Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
The Issue The issue is whether the allegations contained in the Second Amended Administrative Complaint filed by Petitioner are true, and if so, what discipline should be imposed.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She first worked as a teacher at Gladys Morse Elementary School. When Morse closed she was transferred to Taylor Elementary School, a new school. She continued teaching at Taylor Elementary School until January 19, 2005. Her employment was pursuant to a professional services contract. Dr. Whalen holds Florida Educator's Certificate No. 530568. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or who have a physical handicap. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities she is also County Coordinator for the Special Olympics. The Commissioner of Education is the chief educational officer of the state and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. The State Board of Education's mission includes the provision of certification requirements for all school-based personnel. The Education Practices Commission is appointed by the State Board of Education and has the authority to discipline teachers. Nonviolent Crisis Intervention Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crisis Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction- Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention when possible. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, an adult who lies upon a child could prevent a child from breathing. CPI holds are not to be used for punishment. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. The alleged chain incident Ms. Amanda Colleen Fuquay taught with Dr. Whalen when both of them were teachers at Gladys Morse Elementary School. Ms. Fuquay, like Dr. Whalen, taught exceptional children. Ms. Fuquay's first teaching job after receipt of her bachelor's degree was at Morse Elementary School. At the time Ms. Fuquay began teaching, Dr. Whalen was also a teacher at Morse. The record does not reveal when Ms. Fuqua initially began teaching at Morse, but it was after 1997 and before August 2002, when Morse Elementary merged into the new Taylor Elementary School. During Ms. Fuqua's first year of teaching she entered Dr. Whalen's class. She testified that upon entry she observed a male student chained to a chair at his desk. The chain may have been about the size of a dog choker. She said that the chain ran through the student's belt loop and around the chair. Ms. Fuqua said that she inquired of Dr. Whalen as to the reason for the chain and she replied, in perhaps a joking way, that the student wouldn't sit down. The evidence does not reveal when this occurred or even in what year it occurred. The evidence does not reveal the name of the alleged victim. The evidence does not reveal the victim's response to being chained to the chair. The evidence does not reveal whether Dr. Whalen chained the child or if someone else chained the child or if it just appeared that the child was chained. Robin Whiddon was Dr. Whalen's aide for school years 1998-99, 1999-2000, and 2000-2001, and she testified at the hearing. She did not mention this incident. Ms. Fuqua could not discern if this was a serious matter or whether it was some sort of a joke. She said, "I didn't have a clue." Ms. Fuqua failed to report this incident because she was new to teaching and she had not, "learned the ropes." Dr. Whalen denied under oath that she had ever chained a student to a chair, and specifically denied that she had done it in 1999, which is within the time frame that Ms. Fuqua could have observed this. Moreover, she specifically denied having chains in her classroom. The Commissioner has the burden of proving the facts in this case, as will be discussed in detail below, by clear and convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some sort that appeared to be positioned in such a manner as to restrain the unidentified student. However, the lack of any corroborating evidence, the paucity of details, and the denial of wrong-doing by Dr. Whalen prevents a finding, by clear and convincing evidence, of maltreatment. The alleged incident involving S.A. On August 13, 1998, at Morse, Ms. Kriedler was called by Dr. Whalen to her class. When Ms. Kriedler entered the class she observed Dr. Whalen holding S.A.'s arms to his desk with her right hand and holding the hair of his head by her left hand. She stated to Ms. Kriedler that, "If he moves a quarter of an inch, I'm going to rip the hair out of his head." Dr. Whalen also related that S.A. had kicked her. Dr. Whalen also said to S.A., in the presence of Ms. Kriedler, "Go ahead and kick me because I can't feel it." This referred to her handicap. By this time S.A. was motionless. After a discussion with Ms. Kriedler, Dr. Whalen released S.A. and Ms. Kriedler took him to her classroom. Subsequently, Ms. Kriedler requested that he be transferred to her class and that request was granted. Ms. Kriedler reported this incident to Shona Murphy, the Taylor County School District Exceptional Student Education Administrator. Ms. Murphy stated that Ms. Kriedler reported to her that that S.A. was flailing about and kicking when Dr. Whalen threatened to pull his hair. Robin Whiddon was Dr. Whalen's aide on August 13, 1998. She recalls S.A. and described him as a troubled young man who was full of anger. He would sometimes come to school appearing disheveled. He had blond hair that was usually short. Ms. Whiddon has observed him lash out at others with his hands. Ms. Whiddon was not present in the classroom when the incident described by Ms. Kriedler occurred. However, upon her return to the classroom, Dr. Whalen informed her that she had grabbed S.A. by the hair until she could control him. Ms. Murphy discussed the incident with Principal Izell Montgomery and Superintendent Oscar Howard in late August 1998. As a result of the discussions, these officials decided to video-tape Dr. Whalen's classroom, and to take no other action. Dr. Whalen denied under oath that she grabbed S.A.'s hair. Despite Dr. Whalen's assertion to the contrary and upon consideration of all of the evidence, it has been proven by clear and convincing evidence that Dr. Whalen grabbed and held S.A.'s hair and threatened to pull it out. Grabbing a student's hair is not an approved CPI hold. However, at the time this occurred Dr. Whalen was not required to use CPI methods. Grabbing a student's hair is generally unacceptable conduct unless, for instance, it is done in self- defense, or in order to protect the student or others. It has been not been proven by clear and convincing evidence that grabbing S.A.'s hair was impermissible. Dr. Whalen told Ms. Kriedler that S.A. had been kicking her. This statement raises the possibility that the action was initiated as a self-defense measure. When one considers that Dr. Whalen has limited mobility, and that her aide was not present, she was permitted to take reasonable actions to defend herself. Grabbing a student's hair may have been reasonable under the circumstances and, in the event, the record does not provide enough evidence to permit a determination. The video-tape of November 20, 2002 A video-tape, that included audio, and which was made part of the record of the case, portrays events on the morning of November 20, 2002. The video-tape was brought to the attention of the school administration by a parent who had received the video-tape from Dr. Whalen. The picture quality of the video is satisfactory but the audio is derived from a microphone near Dr. Whalen's desk. Therefore, it is clear that the microphone did not record all of the words spoken in the classroom at the time and date pertinent. Accordingly, facts found as a result of viewing the video-tape are limited to those which are clearly depicted by it. The School Board had discussed the wearing of apparel with representations of the Confederate battle flag on them in a meeting immediately prior to November 20, 2002. Early in the morning of November 20, 2002, there was a discussion with regard to the School Board deliberations among some of Dr. Whalen's students. The discussion came close to degenerating into physical conflict. This was reported to Dr. Whalen's aide, Ruth Ann Austin. It was further reported that some students called some of their fellow students "rebels," and others called other students "Yankees" and "gangsters." Assistant Principal Verges visited the classroom at the beginning of the school day, at Dr. Whalen's request, and he explained the matters discussed at the School Board meeting. Upon the departure of Assistant Principal Verges, Dr. Whalen unleashed a torrent of criticism upon her students addressing the subject of name-calling. Dr. Whalen spoke to the students in a loud and threatening tone of voice. While delivering this tirade, Dr. Whalen traveled to and fro in her motorized wheelchair. The video-tape revealed that this wheelchair was capable of rapid movement and that it was highly maneuverable. The lecture was delivered in a wholly confrontational and offensive manner. The lecture continued for more than 30 minutes. This behavior was the opposite of the de-escalating behavior that is suggested by CPI. However, Dr. Whalen had never been directed to employ CPI. S.O. was a student in Dr. Whalen's class and was present on November 20, 2002. He was a student of the Caucasian race who had, prior to this date, displayed aggressive and violent behavior toward Assistant Principal Verges and toward Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff described him, charitably, as "non-compliant." S.O. was quick to curse and had in the past, directed racial slurs to Ms. Austin, who is an African-American. Because of his propensity to kick those to whom his anger was directed, his parents had been requested to ensure that he wear soft shoes while attending school. On November 20, 2002, S.O. was wearing cowboy boots and a Dixie Outfitters shirt with the Confederate battle flag emblazoned upon the front. Subsequent to Dr. Whalen's tirade, S.O. slid out of his chair onto the carpeted floor of the classroom. Dr. Whalen instructed him to get back in his chair, and when he did not, she tried to force him into the chair. She threatened S.O. by saying, "Do you want to do the floor thing?" When S.O., slid out of his chair again, Dr. Whalen forcibly removed S.O.'s jacket. Thereafter, Ms. Austin approached S.O. Ms. Austin is a large woman. Ms. Austin removed S.O.'s watch and yanked S.O.'s boots from his feet and threw them behind his chair. Dr. Whalen drove her wheelchair into the back of S.O.'s chair with substantial violence. Thereafter, Ms. Austin removed S.O. from the classroom. Removing S.O.'s jacket, watch, and boots was acceptable under the circumstances because they could have been used as weapons. The act of driving the wheelchair into the back of S.O.'s chair, however, was unnecessary and unhelpful. A memorandum of counseling was presented to Dr. Whalen by Principal Ivey on December 2, 2002, which addressed her behavior as portrayed by the video-tape. The S.O. and C.C. incidents Reports from time to time were made to Assistant Principal Verges, and others, that Dr. Whalen engaged in an activity commonly referred to as "kissing the carpet." This referred to physically taking children down to the floor and sitting on them. During April 2003, Dr. Whalen reported to Assistant Principal Verges and Ms. Kriedler that she had recently put two students on the carpet. During the four years Mr. Verges was Dr. Whalen's Assistant Principal, Dr. Whalen reported a total of only about four instances of having to physically restrain students. Dr. Whalen has never told Mr. Verges that she has regularly restrained children on the floor. Dr. Whalen's agent for using physical restraint is her aide, Ms. Austin, because Dr. Whalen's handicap does not permit her to easily engage in physical restraint. Ms. Austin physically restrained children five or six or seven times during the four years she was Dr. Whalen's aide. On four occasions a child actually went to the floor while being restrained by Ms. Austin. One of the two students who were reported to have been physically restrained during the April 2003, time frame was S.M. During this time frame S.M. became a new student in Dr. Whalen's class. S.M. was unhappy about being placed in a "slow" class. It was Ms. Austin's practice to meet Dr. Whalen's students when they exited the school bus in the morning. Accordingly, she met S.M., the new student. S.M. was "mouthy" when she exited the bus and would not get in line with the other children. S.M. and the rest of the children were taken to the lunch room in order to procure breakfast. While there, S.M. obtained a tray containing peaches and other food and threw the contents to the floor. Ms. Austin instructed S.M. to clean up the mess she made. S.M. responded by pushing Ms. Austin twice, and thereafter Ms. Austin put S.M. in a basket hold. S.M. struggled and they both fell on the floor. Ms. Austin called for assistance and someone named "Herb" arrived. Herb put a basket hold on S.M. while Ms. Austin tried to remove S.M.'s boots because S.M. was kicking her. S.M. was almost as tall as Ms. Austin and was very strong. At the end of the day, Ms. Austin was trying to "beat the rush" and to get her students on the school bus early. She was standing in the door to the classroom attempting to get her students to form a line. She and Dr. Whalen had planned for S.M., and another student, with whom she had engaged in an ongoing disagreement, to remain seated while the rest of their classmates got on the bus. While the line was being formed, S.M. and her fellow student had been directed to sit still. Instead, S.M. rose, said that she was not going to wait, and tried to push by Ms. Austin. Ms. Austin responded by asking her to sit down. S.M. said she would not sit down and pushed Ms. Austin yet again. Ms. Austin tried to restrain her and told the other students to get to the bus as best as they could because she was struggling with S.M. and was having substantial difficulty in restraining her. Ms. Austin asked for help. She and S.M. fell to the floor. S.M. was on the carpet. Dr. Whalen slid from her wheelchair and attempted to restrain the top part of S.M.'s body. Ms. Austin held the bottom part of her body and attempted to remove her boots with which S.M. was kicking. S.M. was cursing, screaming, and otherwise demonstrating her anger. Dr. Whalen talked to her until she calmed down. They then released S.M. The actions taken by Ms. Austin and Dr. Whalen were appropriate responses to S.M.'s behavior. The S.M. affair precipitated the C.C. incident. C.C. was a large male student who had no history of violence. C.C. teased S.M. about having been "taken down" by Ms. Austin. C.C., teasingly, told Ms. Austin, that he did not think Ms. Austin could take him down. Ms. Austin said she could put him in a basket hold which she did. C.C. challenged Ms. Austin to put him on the floor and she did. This was considered a joke by C.C. and Ms. Austin. This incident was nothing more than horseplay. As the result of the comments made by Dr. Whalen, addressing the S.M. and C.C. incidents, to Ms. Kriedler and to Assistant Principal Verges, a memorandum issued dated April 7, 2003. It was signed by Principal Sylvia Ivey. The memorandum recited that Dr. Whalen's comments raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video-taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The J.R. incident On January 19, 2005, J.R. was a student in Dr. Whalen's classroom. On that date, J.R. was a ten-year-old female and in the third grade. J.R. had been a student in Dr. Whalen's classroom only since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student on an occasion when he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered it and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen, who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her on the back. