The Issue At issue herein is whether or not the Respondent's teaching certificate should be revoked for conduct which will be set forth hereinafter in detail which is allegedly violative of Sections 231.09 and 231.28, Florida Statutes, and Rules 6A-4.37 and 6B-1, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the argeements of counsel, the stipulation of the parties entered on June 7, 1979, and the entire record compiled herein, the following facts are found. The Florida Professional Practices Council (sometimes referred to as "Petitioner") received a report from the Superintendent of Pinellas County Schools on October 24, 1977, indicating that the district had reason to believe that there might be probable cause for revocation of the teaching certificate of John A. Lettelleir, Respondent. Pursuant to this report, and under the authority contained in Section 231.28, Florida Statutes, Petitioner's staff conducted a professional inquiry into the matter and on January 9, 1978, made its report to the Executive Committee of the Professional Practices Council. The Executive Committee recommended that the Commissioner of Education find that probable cause exists to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teacher's certificate. The Commissioner of Education found probable cause and directed the filing of a Petition on January 9, 1978, pursuant to the authority vested under Section 6A-4.37, Rules of the State Board of Education, and Section 231.28, Florida Statutes. In conclusionary allegations, the Petition cites that the Respondent engaged in acts which are "immoral, seriously reduced his effectiveness as a School Board employee and was not a proper example or model for students and not in the best interests of the health and safety of students" contra to Section 231.09; 231.28, Florida Statutes, and Rule 6A-4.37 and 6B-1, Rules of the State Board of Education. Respondent currently holds a Post-graduate, Rank II, Florida Teacher's Certificate No. 347804, covering elementary education, early childhood and junior college, which is valid through June 30, 1985. Respondent was employed in the Public Schools of Pinellas County as a teacher at Maximo Elementary School during the 1976-77 school year. Respondent resigned from his teaching position in the Pinellas County School System in October, 1977. Respondent chaperoned a three day Easter trip for male and female school children from Maximo Elementary School in April of 1976. The trip required three nights away from home for these children. On two of these nights, Respondent shared a sleeping bag with one of his male students. On both nights, Respondent improperly touched the student. During the fall of 1976, three male school children from Maximo Elementary School spent the night at Respondent`s home. The boys slept in Respondent's bedroom. Respondent slept in a double bed with one of the three students and improperly touched the student. Sandra McMichael and Louanne Crawford, teachers in the Pinellas County School System, appeared and testified respecting their relationship with the Respondent. Ms. McMichael and Ms. Crawford both related their professional involvement with Respondent and it suffices to say, in summary fashion, that they considered the Respondent a person of unquestionable character. (TR 20-57 of Joint Exhibit 2.) During the hearing, Respondent testified respecting the agony which the subject incident has brought to his family. Among other things, he stated that he only stipulated to the facts contained in Joint Exhibit 1 based on counsel's advice and their considered joint opinion that without regard to the outcome of his proof or innocence by a contested hearing in this matter, that ultimately he would have gained nothing based on the wide publicity which attaches to such hearings involving public figures. Therefore, Respondent, while maintaining his innocence of the material accusations against him, reluctantly entered into the stipulation which admits improper touching of a male student, in order to satisfy the apparent interpretation of Rule 6A-4.37, Rules of the State Board of Education during a prior hearing in this matter on August 15, 1979. Such an interpretation requires an admission of wrongdoing as a predicate to surrender of a teacher's certificate for less than permanent revocation. Based on the foregoing and the parties' joint stipulation for less than permanent revocation, i.e., five years, the undersigned is of the considered opinion that sufficient basis exists to support a favorable recommendation to the Board of Education for a five (5) year revocation with the running of the revocation period commencing in October, 1977, the date of Respondent's resignation from the Pinellas County School System. