Findings Of Fact Respondent was issued Florida Teacher's Certificate No. 482561 on April 23, 1981, which certified her as authorized to teach elementary education and act as an elementary and secondary school counsellor until June 30, 1985. This certificate is valid now and was valid at all times pertinent to this hearing. On December 16, 1981, at the time of the incidents alleged, Respondent was working for a telephone answering service in Fort Lauderdale, Florida. She was in the process of moving to Jacksonville and had hired an individual named James Dallas to move her possessions for her. Since the day prior to the day in question, she had seen Dallas and his friend going through her luggage, she became convinced he was planning to rob her. As a result, she removed certain items from her luggage to her purse, which items included the handgun and the "knife" in question. Respondent admits to having the gun in her possession concealed in her purse. She contends, however, she had purchased it legally and was of the opinion it was properly registered. Whether it was or not is immaterial, as the ultimate fact is it was concealed in her purse and she did not have a license to carry a concealed gun. As to the "knife," she contends it was not a knife, but part of a manicuring set. The probable cause affidavit executed by the police officer who arrested her, however, indicated that he found a 4 1/2 inch black- handled steak knife in her purse along with the handgun. At no time did Respondent draw or threaten with either weapon, although at the time of her arrest she was involved in a disturbance with Dallas. I find, therefore, that the "knife" in question was in fact a knife. On March 5, 1982, Respondent pleaded guilty in the Circuit Court for Broward County, Florida, to carrying a concealed firearm and carrying a concealed weapon (misdemeanor) She was placed on probation for three years for carrying the gun and for one year, to run concurrently with the three, for carrying the knife, and adjudication of guilt was withheld with a provision for expungement of the record upon successful completion of probation. She immediately moved to Jacksonville. She initially intended to apply for employment in the Duval County school system, but found that she needed to attach a copy of her teaching certificate, which had, in fact, been stolen from her luggage. Therefore, on April 2, 1982, she submitted an application for a duplicate certificate on which she listed her arrest for and the disposition of her offense. It was on the basis of her application for a duplicate license that this action to discipline her was initiated. In January, 1983, almost a year later, there was no showing of any report by the courts to Petitioner or any complaint or report by any other agency. Respondent is currently working at Edward Waters College in Jacksonville as Recruitment and Admissions Counsellor and has been so employed since December, 1982. Her supervisor, the Dean of Student Affairs, finds her to possess high skills and creative abilities and to have much to offer the field of education, even though he is aware of her plea of guilty and the offenses to which it relates. Her probation officer, who has observed her since she arrived in Jacksonville, relates a glowing picture of her probation and indicates she has been very satisfactory and absolutely no problem. She follows and lives up to all standards of her probation. In fact, she has been so good, he intends to recommend early termination of her probation as soon as she has completed half the term, which is the earliest he can do so. The Director of Personnel Systems and Records for the Duval County school system does not know Respondent, knows nothing of her professional record or competence, and has not reviewed any application from her to teach in the Duval County schools. However, he is of the opinion that by virtue of her involvement with the law alone, and regardless that upon completion of her probation her record would be expunged, her effectiveness in an educational situation would be lessened because of the knowledge by others within the system of her offenses. Under the teachers' Code of Ethics, a teacher should set an example for the students. A teacher is responsible to not only the students, but also to the faculty and parents, and a teacher's off-campus conduct can and does have an effect on the teacher's performance. Respondent does not feel her effectiveness as a teacher has been reduced. In fact, she feels that because of what she has learned from this situation she has become more aware of her responsibilities to society and to the educational system. This, she feels, enhances her effectiveness.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. RECOMMENDED this 8th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1983. COPIES FURNISHED: J. David Holder, Esquire Berg & Holder Post Office Box 1694 Tallahassee, Florida 32302 Marvin I. Edwards, Esquire Edwards, Willis & Marinucci 3300 Independent Square Jacksonville, Florida 32202 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D. TURLINGTON, as Commissioner of Education, Petitioner, vs. CASE NO. 83-501 BEVERLY J. MCNAIR, Respondent. /
Findings Of Fact Tracy Tashanna Jackson is a 13-year-old, and Tammy Terrell Jackson is a 12-year-old, who were, until February 7, 1979, assigned respectively to the eighth and seventh grades at Miami Edison Middle School in Miami, Florida. On February 7, 1979, an incident occurred at Miami Edison Middle School which resulted in both students being reassigned to Jan Mann Opportunity School North. At the time of this incident, the two students had been attending Miami Edison Middle School for only approximately one month. On February 6, 1979, one day prior to the incident which gave rise to this proceeding, the students were threatened by another student who allegedly was a member of a group of students popularly known as the "Graveyard Gang." Upon receiving the throat, the students went to the office of the Assistant Principal and advised him that they expected trouble from these other students. The Assistant Principal essentially advised the students to attempt to avoid any confrontation. However, on the afternoon of February 6, 1979, while Tammy and Tracy Jackson were on their way home from school, they encountered the students who had threatened them, and a fight ensued. After the fight, Tracy and Tammy Jackson were advised by the other students that the fight would continue the next day at school, that these other students would have knives, and that Tracy and Tammy Jackson should come prepared. When Tracy and Tammy Jackson and their brother stepped off the city bus in the vicinity of Miami Edison Middle School the next morning, they were met by a large group of other students. Apparently, some member of this group struck Tracy and Tammy Jackson's brother, at which point Tracy and Tammy Jackson first displayed knives which they had brought with them from home. According to the testimony of Tracy and Tammy Jackson, which is not controverted, this was the first and only time that they had attended school armed with knives. The entire group of students apparently began milling around but proceeded generally in the direction of the main school building. At this point, Freddie Robinson, the Assistant Principal at Miami Edison Middle School, noticed the crowd of students, and proceeded