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical, parallel, and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has many years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed Julia's back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten on the playground under the circumstances described in this report. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks could be consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or would like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding of the origin of the marks on J.R.'s back. Because proof by clear and convincing evidence is required in this case, it is not found that Dr. Whalen bit J.R. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is clear that for many months Dr. Whalen's classroom was video-taped and until the November 20, 2003, incident, none of her actions caused attention to be drawn to her teaching methods. It is found that the assault on Dr. Whalen was sudden and unexpected. Any actions taken by Dr. Whalen were taken in permissible self-defense. J.R. was suspended from Taylor Elementary School for ten days following this incident. Miscellaneous Findings Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. From approximately 1997, when the S.A. hair pulling allegedly occurred, until December 2, 2002, not a single document was created indicating dissatisfaction with Dr. Whalen's teaching methods. Dr. Whalen's normal voice volume is louder than average. She would often elevate her already loud voice, intimidate students and pound on her desk. The aforementioned activities are not part of CPI. On the other hand, these methods worked for Dr. Whalen for 20 years. She was not required to use CPI until subsequent to the memorandum of April 7, 2003. There is no evidence that she failed to use CPI once she was required to employ it. As revealed by the testimony of Dr. Whalen, Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and others, some of these children would strike, kick, bite, throw objects, curse, and hurl racial epithets at their teachers. Teaching some of these children was difficult.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of Counts 3 and 4, that she be issued a reprimand, that she be placed on probation as that term is defined in Florida Administrative Code Rule 6B-11.008, for a period of one year. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level. Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto). Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year. Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings. During the 1979-80 school year the normal work day at Palmetto was 7:20 a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day. Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class. On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness. Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto. Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport. Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto. Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress. Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking. Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting. On June 9, 1980, Respondent failed to report for work until 8:15 a.m., 45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness. On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication. Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980- School Year The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable. That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments. In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers. For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week. Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety. Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance. The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued. Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m. On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation. On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback. Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student confusion would be avoided, and a more stimulating and organized presentation achieved. On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982. On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so. Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness. Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself. The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying. In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature." On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency. Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment. Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive. Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office. Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence. Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed. Respondent had simply taken a copy of the placement test and written "French I Final" on it. Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught. Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes. Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized. Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books. On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student. On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas: Accuracy and completeness of required record keeping. Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m. Compliance with district, area, and school level directives and policies. Improved classroom management procedures to insure the following: Classroom organized and neat; Attendance and tardy procedures enforced. Seating charts available and up-to-date. Rules and procedures consistently applied. Teacher-student relationships resulting in mutual respect. Consistent classroom performance resulting in continuous acceptable ratings. Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement. The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years. The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons. Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose. Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons. Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language. Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year. At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist. Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual. Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders. By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them. By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management. Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools." Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year. The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself. Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance. While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years. It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion. Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy. At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That: Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years. DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida. WILLIAM J. KENDRICK 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 2nd day of May, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire The Law Building Suite 204 315 Third Street West Palm Beach, Florida 33401 Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde, Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301
Findings Of Fact Respondent in this proceeding is Lloyd Wright. At all times pertinent to these proceedings, he was a social studies teacher employed by the St. Lucie County School District on a professional contract status and assigned to Westwood High School. He holds Florida Teaching Certificate No. 395537. On February 17, 1987, Respondent was suspended from his duties as a teacher for the school district. After an administrative hearing on issues relative to his employment, final order dismissing Respondent from his employment was issued by the school district on September 8, 1987. James Andrews is the principal of Westwood High School. Andrews has known Respondent as a friend, and as a member of the teaching staff at the school, for many years. On February 4, 1987, Andrews was at home with his ill son. His secretary telephoned him regarding allegations being voiced against Respondent by a female student. That student's allegations, and statements of other students alleged to be witnesses, were reduced to writing at Andrews' instruction and reviewed by him upon his return to the office on February 5, 1987. That evening he met with the complaining student, Tenecia Poitier, and her father. He assured them that the matter would be taken up with his superiors. On the morning of February 11, 1987, Andrews brought the allegations to the attention of the school district's Director of Secondary Education during a visit by the director to the Westwood Campus. That afternoon, the director telephoned Andrews and requested that additional statements be obtained from the students. Pursuant to those instructions, Andrews met with the students who had given the previous statements and instructed them to provide the additional statements to him. He forwarded these statements to the district school board office. Andrews has been the principal at Westwood High School for seven and a half years. He holds a master's degree in guidance and counseling and has completed course work in the areas of administration and supervision in excess of 30 academic credit hours. He has served in the educational system for approximately 35 years. Service in the positions of classroom teacher, guidance counselor, assistant principal and principal are included in the scope of his experience. Andrews regularly instructed the staff at the school to refrain from using slang in the classroom, becoming familiar with students or putting their hands on students unless necessary to prevent injury to a student or others. This admonishment by the principal was applicable to all students without regard to race or sex. He does not think it appropriate for a teacher to use the word "fuck" or the phrase "I am going to fuck your brains out" in the classroom. Andrews also finds the use of the phrases "Girl, I want that thing" and "Girl, I'm going to take you to the bushes" inappropriate for a male teacher to use in conversation with a female student. He would not want a male teacher who touched female students intentionally on the buttocks or thighs, or used such words or phrases in the classroom, on his teaching staff. Tenecia Poitier graduated from Westwood High School in 1988. In the 1986-87 school year, she was a student in Respondent's World History class. On one occasion, Respondent pushed Poitier against the wall of the classroom with other students present and told her "One of these days, I'm going to fuck your brains out." Once, when she was going to the school cafeteria, Respondent told her "Girl, I want that thing." Respondent touched Poitier on the leg and buttocks on other occasions and made suggestive statements to her. In response, Poitier rejected Respondent's advances by cursing him and, on one occasion, striking him. Another incident occurred when Respondent seated himself in front of Poitier's desk and propped his feet on her desk in a crossed fashion. The result of Respondent adopting this seating posture meant that Poitier had to look between Respondent's legs when she looked up from her desk work. Poitier got out of her desk, struck Respondent with her notebook, cursed him and told him to get his legs off her desk. Poitier did not observe Respondent engage in this seating conduct with other students. JoAnna McGee was a ninth grade student when she had Respondent as her teacher for World History. Respondent saw McGee walking down the street one day. He sounded his automobile horn at her. Later, when he saw her in the classroom, he told her that if he saw her walking on the street again he would take her "in the bushes." Respondent hugged McGee and other female students on occasion. Tony Lee was a student in Respondent's World History class, along with Poitier. Lee was aware of Respondent's joking and bantering with students. Female students would congregate around Respondent's desk when these sessions occurred. On one of these occasions, female students laughingly said they needed some candy to suck, and Lee heard Respondent reply "I've got something to suck on right here." Lee also heard Respondent make the statement "fuck your brains out" during an exchange with students. Lee overheard Respondent using the phrase "pull your clothes down" in a conversation with Poitier. Lisa Frazier was also a classmate of Poitier during the World History class taught by Respondent. She observed Poitier curse Respondent and strike him with her notebook. Frazier also testified that Poitier had a reputation for disruptive behavior and that Respondent used slang language with students. Respondent admitted using slang expressions, including the phrases "take you to the bushes" and "take you to the woods," in classroom settings with female students. Respondent admitted to a practice of hugging male and female students. Respondent also testified that he never told Poitier that he wanted to "F--- her brains out." When confronted with his sworn testimony from a previous proceeding that he did not recall making the statement, Respondent explained that his previous answer was made upon advice of his counsel at that time. Respondent's denial in this proceeding that he never made such a statement to Poitier, along with his testimony that hugging of students was an unintentional result of previous coaching experience, is not credited in view of his demeanor while testifying. Further, his testimony that his use of the phrases "take you to the bushes" or "take you to the woods" resulted from a film observed in the class and were meaningless slang terms devoid of sexual innuendo, is not credible. Also, the testimony of students Lee and McGee corroborates Poitier's version of Respondent's behavior and further discredits Respondent's testimony, including his explanation that Poitier's complaint against him resulted from Respondent writing up Poitier for academic and disciplinary reasons. Other students were also written up as often as Poitier.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate. DONE AND ENTERED this 28th day of November, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of November, 1988. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed Findings 1.-2. Addressed. Unnecessary to result reached. 4.-12. Addressed. 13. Unnecessary to result. 14.-15. Adopted in substance. 16. Unnecessary to result reached. 17.-21. Addressed. 22.-24. Unnecessary to result reached. Addressed in part, remainder unnecessary to result. Unnecessary to result reached. 27.-28. Addressed. 29.-30. Adopted in substance. 31. Unnecessary to result reached. 32.-33. Addressed. 34.-35. Unnecessary to result reached. Addressed. Rejected as a conclusion of law. Respondent's Proposed Findings 1.-2. Addressed. 3.-6. Unnecessary to result reached. 7.-8. Cumulative, subordinate and unnecessary to result. 9.-13. Unnecessary to result reached. 14. Addressed. 15.-17. Unnecessary to result reached. Rejected as cumulative. Rejected, contrary to weight of the evidence. Rejected as a conclusion of law. Rejected, not supported by weight of the evidence. Unnecessary to result reached. Addressed in substance. 24.-25. Unnecessary to result reached. 26.-27. Addressed in substance. 28. Unnecessary to result. 29.-30. Addressed. COPIES FURNISHED: Betty J. Steffens, Esquire Post Office Box 11008 Tallahassee, Florida 32302 Lorene C. Powell, Esquire 208 West Pensacola St. Tallahassee, Florida 32301 Sydney H. McKenzie, Esquire. General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Hon. Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