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent's teacher's certificate, No. 347804, be revoked for a period of five (5) years with entry of the revocation period commencing on October, 1977, the date of Respondent's resignation from the Pinellas County School System. ENTERED this 2nd day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact At the administrative hearing which was scheduled for the time and place shown above, Mr. Carlos Viciedo, Sr., father of the minor student named as Respondent herein, announced that his son, Carlos Viciedo, Jr., had been moved to Los Angeles, California, by his Mother. The student, Carlos Viciedo, Jr., has been enrolled in the school system of Los Angeles, and removed from the Dade County School system. The principal at South Miami Junior High School where Carlos Viciedo, Jr., was enrolled prior to the transfer to Douglas MacArthur Senior High School -- South, verified that papers have been received from the Los Angeles, California, school system to demonstrate that the student has requested a transfer from the schools in Dade County to the schools in Los Angeles. Mr. Carlos Viciedo, Sr., plans to join his family in Los Angeles, and the enrollment of his son in the school system there is permanent.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County dismiss the proceeding it initiated to effect a transfer of the Respondent, Carlos Viciedo, Jr., from South Miami Junior High School to the Alternative Education Program at Douglas MacArthur Senior High School -- South. THIS RECOMMENDED ORDER entered on this 17th day of February, 1983. WILLIAM B. THOMAS, 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 17th day of February, 1983. COPIES FURNISHED: Michael J. Neimand, Esquire Suite 300 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Carlos Viciedo, Sr. 1122 Southwest 134th Place Miami, Florida 33183 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public School 1410 Northeast 2nd Avenue Miami, Florida 33132 Dade County School Board 1410 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact At all times relevant hereto James E. Wilkins, Jr. was a continuing contract teacher employed by the Pinellas County School Board. He has been employed in the field of education since 1950 and has been employed by the Pinellas County School Board since 1964. During the school year 1983-84 Wilkins was employed as a guidance counselor at Tarpon Springs Middle School. During the school year 1984-85 Wilkins was employed as a biology teacher at Tarpon Springs High School. While serving as counselor at Tarpon Springs Middle School several girls in the sixth grade came to Wilkins for assistance in deterring one of their classmates from pilfering makeup and shoes from their lockers. They had previously gone to another counselor for help in the matter but she had declined to intervene. They were sitting in Wilkins' office with the suspected culprit. After listening to part of the girl's complaints and in order to assure accuracy in recreating the proceedings, if necessary, Wilkins took out his tape recorder, placed it on his desk, asked the girls if they objected to having the conversation taped and after receiving no objection turned on the tape recorder. Wilkins testified that he asked the girls as a group if they objected to their statements being recorded and no one objected. One of the students present confirmed that Wilkins, during the course of their discussion, took his tape recorder out of his desk and asked them if they had any objection to having their comments taped. All said no. Later the suspected culprit went to another counselor and complained that she was afraid she was going to get beat up and that Wilkins had tape recorded the meeting without her permission. During the investigation which followed Wilkins acknowledged that he had in fact tape recorded the session after asking them if anyone objected. He did not poll the students to ask each one individually if she objected to the tape recorder. All were aware the conversation was being taped. Harry Danielson, Supervisor of guidance, Pinellas County School System, also questioned Respondent regarding the taping incident. Danielson's testimony that Respondent admitted to him that he taped the girls without their permission was explained by Respondent as a misunderstanding on his part as he thought Danielson asked if he had obtained written permission to tape the conversation. Danielson testified that the code of ethics of the counseling profession proscribes taping students without their knowledge or permission and that counselors are usually advised to get permission in writing before taping students. Danielson also opined that a counselor should not become involved in investigating a theft. This incident constitutes a part of the letter of reprimand issued by the superintendent on November 20, 1984. While at Tarpon Springs Middle