Findings Of Fact At all times material hereto, Respondent Norrine W. Williams was employed by Petitioner as a teacher aide. She worked at Amelia Earhart Elementary School, a center for special education, for about eight years, including the 1986-1987 school year. While employed at Amelia Earhart, Respondent had continuing financial problems, which caused bill collectors to call and visit the school site on a daily basis. As a result, the work of the school's office staff was disrupted, many people became aware of Respondent's financial problems, and Respondent and her bill collectors were discussed throughout the school. On March 30, 1987, Respondent was arrested in the principal's office and taken into custody by United States Secret Service agents. She was charged with credit card offences. On April 14, 1987, Respondent appeared at a Piggly Wiggly store and attempted to cash a check in the name of Flora Linton. The store manager recognized her as the person who had cashed two previous checks in that name, which checks had been returned to the store because they had been written on a closed account. The store manager summoned a Miami Springs police officer, and Respondent went to the police station with the police officer at his request to discuss the matter. She was joined by a male and by her 76 year-old aunt Flora Linton. During the questioning at the police station, the police officer determined that Flora Linton did not know that her niece had stolen checks from her and had been forging her name to those checks and cashing them for her own personal gain. Respondent admitted to having issued the two previous worthless checks in the amounts of $125.75 and $84.90. She was not charged with a crime on the condition that she make full restitution to Piggly Wiggly. She did so approximately one week later. Several months later the Piggly Wiggly store owner was present in his new store on the other side of town when Respondent attempted to cash a check at that store. The check she was attempting to cash was another of the Flora Linton stolen checks, and she had again forged her aunt's name to that check written on a closed account. When approached by the store owner, she recognized him and turned in her check cashing card and walked away. While Respondent was at the Miami Springs police station on April 14, 1987, a routine background check was run regarding her. It was discovered that there was an outstanding bench warrant for her, and she was taken to the Dade County jail. On April 20, 1987, Respondent was arrested a second time at the school site and taken into custody by law enforcement officers. She admitted that she had in fact fraudulently obtained a Nieman-Marcus credit card by providing fictitious information on the credit card application. She had subsequently charged $972 worth of merchandise at the Nieman-Marcus store using the fraudulently-obtained credit card. She was charged with second degree grand theft, a felony offense, for fraudulently obtaining a Nieman-Marcus department store charge card. She advised the arresting officers that she had no intention of making restitution to Nieman-Marcus. As was the case with Respondent's first arrest at the school site on March 30, 1987, her second arrest on April 20, was observed by office personnel. In the process of being escorted out of the building her second arrest was evident to teachers and students in the areas outside of the principal's office. Respondent plead "no contest" to the criminal charges regarding the fraudulent credit card. She was sentenced to probation and was ordered by the Court to make restitution to Nieman-Marcus in the sum of $972. As of the time of the formal hearing in this cause, the deadline for making restitution had passed, and restitution had still not been made. Although Respondent appeared for the formal hearing in this cause, she left as the proceedings commenced and did not return. Had she remained she would have been arrested by the police officers who testified in this cause since there was still pending an open felony warrant for probation violation for previous worthless checks. While shopping at the Grand Union, formerly the Miami Springs Piggly Wiggly, the principal of Amelia Earhart saw Respondent's name scotch taped to the cash register with a notice advising the cashiers not to cash checks for that person. That Grand Union is located near Amelia Earhart Elementary School. The school board rules concerning employee conduct are contained in a staff handbook. Teacher and teacher aides have staff meetings with administrative teams to review the rules and policies of the school board. Respondent attended those meetings and was specifically advised of the school board rules. Respondent's conduct concerning the issuing of forged and worthless checks, fraudulently obtaining a credit card, having difficulties with bill collectors at the school site, having been adjudicated guilty of grand theft, and failing to pay court costs and make restitution as ordered by the court, constitutes conduct unbecoming a school board employee and misconduct in office in violation of school board rules 6Gx13-4A- 1.21 and 6Gx13-4C-1.01.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A final order be entered affirming the Respondent's suspension without pay and dismissing Respondent from her employment with the School Board of Dade County. DONE and RECOMMENDED this 17th day of March, 1989, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1989. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact At all times material hereto, Respondent was employed by Petitioner as a physical education teacher at Homestead Junior High School pursuant to a continuing contract. On May 17, 1984, Assistant Principal Woodward sent a memorandum to Respondent regarding Respondent's late notification for absence from duty two days prior. That memorandum read, in pertinent part: I feel that it is essential that I again remind you of the problems caused by your late notification of the need for a substitute. Subs are difficult to get in the morning after the high schools have begun their day. Last year Mr. Rosbaugh covered a portion of your 1st period class at least 15 times. This year you have been out 10 1/2 days in addition to the entire month of December (12 days) and 9 days in January due to injury. You also have arrived late to homeroom on a number of occasions. Please direct your attention to these professional matters. During the 1986-87 school year Respondent was absent approximately 30 days. In addition, Respondent's department head reported him for being tardy 13-15 times although Respondent was tardy on even more occasions. During the 1987-88 school year between the commencement of school in August and December 9 when Respondent was suspended from employment he was absent from school approximately 60 days, 53 of which were leave without pay. He was also tardy approximately 15 times. Because Respondent failed to notify the school when he expected to be tardy and because he repeatedly failed to notify the school when he would be absent, school personnel did not have time to obtain the services of a substitute teacher. Therefore, other teachers had to cover Respondent's physical education classes in addition to covering their own, thereby lessening the safety of the students in those