Findings Of Fact At all times pertinent to the issues herein, Respondent, Glover E. Jones, was licensed as a teacher in the State of Florida holding certificate number 556798, covering the area of mathematics, and was employed by the Madison County School Board as an adjunct instructor at Madison County High School, Madison, Florida. The uncontroverted facts in this case show that Pamela Ann Hale, the alleged recipient of the remarks in question here, was born on August 28, 1969. As of the date of the hearing, she was living with her mother in Live Oak, Florida, attending the 10th grade at Suwannee High School there. At the time of the alleged incident here, she was living with her father in Madison and attended Madison County High School. Her mother and father are divorced. While attending Madison County High School, Hale had the Respondent as her math teacher during the third period of the school day during the month of September 1984, at the beginning of the 1984-1985 school year. She did not have him for any other subjects nor did she know him prior to the beginning of the school year. This class was made up of students who required extra assistance and consisted of approximately 15 to 16 students in remedial math. On the day in question, Hale was selling candy during the class period to raise money for a school organization. She sold candy not only to her fellow students but also to the Respondent. At this point the stories told by Ms. Hale and by the Respondent begin to diverge. Ms. Hale contends that when she approached Jones on the date in question to buy candy he advised her to come back after class and she could sell him some. She contends, also, that she came back after the other students left even though she had another class (health) to attend, sat down at a student desk, and Respondent sat down facing her approximately three or four feet away. It is at this point that, she says, he asked her simple questions about herself and her family. When she answered, he then allegedly asked her if she had ever "fucked" a black man before. He allegedly told her she looked sexy that day. She says he asked her if she noticed that he "had a hard on" and touched himself in the genital area, asking her if she thought she could handle that. At no time, however, did Respondent ever touch the witness. She says he asked her if she had ever "fucked" anyone while someone else was in the room. She replied that she had not. He allegedly asked her if she had a boyfriend and when she said she did, he is alleged to have responded, "I'll bet you fuck him because he's not black." This conversation went on until about 10 or 15 minutes before the fourth period was over. As was stated previously, the witness had health the fourth period and cut the class because, as she tells it, Respondent asked her to stay. While she was in the room with Jones alone, a Mr. Alexander, also a math teacher, entered, along with two other students. While in the room, Alexander asked Respondent if the witness was having any trouble with her work to which Respondent replied that she was, but indicated he would take care of it. Alexander verifies this with the exception that according to his testimony, when he came into the room, Respondent was seated at his desk writing a note and Hale was standing in front of him. This is not a significant difference. After Alexander left, Respondent asked the witness several questions about her siblings including her sister who formerly went to Madison High, but who quit when she had difficulty with some black students the previous year. He asked her if she was going to go to the ball game the following Thursday and, when she replied that she was, she says he suggested that perhaps they could get together that night. Ms. Hale contends she was amazed that Respondent talked to her in this fashion but she also contends she did not leave because she was afraid of him, though he made no threats, either verbal or physical, toward her and made no effort to prevent her from leaving. She also made no comment to Alexander when he and the other students came into the room even though these suggestive statements had already been made. She finally terminated the conversation toward the end of the fourth period by stating she had to go to her next class. Before she left, she asked Respondent for a note, which he gave her and asked her not to repeat the conversation they had had. During fifth period, Hale had lunch scheduled and during lunch with Loretta Sealy, she related in general terms, to Sealy, what had happened. After lunch, she went to the remainder of her classes and went home but even that night, she failed to tell her father of the incident because she was afraid he might do something as a result of his hot temper. Sealy indicates that when she first saw Hale after the incident, when Hale came into the ladies' room, she appeared nervous, upset, and near tears. She said that Respondent had said things which upset her--in essence propositioning her. At first, Hale did not want to report the incident because she felt nobody would believe her. However, Sealy finally convinced her to do so and the two girls went to see the assistant principal, Ms. Miller, two days after the incident took place. Hale told Ms. Miller what had happened and signed the first of several written statements which was prepared for her signature by Miller based on the report given. Later on, she agreed to take a polygraph examination regarding her story. No evidence was presented as to whether the exam was given or not. Ms. Hale attended class with the Respondent during the several days between the time of the alleged incident and the report to Ms. Miller, but once the story came into the open, she was removed from his class. She talked with Miller rather than the principal because she had known Ms. Miller from her prior school. The fact that she did not talk with the principal had nothing to do with the fact that he is black. Respondent's version of the story differs from that of Hale in that he contends that at the end of the class period on the day in question, Hale asked him if she could stay after class. He contends that her remaining had nothing to do with buying candy because he bought candy from her when she came to class. He also claims that she did her homework during this fourth period when she and he were the only people in the room. While she was working, he was behind his desk and she was sitting at a student desk off to his left. Respondent contends that it was Hale who made the first non-business statement by asking him if she could go smoke. He told her that she could not since smoking was not allowed on campus. She responded that another teacher, Mr. Hendrix, had allowed her to smoke in the school building and then went on to indicate that she had "messed" with guys in their twenties when she was twelve. This statement, which came immediately after the comments about Mr. Hendrix and smoking, shocked him. The only reason he did not ask her to leave was because she appeared to have a problem and he thought he might be able to help her. During the course of the conversation she indicated that some blacks had attacked her sister the previous year on campus which had caused her sister to leave school and that, in general, all black students at Madison High were wild. Though Ms. Hale, in her testimony, indicated that when asked by Respondent if she had ever fucked a black man, she responded by asking him if he'd ever fucked a white woman, Respondent denies that Hale ever asked him this question nor did she mention drugs to him in any fashion. He denies making any of the comments attributed to him by Hale or any of the suggestive movements she claimed he made, though in the letter he submitted to the principal the morning after being confronted by the accusations against him, denials were not so strong or so widespread. In fact, in that written statement, he commented, "I'm not saying that the statement made is totally wrong, but there are two things that trouble me most about it." He then goes on to list these two troublesome areas as the statement makes it appear as though he is the culprit and that some things in it are either false or turned around. He then goes on to list the several things Hale is supposed to have said to him that were not included in her statement, such as her sexual activity and her obvious antipathy toward black men. When Hale finally went to see Miller, she appeared to be quite upset though she was not crying. She was somewhat reluctant to talk to Ms. Miller until finally Miller released Sealy to go back to class and after Sealy left, Hale told Miller her entire story. Once Hale had completed her version of the story, Miller asked her to wait and went to talk with the principal who returned to the office with her to talk with Hale. After discussing with the resource officer how to take a statement, Miller returned to the office and took a detailed statement from Hale a second time in the form suggested to her and had it signed by Hale and notarized. Later that morning, Ms. Miller, the principal, Mr. Yanessy, the resource officer, and Mr. Buchanan called Respondent into the principal's office and showed him a copy of Hale's signed statement. Respondent read it, handed it back, and said that the statement was not "exactly" true--that Hale had twisted a lot of things around. He contended that in reality it was Hale who asked a lot of the questions, not him, and that he would do anything to clear his name. Respondent contended he had no interest in either Hale or any other young girl. At this point the investigating group advised him that they would talk with him later and take a statement from him. About two hours later they did meet again and at this time, Respondent repeated his comments made earlier in the day to the extent that while a conversation took place, it did not happen as Hale said it did. At this point, though the school officials wanted to take Respondent's statement, Respondent did not want to speak on the record then. The following morning he gave the principal the letter which was referred to above. Based on an evaluation of the testimony of Ms. Hale, Ms. Sealy, the Respondent, and Ms. Miller, all of which bears on the credibility of the Respondent vis-a-vis his accuser, it becomes clear, and it is so found, that a conversation did take place in the classroom during the fourth period on September 10, 1984, between Respondent and Ms. Hale when the two of them were the only persons in the room. It most likely will never be determined exactly as to who said what to whom. There is no doubt, however, that the Respondent permitted a student who he knew had a class to attend, to remain in his classroom with him at the expense of her absence from that succeeding class. Though Respondent advised Mr. Alexander that he was helping Hale with her school work, there is no other evidence that he did so. Ms. Hale contends he did not and he admits he did not stating only that she did her homework while in the room with him. Whatever the conversation was, it is clear that it was sexually oriented and Respondent used extremely poor judgment in allowing the situation to develop as far as it did. The evidence establishes that Ms. Hale's background is not without cloud. At the age of sixteen she is admittedly sexually experienced and has experimented with various controlled substances such as marijuana and cocaine. Ms. Miller indicated that her academic background was marginal--that while she can do her work and can be an average student, she has, nonetheless, failed. The nature of her testimony on the stand was not so clear as to give a certain picture as to what happened. It is most likely that Ms. Hale herself does not recall the incident with certainty. What is clear is that aside from her discussion with Ms. Sealy over lunch, she failed to make any complaint to anyone with authority to do something about it until several days after the incident took place and then only upon the urging of her friend. In substance then, it is obvious that the truth no doubt lies somewhere between the two stories. When Respondent found out that Ms. Hale had no legitimate reason to be in his classroom, he allowed her to remain and engaged in a conversation with her that should not have taken place. While the exact words are in question, the subject matter is not. It was sexually oriented and the parties were a twenty-five-year-old male teacher and a fifteen- year-old female student. His judgment in allowing that to happen is abysmal and his professionalism in that instance was nonexistent especially in light of the fact that he was warned twice at the beginning of his employment with the school system by his principal, to be very careful of his conduct in dealing with female students. Mr. Ray, the principal, indicates that if the allegations against the Respondent are true, it would seriously reduce his effectiveness as a classroom teacher because of the need for a teacher to observe the strictest propriety in his relationships with students. Such conduct as alleged here would undoubtedly be harmful to the learning process and would create an embarrassment to the student. If the allegations are true he would not want Respondent back working for him. In his opinion, for a situation such as this, if established, there are no less drastic remedies than termination. He believes that there is no place in Madison County for a teacher guilty of these allegations and in addition to termination, revocation of the teaching certificate would be appropriate. On the other hand, if it were to be established that the allegation was not true, then Respondent's effectiveness would not be diminished and the credibility of the student would be damaged. However, in his experience it is very unusual for female students to make sexual advances toward teachers. While it could occur, in his opinion it is not likely and over the 19 years he has been in education, it has never happened to him. Mr. Buchanan, who has been in place as Superintendent of Schools in Madison County for over 8 years, is familiar with the allegations in this case and Respondent's denial. His analysis of the case resulted in his recommendation that the School Board suspend the Respondent from his teaching position and in addition, he reported Respondent to the Education Practices Commission. He took this step because he felt an obligation to report substandard conduct of an educator. Assuming that the allegations are true, in his view, the effectiveness of the Respondent is reduced because in a case like this the teacher loses credibility with his students. He feels that if true, Respondent's conduct would be harmful to the learning process and embarrassing to the student and would have an adverse impact on the relationship between the parents and the school system. Viewing the evidence in its totality and weighing the credibility of all witnesses, as alluded to before, it becomes clear that a one on one conversation took place between the Respondent and Ms. Hale. It is most likely that Respondent did not prompt the conversation and did not request that Ms. Hale remain after class. To the contrary, it would appear that she requested to remain after class. No doubt improper comments were made by both Ms. Hale and the Respondent and it makes no difference whether Ms. Hale or the Respondent initiated the colloquy. It is quite clear that subject matter improper for a conversation between a student and a teacher of opposite sexes, involving sexually suggestive comments took place and that both Respondent and Ms. Hale used language of this nature.
The Issue Whether Petitioner established, pursuant to section 1012.33(1)(a), Florida Statutes (2014),1/ that Respondent, Susan Steverson (Respondent), committed gross insubordination and should have been disciplined therefore.