into the crowd on the assumption that a fight was occurring. Upon being advised that Tracy and Tammy Jackson were armed with knives, Mr. Robinson managed to direct the students into the main school building, down the hall and into the Counselor's office. At all times during those movements, the Assistant Principal and the students were surrounded by a milling group of hostile students apparently intent on prolonging the confrontation. According to the Assistant Principal, at no time did either of the students display their knives in a threatening or offensive manner, but were instead attempting to defend themselves against attack. At some point in this process, the Assistant Principal was joined by George Thomas, a teacher at the school, who attempted to assist Mr. Robinson in disarming the girls. Mr. Thomas managed to remove the knife from the possession of Tammy Jackson without incident, but when Mr. Robinson grabbed the arm of Tracy Jackson, that student, in attempting to break free, inflicted what appears to have been a minor wound to Mr. Robinson's forearm. Mr. Robinson testified, without contradiction, that it appeared to him that the student did not intentionally stab him, but inflicted the wound accidently in the process of attempting to break free from his hold. On February 22, 1979, both Tammy and Tracy Jackson were reassigned from Miami Edison Middle School to Jan Mann Opportunity School North as a result of this incident. There is nothing in the record to indicate the procedures by which this assignment was accomplished. It is, however, clear that the students never attended Jan Mann Opportunity School North, but were instead held out of school by their mother. As a result, February 7, 1979, was the last day on which these students attended school during the 1978-79 school year. The incident which occurred on February 7, 1979, was the only incident of disruptive behavior in which Tracy and Tammy Jackson have been involved while enrolled in the Dade County Public Schools. The other students involved in the fight with them, however, had been suspended from school on several occasions for fighting and disrupting classes. There is no evidence in the record in this cause concerning Tracy and Tammy Jackson' grades from which any determination could be made that they have been unsuccessful in the normal school environment. Likewise, the record is devoid of any testimony regarding their lack of attendance in the regular school program. Although the students did not attend Jan Mann Opportunity School North after having been assigned to that facility, there appears no evidence of record concerning the programs available at that institution in which the students would have been enrolled had they chosen to attend. In addition, although there exists some testimony concerning a very commendable Dade County School Board policy against the possession of knives on campus at any school in Dade County, no such written policy was offered into evidence at this proceeding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That a final order be entered by the Dade County School Board reassigning the students, Tammy Terrell Jackson and Tracy Tashanna Jackson, to the regular school program in the Dade County School System. Recommended this 17th day of July, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mrs. Jerry D. Jackson 2340 NW 73rd Terrace, #12 Miami, Florida 33147 Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Ludwig J. Gross Executive Director Division of Student Services Dade County Public Schools 5975 East 7th Avenue Hialeah, Florida 33013 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 Michael Neimand, Esquire 3050 Biscayne Boulevard Miami Florida, 33137 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY CASE NOS. 79-709, 79-710 MRS. JERRY D. JACKSON, on behalf of minor child, TAMMY TERRELL JACKSON, Petitioner, vs. CASE NO. 79-709 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / MRS. JERRY D. JACKSON, on behalf of minor child, TRACY TASHANNA JACKSON, Petitioner, vs. CASE NO. 79-710 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting on August 22, 1979, upon the Hearing Officer's findings of fact, conclusions of law, and recommended order, recommending that Tammy Terrell Jackson and Tracy Tashanna Jackson be reassigned to the regular school program in the Dade County school system. IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that the Hearing Officer's findings of fact, conclusions of law and recommended order are adopted with the following modifications: 1. The Hearing Officer's Conclusions of Law are modified by deleting paragraph 7 and substituting the following therefor: 7. F.A.C. Section 6A-1.994 provides: "6A-1.994 Educational alternative programs. Definition. Educational alternative programs are programs designed to meet the needs of students who are disruptive, dis- interested, or unsuccessful in a normal school environment. The educational alter- native may occur either within the school system or in another agency authorized by the school board. Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) or more of the criteria prescribed below as deter- mined by grades, achievement test scores, referrals for suspension or other discipli- nary action, and rate of absences. (a) Disruptive. A student who: Displays persistent behavior which inter- feres with the student's own learning or the educational process of others and requires attention and assistance beyond that which the traditional program can provide; or Displays consistent behavior resulting in frequent conflicts of a disruptive nature while the student is under the jurisdiction of the school either in or out of the class- room; or Displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population." (emphasis supplied) 8. The petitioners have both displayed "dis- ruptive behavior which severely threatens the general welfare of the student or other members of the school population." Meeting this criteria is sufficient grounds for placement in an educational alternative program. Accordingly, they are properly, and in their own best interests, assigned to Jan Mann Opportunity School North. There is no evidence that this assignment is punitive rather than positive in nature. 2. The Hearing Officer's recommendation is, therefore, rejected, and the assignment of Tammy Terrell Jackson and Tracy Tashanna Jackson to Jan Mann Opportunity School North is affirmed. DONE AND ORDERED this 22nd day of August, 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By: Phyllis Miller, Chairman