School, Wilkins hung on the wall of his office a Ph.D. diploma from Loyola University of Paris, France. Earlier Wilkins had heard that he could perhaps obtain such a degree and did not see this university listed as a diploma mill and as not accredited. He forwarded to Loyola University transcripts of all courses he had taken including more than sixty hours of courses he had completed subsequent to completing his master's degree. These curricula were "evaluated" by Loyola University and Wilkins was issued a Ph.D. degree. He presented the information to the school board clerk handling post graduate records for Pinellas County teachers and requested the information be sent to the Department of Education in Tallahassee for evaluation. The Department advised that Loyola was not recognized as an accredited school and the degree would not be recognized by the Department. Respondent took no further action but to ask the clerk if the transcripts submitted to Loyola should be removed from his personnel file. She told him that would not he necessary. Subsequently the principal at Tarpon Springs Middle School saw the diploma on Mr. Wilkins' office, checked some information that he had that described Loyola University of Paris as a diploma mill and reported the "spurious" diploma to Nancy Zambito, Director of Personnel Services, Pinellas County School Board. Ms. Zambito questioned Respondent about the degree. He readily acknowledged that he had not taken any courses at Loyola and the degree was issued based on transcripts he had sent to Loyola for evaluation. Ms. Zambito on May 31, 1984, issued Wilkins a letter of reprimand (Exhibit 1) for unethical behavior and poor judgment. This incident also constituted a ground for the reprimand issued to Respondent by the Pinellas County Superintendent of Schools on November 20, 1984 (Exhibit 4), and as one of the charges in the suspension letter dated June 25, 1985. James Gregory, principal at Tarpon Springs Middle School 1983-84, gave Respondent a less than satisfactory evaluation in two areas as a result of the taping of the meeting with the students and for obtaining the diploma from Loyola University. At the close of this school year Gregory recommended that Respondent be removed from a counseling position and returned to the classroom as a teacher. As a result of this recommendation Respondent was transferred to Tarpon Springs High School as a biology teacher for the 1984-85 school year. Gregory opined that investigating theft is not part of the duties of a counselor but belongs solely in the realm of the administrative assistants. (TR. p. 19 Vol. I) During school year 1984-85 Leroy Birch was sitting next to the projector in Respondent's class when slides were being shown. Someone had smeared one of the slides and Birch and others were laughing. Birch was not sitting fully in his seat. Respondent thought Birch had smeared the slides and put his hand on Birch's shoulder to push him back down in his seat. Birch told Respondent to "take his god damn hand off my shoulder." Respondent, when questioned by administrative personnel about this incident, acknowledged that he had placed his hand on Birch's shoulder near a "pressure point" but that he did not squeeze the pressure point. Birch testified to no numbness or pain resulting from a squeezing of the pressure point. Birch further testified that Respondent had disciplined him and that he hated Wilkins when he was disciplined. Birch was one of many who testified Respondent used "damn" and "hell" in class more than other teachers. Ann Marie Levy was a student in Respondent's class in 1984-85 school year. She was copying notes from the overhead as she was supposed to be doing when Respondent slapped her on the shoulder to get her attention when he thought she was writing a note to a classmate. Ann Marie was more surprised than hurt by this incident which was observed by others in the class. Respondent has no recollection of striking Ann Marie but, if he did, it was accidental when he was trying to get her attention and not as a punishment nor intended as a punishment. This incident was the other striking episode referred to in Exhibit Ann Marie also testified that she never liked Respondent and that he expected a lot from his students. Ronald Cohalla was in Respondent's class last year (1984-85) and testified that while he was talking to another student Respondent told him if he didn't be quiet he would "deck him". Ron also testified that Respondent threw an eraser at him twice and that Respondent used curse words more than other teachers. During both of these eraser "throws" Ron was sitting at his desk in the front row some four or five feet from Respondent and talking to another student. On neither throw did the eraser get beyond Respondent's desk. Respondent denies ever telling Cohalla he would