Findings Of Fact The School Board is responsible for the public education of students in grades pre-K through 12 in Holmes County, Florida. The School Board is also responsible for the hiring, firing, and overseeing all employees within the Holmes County School District (District). The District has a total of approximately 3,250 students enrolled and employs just under 475 persons. Mr. Eddie Dixon is the Superintendent of School for the Holmes County School District. He was elected as Superintendent in 2012. As Superintendent, Mr. Dixon is responsible for the management of district employees and regularly makes recommendations to the School Board regarding the suspension, discipline, or termination of such employees. The District is comprised of seven traditional schools and one alternative school. One of the traditional schools within the District is Bethlehem School, a Pre-K through 12 school. Approximately 500 students are enrolled at Bethlehem School, which has roughly 55 faculty and staff members. Brent Jones is the current principal of Bethlehem School and was principal during the 2014-15 school year. Rosanne Mitchell is the current assistant principal of Bethlehem School and was assistant principal during the 2014-15 school year. At all relevant times to these proceedings, Respondent has been employed by the School Board as a classroom teacher. Respondent was employed at Bethlehem School for over 28 years. Respondent met Superintendent Dixon shortly after he became superintendent. Superintendent Dixon removed Zeb Brown as principal of Bethlehem School in the middle of the 2012-13 school year, around December of 2012. Respondent, along with a number of teachers, disagreed with the decision and voiced her concerns. According to Respondent, Superintendent Dixon was dismissive of those concerns. Respondent also disagreed with a policy change that took place at Bethlehem school after Principal Brown was removed during the tenure of an interim principal, Principal Thompson. The policy had to do with pre-approved permission forms for student activities. Before the change, teachers could decline to sign the form if a student was not performing or behaving well in class. After the change, teachers no longer had veto power over the forms. They were told that they were to sign the forms, even before the student received it. During the 2014-2015 school year, while Respondent was employed as a classroom teacher at Bethlehem School, Principal Jones received reports that Respondent was leaving students outside of her locked classroom during instructional time. The standard policy that had been put in place at Bethlehem School at the time required that after classes began, classroom doors were to be locked from the inside, requiring late-arriving students to knock on the door to gain entrance. During the fall of 2014, Respondent became "fed up" with the situation, especially during her first period, because late- arriving students interrupted her class. Therefore, she told her students that, after Thanksgiving break, if a student was tardy, they were to knock on the door only once, and that she would open the door when there was a convenient break. According to Respondent, the strategy worked well, and students were never left outside for more than a minute or two. On December 11, 2014, while taking attendance during her first period, a student knocked on her door, and Respondent called out "Just a minute." In less than a minute, she opened the door but no one was there. Shortly thereafter, there was an intercom announcement that there was a late bus and to please allow students in the classrooms. The announcement was followed by a phone call to Respondent in her classroom from the receptionist who had made the announcement, who asked Respondent to allow students in her classroom. That phone call was followed by another from Principal Jones, who asked Respondent why she was locking students out. While Respondent was explaining, the phone call was interrupted by another knock on the door by a late-arriving student. The next day, Friday, December 12, 2014, Principal Jones and Assistant Principal Mitchell met with Respondent during her planning period. During the meeting, Principal Jones told Respondent that they were not running a military-styled school and instructed Respondent to stop leaving students locked outside of her classroom. Principal Jones also gave Respondent instructions regarding the handling of student tardies, acceptance of late work, and the accommodations for ESE students. Regarding leaving students locked outside, Principal Jones told Respondent that she needed to keep her door locked and suggested that she have a student open the door when a late student knocks. Respondent advised Principal Jones that it disrupts educational time, but that she would open the door. On the issue of tardies, Principal Jones explained that the administration's hands were tied because Holmes County had not adopted an attendance policy. In fact, Bethlehem School did not differentiate between excused or unexcused tardies. Some of the teachers at Bethlehem School, including Respondent, had stopped filling out referrals for tardies because they had been told by the school administration that they were not going to be counted. Prior to the meeting, Respondent had a policy of not accepting late work in an effort to promote students’ personal responsibility and fairness to other students. Respondent told Principal Jones that her policy of not accepting late work had been effective. Nevertheless, Principal Jones instructed Respondent to accept late work. He also instructed her to allow students who came unprepared to leave the classroom to get their materials if it was just outside the room in their locker. Principal Jones also mentioned that Respondent needed to make accommodations for ESE students with Individual Education Plans so that those students could succeed and pass. Respondent advised Principal Jones that if the student does nothing, she would not give them a passing grade. Respondent became visibly upset during the meeting, which ended abruptly. The following Monday morning, December 15, 2014, Assistant Principal Mitchell and Principal Jones received reports that Respondent was reading a prepared statement about Principal Jones to her classes. Principal Jones reported the incident to Superintendent Dixon, who asked Principal Jones to obtain a copy of the statement which Respondent had read to the students. Thereafter, Principal Jones went to Respondent’s classroom and asked for a copy of the prepared statement. Respondent stated that she would have to talk to her lawyer. Principal Jones said, "Okay," and walked away. Petitioner did not receive a copy of the statement until many months later when it was produced as part of this proceeding. Later that day, Respondent was called down to the Bethlehem School office during her seventh period to meet with Superintendent Dixon. Respondent was accompanied by fellow teacher, Donna Mollet, at Respondent’s request. When they arrived, Superintendent Dixon handed Respondent a memo on Holmes County School Board stationary from the Superintendent to Respondent dated December 15, 2014, which stated: This is notification that you are suspended with pay from your regularly assigned duties pending the outcome of an investigation concerning gross insubordination of Principal Brent Jones with students at Bethlehem High School. Please be advised that this suspension does not constitute a disciplinary action. We will keep you apprised as the investigation continues; including written notification of the outcome once the investigation is concluded. You are to immediately leave school grounds and not return until further notice. The Superintendent asked Respondent to sign the letter, which she did. When she asked him what she had done, the Superintendent declined to discuss it further at that time and asked her to leave. Respondent was then accompanied to her classroom by Assistant Superintendent Goodman and Carmen Bush from the District office, where she gathered her personal belongings and left. Mr. Goodman and Ms. Bush told Respondent not to return to the school until notified. Principal Jones and Superintendent Dixon conducted an investigation, which included obtaining statements from students who witnessed her conduct. The witness statements indicated that Respondent had told her students that Principal Jones would not enforce her rules and that students might be better off taking an on-line, virtual class, rather than attending Bethlehem School. Following the investigation, the Superintendent determined that Respondent had been grossly insubordinate and had violated the School Board policy regarding Employee Communications. On December 17, 2014, Pam Cameron from the District office called Respondent and asked that she come to the District office the next day. When Respondent arrived at the District office on December 18, 2014, she met with Superintendent Dixon and Principal Jones. Principal Jones handed her a letter of reprimand (Letter of Reprimand) which he had signed, stating: This correspondence is a formal reprimand of your actions and behavior on Monday, December 15, 2014. Our investigation has found that you were grossly insubordinate. The gross insubordination includes reading the prepared statement to your classes and your refusal to provide a copy to me when I requested it. You have been found to be unprofessional and inappropriate in relation to this situation. Please know and understand by way of this correspondence that you are directed to refrain from such unprofessional actions and behaviors in the future. To violate this directive, any School Board Policy, State Statute, or any other School Board Rule can result in further disciplinary action. Please plan to attend the professional practices workshop that will be held during preschool next year. Further, State Board of Education Rule 6B- 1.001, FAC, Section (2) states the educator " . . . will seek to exercise the best professional judgment and integrity." Section (3) states "Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct." Respondent did not sign the bottom of Letter of Reprimand in the place for her acknowledgement. She did, however, read a statement to Superintendent Dixon and Principal Jones about her frustrations regarding lack of discipline and the attendance policy at Bethlehem School. In a letter addressed to Superintendent Dixon dated December 19, 2014, Respondent stated: This document is my response to my letter of reprimand that you issued on December 18, 2014, in your office. I refute the accusation of gross insubordination that you and Principal Jones have made against me. You both refused to give me specific examples of the alleged insubordination other than “reading the prepared statement to your classes and your refusal to provide a copy to me when I requested it.” Never at any time did you or Principal Jones ask me to tell you what I conveyed to my students. During the brief meeting of December 18, 2014, I explained that I told my students of changes in my classroom rules and that I divulged to students Principal Jones’s statements regarding those changes. Principal Jones said that I had undermined his authority. I fail to see that telling students exactly what Principal Jones said can be construed as undermining his authority or insubordination. Furthermore, the method of my suspension was, I firmly believe, meant to humiliate me in front of my students and colleagues. On Monday, December 15, 2014, Principal Jones called me into his office. Superintendent Dixon gave me the paper regarding my suspension from duties, refused to answer my questions regarding the charges, and told me to get my personal belongings and leave the campus immediately. That meant returning to my classroom of sixth graders—including my own child—and gathering my belongings to leave. My son kept asking what was wrong, why we were having to leave, etc. The emotional distress that you caused not only me, but my son in front of his peers, is unconscionable and unforgivable. I was escorted to my classroom by two county office personnel, Jim Goodman and Carmen Bush, and they followed from there to make sure that I left the building and the campus. I was treated as though I were some kind of desperate criminal, which I definitely resent. I contend that I am innocent of the charges and further contend that your handling of this situation has been conducted purposely to damage my reputation. Respondent wanted to challenge her suspension, but was told both in the letter of suspension, as well as by the Chairman of the School Board, that a suspension with pay is not “discipline” that can be challenged or for which there is a right to a hearing. After Respondent was suspended with pay, Principal Jones informed her that she could return to school from her suspension on January 5, 2015, the day that winter break was over. Shortly after her return, Respondent received a telephone call from a concerned parent because, prior to the winter break, Respondent had deducted points from an essay that the parent’s child had submitted to Respondent. The incident involving the student and the essay occurred during the week of December 8, 2014. In fact, the incident involving that student appears to have been one of the issues that Principal Jones discussed with Respondent on December 12, 2014. The student in question was one of Respondent’s first-period students. The essay was due Monday, December 8, 2014. The student was not in Respondent’s class that day, but Respondent saw the student at school later that same day. When she saw the student, she asked him if he had his essay to turn in and the student replied that he did not. The same thing happened on Tuesday, Wednesday, and Thursday of that week. Each of those days, the student was absent from Respondent’s first-period class, but was seen by Respondent later in the day. When asked by Respondent whether he had his essay, he responded that he did not. Then, on Friday, December 12, 2014, the student arrived very late to Respondent’s first-period class. When he arrived, he put his essay assignment on Respondent’s desk. Respondent told the student that she could not accept the assignment because it was late. He picked up the essay and sat down. Upon noticing that other students were working from their books, the student asked Respondent for permission to go get his book. Respondent refused. The student then left Respondent’s class without her permission. Later that same period, the student came back to Respondent’s class with a note from Principal Jones directing the student back to Respondent’s class. Respondent accepted the student back into her class as directed. Later, Respondent accepted the student’s late work as directed by Principal Jones, but she deducted points from the essay because it was late. When Respondent spoke to the parent of the student after winter break, it was agreed that the parent would come in for a parent-teacher conference to be held during Respondent’s seventh-period planning period on Wednesday, January 7, 2015. Respondent informed Assistant Principal Mitchell of the planned parent-teacher conference and asked her to attend. Principal Jones was also aware that Respondent was going to have the parent-teacher conference. The parent-teacher conference was held on January 7, 2015, with Respondent, the parent, and Assistant Principal Mitchell present in a conference room at Bethlehem School. At the beginning of the meeting, the parent apologized for his son leaving Respondent’s classroom without permission. The parent, however, wanted an explanation of why points had been deducted from his son’s essay. Respondent explained that the points were deducted because the paper was late. The parent was under the belief that his son had only been absent for three days and had not been tardy during the time period in question. Respondent advised the parent that her records showed that the student had been absent seven days and tardy 24 times within the nine-week period. The parent