Findings Of Fact At all times material hereto, Respondent held Florida Teaching Certificate No. 390436, Provisional Graduate, Rank III, valid through June 30, 1981, covering the areas of Sociology, English, History and Social Studies. On or about October 19, 1978, Respondent while acting within the scope of his employment as a teacher at Robert E. Lee Junior High School in Dade County, Florida, was observed to seize a student, Rodney Canull, by his hair and right arm, lift the student off the ground, and throw the student repeatedly onto a concrete ramp. As soon as the student was able to extricate himself from Respondent, he fled the scene of the altercation. However, later the same day, Respondent was again observed in a confrontation with this same student, in which Respondent had twisted the student's arm behind his back, and the student was doubled over in pain with his head below his knees. On or about April 24, 1978, Respondent was involved in a physical confrontation with another student, Carla Brinson, at Robert E. Lee Junior High School. The confrontation between Ms. Brinson and Respondent occurred in the course of Respondent's attempt to discipline the student. When Respondent requested that the student turn around so that he could administer corporal punishment, she refused. Upon the student's refusal, the Respondent threw her to the floor. The student got up from the floor, and struck Respondent with her fist, whereupon Respondent struck the student in the face with his fist. The student then ran out the front door of the classroom in which the confrontation had occurred, and was pursued by Respondent, who began to strike the student with his belt. Both Respondent and the student ended up on the ground in front of the portable classroom where Respondent again struck the student in the forehead with the heel of his open hand. When another teacher attempted to intervene in the confrontation, he was pushed aside and Respondent continued to strike the student with his belt. On or about May 11, 1977, Respondent was involved in a physical confrontation with a student at Madison Junior High School in Dade County, Florida, named Wesley G. Frater. In the course of Respondent inquiring as to whether the student belonged in a particular room, the student referred to Respondent as "man", whereupon Respondent began shoving the student into a row of standing metal lockers, approximately 25 in number, and then lifted the student upside down from the ground and dropped him onto a concrete floor. On or about May 20, 1977, Respondent was involved in a physical confrontation at Madison Junior High School with a student named Vincent Johnson. Some dispute of an undetermined nature occurred between the student and the Respondent, after which the student attempted to flee from Respondent. Respondent chased the student down in the school parking lot, and threw the student against a parked truck. Respondent then threw the student to the ground, picked him up and attempted to transport him to the principal's office. Once in the corridor of the school building, Respondent picked the student up and repeatedly threw him to the floor. Other teachers at the school, after hearing a disturbance in the hallway, intervened to separate Respondent and the student. As previously indicated in this Recommended Order, Respondent neither appeared in person nor offered any evidence for inclusion in the record in this proceeding through his counsel. As a result, the record in this proceeding contains no explanation or justification for Respondent's conduct. However, it is clear from the record that Respondent's conduct, as outlined above, worked to create an atmosphere of fear among his students, thereby seriously reducing his effectiveness as a teacher.
The Issue The consolidated cases present two issues for resolution. For both Respondents, Erica Adams-Brown and Joe Nathan King, the issue presented is whether they should remain suspended without pay pending the disposition of criminal charges that are disqualifying offenses under Section 1012.315, Florida Statutes. The second issue, relating only to Respondent Joe Nathan King, is whether there is just cause for his suspension without pay for five days based upon allegations of misconduct.
Findings Of Fact Petitioner, Escambia County School Board, is a duly-constituted school board charged with the duties of operating, controlling, and supervising all free public schools within the School District of Escambia County, Florida. Petitioner has the authority to discipline employees pursuant to Subsection 1012.22(1)(f), Florida Statutes. Petitioner has implemented the Ethics in Education Act (the "Act"), as passed by the Florida Legislature effective July 1, 2008. Under the Act, multiple enumerated offenses constitute "disqualifying offenses" from employment in a position requiring contact with students. Among the disqualifying offenses is the offense of battery when the victim is a minor. Petitioner has implemented the Act by suspending without pay, instructional personnel who are charged with disqualifying criminal offenses under Section 1012.315, Florida Statutes. While that provision does not disqualify a teacher unless convicted or found to have committed the criminal offense, Petitioner finds it appropriate to suspend teachers without pay pending the final disposition of disqualifying criminal charges. Petitioner does not suspend teachers with pay pending the disposition of criminal charges because of the inability to recover compensation paid for services not provided in the event the teacher is convicted or found to have committed the offense. Petitioner does provide full restoration of back pay and benefits in the event teachers who are suspended without pay pending the disposition of criminal charges are exonerated of those charges. When a teacher is accused of striking a student, both the Department of Children and Family Services, as well as the school resource officer are informed. If a criminal investigation is warranted, a school resource officer from another school conducts the investigation in order to avoid a conflict of interest. Respondent Joe Nathan King has been employed as a teacher with Petitioner since 1974. At all times material to this proceeding, Mr. King taught mathematics classes under a professional services contract at Woodham Middle School and coached basketball. Mr. King was charged with striking a student and causing injuries. The Superintendent of Schools recommended to Petitioner that Mr. King be suspended without pay for five days. Between sixth and seventh period classes on March 16, 2009, Mr. King was on hall-duty, as was usual. Based upon a surveillance camera (employing two frames per second intervals rather than continuous video) mounted in the hallway, a student, later identified as A.D. (the student's initials will be used to protect the student's identity) was seen to have struck Mr. King from behind, causing his eyeglasses to fall from his head and scatter down the hall by the lockers. After being struck from behind by A.D., Mr. King testified that he reflexively reached back and grabbed A.D. to prevent further contact and to restrain him. Mr. King also appeared to push A.D. away from him. Once A.D. was restrained and the situation defused, Mr. King told A.D. to go to class. A.D. complied. Four different teachers witnessed at least part of the confrontation between Mr. King and A.D. Ms. Christy Wilcox was in the hallway about 10-15 feet away from Mr. King. She described in a statement that she saw Mr. King strike A.D. about the head and neck. She did not see the original altercation that led to Mr. King striking A.D. Ms. Whitney Meadows, a teacher, also witnessed the March 16 event. She saw two boys run out of Ms. Read's room and run into Mr. King, knocking his glasses off. She then saw an altercation involving pushing and shoving. Ms. Mary Catherine Coyle is another teacher who witnessed the March 16 event. She was standing at the doorway of Ms. Read's and Ms. Meadows' classroom. She witnessed a student striking Mr. King from behind. She saw Mr. King turn around and strike the student with his left hand. Ms. Denisha Read, a teacher, also witnessed the events of March 16. She heard Mr. King