher was always there when this happened. On most other occasions, Sedaniel would go to Respondent's classroom with Willie McCloud and wait while Willie would ask Respondent for a ride home. Ms. Sandra Ruise, who knew Sedaniel as one of her own students, and who was Respondent's team teacher, was frequently in the area of the room. She never saw Sedaniel in Respondent's room outside of class hours nor did she ever see any student come to have lunch in Respondent's classroom while she was there and she ate in the room with the Respondent almost every day. She knows Sedaniel's reputation for telling the truth, gleaned from discussions with other teachers and his mother, and it is not good. He has even lied about her, filing a false report about her which he subsequently recanted. Consequently, while it is clear Sedaniel did go to Respondent's home on two occasions, once without permission and once with permission for only a day visit, he was not a frequent visitor to Respondent's room outside of class hours and Respondent's relationship with him at school was not improper. As to the unauthorized visits by Sedaniel to Respondent's home, it is also clear that Sedaniel initiated the visits, begged to stay over night, and lied about having permission to be there. None of this excuses Respondent's failure to verify and have presented to him some concrete evidence of parental authorization for the visit and the length thereof, however. Sedaniel and some other boys, Willie McCloud, Andre Murray, and Trenton Glover, were with Respondent one time when he was on an errand and stopped by Club Bailey for a moment to drop something off. On that occasion, they picked up beer cans from a vacant lot and cleaned ashtrays outside the building. It well may be that the club was open at the time, a Sunday morning, (Respondent was inconsistent in his stories as to whether the club was open), but aside from Sedaniel's uncorroborated allegation that he cleaned the ashtrays inside the club, all the other testimony, including that of the other boys, indicates, and it is so found, that they did not go inside. Respondent alleges that one of the male visitors to Respondent's home on one of the occasions when the boys were there swimming made a remark to the effect that Reggie Nixon was "fine meat" or words to that effect and that Respondent immediately told this individual to keep quiet. Neither comment was heard by Reggie, though Willie and Andre allegedly did. Even if the comments were made, however, the evidence is clear that there were no approaches made to any of the boys, they were not touched or bothered in any way, and in fact, were not spoken to at all by any of the men in question, all of whom deny such comments being made. There is also no support for the allegation that one of the men asked if the boys had ever had sex with a man. What is certain, however, is that Sedaniel has a reputation for being untruthful and his report, as well as his characterization of Respondent's visitors as "faggots", is lacking in credibility. Each of the visitors identified by Sedaniel and the other boys testified at the hearing. The boys' descriptions of one or more of the men as "faggots" were based on their opinions of their hair styles, laughs, and voice patterns. This evidence is not enough to support a finding that there was anything untoward about Respondent's guests, especially in light of the youth and lack of sophistication of these boys and the unequivocal denials of Respondent and the other men. The investigation into Respondent's conduct, conducted by the school system's internal affairs division at the request of Ms. Wooten, resulted in a report incorporating much of the above information which was referred to Dr. Thomas P. Johnson, Associate Superintendent for Human Resources. Dr. Johnson referred it to a committee for evaluation which resulted in a recommendation to bring charges against the Respondent. The action here was based upon the allegations that respondent had taken students to his home without parental permission; that some of the students involved had indicated Respondent's friends were "faggots"; that there was an allegation by one of the children that they had been worked in Respondent's night club; and that Respondent had disregarded a direction from his principal to cease this activity. This all was aggravated by allegations that Respondent had been the subject of a report of similar activity several years previously which, while not resulting in disciplinary action against him, had resulted in a "Cease and Desist Order" being issued. This prior order was not offered into evidence. School officials considered that Respondent's failure to abide by the orders given him by his principal showed a lack of judgment and integrity and his invitation of the students to his home violated the ethical requirements of the Teacher's Code of Ethics. It must be noted that off-campus contacts are not, per se, improper if done with parental consent. With regard to the issue of parental consent, Respondent always sent a note home requesting permission. Sedaniel lied about having permission to spend the night on the first visit and