deck him if he didn't be quiet. Respondent is 6'1" tall and weighs 350 pounds. He was once a wrestling coach and is obviously well coordinated for a man his size. Had he attempted to throw an eraser at Cohalla, it is quite certain he could have hit Cohalla from a distance of four feet. The same credence, none, is given to Cohalla's testimony that Respondent threatened to deck him as is given to the testimony that Respondent threw an eraser at Cohalla. Several witnesses testified that Respondent had called them stupid. On cross examination these students testified that in response to a question Respondent frequently said "that's a stupid question." Respondent denies ever calling a student stupid. Many of the witnesses called by Petitioner testified that Respondent used "damn" and "hell" more than other teachers in class, that he was short in patience and frequently raised his voice in class. Many considered him a strict and demanding teacher. Respondent acknowledged that he often raised his voice to quiet down an unruly or a noisy class but did not consider this to be different than other teacher's reactions to noisy classes. Amy Levinson, who thinks Respondent is not a good teacher acknowledged that when Respondent raised his voice in class it was because the class was unruly. Use of the words "hell" and "jackass" by Respondent in class was one of the charges in Exhibit 4. No evidence was presented that Respondent used the word "jackass" in class. During the 1984-85 school year while Respondent was teaching biology at Tarpon Springs High School, Kirsten Kissinger testified she was embarrassed by Respondent once when she had stomach cramps. She asked Respondent if she could go to the bathroom then changed her mind and asked if she could go to the clinic. Respondent asked her why and she told him she had cramps. Respondent asked her to repeat her reason which she did. Kristen felt embarrassed by having to repeat her reason and thought other students were laughing at her. Another student in the class with Kristen, Stephanie Salsgiven, has no recollection of the incident in which Kristen states she was embarrassed. Respondent has been teaching middle grade and high school girls in Pinellas County Schools for more than twenty years. His testimony that anytime a girl tells him she has cramps she automatically gets permission to leave the class is more creditable than is testimony that Respondent would intentionally embarrass a female student. During a biology class at Tarpon Springs High School a discussion about mammary glands was held and one girl asked what Respondent had said. Two witnesses testified they overheard Respondent reply to this question "mammary glands -- I hope you develop some soon." The student to whom this comment was allegedly made did not appear as a witness and Respondent denies ever making such a statement to one of his students. One of these accusing witnesses also testified that Respondent had responded to a black male in the class and in a remark to him Respondent referred to the black's flat nose. John Thompson, the person referred to, testified that no such incident occurred. Once during one of Respondent's classes one student, apparently trying to be facetious, asked Respondent what obese meant. Respondent patted his stomach and replied that is what I am as are a few others in the class. Cynthia Shindler testified that Respondent specifically named her and John Thompson as obese people -- much to her embarrassment. John Thompson testified Respondent did not refer to him by name as obese. Respondent denies referring to anyone other than himself as being obese. No evidence was submitted that Respondent ever sent students on errands with unopen notes about other students or that the taping incident involved another teacher as alleged in the dismissal letter. On one occasion while passing down the corridor at Tarpon Springs High School, as Respondent passed an area known as "Greek corner" he heard someone call out in a loud voice "fat ass." Respondent did not stop. When Respondent returned a few minutes later he stopped near Greek corner to talk to a student in one of his classes. He again heard someone call out "fat ass" and, from the tone of the voice suspected Philip Stavrakis who was in the group. When Respondent called Phillip aside to admonish him Philip became very abusive and disrespectful. Respondent took Philip to the office for discipline. When he arrived he was unable to find anyone in the Dean's office to take Philip. Respondent told Philip to sit down while he looked for a dean. Philip sat on a table instead of the chair indicated and continued his harangue with Respondent. Unfortunately Respondent had also become very angry at the disrespect and abuse he was receiving from Philip and also raised his voice trying to get Philip to do as he was told. Dr. Van Fleet heard the commotion outside and emerged from behind the closed door of her office to see Respondent and Philip facing each other near the table and yelling loudly. She moved between them and told Respondent she would take over and Respondent departed. Philip contended he was not the one who had called Respondent "fat ass" and resented being so accused. Philip Stavrakis told Respondent he would get Respondent in trouble.