make a comment about his glasses. She heard a student say words to the effect of "it was not me." She saw Mr. King strike the student near the shoulder area with a "closed fist." She described the student as being "very upset." She tried to calm the student who was crying. She reported the matter to the principal. The video images from the camera that recorded the incident, are consistent with a composite version of the four teacher witnesses to the event. Mr. King appears to have been struck from behind by a young student, identified as A.D., knocking his eyeglasses to the floor. Mr. King then acted reflexively to defend himself and first pushed A.D. away, then grabbed him by the arm and had words with him. A.D. then went into Ms. Read's classroom, his seventh period class. After the incident, A.D. left Ms. Read's classroom and was seen standing alone in the video by the student lockers. Ms. Read took him a tissue because he was crying, then went to report the matter to the principal. The video tape offered into evidence does not show Mr. King striking A.D. with either an open or a closed fist. Mr. King appears to be pushing A.D. away from him after the contact that knocked his glasses off his head. Mr. King had been subject to a written reprimand in 1993 for slapping a student, which he denied at the time. No other evidence of disciplinary action taken by Petitioner against Mr. King during the course of his teaching career was offered at hearing. Mr. King acknowledged that he was arrested on March 24, 2009, and charged with a criminal offense of battery on a minor pursuant to Subsection 784.03(1)(a), Florida Statutes, and that the charge remained pending at the time of the hearing on October 5 and 6, 2009. He did not have a date for its resolution at the time of the hearing. Mr. King was suspended without pay on June 22, 2009. He was still under suspension without pay at the time of the hearing in October. Mr. King testified that he got along reasonably well with the teachers who testified that he struck a student. He was not aware of any reason why the teachers would testify untruthfully regarding his actions on March 16, 2009. At all times material to this proceeding, Respondent Erica Adams-Brown taught reading classes under a professional services contract at Woodham Middle School. Ms. Adams-Brown was accused of striking student J.M. and causing injuries after her seventh period class on April 3, 2009, the day before the start of spring break. On April 3, 2009, the principal of Woodham Middle School, Marsha Higgins, was called at home and notified of allegations that Ms. Adams-Brown had struck a student. Ms. Higgins returned to school and met with the parents of the child who was allegedly struck. A pre-disciplinary meeting was held with Ms. Adams- Brown in attendance. Petitioner investigated the matter along with Ms. Higgins and concluded sufficient evidence did not exist to discipline Ms. Adams-Brown. She was authorized to return to the classroom with pay pending Petitioner's investigation on April 7, 2009. However, Ms. Adams-Brown was contacted at home during spring break and was informed she would not be allowed to return to her classroom to teach after the break, but would be reassigned with pay. Ms. Adams-Brown was informed of a proposed disciplinary action by Petitioner on April 23, 2009. Petitioner concluded its investigation on April 29, 2009, and found the allegations of battery on a student to be unfounded. On April 30, 2009, Ms. Adams-Brown was arrested and charged with battery on a minor pursuant to Subsection 784.03(1)(a), Florida Statutes. Ms. Higgins played no role in Ms. Adams-Brown being charged with a crime by the Office of the State Attorney. Ms. Adams-Brown was reassigned with pay on that date pending the outcome of the law enforcement investigation and criminal charges. Ms. Adams-Brown was suspended without pay pending disposition of the criminal charges on July 22, 2009. Ms. Adams-Brown remained under suspension without pay as of the date of the hearing. She did not know when the criminal matter would be resolved. Ms. Adams-Brown believed that Mr. King's and her suspensions were racially motivated. She and several other teachers, including a teachers' union representative met with Assistant School Superintendent Dr. Alan Scott on April 29, 2009, to discuss these allegations of racial discrimination. The testimony at hearing concerning the substance of the April 29, 2009, meeting with School District officials did not support a claim of racial discrimination or disparate treatment as the basis for Petitioner's role in the incidents involving Mr. King and Ms. Adams-Brown. Petitioner has consistently implemented its policy of suspending teachers without pay pending the disposition of criminal charges. No exceptions have been made. Of the six teachers identified by Dr. Scott who were suspended by Petitioner since July 21, 2008, on the basis of pending criminal charges for disqualifying offenses, all were suspended without pay. Concerning the issue of race, three of those suspended were white and three were African-American. Ms. Adams-Brown testified she was not aware of other teachers who were charged with disqualifying criminal offenses who were not suspended without pay pending the disposition of those charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board enter a final order affirming the suspension without pay of Respondents pending the disposition of disqualifying criminal charges, and the suspension without pay of Respondent, Joe Nathan King, for five days for engaging in misconduct, including striking a student. DONE AND ENTERED this 18th day of December, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 December, 2009. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Longoria, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Christine C. Hardin, Esquire 3 West Garden Street, Suite 204 Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Malcolm Thomas, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502
The Issue Whether Respondent should be dismissed from her employment with the Dade County School System for alleged incompetency, insubordination, and willful neglect of duty, pursuant to Section 231.36(6), Florida Statutes. Respondent is a teacher on continuing contract status at Charles R. Drew Elementary School, Miami, Florida, where she has been employed by Petitioner since 1963. On March 10, 1978, she was advised by Petitioner's Assistant Superintendent for Personnel that charges of incompetency, insubordination, and willful neglect of duty had been brought against her by her Principal, Frederick Morley, which would be presented to the Superintendent for his recommendation to the School Board of Dade County. By letter of March, 1970, Respondent was advised that the Superintendent would recommend her suspension and subsequent dismissal from the Dade County Public Schools to the Dade County School board. By letter of March 23, 1978, she was provided official notification that the School Board had suspended her on March 22, 1978, and that her dismissal would be recommended to the Board on April 12 if she did not request a hearing within ten days. She did so on March 28, and on May 8, she was provided with a Notice of Charges consisting of seventeen separate charges alleging grounds for dismissal. At the hearing, Petitioner withdrew Charge 3, 5, 6, 12 and 15.