physical education classes. At all times, Respondent's students were left running unsupervised in the hallways, thereby impacting other classes and other students' safety. Respondent's department head discussed the problem with Respondent on numerous occasions during both the 1986-87 and the 1987-88 school years. He gave Respondent verbal directives to be prompt for all his classes since Respondent would be tardy not only for the first period class but would also disappear between periods and be tardy at the beginning of other periods. School personnel had no telephone number for contacting Respondent. During the 1986-87 school year Respondent's department head went to Respondent's home on four or five different occasions to see if Respondent was coming to work since the school day had already begun and Respondent was absent. He also went to Respondent's home for the same purpose two or three times during the 1987-88 school year. Each time he went to Respondent's home, he found him asleep. During the 1986-87 and 1987-88 school years Assistant Principal Woodward had meetings with Respondent on approximately 30 occasions to discuss Respondent's chronic lateness in reporting to work. He also went to Respondent's home after the school day had begun to find out if Respondent would be coming to school that day six or seven times during 1986-87 and two or three times during 1987-88. On one such occasion--March 12, 1987--he went to Respondent's home and awakened Respondent at 10:30 a.m. Assistant Principal Woodward directed Respondent on numerous occasions to observe the school's required procedures for notifying the school of Respondent's absences or tardiness. Each time Respondent was awakened at his home by school personnel, he was very apologetic, promised to do better, and stated that he fully understood the required procedures and the impact on his classes. Each time, he explained that he had overslept and that he had personal problems. Although Respondent promised improvement, no improvement occurred. On a number of occasions Assistant Principal Woodward recommended that Respondent contact the employee assistance program due to Respondent's stated problems with oversleeping and Respondent's repeated advice that he had personal problems and since Woodward noticed that Respondent was losing weight and evidencing some differences in personality. However, Respondent refused to contact the employee assistance program. Principal Chandler had numerous conferences with Respondent both years formally and informally regarding his absences and tardiness. He offered Respondent transportation to school even though Respondent lived only a few blocks away. Respondent declined his offer of transportation. Principal Chandler visited Respondent at Respondent's mother's home at Respondent's request three times during 1987-88. He also had a meeting with Respondent and some of Respondent's associates with whom he was experiencing problems with paternity charges. Based upon Respondent's continued failure to comply with reporting procedures, and based upon Respondent's repeated excuse that he overslept and/or had personal problems, and based upon Respondent's statements made to him during one of the meetings at Respondent's mother's home, Chandler requested Respondent to undergo a fitness examination which Respondent refused. Based upon Respondent's refusal to undergo a fitness examination and Respondent's refusal to comply with the directives to be punctual and to comply with reporting requirements, Chandler contacted the Office of Professional Standards of the Dade County Public Schools. An official conference for the record was scheduled for November 3, 1987, and Respondent failed to appear. A second conference for the record was scheduled for November 18, 1987, and Respondent attended that conference. Respondent was requested to sign the notice acknowledging that he had been notified of the conference he was attending, and he refused to acknowledge receipt of that notice Respondent was ordered to undergo a fitness determination, and he refused to comply. On November 18, Respondent was assigned to his home, thereby terminating his assignment to Homestead Junior High School. On November 23, he was assigned to the Area Office but he refused to report to the Area Office. On December 1, 1987 he was temporarily assigned to Arvida Junior High School. However, he indicated he had transportation problems and could not report there. On December 2, he again indicated that he had transportation problems and again would not report there that day. On December 3, he again indicated that he had transportation problems and that he could not accept the assignment on that day or any other day. Respondent's absences exceeded the amount of accumulated leave and sick leave during both 1986-87 and 1987-88. Respondent never indicated to any of his superiors that he was unable to comply with the directives to improve his attendance and correct his tardiness. Respondent never indicated that he was sick; rather, he continuously maintained that his problem was simply a matter of oversleeping resulting from his personal problems. Accordingly, the extended sick leave provisions in the union contract between the teachers in Dade County and Petitioner do not apply to Respondent. Even if they did, there are no provisions in that contract which permit a teacher to continually be tardy for that teacher's first period class and to disappear between classes and report for the next class 10 or 15 minutes late as was Respondent's pattern of behavior. Petitioner has exhausted all available resources in its attempt to assist Respondent, and there is no expectation of improvement on Respondent's part. Respondent's effectiveness as a teacher has been impaired by his failure to be in regular and punctual attendance for his assigned duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent from his employment with the School Board of Dade County and denying him any claims for back pay and benefits. DONE and RECOMMENDED this 9th day of August, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 9th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5596 Petitioner's proposed findings of fact numbered 1 has been adopted in this Recommended Order. Petitioner's proposed findings of fact numbered 2-16 have been rejected as not complying with Rule 22I-006.31(3), Florida Administrative Code, and also as not constituting findings of fact but rather as constituting recitation of the testimony. Respondent's proposed findings of fact numbered 1 and 2 have been adopted in this Recommended Order. Respondent's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 4 and 5 have been rejected as being subordinate to the issues under consideration herein. Respondent's proposed findings of fact numbered 8 and 17-19 have been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 12, 14, and 15 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 6, 7, 9-11, 13, 16, and 20 have been rejected as not constituting findings of fact but rather as constituting either recitation of the testimony or argument of counsel. COPIES FURNISHED: Joseph A. Fernandez, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Johnny Brown, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent?s educator?s certificate, and if so, the nature of the sanctions.