wanted to know why he had not been informed that his son had been tardy so many times. Respondent stated to the parent, “We don’t do much about tardies.” Respondent further explained that they had stopped using paper-based referrals after the first nine-week period. Assistant Principal Mitchell advised the parent that phone calls and letters are sent out to parents of students with excessive absences and tardies. Respondent did not disagree with Assistant Principal Mitchell, nor did Respondent question or criticize the school’s administration during the parent-teacher conference. At the parent’s request, the student joined the teacher-parent conference. The parent spoke to his son and then advised that there should be no more problems out of his son. Thereafter, the student left the conference. After the student left, the parent still wanted Respondent to remove the point deduction from his son’s essay. When Respondent advised that she would not do that, the parent suggested that, if she did not remove the deduction, he would just go to the School Board about it. Respondent said, “I guess you will just have to do that.” Assistant Principal Mitchell then suggested that she would like to speak with Principal Jones about the matter prior to the parent going to the School Board. The parent said that would be fine. Thereafter, Respondent then left the meeting. After Respondent had left, Assistant Principal Mitchell told the parent that she would contact him as soon as the matter had been resolved. The parent thanked Assistant Principal Mitchell and left. On Friday, January 9, 2015, Respondent met with Principal Jones. Lisa Matthews accompanied Respondent at Respondent’s request. During the meeting, Principal Jones told Respondent that she could not deduct points from the student’s essay discussed at the January 7, 2015, teacher-parent conference. When Respondent questioned why she should not be able to deduct points under the circumstances, Principal Jones explained that the student had turned in the paper the next time he was in class and that was good enough. Respondent did not refuse to comply with Principal Jones’ request and, in fact, Respondent complied by removing the point deduction from the student’s essay. Further, after discussing what occurred at the parent- teacher conference with Assistant Principal Mitchell, Principal Jones felt that Respondent’s conduct and statements were designed to undermine the administration of Bethlehem School. Therefore, he reported Respondent’s conduct to Superintendent Dixon, who then determined that there was just cause to suspend Respondent, without pay, for a period of five days. On January 9, 2015, Superintendent Dixon suspended Respondent, without pay, for a period of five days which commenced on Monday, January 12, 2015, and ended on Friday, January 16, 2015. That same day, January 9, 2015, Superintendent Dixon signed a document prepared on Holmes County School Board letterhead regarding Respondent’s suspension without pay. The document stated: Friday, January 9, 2015 Susan Steverson RE: SUSPENSION WITHOUT PAY Pursuant to School Policy 6.38, and Section 1012.33(6), Florida Statutes, Eddie Dixon, Superintendent of Schools for Holmes County School District, recommends that Mrs. Susan Steverson, be suspended without pay for a period of five (5) days from employment with the School Board. Mrs. Steverson has engaged in conduct that constitutes grounds for suspension without pay for a period of five (5) days. The grounds for suspension include, but are not limited to being grossly insubordinate of Principal Brent Jones in a parent meeting after having been reprimanded prior to this school year and violating School Board rules to the extent that disciplinary action is required. The foregoing conduct by Mrs. Steverson constitutes grounds for suspension without pay for a period of five(5) days, in violation of School Board Policy 6.38(III)(B), and (F). Mrs. Steverson’s behavior also violates Department of Education Rules, including but not limited to: Rule 6A-10.080 and Rule 6B-5.056, FAC, and other applicable Florida Law. Accordingly, Mrs. Steverson will be suspended from employment for a period of five (5) days beginning Monday, January 12, 2015 at 7:30 a.m. and ending Friday, January 16, 2015 at 3:00 p.m. During this suspension, Mrs. Steverson will not be allowed on any School Board property. Please know and understand that you are directed to refrain from such unprofessional actions and behaviors in the future. Further, State Board of Education Rule 6B- 1.001, FAC, Section (2) states the educator “ . . . will seek to exercise the best professional judgment and integrity.” Section (3) states “Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.” Subsequently, Superintendent Dixon presented the suspension to the School Board at its next meeting and recommended that the suspension be upheld. The School Board voted on January 20, 2015, to approve the suspension without pay. On January 27, 2015, a Notice of Charges against Respondent in this case was signed by Superintendent Dixon. The Notice of Charges states: NOTICE OF CHARGES Pursuant to Section 1012.33(6), Florida Statutes, Eddie Dixon, Superintendent of Schools for the Holmes County School District, recommended that Mrs. Susan Steverson ("Mrs. Steverson"), be suspended without pay for a period of five (5) days by the School Board. Mrs. Steverson has engaged in conduct that constitutes "just cause" for her suspension without pay. The grounds for suspension include, but are not limited to, the following: gross insubordination. Mrs. Steverson has a history of engaging in insubordinate behavior toward administrators, which began under prior superintendents and continued with recent incidents involving comments made to and about the administration of the Bethlehem School in December 2014 and January 2015. Mrs. Steverson has been repeatedly instructed by persons in authority to correct her behavior, but she has failed to do so. INCIDENTS INVOLVING MRS. SUSAN STEVERSON On or about Monday, December 15, 2014, Mrs. Steverson made unprofessional and derogatory statements to her class about what she believed to be a lack of support from her school principal, Mr. Brent Jones. A statement was apparently read to the class strongly criticizing the principal, and advising the class that there were no longer any rules for the class as a result of a lack of support by her school principal. Students reported the statement to administrators out of concern for the class. Mrs. Steverson was asked for a copy of the written statement by Principal Jones but she refused to provide a copy. Mrs. Steverson was reprimanded for her conduct and advised not to allow her unprofessional conduct to continue. Then again, on January 9, 2015, Mrs. Steverson, during a parent teacher conference scheduled by Mrs. Steverson with Vice-Principal Mrs. Roseanne Mitchell present, was grossly insubordinate by criticizing and questioning Principal Brent Jones, in front of a parent. Her obvious intent was to embarrass and humiliate the Principal, and challenge his authority to administer the operations of the school in a manner he deemed appropriate. Mrs. Steverson was suspended without pay for a period of five (5) days beginning on January 12, 2015 to January 16, 2015, immediately prior to the School Board meeting on January 20, 2015, at which this issue was heard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Holmes County School Board: Dismissing the charge of gross insubordination against Respondent and setting aside any discipline subsequent to Respondent’s suspension with pay and reprimand received in December 2014; Dismissing the allegations set forth in the Notice of Charges to the extent they seek to impose or support any discipline subsequent to Respondent’s suspension with pay and reprimand received in December 2014; and Reimbursing Respondent for the five days of pay that Respondent did not receive during her suspension from January 12, 2015, through January 16, 2015, plus interest, as appropriate under applicable law. DONE AND ENTERED this 17th day of March, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 17th day of March, 2016.
Findings Of Fact The Respondent holds Florida Teacher's Certificate No. 607875 with a validity period from July 1, 1986 through June 30, 1991. The Respondent was employed by the Pinellas County School Board at Largo High School from the beginning of the 1987- 88 school year through March 23, 1988. In September, 1987, the Respondent commented that Erin Hawkins, a female student at Largo High School, should wear shorter skirts and touched her on the leg. The Respondent admitted to making a comment about the length of Miss Hawkins' skirt and to pinching her on her leg. As a result of this incident, the Respondent was counselled at length by Judith Westfall, principal at Largo High School, and Patricia Palmateer, Assistant Principal at Largo High School, regarding the need to refrain from making inappropriate comments to students. Ms. Westfall and Ms. Palmateer cautioned the Respondent to keep discussions with students on a professional level; to maintain professionalism whenever the Respondent touched a student; and to refrain from being alone with a student in the classroom. Conference summaries and the Respondent's written statement concerning the incident were placed in Respondent's personnel file. Although no additional disciplinary action was taken at that time, the Respondent's pinching a student on her leg, even for the alleged purpose of having the student move away from Respondent's desk, was not an appropriate method of working with female or male students.1/ In February, 1988, as Tara Ward, a female student at Largo High School, was leaning over a table, the Respondent stated "nice view, Miss Ward." At a subsequent conference between the Respondent, Ms. Westfall, and Ms. Palmateer, the Respondent admitted mailing the comment for the alleged purpose of correcting Miss Ward's posture.2/ The Respondent's comment was inappropriate even accepting his asserted motive. As a result, Ms. Westfall and Ms. Palmateer again cautioned the Respondent about the need to maintain professionalism in comments made to students and about the need to avoid being in a classroom alone with a student. In March, 1988, Cindy Shinall was a senior at Largo High School In the program for Educable Mentally Handicapped (EMH) students. The EMH program is for students whose I.Q.'s range between 50 and 72. In Miss Shinall's case, her grade level in March, 1988, would have been somewhere between third and fifth grade abilities. Miss Shinall was motivated to improve, eager to assist teachers, well-mannered, and considerate of others. The school had no disciplinary problems with Miss Shinall. Miss Shinall was an honest person who would frequently speak up when she was aware that other students were breaking school rules. On March 9, 1988, Miss Shinall was a student assistant for Carolyn Underwood during sixth period. As a student assistant, Miss Shinall would run errands for Ms. Underwood, including going to the school office. During the course of running errands for Ms. Underwood, Miss Shinall was permitted to ask other teachers if they had errands for her to do. In fact, Ms. Underwood encouraged Miss Shinall to take the initiative in seeking work from other teachers. On March 9, 1988, Ms. Underwood sent Cindy Shinall on an errand in the vicinity of the school office. Miss Shinall encountered the Respondent in the hallway coming from the office outside the double doors leading into the "pod" where the Respondent's classroom was located. She followed the Respondent into the pod and asked him if there was anything she could do for him. The Respondent replied "yes" and escorted Miss Shinall into his classroom. The Respondent did not have class during sixth period, and so he and Miss Shinall were alone in the classroom. Respondent asked Miss Shinall to "give me a hug," and she did. Respondent then kissed Miss Shinall. In his own words, he then "lost control" and began to kiss her and "felt her up." He kissed her on her neck, touched her buttocks, put his hand under her shirt and her bra on her left breast, and sucked her left breast. In an effort to escape from the Respondent, Miss Shinall told him she had errands to complete for Ms. Underwood. At this point, the Respondent grabbed Cindy Shinall's hair behind her head and pulled her head back, asking her to promise to return. Miss Shinall went directly from the Respondent's classroom to a girl's restroom, where she was found, crying, by a Ada Bell, a fellow student. She told Miss Bell that the Respondent had touched her. At the time she spoke with Miss Bell, Miss Shinall was crying very hard, almost to the point that Miss Bell was unable to understand what she was saying. Miss Bell understood clearly, however, that the Respondent had done something to Miss Shinall that she did not want him to do. Immediately thereafter, while still in the girls' restroom, and while still visibly upset and crying, Miss Shinall related the incident to her friend Aimee Hall. Miss Hall then took Miss Shinall to their teacher, Carolyn Underwood. At that time, Miss Shinall was still upset and pulling her hair and twitching from side to side. She was upset to the point of being almost incoherent. She told Ms. Underwood that the Respondent had kissed her, touched her breasts, and pulled her hair back. She then recounted the events again to Ms. Underwood and to another teacher, Ms. Silva. Ms. Underwood immediately took Miss Shinall to the administrative offices and contacted Ms. Westfall and Ms. Palmateer. Ms. Palmateer was in the school cafeteria when notified by Ms. Underwood. She went directly to her office where she spoke with Miss Shinall. Miss Shinall told Ms. Palmateer that the Respondent had kissed her, felt her breast underneath her clothes, and touched her buttocks. Miss Shinall told Ms. Westfall that Respondent had kissed her, touched her breast underneath her bra, touched her buttocks, and pulled her hair, asking her to promise to come back. She related the incident to Ms. Westfall within one hour of the incident. At the time she related the events to Ms. Westfall, Miss Shinall was still visibly upset and embarrassed to talk about the incident. As a result of the incident of March 9, 1988, the Respondent tendered his resignation to the Pinellas County School Board, and the resignation was accepted. The Respondent later tried unsuccessfully to rescind the resignation. As a result of the incident of March 9, 1988, Cindy Shinall was the subject of rumor, gossip, and disparaging remarks among the students at Largo High School. She suffered embarrassment and disparagement. The Respondent's conduct on three separate occasions--to wit: in September, 1987, when he made an inappropriate comment about a female student's dress and pinched her leg; in February, 1988, when he made an inappropriate comment about a female student's posture; and in March, 1988, when he kissed and fondled a female student--seriously reduces the Respondent's effectiveness as an employee of the school district. The Respondent is unable to deal with his students in a professional manner, and the school district's ability to trust the Respondent with female students has been substantially diminished. Female students in the Respondent's classes and under his control would be "at risk." The Respondent's conduct on those three separate occasions also constitutes a failure to make reasonable efforts to protect students from conditions that were harmful to their learning, health, or safety. Indeed, the Respondent actively created situations which jeopardized the learning, health, and safety of his students. The Respondent's conduct on those three separate occasions also constitutes conduct which intentionally exposed the Respondent's students to unnecessary embarrassment or disparagement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's Florida teaching certificate be revoked. DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 16th day of June, 1989.