Findings Of Fact During the 1976-77 school year, Respondent was employed as a teacher of the fifth grade at Charles R. Drew Elementary School, Miami, Florida. The Principal of the school was Frederick A. Morley. On or about October 8, 1976, the Respondent failed to pick up the children of her class at the end of their physical education period. Although Respondent admitted that she was not at the designated place on time, she could not recall why she had been delayed on that particular date. (Testimony of Respondent, Morley) At the beginning of the 1976-77 school year at Charles R. Drew Elementary School, Principal Morley distributed an "Opening of School Bulletin" to all faculty members at a meeting which was attended by Respondent. This bulletin contained school policy on student discipline and corporal punishment. It provided that if such punishment became necessary, the teacher must consult with the principal or his designee prior to its use, and that one of those individuals would determine the necessity for corporal punishment and the time, place and person to administer the same. The policy statement further included the requirement that a third party adult must be present at the time the punishment was administered. Specifications to the size of the wood "instrument" for administering such punishment were set forth in the written policy as well as other guidelines as to the amount of maximum punishment, notification of parents, and the like. (Testimony of Morley, Petitioner's Exhibit 1) On November 1, 1976, Morley saw Cynthia Blue, one of Respondent's fifth grade students, crying in the hall. She informed him that Respondent had paddled her in the classroom. Respondent admitted to him that she had administered punishment to the student and he reminded her of the school policy concerning consultation with him or his designee prior to any such action. He confirmed this admonition with a written note on the same day. Respondent conceded at the hearing that, although she could not recall the incident, it was possible that she gave the student a "lick." She further testified that Cynthia Blue was an unruly student who broke rules with impunity. (Testimony of Morley, Respondent, Petitioner's Exhibit 4) Morley had a conference with Respondent on November 8, 1976, and reminded her at that time that she was obliged to follow the school guidelines on paddling students in the future. At this conference, Respondent conceded that she had not followed the school policy in this regard. However, on three separate occasions thereafter, Respondent again physically punished students without obtaining permission of the Principal or his designee. On November 17, 1976, and on January 18, 1977, she paddled students Monica Morrison and Eddie Byrd in the classroom. On both occasions, she admitted doing so to Morley and he again reminded her by written notes of her failure to follow proper procedures. (Testimony of Morley, Petitioner's Exhibits 2-3) Approximately a year later, on January 9, 1978, Respondent advised Morley that she wished to bring her student, Laurena Butler, to his office for corporal punishment. Apparently, when she arrived with the student, Morley was not there and Respondent therefore asked a nearby aide of one of the school officials to come into Morley's office and witness the spanking. Respondent then took Butler into the Principal's office and paddled her once after first missing her entirely and knocking a wooden tray off the desk and damaging it slightly. (Testimony of Morley, Respondent, Petitioner's Exhibit 5) Respondent's explanation at the hearing for her unauthorized administration of corporal punishment was that Morley was "wishy-washy" on the subject of student discipline and would never authorize her to paddle a student, or do so himself. She claimed that 75 percent of the other teachers paddled much more frequently than she, and that none of them understood the punishment policy of the school. On the one hand, she believed that she could punish a child if a third party was present, but she also testified that she understood the guidelines that required the Principal or his designee to authorize punishment. Respondent's testimony in the above regard was partially refuted by the testimony of her former students. One stated that on two occasions when he was sent to Morley for punishment by Respondent, he was paddled. Another student stated that he had been sent by other teachers to the Principal's office and been paddled about four times. These students had never seen Respondent paddle anyone, but had seen other teachers do so. They testified that she had "bad kids" in her class who made trouble by getting into fights, throwing erasers, and the like. Respondent testified that one of her problems was that she did not have the strength to paddle a child effectively and that they would laugh at her when she attempted to do so. However, she claimed that in telephone conversations with Parents of the students, she learned that they desired that their children be disciplined at school. She further stated that Morley had observed over the years that her discipline efforts were not of the best so he placed her successively in the second, fourth, fifth, and sixth grades. She believed that this made her task more difficult by having to deal with the older children. A former principal of Drew Elementary School testified that Respondent had had difficulty as a disciplinarian, as most teachers did, but that she was more effective in that regard than some of the teachers, except in instances of paddling where she had difficulty and generally produced unsatisfactory results. (Testimony of Respondent, Ford, Jones, Trimmings, Hooks). On or about September 27, 1977, a student threw a cookie box and struck Respondent while she was writing at the blackboard. The next day school security personnel questioned her on whether she had scratched the student in the altercation. She mistakenly assumed that she, rather than the student, was being investigated and became upset when discussing the matter with Morley on the day after the incident. During the course of the conversation, she uttered a vulgar word in his presence. (Testimony of Respondent, Morley, Hooks) Respondent admitted at the hearing that on or about September 28, 1977, she permitted her sixth grade class to go to their art class unsupervised. Although she did not precisely recall the incident, she theorized that it was possible that she had walked them part of the way and then gone