Findings Of Fact Petitioner, as Commissioner of the Florida Department of Education, is charged with the duty to investigate and take disciplinary action against individuals who hold a Florida educator's certificate and are alleged to have violated section 1012.795, Florida Statutes, and the Department?s rules establishing standards of teacher conduct. Respondent holds an educator?s certificate, No. 726067, covering the areas of biology and general science, issued by the Florida Department of Education. At all times material to this proceeding, Respondent was employed as a science teacher at Callahan Middle School in Nassau County, Florida. Respondent was first employed by the Nassau County School Board in 1995. He taught special education courses for his first two years, and “at-risk” classes for the following two years. Since then he has taught middle school science. In addition to his normal teaching duties, Respondent has coached the middle school football team and the boys and girls track teams for 11 years. Respondent is a capable and competent teacher, and has a good reputation. Respondent has not previously been the subject of a disciplinary proceeding. On October 7, 2010, at the end of the school day, Respondent went to the Fred?s discount department store located at 22 South 8th Street, Fernandina Beach, Florida. The purpose of the visit was to purchase reading glasses to replace a pair that was broken that day at the school. Respondent testified that he entered Fred?s and went immediately to the glasses display. Since the glasses were inexpensive -- $4.95 a pair -- he decided to buy 2 pairs. After selecting the glasses, Respondent noticed a display of candy. As a reward for students scoring 90 or above on an assignment, Respondent places them in the “smarty party” and allows them to take a piece of candy from a supply he keeps. He was low on candy, and decided to buy some to replenish his stock. He picked up three large bags of candy, and given that he was running out of space in his hands, placed the glasses in his left pants pocket. On his way to the checkout line, Respondent noticed that Fred?s had a sale on dog food. He picked up a bag of dog food, slung it on his shoulder, and proceeded to the checkout line. When he reached the checkout line, Respondent testified that he forgot about the glasses in his pocket, and proceeded to pay for the candy and dog food with a credit card. The candy was placed in a plastic “T-sack.” He exited the store with his plastic bag and dog food, whereupon an alarm sounded. Not thinking the alarm was a result of his action, Respondent continued towards his car. As he was about halfway to his car, the cashier came to the door and said “Hey honey, that might be you. That sometimes happens with dog food.” Respondent testified that he turned to walk back in and at that time noticed Mr. Esckelson, who was returning from assisting a customer in the parking lot, walking about four steps in front of Respondent. As he was about halfway back to the store, Respondent testified that he remembered the glasses in his pocket, and that he had forgotten to pay for them. He knew that Fred?s had a reputation for implementing an aggressive, “hard-core” policy against shoplifters, and in a split-second and ill-conceived decision, decided to toss the glasses into a nearby display of mums. In his haste, he thought that he had grabbed both pairs of glasses from his pocket and tossed them into the flowers. However, he managed to grab only one pair, while the second pair remained in his pocket without his knowledge. Respondent testified that his action was observed by Mr. Esckelson, despite his being a few steps in front of Respondent, who then said “OK, get in here.” Mr. Esckelson asked what Respondent threw, and he replied that he threw glasses. Respondent was asked to stand by the register, and Mr. Esckelson advised the cashier to call the police. Respondent testified that he spoke with Mr. Esckelson, and asked, “is there any way to make this right?” He told Mr. Esckelson that he had taken the glasses out of the store by accident, and wanted to pay for them. Respondent?s intent in making that statement was to offer payment, and was not an attempt to bribe Mr. Esckelson. The offer was, in any event, declined. Although Respondent had his Nassau County School District employee badge attached to his belt on the right side of his pants, Respondent testified that there was no discussion regarding his employment as a teacher. When the police arrived, Respondent was taken into custody almost immediately. The two officers at the scene arrived in separate cars. Officer Kopinski, who was first on the scene, had separate conversations with Respondent and Mr. Esckelson. Officer Kozak arrived sometime after and took control of the situation since Fred?s was in his zone. Officer Kopinski, who testified at the hearing, had little independent recollection of the events, his testimony being based almost exclusively on Office Kozak?s arrest report to which he referred frequently during the hearing to refresh his recollection. The arrest report was not entered in evidence by either party. Officer Kopinski could not recall whether Mr. Esckelson provided him with the pair of glasses at the time of his placing Respondent in custody. Respondent testified that when he was being placed in handcuffs, the officer, having noticed his school district identification badge, asked if Respondent was a school district employee. Respondent replied that he was a school teacher, and that the arrest would be a bad situation for him. Respondent testified that as he was being escorted from the store to the police car, Mr. Esckelson was searching in the display of flowers for the glasses he had thrown. Respondent told Mr. Esckelson where he had thrown the glasses, at which time he was able to locate and retrieve them. Prior to his being placed in the police car for transport, Respondent was searched. At that time, Officer Kopinski discovered the second pair of glasses in Respondent?s pants pocket, and returned them to Mr. Esckelson. Officer Kopinski testified, based on the police report, that Respondent also had $12.20 and several credit cards in his possession. Although Officer Kopinski had no independent recollection of the money and cards, and the police report is not in evidence, Respondent did not dispute that he had that amount in his possession. Mr. Esckelson?s testimony differed in several respects from that of Respondent. Mr. Esckelson testified that at the time of the incident, he was in the parking lot returning a train of shopping carts to the store. As Respondent was exiting the store, Mr. Esckelson was approximately 15 feet from the door heading in. When the alarm went off, Mr. Esckelson testified that Respondent was pushing the door open with his left hand, and as soon as he opened the door, he removed an object from his right pants pocket, later found to be a pair of glasses, and tossed it into the display of mums. Mr. Esckelson asked Respondent to return to the store, and immediately retrieved the glasses from the display. He asked Respondent to stand by register 2, which was subject to video surveillance, and signaled the clerk to call the police. Although Mr. Esckelson indicated that he said nothing to Respondent, he testified that Respondent asked if