The Issue Whether the Respondent should be reassigned to the Opportunity School.
Findings Of Fact Alejandra entered Rockway Junior High on March 19, 1984. Prior to entering Rockway, Alejandra had been an attendance problem at her former school. Three days after starting at Rockway, on March 21, 1984, Alejandra was picked-up for truancy. On April 9, 1984, Alejandra was again truant and was placed in the indoor suspension program. On April 10, she was warned about her behavior in the indoor suspension program, and on April 11, she was caught smoking cigarettes. On April 12, she disrupted indoor suspension and, therefore, was suspended from school. Her father was contacted concerning Alejandra's behavior. On April 23, 1984, a conference was held with Alejandra's father. At that time he explained that he had only had temporary custody of Alejandra and that Alejandra was again living with her mother. It was determined that the mother did live in the Rockway Junior High district and that Alejandra should transfer to West Miami Junior High School. On April 24, 1984, Mr. Plate found Alejandra on the school grounds. Mr. Plate initially testified that Alejandra was "trespassing" on school property because she was still suspended from school. He later changed his testimony because the suspension was for 10 days and the last day of the suspension was April 22, 1984. Mr. Plate testified that he saw Alejandra in the late afternoon and she was not appropriately dressed for class. Mr. Plate told Alejandra that she should have her mother come to the school and fill out the forms necessary to accomplish Alejandra's transfer. He also informed Alejandra that she no longer belonged at Rockway and she should not return. At no time did school personnel verify that Alejandra was living with her mother or verify the mother's address. Mr. Plate thought that the visiting teacher had been sent to the home, but he did not know whether contact had ever been made with Alejandra's mother. On May 21, 1984, Alejandra was referred to HRS because of her truancy, and on June 22, 1984, she was recommended for transfer to Opportunity School. Alejandra's last day in school was April 12, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered disapproving the assignment of the Respondent to the opportunity school program at Youth Opportunity School South and assigning the Respondent to the appropriate regular school program. DONE and ENTERED this 16th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of August, 1985 COPIES FURNISHED: Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary and Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida 33137 Phyllis Douglas, Esq. 1410 N.E. 2nd Avenue Miami, Florida 33132 Madelyn P. Schere 1410 N.E. Second Avenue Miami, Florida Mr. and Mrs. Julio Guerra 3331 S.W. 90 Avenue Miami, Florida 33165 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent should be suspended from employment for twenty days without pay for misconduct and unprofessional conduct in violation of School District Policies 1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3) and 6B-1.006(4)(b), (5)(a) and (5)(h), and School Board Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction Review, and #P-12519-CAO/COO-Florida Department of Education Student Enrollment Procedures.
Findings Of Fact Petitioner, Palm Beach County School Board (the Board or Petitioner), operates, controls, and supervises all public schools within the Palm Beach County School District (the District), as authorized by Subsection 1001.32(2), Florida Statutes (2008). The District School Superintendent, Dr. Arthur C. Johnson (Superintendent Johnson) is responsible for the administration, management, and supervision of instruction in the District, as provided in Subsection 1001.32(3), Florida Statutes (2008). Respondent, Dr. Gwendolyn Johnson (Dr. Johnson or Respondent) was the principal at Independence Middle School (Independence) during the 2007 to 2008 school year. In her thirty-five years with the District, Dr. Johnson was a principal for eight years, an assistant principal for eleven and a half years, a guidance counselor for approximately nine years, and, before that, an elementary and high school occupational specialist. At Independence, Respondent's assistant principals were Kathleen Carden, Martest Sheffield, and Scott Duhy. Although the projected enrollment was 1174, not the minimum number of 1201 required to justify having a third assistant principal, Dr. Johnson requested and, on May 15, 2007, received approval to keep the third assistant principal, Mr. Duhy, subject to reaching or exceeding the required enrollment by the time the count of students was taken on or about the eleventh day of school in the fall. The increase over the projection was possible because Independence was the 2007 receiving school for students whose parents transferred them from D- or F-rated schools under No Child Left Behind Act. For the 2007-2008 school year, Dr. Johnson assigned primary responsibility for maintaining a count of the student population to another one of the assistant principals, Dr. Carden. In addition to determining the number of assistant principals, the enrollment count is used by the District to determine other staffing, including the number of teachers, and guidance counselors assigned to each school. Attendance at Independence was reported by teachers each school day on bubbled attendance sheets. The sheets were scanned each day and the data stored in a computer program called the Total Education or Resource Management System (TERMS). The sheets were returned to the teachers who used them to record attendance for a two-week period before signing and submitting them, and receiving new computer-generated biweekly attendance scan sheets. On August 23, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12519-CAO/COO/FO/FTE), that any student who had never attended any period since the first day of school must have a withdrawn code entered into the TERMS program by August 27, 2007. Dr. Johnson e-mailed the Bulletin to her administrative staff and convened a meeting of that group to review it. Her secretary also e-mailed a reminder of the requirements to the staff on August 27, 2007. Teachers reported students who never attended school from the beginning of the year, the so-called "no-shows," by making handwritten notes or by drawing lines through the student's name on the attendance sheets, expecting those names to be removed from their rosters. Students who never showed up were not bubbled absent on the attendance sheets. A student aide in the student services office scanned the sheets, so the school's data processor, Angela Jones, did not see the teacher's notes and make changes in the computer. Once teachers kept getting biweekly attendance sheets with the names of no-shows and transfers on them, they started e-mailing or otherwise notifying Ms. Jones who began to keep a running list of no shows and transfers. Ms. Jones was not allowed to enter the withdrawal code in TERMS until authorized to do so by either Dr. Johnson or Dr. Carden, as shown by their e-mails. Rather than following the instructions in Bulletin # P-12519 to withdraw all no-shows by August 27, 2007, no-shows were treated like transfers and were not withdrawn until the student's new school requested their records. Dr. Johnson's claim that she was not aware that procedures outlined in the District's Bulletin of August 23, 2007, were not being followed by Ms. Jones and Dr. Carden, is not credible. She was present at the meetings in her office and her conference room, well after the August deadline, during which Ms. Jones continued to receive instructions to wait for approval to make withdrawals. On August 31, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12542-CAO/COO) that the District's enrollment count day was September 7, 2007, and that the count would be taken from TERMS. Dr. Johnson sent an e-mail to all teachers to count students, as directed in the Bulletin of August 23, by only including students who had been in attendance at least one period since school began on August 22, thereby excluding no-shows from the count. Prior to 2007, this would have been the enrollment number that the school faxed or e-mailed to the District. For the first time in 2007, the number used by the District was the number taken from TERMS summary enrollment screen that included no-shows at Independence. The District also relied on that data for its Full Time Equivalent (FTE) survey and report to the State Department of Education (DOE). The FTE count is used to determine per pupil funding by the State. The actual number of students at Independence on September 7, 2007, was 1188 but the number taken from the TERMS database and reported was 1214, a twenty-six student discrepancy that was later, after an audit, reduced to twenty-four. In October 2007, Dr. Johnson falsely verified the accuracy of the FTE survey that was, subsequent to the audit, determined to be an over-count of 23 students. Dr. Johnson testified that she verified the accuracy of the count relying on the work of Dr. Carden, Ms. Jones, Exceptional Student Education Coordinator Carol Lee, and ESOL Coordinator Ann Costillo. She denied attempting to fraudulently inflate the number to gain or maintain resources allocated by the District, but she knew there was a difference in the numbers based on a September report from Dr. Carden. She also knew that, if the teachers followed her instructions regarding how to count students, the "actual" number of 1214 from TERMS, written in by Dr. Carden, had to be incorrect. TERMS data also was uploaded to another program called Grade-Quick. When it was time to give grades at the end of nine weeks, Ms. Jones no longer had the ability to alter the rosters and teachers were required to give a grade to each student on their roster. David Shore was the Grade-Quick technical support person at Independence. At the suggestion of Dr. Johnson, he sought advice from the District's technical support person, Bruce Roland, who told him to have teachers give each no-show student a grade of "F" to avoid an error code. The uploaded grades for students who did not attend Independence, according to Mr. Roland, would be deleted from the District's mainframe. Fearing other consequences of giving "Fs," including the possibility of generating letters to parents whose children did not attend Independence, and doubting Mr. Shore's advice because he was relatively new in his position, some teachers refused to give "Fs" to no-shows. After discussions with Dr. Johnson, Mr. Shore instructed teachers to give a grade of "C" instead and to be sure also to give a conduct grade. One teacher apparently found a way to give a conduct grade, but no letter grade, to students who were not enrolled in her class and to somehow avoid a computer error code. Some time during the fall semester, anonymous complaints concerning the enrollment at Independence were made to the State Auditor General's Office, who referred the matter to an auditor in the District's office. In December 2007, the audit confirmed that the count at Independence was incorrect largely because no-shows and withdrawals were not withdrawn timely from the computer in TERMS before the District's initial count on August 27, 2007; before the District's eleven-day count on September 7, 2007; nor before Dr. Johnson twice verified the accuracy of the FTE count in October 2007. Dr. Johnson made no effort to make corrections, after she admittedly was aware of the errors in October, November, and December. Dr. Johnson blamed teachers who were unprofessional, racist, and disgruntled over her more strict adherence to the attendance rules for teacher planning and professional development days, and over proposed spending of A-plus money. She testified that they deliberately failed to bubble no-shows as absentees. That assertion contradicts the testimony of her witness that the proper procedure was followed by teachers who drew lines through the names of no-shows rather than bubbling them as absent. It also contradicts the instructions she gave in a memorandum to teachers, on October 5, 2007, telling them to write codes next to students' names on their rosters, NS for no- show, WD for withdrawn - If a student was present at least one day..., T for transfer, and A for add. Her memorandum instructs teachers to give the information to Ms. Jones on October 11, 2007. Ms. Jones said she did look at rosters for FTE reporting and she did make corrections. She too says her count was accurate at the time unless teachers withheld information. The teachers' rosters were maintained and, from a review of the class rosters, the auditor concluded that the error was made in not correcting TERMS to comply with teachers' reports. Dr. Johnson also blamed her supervisor, Marisol Ferrer, for sending a less experienced manager, Joe Patton, to attend a meeting, on October 11, 2007, with her of the Employee Building Council, a group that included some teachers who were antagonistic towards Dr. Johnson. It is true that only later did Mr. Patton recall that, after the meeting and after Dr. Johnson left, some of teachers told him there were problems with the student count at Independence. At the time, however, Mr. Patton did not tell Ms. Ferrer or Dr. Johnson about the comments. Dr. Johnson testified that, had she been told after that meeting on October 11th about the problems, she could have corrected the numbers before she submitted her verification of accuracy. She did know that Dr. Carden showed her two sets of numbers on September 7, 2007. Although she testified that she believed the fluctuations were normal because students come and go during the day for doctor's appointments or for other reasons, Dr. Johnson took no further steps to determine if that was in fact the cause of the discrepancy. After Dr. Johnson and Dr. Carden instructed Ms. Jones to begin making withdrawals after the October FTE report, some of the withdrawals were backdated showing the no-show students' withdrawal dates as the first day of school, August 22, 2007. The District submitted corrections to DOE before the deadline for incurring penalties, ultimately reducing the FTE count at Independence by 23 students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order suspending Respondent for twenty days without pay. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 16th day of April, 2009. COPIES FURNISHED: Frederick W. Ford, Esquire 2801 PGA Boulevard, Suite 110 Palm Beach Gardens, Florida 33410 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Dr. Arthur C. Johnson, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, C-302 West Palm Beach, Florida 33416-9239 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500