to the school office and let them proceed alone the remaining 100 feet to the classroom. (Testimony of Respondent) On October 6, 1977, while Respondent was out of her classroom her students were noisy and disruptive, thus interfering with instruction in an adjoining classroom. Although Respondent did not recall the specific incident at the hearing, she surmised that she had been out of the room for legitimate reasons and normally would have appointed a student monitor to take charge. (Testimony of Green, Respondent.) On January 19, 1978, Respondent was informed by one of her students that the class was supposed to attend a special program in the auditorium. Respondent took the class to the cafeteria where such programs took place and found the door locked. Respondent went to the school office to ascertain whether or not a program was to take place. During this time the children were left unsupervized for several minutes and became noisy and ran in the halls. While Respondent was gone, Morley arrived and restored order. He sent for Respondent and upon her arrival asked her about the matter. Respondent, in a loud voice, said "If you would paddle these children, this wouldn't happen," shaking her finger in front of his face. A number of faculty members were present at the time. (Testimony of Respondent, Morley, Knight, Jones) Teachers are required to prepare weekly lesson plans for each subject. Those on continuing contract, such as the Respondent, are called upon to turn them in to the office several times a year without prior notice. On one occasion during the 1977-78 school year, Respondent failed to turn in her lesson plans on time. Respondent testified that she customarily prepared such plans, but on the occasion in question, had simply been late in preparing them due to the fact that she had given priority to the preparation of report cards. (Testimony of Reich, Respondent) On March 13, 1978, the aunt of one of Respondent's students, Cynthia Blue, asked Respondent if she could see the "progress folder" containing homework papers of her niece. Respondent was in the process of taking the class roll at the time and therefore did not act immediately upon the request. Cynthia's aunt thereupon summoned Morley to the classroom. Morley had told Respondent earlier that day that her class had been quiet during the preceding week when a substitute teacher was present during Respondent's absence. Respondent assumed that the children had been paddled by the substitute to insure their good behavior. Therefore, on March 13, when Morley came to the classroom regarding the question of the child's homework folder, Respondent inquired of the class if they had been paddled during the previous week. They were quiet for a moment, then burst into laughter. Respondent and one of her students testified that Morley joined in the laughter, but he denied the same. In any event, Respondent felt that she was being ridiculed and, having previously received notice that she was to be suspended on March 22, she informed Morley that she was leaving the classroom. In spite of Morley's request that she remain, Respondent departed from the school and did not return thereafter. Although approximately six school days remained prior to the effective date of her suspension of March 22, Respondent made no effort to request administrative leave of absence from School Board officials. (Testimony of Lawrence, Morley, Respondent, Trimmigs) During the period 1971-77, Respondent had satisfactory ratings on her annual evaluation forms for maintaining good discipline except for the 1971-72 school year and the 1976-77 school year, at which times they were 3.0 and 2.0 respectively, out of a maximum rating of 5.0. As found heretofore, Respondent's prior Principal had indicated that Respondent was unable to physically punish students satisfactorily, but that her overall discipline efforts over the years were similar to that of other teachers. The prior Principal was also of the opinion that Respondent was well-trained and could produce results in the classroom. (Testimony of Ford, Petitioner's Composite Exhibit 7, Respondent's Composite Exhibit 1) Respondent attributed her difficulties at the school to the existence of a personality conflict with Principal Morley and her feeling that he had singled her out for adherence to standards that he did not require of other teachers. She had requested a transfer approximately a year ago, but it was denied. Morley denied any special treatment of Respondent and the evidence fails to reveal actions on his part that were not precipitated initially by Respondent. (Testimony of Respondent, Morley)
Recommendation It is recommended that Respondent be reinstated without payment of back salary for the period of her suspension and that she be transferred to an appropriate instructional position in another school within the Dade County School System. It is further recommended that Respondent be issued a letter of reprimand by the School Board of Dade County for the established derelictions set forth in the foregoing conclusions of law and that she be admonished therein concerning a repetition of such conduct. DONE and ENTERED this 26th day of October, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael R. Friend, Esquire 44 West Flagler Street, Penthouse Miami, Florida 33130 Elizabeth du Fresne, Esquire 1782 One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 Phyllis O. Douglas Assistant School Board Attorney Lindsey Hopkins Building 1210 Northeast 2nd Avenue Miami, Florida 33132 =================================================================