about having permission on the second visit. If Respondent is at fault, it is in failing to insure by a phone call or by seeing the permission slip itself, that what he was told by Sedaniel was true. As to Respondent's alleged disregard of Ms. Wooten's direction to stay away from Sedaniel and Willie, the evidence is clear that Respondent attempted to do just that; that the two occasions on which he gave Willie a ride home, (the only contacts he had with Willie after the direction from the Principal), were as a direct result of Willie's initiation and Respondent's unwillingness to allow an injured boy to fend for himself. Respondent showed poor judgment here but the evidence does not support a finding of misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent be reinstated to a teaching position with the BCSS and that that he be awarded full back pay and benefits. RECOMMENDED this 15th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4727 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact (PFOF) submitted by the parties to this case. By the Petitioner Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. The witness's testimony related to Earl Edwards and was offset by Edwards' grandmother. Accepted and incorporated herein. Rejected as a recitation of testimony, not a FOF. Accepted and incorporated herein. Rejected as it refers to any male in female garb which does not appear in the record as represented. Accepted. Accepted and incorporated herein. 9-11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 14-15. Accepted and incorporated herein. 16-19. Accepted and incorporated herein. 20. Misleading. Respondent did take students to his home and paid them to perform chores in the yard. He did go to his lounge with some students on one occasion, but did not take them inside. 21-22. Accepted as the witness' opinion. Misleading. Sedaniel Allen, a reported liar, told Respondent not to pick him up at home. This was due more to Sedaniel's manipulation than to Respondent's actions. Rejected as contrary to the evidence. Rejected as contrary to the evidence. Accepted and incorporated herein. Respondent sent home a permission slip. The child reported he could stay. Respondent did not know he could not. Proposed FOF is incomplete and misleading. Accepted but phrased in a misleading way. Accepted as to the 1st and 2nd sentences. Accepted and incorporated herein. 31&32. Accepted and incorporated herein. This PFOF is misleading. The students went to the club once where Sedaniel cleaned some ashtrays outside while Respondent was doing something inside. The bar was closed to the public at the time and no alcohol was being served. The Respondent1s associates were at his home not at the club and there is substantial doubt as to the alleged comments. That the students were left at home unsupervised is contradicted by the Respondent who says his mother would come over and sit. In any case, this element is not in issue as to the charges. Accepted as to the facts, not the inferences. This PFOF does not make sense. Rejected. Accepted. Accepted. Rejected in that the transcript says he went to Respondent's home on 5 to 10 occasions but did not spend the night each time. Accepted as to what the witness testified to. Use of word feminine is improper. The cousins were male but were described as feminine in demeanor. Accepted. 42&43. Accepted. Accepted (See 33, supra). Accepted. Accepted. Misleading in that this student is the one who initiated all contact after the principal's directive. Accepted as the witness's opinions--the issue of comments was not established. Accepted but irrelevant. Rejected as an improper conclusion drawn from the evidence. This PFOF is incompetent in that it is impossible to determine who is being described. Rejected as contrary to the weight of the evidence admitted at hearing. Accepted and incorporated herein. 54&55. Accepted. 56&57. Accepted. By the Respondent 1-3. Accepted and incorporated herein. 4-10. Accepted. 11. Accepted and incorporated herein. 12. Accepted. 13-15. Accepted and incorporated herein. 16-21. Accepted. 22&23. Accepted and incorporated herein. 24. Accepted. 25&26. Accepted. 27-31. Accepted. 32-35. Accepted. 36-40. Accepted and incorporated herein. 41-44. Accepted and incorporated herein. 45&46. Accepted. 47. Accepted. 48. Accepted. 49. Accepted and incorporated herein. 50-55. Accepted. 56-58. Accepted and incorporated herein. 59. Accepted. 60-66. Accepted and incorporated herein. 67-76. Accepted and incorporated herein. 77. Accepted. 78-80. Accepted and incorporated herein. 81-83. Accepted. 84-90. Accepted and incorporated herein. 91-93. Accepted. 94-96. Accepted. 97-100. Accepted. 101-104. Accepted. 105&106. Accepted and incorporated herein. 107&108. Accepted and incorporated herein. 109. Accepted. 110-115. Accepted. 116. Immaterial. 117-119. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. 124-125. Accepted. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 S.W. 4th Street Fort Lauderdale, Florida 33312 Charles T. Whitelock, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Leslie Holland, Esquire Staff Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301