The Issue Whether "just cause" exists to authorize Respondent's dismissal from employment with the Miami-Dade County School Board ("MDCPS"), for the violation(s) outlined in Petitioner's Amended Notice of Specific Charges.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant fact. Stipulated Facts At all times material hereto, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX § 4(b) Constitution of the State of Florida and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed pursuant to a professional service contract at Campbell Drive K-8 Center, a public school in Miami-Dade County, Florida ("also known as LEOMHS"). At all times material hereto, Respondent's employment was governed by the collective bargaining agreement ("CBA") between Miami-Dade County Public Schools and the United Teachers of Dade, as well as the policies of MDCPS and Florida law. Facts Established at the Hearing Respondent's Termination from the City of Aventura In 2000, Respondent was hired as a police dispatcher by the City of Aventura, Florida ("COA"). Respondent became a police officer where he served until March 24, 2011. Pet. Ex. 4A. On March 24, 2011, Respondent was called to a meeting with several Aventura Police Department ("APD") officials. At the meeting, he was confronted with evidence that he had purposely misrepresented the amount of overtime hours he had been working. At the meeting, Respondent's employment was terminated. Pet. Ex. 4D, p. 45. Respondent's manner or reasons for departure from APD became a point of contention in this case. In short, Petitioner alleged that Respondent falsified his application to work at LEOMHS, by leaving out certain information regarding his termination from APD. Petitioner further alleges that this served as an independent basis to terminate him from employment with MDCPS. At the final hearing, Respondent explained that he had mistakenly entered his overtime hours incorrectly at APD. According to the investigative report issued by APD, Respondent admitted to a fellow officer after his termination that a portion of the overtime hours he did not work was because "he got behind on his bills." Pet. Ex. 4D, p. 45.1 Following his termination at APD, Respondent filed a charge of discrimination with the Equal Employment Opportunity Commission in September 2011 and sued APD in May 2012. APD and Respondent settled the lawsuit. They entered into a settlement agreement in November 2012. The agreement contained a confidentiality provision. Pet. Ex. 4C, pp. 28, 32-33; Pet. Ex. 4A. There was no real dispute in this case that the express terms of the confidentiality provision, reasonably interpreted, prohibited Respondent from disclosing or discussing the facts of the case, the terms of the settlement or the circumstances surrounding the matter with any other person. Pet. Ex. 4C, pp. 32-33.2 The confidentiality provision with APD also provided that if it was breached by Stevens, a $2,000.00 liquidated damages penalty would be assessed against him, and injunctive relief and payment of the City's attorney's fees against Stevens could be awarded. Application for Employment at MDCPS In 2013, Respondent first applied for a position with MDCPS as an interventionist. As part of the application process, Respondent filled out an electronic questionnaire using the E-Recruiting system. Question Number 25 of that questionnaire asked Respondent the following: "Have you ever been disciplined, the subject of an investigation, reprimanded, suspended, non- 1 Regardless, it is important to note that Respondent's conduct at APD is not the crux or primary issue in this case, nor did his misconduct at APD form the basis for this termination. Rather, the issue here is whether Respondent improperly answered the relevant questions on his MDCPS applications; and, if so, whether this justifies his termination. 2 Petitioner has made no compelling argument to the contrary. reappointed for performance reasons, terminated, requested to resign through mutual agreement, or resigned in lieu of termination from an educational institution, the State of Florida or any other employer/organization, including the military?" In response to this question, Respondent answered "No." Pet. Ex. 10, p. 121. Sometime after filling out the first questionnaire, Respondent applied for a full-time position with MDCPS as a teacher. By this time, MDCPS was using a different employment application system called PowerSchool. This system required Respondent to fill out a questionnaire with a similar question. Question Number 3 asked: "Have you ever been disciplined, the subject of an investigation, reprimanded, suspended, non-reappointed for performance reasons, terminated, requested to resign through mutual agreement, or resigned in lieu of termination from any employer/organization, including the military?" In response to this question, Respondent also answered "No." Pet. Ex. 10, p. 124. Had Respondent answered either of these questions with a "Yes," his applications would have been forwarded to the Office of Professional Standards ("OPS") for further review. OPS would have gathered additional, follow up information. After reviewing this additional information, OPS would then make the decision of whether to hire. Carmen Molina ("Molina"), the District Director of OPS, testified that had Respondent answered in the affirmative to either question, "in his experience" Respondent would not have been hired.3 3 In light of testimony credited by the undersigned regarding Respondent's conversation with the new principal and assistant principal at LEOMHS about his confidentiality provision with APD, this speculative testimony by Molina carries limited weight. More directly, there was no affirmative and persuasive evidence offered for this specific case that Respondent's failure to answer the question in the affirmative would have resulted in him not being hired. The only thing that is certain is that it would have been referred to OPS for "further review." This evidentiary point and distinction are important. Someone's "experience" may prove to be At the final hearing, Respondent steadfastly denied being untruthful on the MDCPS application. He explained that he was initially uncertain of what the answer should be, in light of the binding confidentiality provision he had signed with COA. He understandably sought and needed advice from his prior counsel regarding his rights under the circumstances. After consulting with counsel, who investigated the matter, and upon his counsel's strict direction, he answered "No" to the application question. Added to this explanation, and perhaps more importantly, the undersigned credits Respondent's testimony that before he applied for the Interventionist position at LEOMHS, he met informally with Principal Chin ("Chin") and Assistant Principal, Dr. Lashinda Moore. Both were interested in meeting him after hearing about Respondent from mutual acquaintances. During this introductory meeting to discuss his experience and what he could offer to support the school's criminal justice program, he informed them both that he had a "non-disclosure agreement" with APD and that he had voluntarily resigned from that job. He also told them that the confidentiality provision prevented him from discussing the facts of his case against COA.4 After learning of Respondent's dilemma and the restrictions he was under, Chin informed Respondent that his dispute and confidentiality provision with APD would not be a problem. The principal was more concerned with whether his dispute with COA involved a felony conviction, a drug related problem, or improprieties involving children. Chin was satisfied true--but it may not. In this case, for instance, there are unique circumstances that may have resulted in Respondent being hired after OPS investigated and gathered additional information. At a minimum, the undersigned is left wondering what would have occurred? This is particularly true since the principal, an authorized representative of the District, was aware that Respondent had issues of some sort at APD, but told him it would not be an impediment to his hiring at LEOMHS, so long as his background check was passed. 4 This information he shared was accurate. See Pet. Ex. C, p. 28 of 124. with Respondent's explanation, so long as he could pass a criminal background check. Dr. Moore was offered at the hearing as a witness by Respondent. Although she admitted meeting Respondent at an introductory meeting consistent with his testimony, she did not "recall" discussing any confidentiality agreement with Respondent. However, she did not affirmatively testify that the discussion about Respondent's APD resignation did not occur. Unfortunately, former principal Chin was not called by either party to corroborate or refute Respondent's version of the pre-hiring discussion. Respondent offered distinct and clear testimony that the pair told him it was "not an issue" and they only cared if he could pass a background check. Based on the more detailed, clear, and specific recollection offered by Respondent, he established that he adequately disclosed to Chin and Dr. Moore that he had been involved in a workplace dispute with COA. Both were authorized representatives of Petitioner. In light of this, Respondent did not intentionally mispresent or fail to disclose any material facts to MDCPS concerning his dispute with COA. The Nature of the Education Provided at LEOMHS Principal Tony Ullivari ("Ullivari") began working at LEOMHS in the 2018-2019 school year. In addition to traditional high school subject matters, the school offers unique academic tracks in the areas of homeland security, law, and forensic science. The homeland security track offers students training in the areas of criminal justice and police dispatching. Respondent was the lead homeland security teacher and taught criminal justice and police dispatch classes to the students. The curriculum for the homeland security program was developed prior to Ullivari's arrival by Respondent and the prior administration. There was, however, a general framework for the topics provided by the state of Florida. Respondent developed the lesson plans for defensive tactics courses. As part of the coursework, Respondent developed a Defensive Tactics curriculum ("DT") and also a program Respondent came up with on his own referred to as "extended defensive tactics ["EDT"]." On a day-to-day basis, Respondent was the one who decided what would be taught in classes inolving DT and EDT. The program was conducted under a paramilitary command structure and emphasized discipline. Respondent described the DT program as a "system of controlled defensive and offensive body movements that are used by criminal justice officers around this country to respond to a suspect's aggression or resistance. It's a combination of boxing, martial arts and wrestling." There was no serious dispute that the DT program involved a sanctioned and frequent amount of close physical contact and maneuvers between students, and between students and trainers. The DT training ordinarily began in the students' sophomore year. However, any student could participate in the related Florida Public Service Association ("FPSA") competitions involving DT. According to Respondent, he developed EDT because he takes such training "very seriously" and believes it is important for a career in law enforcement and for self-defense. To ensure that the parents' of the students were aware of the training curriculum and defensive tactics that were taught, Respondent utilized a written permission form. Resp. Ex. 1 and 2. The form was approved by the administration and provided to the students and parents. The form was thorough and clearly disclosed to the parents that DT and EDT would involve a list of activities that included close physical contact. The form further explained that while defensive tactics were "inherently dangerous," they would be conducted in a "very safe and structured manner." According to Ullivari and several of Petitioner's witnesses, as well as some of Respondent's own witnesses, DT was supposed to be taught at several locations, depending on availability. The most ideal and preferred location was the DT room of the City of Miami police station, located in a building adjacent to the school. This room is entirely padded and was, therefore, the safest place for DT instruction. The second best place to conduct DT classes was the school gymnasium where there are ample mats for safety. A third, but acceptable choice, was Respondent's classroom where furniture such as desks and chairs would be moved out of the way and a mat would be placed on the ground to better ensure student safety. Respondent offered several photographs showing DT training being done within the confines of either a safe padded room, in controlled environments, or with the use of padded "Red Man" combat suits. Resp. Exs. 5-10. None of these photographs depict DT being done without matting (when the students would be engaging each other on the ground). According to one of Respondent's student witnesses, N.M., anytime DT took place in a classroom all the furniture would be cleared from the area to better ensure that it was "100% safe." Another of Respondent's witnesses, Jesus LaMadrid, testified that anytime DT tactics required the students to be on the ground in the classroom, it "never" occurred without the furniture being moved and mats being used. Respondent acknowledged that DT is a "high liability area [sic]" since it poses a greater risk of injury to his students. As a result, he took DT very seriously to help ensure that students were not injured. He testified that his emphasis on safety precluded him from permitting any "horseplay" whatsoever. He described the DT training as "very disciplined and structured." The undersigned credits Respondent's testimony and other evidence that he took active, sensible, and constant precautions to ensure, as best he could, that the DT was done in a structured and safe environment. What is equally, if not more, significant is that Respondent's DT training and tactics were open, obvious, and well known by the administration at LEOMHS. In short, the defensive tactics training program taught by Respondent was fully sanctioned and approved by the administration at LEOMHS. From the facts credited and their reasonable inferences, the undersigned also finds that MDCPS knew or should have known that high school students taking the sanctioned DT and EDT courses would likely engage in horseplay on occasion, especially those who were involved in DT training. Respondent controlled this to the best of his ability. The undersigned also finds it a bit disingenuous for the administration to sponsor and encourage risky physical DT contact training at