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges and, if so, whether such conduct constitutes just cause to dismiss her from her teaching position, as further alleged in the Notice of Specific Charges.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Arch Creek Elementary School (Arch Creek)), and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Dr. Marie Bazile was the principal of Arch Creek. Respondent has been employed as a teacher by the School Board since 2005. She presently holds a professional services contract with the School Board. Respondent taught at Arch Creek for parts of the 2008- 2009, 2009-2010, and 2010-2011 school years, initially as a third grade teacher (during the first couple of weeks of the 2008-2009 school year) and then as a kindergarten teacher. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.A.1. of Article XXI provides that "the [School] Board and [UTD] recognize the principle of progressive discipline," that they "agree that disciplinary action may be consistent with the concept of progressive discipline when the [School] Board deems it appropriate," and that "the degree of discipline shall be reasonably related to the seriousness of the offense." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " Parental Complaints During the 2009-2010 school year, several parents complained to Principal Bazile about Respondent's allowing the students in her kindergarten class to "run[] in the street" at dismissal time.3 As a result of receiving these complaints, Principal Bazile "wrote [Respondent] up" and went over with Respondent the dismissal procedures that all classroom teachers at Arch Creek were expected to follow.4 FAIR Training Also during the 2009-2010 school year, when asked to participate in mandatory FAIR (Florida Assessments for Instruction in Reading) training given by Arch Creek's reading coach, Respondent initially did not acquiesce, but, rather, indicated she first wanted to contact UTD to find out if she could be made to take this training notwithstanding that she would not be receiving any "master plan points" for her time and effort. After her inquiry was answered in the affirmative by the UTD representative with whom she spoke, she willingly underwent the training. Bathroom Incident On November 18, 2010, shortly before the school day was to begin, one of Respondent's fellow kindergarten teachers at Arch Creek, Nancy Kurre, called in sick. There was insufficient time to locate a substitute teacher to cover Ms. Kurre's class, so the students in her class were reassigned to other kindergarten classes for the day. Marie Beaubien, Arch Creek's kindergarten/first grade "chair," made the reassignments. Among the reassigned students was F., a boy with behavioral issues who had difficulty remaining in his seat and would constantly wander off, frequently to the bathroom, without Ms. Kurre's permission. F. was reassigned to Respondent's class, much to the displeasure of Respondent, who felt that she was ill-prepared to accommodate F., whom she knew to be a "difficult child," in her classroom. F. was escorted to Respondent's classroom by Socra Antenor, the school secretary. From the outset, F. was a disruptive influence in the classroom. At around 8:30 a.m., Ms. Beaubien went to the school office to look for F. after having been told by another kindergarten teacher that F. was not in Respondent's classroom, where he was supposed to be. In fact, although Respondent had decided to remove F. from her classroom and to take him to the office because she did not "want to deal with [him]" and his disruptive behavior, she had not yet done so as a result of her having been preoccupied with other matters, which diverted her attention away from F. Ms. Antenor was in the office when Ms. Beaubien came by. She told Ms. Beaubien that F. was not there and that he should still be in Respondent's classroom. Ms. Beaubien then went to Respondent's classroom. Ms. Antenor followed closely behind her. When Ms. Beaubien got to Respondent's classroom, she asked Respondent if F. was there. Although F. was not where Respondent had last seen him, nor anywhere else in the instructional space of the classroom, Respondent was confident that he had not exited the classroom. She assumed, given what she knew of F.'s behavioral history in school, that F. had wandered into the classroom's bathroom when her attention was directed elsewhere. It turned out her assumption was correct. When she and Ms. Beaubien went to the bathroom and the door was opened, F. was inside. As F. walked out of the bathroom, Ms. Beaubien took him by the hand and brought him to the school office. Ms. Beaubien erroneously thought that she had heard Respondent admit to having "locked" F. in the bathroom. In fact, not only had Respondent not made such a statement, there was no way she could have locked F. in the bathroom inasmuch as the bathroom door could not be locked from the outside. Nonetheless, Ms. Beaubien reported to Principal Bazile that the statement had been made. The School Board's Civil Investigative Unit (CIU) was thereafter notified and a CIU personnel investigation was begun (Bathroom Incident Investigation). A CIU investigative report, containing the following findings, was subsequently prepared, and it received final approval on December 15, 2010: Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, and there is PROBABLE CAUSE. Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.213, Code of Ethics, and there is PROBABLE CAUSE. Outdoor Lunch Detention Incident December 8, 2010, was an unseasonably cold day in the Miami-Dade County area, but that did not deter at least three of Arch Creek's teachers--Respondent, Edouard St. Hilaire, and Paul Fabre--from eating their lunch, at around 10:15 a.m. that day, at tables (with benches) in the outdoor patio area just outside the school cafeteria. Mr. Hilaire, who was wearing a jacket, and Mr. Fabre, who was wearing a blazer, were together at the same table, while Respondent, who was wearing a sweater and pants, was seated several tables away.5 With Respondent was a student of hers who was serving a lunch detention she had meted out. The student had on layers of clothing, including a sweat suit top (worn as an outer garment) that (at least to Mr. Fabre, from his vantage point6) looked like a blouse,7 under which were shirts of some kind.8 Both Mr. Hilaire and Mr. Fabre believed that it was too cold for the student to be eating outdoors, and they so advised Respondent and suggested to her that she send the student inside, back into the cafeteria. To allay her colleagues' concerns, Respondent followed their suggestion, notwithstanding her belief (which has not been shown to be unreasonable) that their concerns were unfounded and that the student was indeed dressed warmly enough to be outside.9 Mr. St. Hilaire reported the incident to Principal Bazile because he thought that Respondent had done something that was "not proper." The CIU was thereafter notified and a CIU personnel investigation was begun (Lunch Detention Incident Investigation). A CIU investigative report, containing the following findings, was subsequently prepared, and it received final approval on January 12, 2011: Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, and there is PROBABLE CAUSE. Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.213, Code of Ethics, and there is PROBABLE CAUSE. False 911 Call Paul Greenfield is a Region Administrative Director with the School Board. On the Friday before the start of the 2010-2011 school year winter recess, Mr. Greenfield met with Respondent at the School Board's regional office in Hialeah to formally notify her of the Lunch Detention Incident Investigation and to have her sign paperwork that would enable her to get paid during the winter recess. Respondent was in a foul mood at the time of the meeting. She was already upset that, despite her sincere protestations of innocence, the Bathroom Incident Investigation had resulted in findings of probable cause. Being informed by Mr. Greenfield that she was the subject of another CIU personnel investigation did nothing to improve Respondent's mood. Rather, it made her even more upset and prompted her to tell Mr. Greenfield that she did not feel well and wanted to leave. Mr. Greenfield responded by requesting that Respondent stay so that she could fill out paperwork that would "facilitate [her] getting paid." Respondent, in a very agitated tone of voice, expressed her unwillingness to comply with Mr. Greenfield's request. Mr. Greenfield then said to her, "Ms. Higgs, if you would just wait a few more minutes, but it's certainly up to you. I'm not going to hold you." Respondent's reaction was to call 911 on her cell phone and falsely report that she was being held against her will by her employer at the Hialeah regional office, knowing full well that this was not true and that, as Mr. Greenfield had made clear to her, she was free to leave if she so chose. Indeed, immediately after placing the call, Respondent did walk away from Mr. Greenfield. She did not go very far, however. After turning the corner in the hallway, she wound up on the hallway floor. Fire rescue personnel were summoned to the scene. They examined Respondent. Finding that Respondent did not need any further medical attention, they cleared her to leave. Respondent then left the building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Miami-Dade County School Board issue a final order finding that there is "just cause" to suspend or dismiss Respondent on, and only on, the charge, made in Counts II and III of the Notice of Specific Charges, that in December 2010, she violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213 by making a 911 call falsely claiming that she was being held against her will at the at School Board's regional office in Hialeah, and, based on such finding, suspending her, without pay, until the end of the regular 2011- 2012 school year. DONE AND ENTERED this 18th day of November, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2011.
Findings Of Fact Federal narcotics agents of the Drug Enforcement Administration made arrangements with the respondent to purchase five pounds of cocaine from him. The respondent promised to deliver one pound of cocaine at his residence located at 10850 SW 24th Street, Miami, Florida, on May 3, 1977. On that date, special agents Mazilli and Carew placed respondent under arrest after he turned over to them at his residence a quantity of a white powdery substance. A "field test" of the substance was made by placing some of the material into a small vial of acid which caused it to turn purple, thus indicating that it was cocaine. Carew searched the person of the respondent incident to the arrest and found a single shot, .22 caliber revolver, a .22 caliber derringer pistol, a knife and $3,380 in cash. While the agents were at respondent's residence, a phone call was received from a person identifying himself as "Carlos," who advised that he could deliver the other four pounds of cocaine. An agent requested that he do so and, sometime after midnight, two individuals arrived in front of the residence and were thereafter arrested. Approximately two pounds of a white powdery substance contained in a plastic bag was found in the trunk of the automobile. A search of the premises resulted in the seizure of other firearms, a large quantity of marijuana, other plastic bags containing a white powdered substance, and a large number of capsules and variously colored pills. The sum of $5,000 cash U.S. currency was found in a brief case. All of these items were seized by the narcotics agents and the suspected drugs were turned over to a forensic chemist for analysis and identification. The laboratory report revealed that the 510.5 grams of material turned over to the agents by respondent consisted of 42 percent pure cocaine hydrochloride and the 1,079.8 grams seized from the automobile was 100 percent pure cocaine hydrochloride. The items seized during the search of the house proved to be cocaine hydrochloride, marijuana, and various other drugs. (Testimony of Carew, Petitioner's Composite Exhibit 1) Respondent was hired as a teacher with the Dade County public school system in August, 1970, and, in May, 1977, was employed as a teacher at the W.R. Thomas Junior High School under continuing contract. The Assistant Superintendent of Schools, Personnel Division, is of the opinion that if the charges against the respondent are established, such conduct would be grossly immoral and sufficiently notorious to bring the individual and the education profession into public disrespect. (Testimony of Moore.) Respondent was suspended without pay from his position as a teacher by the Dade County superintendent of schools on August 8, 1977, pursuant to Section 230.33(7)(h), Florida Statutes. Respondent thereafter requested a hearing on his suspension and his request was referred to the Division of Administrative Hearings by the Dade County Public School Board on August 24, 1977. Specific charges were filed by the Board against the respondent on October 10, 1977. On July 29, 1977, the Professional Practices Council, Department Of Education, State of Florida, filed a petition for the revocation of respondent's teaching certificate, pursuant to direction of the State Commissioner of Education. Respondent thereafter requested that the matter be heard before a Hearing Officer of the Division of Administrative Hearings. The two cases were consolidated for hearing purposes by order of the Hearing Officer on October 31, 1977.
Recommendation That the respondent Jere L. Hough be dismissed from his employment with the Dade County school system. DONE and ENTERED this 12th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire Dade County Public Schools 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth J. du Fresne, Esquire Suite 208 1809 Brickell Avenue Miami, Florida 33129