there was “anything we can do to take care of this now?” and later stated that “you can?t arrest me, I?m a teacher.” Mr. Esckelson testified that he advised the police officers of Respondent?s statements. Officer Kopinski could not corroborate either of those statements. Mr. Esckelson could not recall whether Respondent was carrying a large bag of dog food. He recalled asking the clerk what Respondent had purchased, but could not remember what the clerk told him. However, there are no sensor tags on dog food that would have caused the alarm to trigger. Mr. Esckelson confirmed that Fred?s has a policy of discouraging shoplifting, and will always prosecute when shoplifters are caught. Over the years that he worked for Fred?s, Mr. Esckelson?s involvement with shoplifters, though not routine, was still relatively frequent. Despite the differences in their descriptions of the events, differences which for the most part were as to peripheral matters, both Respondent and Mr. Esckelson appeared to be forthright and credible. As to the material elements of the event, their testimony was generally consistent. However, Mr. Esckelson had no involvement in Respondent?s matter from the time of the incident until he received a subpoena on August 11, 2011. As was the case with Officer Kopinski, who had almost no independent recollection of the incident, it stands to reason that Mr. Esckelson?s memory of the incident would blur over time, particularly since he was involved with recurring incidents of a similar nature in the intervening period. Respondent on the other hand would be expected to retain a more vivid memory of the incident given its singular affect on him. The differences in Respondent?s and Mr. Esckelson?s testimony do little to affect the outcome of this case. For example, whether Mr. Esckelson was returning carts to the store or returning to the store from assisting a customer, whether the glasses were found before or after the police arrived, and whether the glasses were removed from Respondent?s left or right pocket have little to do with the salient facts of the case. Those and other similarly insignificant differences in the testimony were more likely due to the passage of time than to an attempt to obfuscate the facts of the incident. However, the testimony of Respondent is found to be a more accurate statement of the facts of the incident. At the time of the incident, there were customers and employees in Fred?s. Respondent was acquainted with several of the store clerks from previous times at which he shopped at Fred?s. There was no evidence offered to indicate that Respondent knew any one clerk from another other than from a purely employee/customer standpoint, nor was there any evidence offered that any customer or employee who witnessed the events knew Respondent, or was aware that he was a school teacher. Within a short period after his arrest, Respondent called John Ruis, the Superintendant of Schools for Nassau County, to advise him of the situation. His first calls were over the weekend, at which time he left messages. By the time Respondent spoke with Mr. Ruis, Mr. Ruis had been notified of the arrest, having received a computer notification. Respondent asked to meet with Mr. Ruis to provide his side of the story. When they met, Respondent appeared to be humiliated, humbled, and embarrassed. Respondent advised Mr. Ruis of all pertinent facts of the incident, including the fact that he tossed the glasses into the flower display. He asserted that his failure to pay for the glasses was inadvertent. Mr. Ruis informed the principal of Callahan Middle School and the school district?s personnel director of the situation involving Respondent. Mr. Ruis did not know if any other employee of the Nassau County School District knew of the incident. It is not the practice of Mr. Ruis, as Superintendant, to remove a teacher from the classroom in an alleged disciplinary matter unless the teacher presents a threat of harm to the students. When there is no perceived harm to students, the district allows the legal system to take its course. Mr. Ruis determined that Respondent presented no threat to any student, and he was therefore not removed. Respondent has taught continuously since the incident with no subsequent indication of any problem. As the judicial resolution of the incident, Respondent entered into a deferred prosecution agreement, the precise terms of which were not disclosed. The Petit Theft charge was subsequently nolle prossed, and the record of Respondent?s arrest has since been expunged. The conduct alleged was not known to anyone outside of the arresting officers, the Superintendant, the principal of Callahan Middle School, and the personnel director. Although there were customers and employees of Fred?s in the store at the time of Respondent?s arrest, there was no evidence that any of them knew Respondent, or knew that he was a Nassau County School District employee. There was no evidence that any student, parent, or other teacher had any knowledge of Respondent?s arrest. There was no media coverage of the incident, and no complaints filed with the school district regarding Respondent. Respondent?s conduct was not, in any sense of the term, “notorious.” Respondent denied any intent to steal the glasses. The testimony as to how the glasses came to be in his pocket upon buying the candy and dog food is plausible. Other than his split-second decision to toss the glasses into the flower display -- a decision that Respondent stated was based upon his knowledge of Fred?s aggressive stance on shoplifting -- there is no direct evidence of intent to steal the glasses. While there is evidence from which one could infer consciousness of guilt from the circumstances of this case, Respondent?s act of tossing the glasses when he realized he had exited the store without paying, under the particular facts and circumstances of this case, does not rise to the level of clear and convincing evidence of Respondent?s intent to shoplift the glasses.
Recommendation Upon consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of November, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2011. COPIES FURNISHED: J. David Holder, Esquire J. David Holder, P.A. 40 Grand Flora Way Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Anthony D. Demma, Esquire Meyer, Brooks, Demma and Blohm, P.A. Post Office Box 1547 131 North Gadsden Street Tallahassee, Florida 32302 Charles M. Beal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Dasie M. Melton, at all times material hereto, was employed as a teacher under a written contract of continuing employment with Petitioner, School Board of Glades County. For the 1982-83 school year Ms. Melton was assigned to Moore Haven Junior-Senior High School (High School) where she taught physical education. Her evaluations for that school year were quite satisfactory. For the 1983-54 school year Ms. Melton was assigned to Moore Haven Elementary School (Elementary School) where she was assigned to teach trainable mentally retarded (TMR) students. Although Ms. Melton had not requested the assignment and was not certified in the area, she accepted this new and difficult task and proved to be an effective and loving teacher with her special students. Ms. Melton was respected by her peers at the Elementary School. Her principal, Gary