LEOMHS, yet jump normal disciplinary steps and impose the most punitive sanction of dismissal against the employee without any persuasive evidence that other sanctions were considered. This seems particularly unfair when the employee had no prior discipline and there was no evidence to suggest that he ever received counseling, warnings, or corrective suggestions. The undersigned also finds that Respondent strove very hard to maintain control of his young and, frequently, rowdy and energetic students destined for careers in law enforcement. One has to ask: Did the administration seriously believe that occasional horseplay or other questionable physical contact would not occur within this environment? Finally, the undersigned heard no persuasive evidence that the administration actively monitored or observed Respondent's DT training or warned and counseled Respondent about his tactics or other horseplay as mentioned in the CBA. See infra. While these concerns do not excuse Respondent's failure to better control or prevent horseplay, it does support a conclusion that any penalty or discipline should fit the offense and take into account Respondent's lack of any prior discipline. Further, the undersigned was able to observe Respondent's demeanor and attitude at the hearing. He was articulate, well-mannered, controlled, and responsible during his appearance at the hearing. The reasonable inference from these observations is that he handled himself in a similar manner as the DT trainer at LEOMHS. Classroom Videos The witnesses presented by Petitioner described a classroom environment in Respondent's class that at times was disciplined and structured, but on occasion, devolved into "horseplay" between the students and Respondent, as well as each other. Pet. Ex. 8, pp. 106. Most of the horseplay was between Respondent and the male students, although females were sometimes involved. One of the student's also testified that they did not initially report the "horseplay" to the administration because the students were very fond of Respondent, and had just learned to accept this behavior from him. The witnesses presented by Respondent testified that Respondent conducted himself very professionally and the classroom was always very regimented and "horseplay" was never allowed. If it occurred, those involved would be subject to swift reactions by Respondent. Petitioner attempted to corroborate its allegations of "horseplay" by admitting into evidence two older cell phone videos. Pet. Ex. 11. In the first video, Respondent is involved in what can best be described as a "soft take down" of him by several male students. When the male students approach and take hold of him, Respondent does not resist or struggle. He goes along as he is slowly taken down to the floor by four or five male students. All the while students are laughing as they surround him and take him to the ground. Respondent ends up on his back on the floor for four to five seconds. As the students are getting off Respondent one-by-one, one of the male students stays pressed on top of Respondent--chest to chest. Notably, the student was not embraced or held down by Respondent. In this position the male student rapidly thrust his hips multiple times while on top of Respondent. Everyone breaks out in laughter, and Respondent is promptly helped to his feet by several friendly students. Significantly, Respondent is not being physically or verbally abusive to any of the students. They appear to be having fun with Respondent who reluctantly goes along with the maneuver and appears a little embarrassed by it all. In the second video, Respondent is videoed through a classroom door window. He is on the floor, perpendicular to and on top of a male student who is face down. Respondent is engaged in what appears to be a static defensive wrestling type hold and there was no movement by either. There are no other students present in the room, and there is no indication to determine if this was a part of any formal instruction. It does not appear, and there was no other evidence to prove, that the male student was struggling, thrashing about, or that he suffered any injuries. When confronted with these videos during the investigation, Respondent did not claim they were inaccurate, and told the investigating officer that he believed the videos had been shot approximately two years prior. At the hearing, Respondent explained the videos in more detail. As to the first video, he claimed he was trying to show a group of students how suspects can sometimes achieve "superman powers" that require a group of officers to take down a suspect. As to the second video, Respondent claimed he was doing EDT with a student that involved using loud verbal commands. The videos are reasonably consistent with the explanations offered by Respondent. Incidents with Certain Students Student Nayeli Aguilar During the course of the hearing, there were proven instances where Respondent's contact with several female students crossed the line, and was not appropriate. For instance, during the 2017-2018 school year, Nayeli Aguilar ("Aguilar") was a junior at LEOMHS. She participated in the FPSA program. As part of that program the students took a field trip to the Broward County Sheriff's Office ("BCSO"). She testified that on the bus ride either to or from the BCSO, she recalled that Respondent sat next to her. He placed his hand on her thigh and then slid it higher on her thigh before she grabbed his forearm to make him stop. Respondent then let go. There was no evidence that Respondent massaged or caressed her thigh. Aguilar was stunned by the incident and stated that she felt violated. She did not report the incident at the time because she was an officer in Respondent's class and did not want to violate the "code" by snitching on other law enforcement personnel. She was also too embarrassed. There were no other witnesses. During the 2018-2019 school year, there was another incident during which she and Jonathan Lavernia ("Lavernia") were doing paperwork in the back of Respondent's classroom. They spontaneously began to play fight with one another. Lavernia lightheartedly called for "backup" (Signal "3-15"), which alerted Respondent to come to the back of the classroom. Respondent participated in the play fighting by wrestling with her to the floor. Once on the floor, Respondent performed a "pressure point" on her thigh, leaving a minor bruise. Aguilar identified pictures she took of the bruise at the hearing and testified that she did not report this incident because she was too embarrassed. Pet. Ex. 7, p. 80. Even after these incidents, she still looked up to Respondent and went to his classes. But she felt that it was best to keep her distance from him because he had crossed the line and acted inappropriately with her. Student I.G. During the 2018-2019 school year, I.G. was a junior at LEOMHS. She had Respondent as a teacher in the FPSA program. One day during a lunch period in either October or November of the 2018-2019 school year, she was play fighting with Respondent, and he took her down to the ground. While she was on the floor, Respondent slapped her on the butt three times. According to I.G., she and other students had a comfortable enough relationship with him that they would push or shove him and play fight, but this time she felt it went too far. While the incident made her uncomfortable, she had an attachment to Respondent at the time, and just chalked it up to Respondent being himself. At the time of the school's investigation she believed the incident was being blown out of proportion, but suggested that Respondent had crossed a line he should not have. Pet. Ex. 8, p. 106. Shelsea Martin ("Martin"), a senior at LEOMHS, also testified. She witnessed this incident between I.G. and Respondent. The only significant difference between their testimony is that Martin believed there was one butt slap, which occurred while Respondent was lifting I.G. up from the ground. I.G. appeared to Martin to be shocked by what had happened. While Martin stated that play fighting with Respondent was common, the butt slapping was unusual and was "like a red flag" to her. Pet. Ex. 8, p. 105. She testified that she reported this incident to Ms. Joseph at some point in time, close to the day it occurred. There was no evidence presented to prove that during this incident Respondent squeezed, grabbed, or caressed I.G.'s buttocks. Student S.P. During the 2018-2019 school year, S.P. was a junior at LEOMHS and Respondent was her teacher. During the year she would play fight with Respondent in jest--playfully hitting and pushing each other. She testified that sometimes he would grab her thigh when she was sitting next to him. This occurred several times. Respondent applied a "pressure points" on her thigh and squeezed it. Initially, she was not affected by it because such behavior was "normalized [sic]" in Respondent's class, but eventually stopped play fighting with him. Pet. Ex. 8, p. 107. There was no evidence presented to prove that during this incident Respondent rubbed or caressed the female student's thigh.5 Student Eric Cardenas During the 2018-2019 school year, Eric Cardenas ("Cardenas") was a senior at LEOMHS. He testified that one day while entering Respondent's classroom late, the class was watching a video. As he entered the room Respondent spontaneously put him in the corner and grabbed at his crotch area. Cardenas also testified that Respondent would communicate with him via Snapchat while he was a student. On one occasion Respondent sent 5 It is noted that training, in the use of "pressure points," was listed on the parental permission form. Cardenas "what appeared to be" a picture of someone on a toilet that contained either human excrement or a penis. Whatever the picture was, it made Cardenas uncomfortable. He did not elaborate. As is customary with pictures sent via Snapchat, the picture disappeared after a few seconds. Pet. Ex. 8, p. 109. However, Cardenas did not attempt to keep a "screen shot" of the alleged Snapchat picture. His testimony regarding the contents of the picture was vague and indistinct. Despite a classroom full of students, there were no witnesses presented by Petitioner to corroborate the "crotch grabbing" incident that allegedly occurred during the video showing. Respondent unequivocally denied that either incident took place. The evidence from Cardenas was not credible or persuasive. The undersigned finds Respondent's testimony more credible and persuasive, and finds that the incidents were not adequately proven by Petitioner to have occurred. Student A.M. During the 2018-2019 school year, A.M. was a student at LEOMHS and participated in the FPSA program. During the school year she recalled two separate incidents between Respondent and her that she felt were inappropriate. She testified that after school one day, during the FPSA program, Respondent spontaneously laid her down to the ground with a leg move while in the hallway. He pinned her to the ground and slapped her butt. This made her feel uncomfortable. She claimed that another student, A.W., was present and she spoke to her about it. A.W. was not called as a witness to corroborate the incident. She only provided a brief written statement. A.M. wrote in her written statement submitted to MDCPS that she "laughed off the incident." Her written statement contradicted her testimony, in part. Unlike her live testimony, her written statement added that she tried to drop Mr. Stevens to the ground first, but couldn't. She said that during this second incident, while she was training for incident report writing, Lavernia pinned her to the ground and Respondent slapped her butt. T. pp. 182-183; Pet. Ex. 8, p. 110.6 She explained that she and the other students would joke about the things Respondent would do because they were not aware at the time that these were things a teacher should not do. A.M.'s testimony was vague and not persuasive. It does not support a finding that Respondent slapped her butt in this second incident. Jonathan Lavernia Respondent had a fairly close and personal relationship with one of his higher ranking officers, Jonathan Lavernia. That close relationship still exists today. On direct examination Lavernia testified that he had stayed at Respondent's home for a few days after Hurricane Irma. This was done with the approval of Lavernia's parents and due to disruption of services at his home. According to Lavernia, Respondent occasionally gave him rides to school in his private vehicle. Principal Ullivari never gave Respondent permission to either transport Lavernia in his car or let him sleep at his house and was unaware that this violation of MDCPS policy was occurring. Under the circumstances which existed, these limited instances of providing needed housing and transportation assistance to Lavernia, did not rise to the level of severe or serious misconduct by Respondent. 6 Interestingly, it was only after prompting during cross examination, that A.M. even mentioned a second incident. Other Relevant Facts Respondent was employed by Petitioner beginning in August 2013. Pet. Ex. 9. During that six-year period, there was no evidence presented that Respondent had ever been the subject of any prior disciplinary proceedings or misconduct. Therefore, these allegations of misconduct in office are Respondent's first instances of potential infractions or disciplinary action while at MDCPS. Based on the Findings of Fact, the nature of the physical contact inherent in the close contact DT training, and the testimony that there did not appear to be any significant physical or mental harm to the participants, the undersigned finds that any horseplay during classroom training did not constitute severe or serious misconduct. The horseplay involved does not justify Respondent' dismissal from employment under the progressive discipline policy in place at MDCPS. See generally, Quiller v. Duval Cty. Sch. Bd. 171 So. 3d 745 (Fla. 1st DCA 2015) ("…[T]he progressive disciplinary policy mandated that the Board was required to follow progressive steps in administering discipline unless a severe act of misconduct warranted circumventing the steps.").
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board impose a 30 to 60 day unpaid suspension and order retraining as a fair and proper sanction under the unique circumstances of this case. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 4th day of December, 2020. 7 MDCPS is best suited to make the final decision on the length of a suspension period. See generally, Dep't of Prof'l Reg. v. Bernal, 531 So. 2d 967, 968 (Fla. 1988); Gonzalez-Gomez v. Dep't of Health, 107 So. 3d 1139 (Fla. 3rd DCA 2012). COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