L. Clark, testified at final hearing that he would have no reservations about Ms. Melton rejoining his staff. One of Ms. Melton's TMR students for the 1983-84 school year was Lisa Fournier. Lisa had a pleasant disposition but tired easily and often became nauseous and sick to her stomach. Although capable of communicating, Lisa did not grasp instruction quickly, and instructions had to be simply stated and repeated several times. During the 1983-84 school year, Lisa was to reach her twenty-first birthday. Consequently, pursuant to law, she would be required to leave the public school system at the conclusion of that term. Ms. Melton, recognizing that Lisa would be leaving the school system that year, thought it appropriate and beneficial for Lisa to participate in the ceremonies and functions attended by graduating students at the High School since no functions or ceremonies were otherwise contemplated for students such as Lisa. Accordingly, she discussed the matter with Lisa's legal guardian, as well as Lisa's natural mother. Both were enthusiastic and supportive of Lisa's participation. Having secured the support of Lisa's legal guardian and natural mother, Ms. Melton approached the administration for approval. With the exception of George H. Steele, the principal of the High School, the remainder of the administration, including the superintendent, approved of the concept. Consequently, for the first time in the history of the Glades County school system, a TMR student was to be afforded the opportunity to receive the benefits and recognition afforded other students who had applied themselves during their public school career. In addition to her normal duties, Ms. Melton assumed the responsibility of guiding Lisa through the various events for graduating seniors at the High School. Her efforts were met with a lack of cooperation or open resistance by the administration and staff of the High School. Although directed by Superintendent Lester M. Mensch to cooperate with Ms. Melton and to accord Lisa the privileges of a graduating senior, the High School administration and staff continuously failed to keep Ms. Melton advised of upcoming events and otherwise continued to resist implementation of the concept. Friction quickly developed between Ms. Melton on one side and Mazie Ford, assistant principal of the High School, and Patricia Ringstaff, senior class sponsor, on the other side. This friction came to a head during preparation for and during Grad Nite, an annual activity hosted by Walt Disney World for graduating seniors. In order to assure Lisa's participation at Grad Nite, Ms. Melton had to agree to accompany Lisa to Disney World. Notwithstanding Ms. Melton's commitment to chaperone Lisa, Ms. Ringstaff listed Ms. Melton as a guest. Ms. Melton felt her classification as a guest, rather than as a chaperone, to be a personal affront. She was further insulted by the fact that while she was required to serve as Lisa's exclusive chaperone, she was required to pay $22 for her own admission to Disney World. No other chaperone was required to pay for their ticket. The day before Grad Nite, Ms. Melton and Ms. Ford were involved in a heated discussion. The discussion involved the question of whether Ms. Melton was a guest or a chaperone and whether or not Ms. Melton would, under the circumstances, accompany Lisa on Grad Nite. Both parties became increasingly angry during this conversation, which was concluded by Ms. Ford hanging up the receiver. Subsequent to that phone call, Mr. Steele spent nearly an hour with its. Melton and her principal, Mr. Clark, trying to straighten out the confusion and alleviate the tension created by the confrontations Ms. Melton had with Ms. Ford and Ms. Ringstaff. In an effort to assure tranquility during Grad Nite, Mr. Steele clearly delineated the responsibilities of Ms. Melton and Ms. Ringstaff so, hopefully, there would be no cause for further tension. He designated Ms. Melton as the exclusive chaperone for Lisa and made Lisa her complete and sole responsibility. He designated Ms. Ringstaff, who was the senior class sponsor, in charge of all other chaperones and students. Ms. Ringstaff and Ms. Melton were directed by Mr. Steele, in the presence of Ms. Ford, to have as little to do with each other as possible. On Saturday, May 12, 1984, while the Grad Nite Participants were boarding their buses for the trip to Disney World, Ms. Melton and Mr. Clark discussed the advisability of Ms. Melton and Lisa riding to Disney World in the school station wagon that would accompany the buses. At that time Ms. Melton told Mr. Clark that they did not want any special favors and would prefer being treated like everyone else. Before departing Mr. Clark cautioned Ms. Melton to call him collect if any problem arose. After Ms. Melton and Lisa had boarded the bus, Mr. Clark had a conversation with Superintendent Mensch regarding the circumstances under which the station wagon would be used. Since the station wagon was to provide alternative transportation should the need arise, Mr. Clark left that conversation with a clear understanding that, if necessary, it would be permissible for Ms. Melton and Lisa to use the station wagon for transportation. The nonstop trip to Disney World was hot and difficult for Lisa. By the time they arrived at Disney World, she was uncomfortable, nauseated, and her complexion had paled. Consequently, at eight o'clock that evening Jets. Melton called Mr. Clark and advised him of the effect the bus ridehad on Lisa and that "nine times out of ten we'll be riding the station wagon back." Mr. Clark advised Ms. Melton that he had spoken with Mr. Mensch and he had said it was "okay." Thereafter, Ms. Melton and Lisa spent the evening and early morning hours together at Disney World. At approximately 4:00 a.m. Lisa became tired, so Ms. Melton returned with her to the parking lot before the arrival of the other students. Relying on her conversation with Mr. Clark, Ms. Melton advised Frank L. Gill, the transportation director, that, with the permission of Mr. Clark and Mr. Mensch, she and Lisa would be returning to Moore Haven in the station wagon. Thereupon, she put Lisa in the back seat of the station wagon, went to the bus for pillows, and returned to rest beside Lisa, who was already asleep. By this time, Ms. Melton had been awake for almost 24 hours, had constantly cared for and assisted Lisa, and, not surprisingly, was exhausted and suffering a severe headache. At approximately 4:45 a.m., while Ms. Melton and Lisa were resting in the station wagon and awaiting the return of the rest of the party, Ms. Ringstaff returned to the area. The events which subsequently transpired, and which form the basis of the charges leveled against Ms. Melton, incredibly enough stem from Ms. Melton's decision to have Lisa return in the station wagon. When Ms. Ringstaff returned to the parking lot, Mr. Gill advised her that Ms. Melton and Lisa were in the station wagon and that there would be no insurance coverage if Wayne Reese (who had driven the station wagon to Disney World) drove them back, because he only had an operator's permit as opposed to a chauffeur's license. Mr. Gill apparently did not consider the simple alternative of driving the station wagon himself, although he concedes then there would have been no problem as he had the necessary license. Following Mr. Gill's "revelation," Ms. Ringstaff seized command and called Superintendent Mensch without even inquiring of Ms. Melton as to why she and Lisa desired to return to Moore Haven in the station wagon. Neither Ms. Ringstaff nor Mr. Mensch agree to the substance of their early morning telephone conversation. Ms. Ringstaff insists the conversation centered around the insurance question. Mr. Mensch does not recall insurance being mentioned and testified at final hearing that there would have been no insurance problem under the circumstances. Mr. Mensch testified that Ms. Ringstaff simply told him that she was having trouble with Ms. Melton because she would not do as she requested and he advised Ms. Ringstaff that "she was senior sponsor of the program and that if she was having any difficulty, to get with Ms. Ford" and work it out. Mr. Mensch does not recall having advised Ms. Ringstaff that Ms. Melton could not return in the station wagon. The Hearing Officer finds Mr. Mensch's recollection the more credible. Ms. Ringstaff, armed with Mr. Mensch's direction to "work it out" went directly to the station wagon and advised Ms. Melton that the superintendent wanted her to return on the bus. Ms. Melton, embraced her prior directive, which delineated the parties' respective responsibilities, and declined to discuss the matter with Ms. Ringstaff. At no time during this conversation did Ms. Ringstaff inquire as to why Ms. Melton wished to return in the station wagon. Ms. Ringstaff then left the station wagon to consult with Ms. Ford. There is substantial confusion regarding Ms. Ford's status during Grad Nite. Although Ms. Ford was assistant principal of the High School and was, thereby, the senior administrator on the trip, it is uncertain whether she was actually acting in such capacity. It is Ms. Ford's position that she went to Disney World "merely as an assistant chaperone to assist the other chaperones, and that Ms. Ringstaff, as senior class sponsor, was in charge of the group. The Hearing Officer adopts Ms. Ford's description of her function during Grad Nite since she of all people should be knowledgeable of her capacity, and since her characterization comports with Mr. Steele's prior delineation of responsibility. At Ms. Ringstaff's direction, Ms. Ford went to the station wagon to discuss the matter with Ms. Melton. Although Ms. Ford never asked why Ms. Melton wished to return with Lisa in the station wagon, Ms. Melton did affirmatively advise her that she was sick, that she had a headache, and that her nerves were shot. Since Ms. Melton refused to leave the station wagon, Ms. Ford, Mr. Gill, and Ms. Ringstaff cloistered to work out this "problem." They resolved the issue by removing Lisa from Ms. Melton's custody and placing her in the custody of Ms. Ringstaff who was certified in learning disabilities and mental retardation. While Lisa rode back on the bus, Mr. Gill, who could have driven Ms. Melton and Lisa back in the first place, then drove Ms. Melton back to Moore Haven. At no time was Ms. Melton contemptuous, hostile, or abusive toward Ms. Ford, Ms. Ringstaff, or any other person on Grad Nite. Lisa had an uneventful trip back to Moore Haven. Mr. Clark, at Ms. Melton's request, met the returning party in Moore Haven. While strictly not necessary to the resolution of this case, the events which subsequently transpired lend credence to Ms. Melton's testimony and cast serious doubts on the motivations of her accusers. Upon returning to Moore Haven that morning, Ms. Melton, in the presence of Mr. Clark, asked Superintendent Mensch if he wanted to see her. Mr. Mensch advised her to get a good night's rest and that they would talk on Monday. On Monday Mr. Mensch avoided Ms. Melton until she cornered him late in the afternoon. At that time Mr. Mensch said he did not remember saying he would speak with her that day, and advised Ms. Melton he would see her the next day. In fact, Ms. Melton was never to have an opportunity to speak with Superintendent Mensch prior to her suspension. On Tuesday she was interviewed by Leonard Crowell, assistant superintendent, who had been appointed by the superintendent to act as an investigator and to gather statements. On Wednesday morning, May 16, 1984, Ms. Melton finally saw Mr. Mensch. At that time he advised her of his decision to suspend her and recommend her dismissal. At no time during this meeting did Superintendent Mensch ever ask Ms. Melton for her version of the incident. He also does not recall whether he listened to the taped statement Ms. Melton gave Mr. Crowell on Tuesday, before making his decision to suspend her. By letter dated May 16, 1984, Ms. Melton was formally suspended by the superintendent, with pay, from her duties as a classroom teacher at Moore Haven Elementary School for alleged gross insubordination and willful neglect of duty. On June 28, 1984, the Glades Count School Board changed her status to suspension without pay.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint.
Findings Of Fact At all pertinent times, Clifton Jerome Locke has held Florida Teacher's Certificate Number 361372 for the areas of psychology, administration and Junior ROTC, and has taught as a Junior Army ROTC instructor at Crestview High School. Major Jordan was the director of army instruction for the Okaloosa County School Board and Sgt. Locke's "superior officer" at all pertinent times. Ever since Sgt. Locke began as a Junior Army ROTC instructor at Crestview High School, in January or February of 1971, Major Clifton D. Jordan's job was "[t]o coordinate and to command, really, if you will, the Army ROTC operations within the county school system." (T. 39-40) TELEPHONE BILLS The Okaloosa County School Board relied on the ROTC program to secure reimbursement from the U. S. Army for long distance charges incurred by ROTC. When the School Board received telephone bills for the ROTC telephone at Crestview High School, the office of the assistant superintendent for finance paid them, and sent copies of the bills to Crestview High School's Junior ROTC program. As the monthly phone bills arrived, Sgt. Locke looked them over, then gave them to a cadet, who prepared DA Form 360 and DA Form 3953, for Major Jordan's signature. Major Jordan signed the Army form to which a copy of the monthly telephone bill was attached, DA Form 3953. This form and attachments were regularly sent to the signal officer at Fort Rucker, Alabama, until the practice ceased in the spring of 1978. Although unsure whether his office, the school principal or Major Jordan received the Army's reimbursement checks, Creel Richardson, Jr., assistant superintendent for finance for the Okaloosa County School Board, testified without contradiction that the U. S. Army had not reimbursed long distance charges incurred by the Junior ROTC program at Crestview High School over a 46-month period beginning in the spring of 1978. During this entire period, Major Jordan was "telephone control officer." Army regulations precluded Sgt. Locke's serving as telephone control officer. (T. 81) Some time in 1978 Sgt. Locke received a note from Mrs. Strauder of the signal office which read: Returning your bill to be corrected. Please mark calls on the phone bill that add up to fifty-three ninety- five ($53.95), all three copies, please. It was about this time that Sgt. Locke and Major Jordan discussed the use of the telephone for other than official long distance calls. Although Major Jordan did not recall this conversation, he did testify at hearing that he had made various personal long distance calls on the ROTC telephone and had sought Army reimbursement for them by failing to delete personal items from the phone bill copies forwarded to Fort Rucker. Without counting calls made in 1982, Major Jordan made more than two hundred personal, long distance calls on the ROTC telephone, between February 14, 1978, and May 26, 1983. See Respondent's Exhibit No. 5. Eventually, the Federal Bureau of Investigation looked into Major Jordan's personal use of the ROTC telephone for long distance calls, but criminal charges were not brought. Other school personnel also made unauthorized use of the ROTC telephone. Major Jordan, who had never delegated any responsibility or duty in connection with telephone bill reimbursement to Sgt. Locke in writing, told him not to be concerned about which of the phone calls were in fact official calls. Sgt. Locke continued for a few months to give phone bills to cadets for preparation of the reimbursement request forms and the forms continued to be prepared. But Major Jordan stopped signing them and Sgt. Locke eventually stopped giving the phone bills to the cadets who prepared the forms. Of the 46 monthly bills for which no reimbursement was sought, 29 had not been opened in March of 1982, at the time Sgt. Locke was transferred from the ROTC department and Major Jordan went through respondent's desk drawers. At some point, Sgt. Locke told Major Jordan he would rather not be involved in preparation of the forms. He told the student cadets responsible for preparing the forms to deal directly with Major Jordan. In or about October of 1982, the signal office inquired about phone call reimbursement and charges for long distance. Phone calls billed to the ROTC number at Crestview High School aggregated $2,974.42 over the 46-month period. How much of this sum reflected official calls was not clear from the record. Another year elapsed after Sgt. Locke's transfer from the ROTC department before Major Jordan signed and transmitted any phone bill reimbursement forms to the signal office, with the result that reimbursement for any official calls was lost to the Okaloosa County School Board for much of that period as well. CANDY SALES Toward the beginning of the 1981-1982 school year, Jerry Pilgrim, a candy salesman from Milton, Florida, spoke to Major Jordan and Sgt. Locke about the ROTC students' selling candy to raise money. In October, it was agreed that a sale would take place later in the fall. Mr. Pilgrim discussed the candy sales with Major Jordan, who told him to deal with Sgt. Locke. Orders for candy to be delivered in November and December were not filled on time, so Sgt. Locke cancelled them, fearful the upcoming Christmas vacation would complicate matters. When Mr. Pilgrim stopped by the school to apologize for his failure to deliver the candy on time, Major Jordan said ROTC might sell candy some other time. In all, Mr. Pilgrim spoke to Major Jordan six to ten times and never got any indication that Major Jordan opposed a candy sale. It was Major Jordan who chose the particular kind of candy (Reese's candy bars) the day Mr. Pilgrim handed out samples. Major Jordan never told respondent not to conduct a candy sale. Major Jordan and Sgt. Stakley's testimony otherwise has not been credited. In January, Sgt. Locke placed another order for candy by telephone and Mr. Pilgrim delivered the candy the third week of January, 1982. He unloaded the trunk of his car at the ROTC office at Crestview High School, and returned two days later with 20 more cases of candy. Two weeks later he again called at the school, but Sgt. Locke told him that the principal was upset and that ROTC would not be ordering more candy. For the 1981-1982 school year and for some time previously, there was a written policy at Crestview High School requiring approval in advance of fund raising projects, and requiring, with respect to sales conducted by students, that a form be filed reflecting beginning inventory, cost per item, closing inventory, profit, total cost and total items sold. Petitioner's Exhibit No. 1. Both Major Jordan and Sgt. Locke knew or should have known of this policy, even though there was no evidence that the ROTC program had followed it in the past. Approval was not obtained for the candy sale in advance, nor was the required form filed. On January 21, 1982, six students turned in a total of $89.50 to Sgt. Locke, money they had been paid for candy. On January 25, 1982, six students turned in more candy sale proceeds to the respondent, aggregating $86.00. On January 26, 1982, Sgt. Locke entered the hospital, having suffered a mild stroke. He had trouble seeing, was unable to change gears driving, and finally fainted, slumping over his typewriter at Crestview High School. In the hospital, he remembered the money in his desk and asked his daughter, Cynthia Faith, who was also a cadet in the ROTC program, to retrieve the cash from his desk drawer. Sgt. Locke could not see well enough to count the money, so his wife, his daughter and his parents, who were visiting at the hospital, counted it for him. His wife drew a check in the amount of $175.50 on a joint account she shared with respondent, and one of the respondent's daughters gave the check, Petitioner's Exhibit No. 6, along with the required "Report of Monies Collected" forms, Petitioner's Exhibit No. 5, to the school bookkeeper, Ms. Earlene Carter, on February 5, 1982. (T. 163) Proceeds from the candy sale totalled at least $1385.86 and there were no complaints about the handling of the rest of the money. Insofar as the evidence shows, all the money the students turned in was ultimately deposited with the school bookkeeper. School policy required that "teachers who receive money from students in a school related activity should . [t]urn the money into the bookkeeper the day it is collected or as soon thereafter as possible." Petitioner's Exhibit No. 2. Pictures were taken of the ROTC students by James L. Davis of Stone Studio in Pensacola. Most of the students showed up with their money at the time pictures were taken in January of 1982. Others, including respondent's two daughters, did not pay for their photographs the day they were taken, but Cynthia Faith Locke later gave Sgt. Stakley $20 for the pictures taken of her sister and herself, and the photographer was eventually paid in full. Major Jordan testified at hearing that he found a "collection voucher" in Sgt. Locke's desk drawer reflecting that four ROTC students had made payments of ten dollars each for photographs, but that no money was attached to the voucher or present elsewhere in the drawer. Two of the students Major Jordan said were listed on the "voucher" were Sgt. Locke's daughters. The evidence was insufficient to show that Sgt. Locke ever received any money from any student for photographs. The "voucher" Major Jordan claimed he found was not produced at hearing. Aside from Major Jordan's testimony, which has not been credited in this regard, no evidence suggested any impropriety in the handling of any moneys respondent may have received in connection with the sale of photographs to ROTC students. APPLICATION LATE Dean Oliver Casey, a student enrolled in the ROTC program at Crestview High School, filled out an application for an ROTC scholarship in December of 1980. Major Jordan and Dean Casey had discussed the scholarship application two or three times between September 1, 1980, and mid-November of that year, and Major Jordan had told him to mail the completed application to Fort Monroe, Virginia, but he missed the December 15, 1980, deadline. Later Dean Casey gave the completed application to Sgt. Locke who asked Major Jordan if he could "pull any strings" to get the application considered, even though the deadline for submission had passed. After Major Jordan "relieved" Sgt. Locke of his ROTC assignment, respondent went to work in Okaloosa County School Board's finance department at the Carver Hill complex. On the assumption that the allegations against him were true, his effectiveness as a ROTC instructor had been impaired, the consensus of the testimony was, but there was no evidence of the impact on his effectiveness on the assumption that the charges were false, even in part; and no evidence as to his effectiveness while employed in the finance department. The parties' proposed findings of fact have been considered in preparation of the foregoing. To the extent they have not been adopted, they have been rejected as unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 25th day of May, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Ronald G. Meyer, Esquire Pamela Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether just cause exists to terminate Respondent's employment with the St. Lucie County School Board.
Findings Of Fact The Parties Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within St. Lucie County, Florida. At all times material to this proceeding, Respondent was employed by Petitioner as a teacher at Parkway Elementary School in the St. Lucie County School District. During the 2011-2012 school year, Respondent was assigned to a class of 14 pre-kindergarten children, all of whom received exceptional student education ("ESE") services. Incident of March 14, 2012 As noted previously, this case arises from an interaction between Respondent and one of her students, G.M., during the morning of March 14, 2012. At approximately 9:30 a.m. on that date, Respondent and her paraprofessional, Shameria Baker, assembled the students outside their classroom in preparation for recess. Prior to departing for the school playground, Respondent selected one of the students to act as the "line leader," and chose a second student, G.M., to pull a small cart that held playground toys. Once the students were suitably lined up, Respondent and Ms. Baker began to escort the children towards the playground area, with Ms. Baker situated near the front of the line and Respondent toward the back, in close proximity to G.M. While en route to the school playground, the students, Respondent, and Ms. Baker proceeded down a path that immediately adjoined a volleyball area (on the left) and a basketball court (on the right). For reasons known only to him, G.M. veered from the walkway and headed——with the cart in tow——towards the volleyball net.4/ Respondent, who was attending to another child at that time, attempted, unsuccessfully, to stop G.M. with verbal redirection. Undeterred, G.M. continued onward and entangled the cart in the volleyball net, which had been set at a low height. At that point, Respondent walked over to G.M. (who was crying), removed the cart from the net, and handed off the cart to another child. Seconds later, and in an effort to motion G.M. towards the walkway, Respondent placed her hand——in a benign and wholly appropriate fashion——on G.M.'s upper back area.5/ At no point did Respondent hit or strike G.M. Unbeknownst to Respondent, her interaction with G.M. had been witnessed from an indeterminate6/ distance by the school principal, Ucola Barrett-Baxter. (Ms. Barrett-Baxter's vantage point was from behind the line of students, who were walking in the opposite direction.) Believing, erroneously, that she had observed Respondent hit G.M. on the head, Ms. Barrett-Baxter proceeded to the administration building and instructed the school clerk to find Respondent in the playground area and send her to the office. As she awaited Respondent's arrival, Ms. Barrett- Baxter telephoned Susan Ranew, the School Board's Assistant Superintendent for Human Resources. During the call, Ms. Barrett-Baxter advised Ms. Ranew of the event she believed she had witnessed and discussed the need to contact the Florida Department of Children and Families ("DCF"). After she completed the call, Ms. Barrett-Baxter summoned to her office the school's ESE chairperson, Tammy DePace. A brief discussion ensued, during which Ms. Barrett- Baxter informed Ms. DePace of the allegations. Respondent entered the room moments later, at which point Ms. Barrett- Baxter, who was visibly angry, accused Respondent of committing the improper act (a hit) she thought she had witnessed. The witnesses' accounts as to what occurred next vary considerably: Ms. DePace testified that Respondent initially denied any wrongdoing, yet later admitted, during the same conversation, to hitting7/ G.M. after being confronted by Ms. Barrett-Baxter a second time; Ms. Barrett-Baxter testified, in contrast, that Respondent did not deny the misconduct and stated, "yes, it did happen," or words to that effect, upon being informed of the allegations; Respondent, offering the third (and credible) version of what occurred, testified that she was in a state of shock during the conversation, that she did not knowingly admit to any wrongdoing, and that any affirmative response on her part (e.g., "yes" or "okay") resulted from a misunderstanding as to the nature of the conduct of which she was accused. In the ensuing hours, Fred Bradley,8/ a DCF employee, initiated an investigation concerning that allegations raised by Ms. Barrett-Baxter. An examination of G.M., which Mr. Bradley conducted during the evening of March 14, 2012, yielded no sign of physical injury.9/ The following day, Mr. Bradley interviewed Respondent, who denied the allegations, as well as Ms. Barrett- Baxter, who described (and physically demonstrated) Respondent's conduct as a "shove"——as opposed to a "hit," the precise conduct alleged in the Petition.10/ Significantly, Ms. Barrett-Baxter did not advise Mr. Bradley of Respondent's supposed confession from the previous day.11/ Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Respondent is guilty of violating School Board Policy 6.301(2). The greater weight of the evidence fails to establish that Respondent is guilty of violating School Board Policy 6.301(3)(b). The greater weight of the evidence fails to establish that Respondent is guilty of violating School Board Policy 6.302.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Respondent of all charges brought against her in this proceeding; (b) providing that Respondent be reinstated to the position from which she was suspended without pay; and (c) awarding Respondent back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 24th day of January, 2013, in Tallahassee, Leon County, Florida. EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2013.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