Findings Of Fact Petitioner has been an employee of HRS for more than seven years. She has cerebral palsy and uses a motorized wheelchair. During her tenure with HRS, she worked initially as a CETA employee under the supervision of Timothy Myers. She was a Social Work Assistant in a para-professional position requiring minimal paperwork. She did very well and had no problems with her supervisor or cc-workers. She received a promotion to the position of AFDC worker under the supervision of Ann Hauckes in October, 1979, and worked in the HRS Suncoast office in St. Petersburg for approximately six months. During that six-month period, she had problems completing the "on-call" and workload responsibilities of an AFDC worker and was placed on conditional status. Due to her unhappiness with her supervisor and her conditional evaluation, she was transferred from the HRS Suncoast office in St. Petersburg to Pinellas Park under the supervision of Theresa Ruppel. Ruppel supervised Petitioner from March, 1980 to January, 1982. Ruppel was instructed by her superiors to give Petitioner a limited caseload so that Petitioner could perform her job duties as an AFDC counselor, and Petitioner was given a specialized caseload of AFDC foster care cases which required limited client contact and the use of small, lightweight files. Petitioner continues to be assigned a minimal workload of substantially less than other AFDC workers. She is evaluated just within her special work assignment and not within the responsibilities of an AFDC worker. When Petitioner first came to Ruppel's unit, she brought with her unfinished "on-call" work which Ruppel had to transcribe for her. During Petitioner's tenure under Ruppel, she served only as a backup "on-call" worker. Ruppel found Petitioner to be a very difficult employee to supervise. Petitioner had emotional outbursts as a worker in Ruppel's unit but received no disciplinary action, even when on one occasion she left the work site after having an emotional outburst and refused to advise the supervisor as to why she was leaving or when she would return to work. After Ruppel transferred out of the Pinellas Park Service Center, Susan Gilbert became Petitioner's supervisor from January, 1982, until January, 1984. The initial working relationship was good. Gilbert rearranged her office so Petitioner's wheelchair moved easily within it. Gilbert assisted Petitioner by updating Petitioner's policy manual, by making an easy reference chart for Petitioner so that every time Petitioner needed something, she did not have to pull out the HRS manual and read it but could just refer to the chart. Gilbert even assisted Petitioner with a case in which the written narrative had been accomplished by Petitioner, by taking the computer document apart, stapling it, and organizing it so it could be put in the filing cabinet. Gilbert also assisted Petitioner in preparing for the recertification test that all AFDC counselors must take. Gilbert made up some exercises to help Petitioner take the test. She allowed Petitioner 8 hours in which to take the 4 hour test. When Petitioner failed the test, Gilbert gave her 12 hours in which to take it again. The relationship between Gilbert and Petitioner deteriorated when, in March or April of 1982, Petitioner invited Gilbert, her supervisor, to take two days of annual leave and a weekend to accompany Petitioner to a Miss Wheelchair pageant, an invitation which Gilbert declined because she did not want to have a personal relationship with any person she supervised. The relationship then deteriorated, with Petitioner calling Gilbert a snob for refusing to go to the Miss Wheelchair pageant and accusing Gilbert of not liking her due to her handicap. Thereafter, there were emotional outbursts by Petitioner over minor matters. Petitioner served as a backup "on-call" person under Gilbert until December of 1982, when she was removed because she had complained about the amount of paperwork and she did not want to be "on-call" on Fridays. Petitioner was put back on "on-call" duty in June, 1983, due to Petitioner's complaints, and she worked "on-call" with her friend Frances Whittle who was willing to help Petitioner with those duties until Petitioner was moved out of Gilbert's AFDC Unit in January, 1984. Between January, 1983, and December 5, 1983, Petitioner would not accept authority or supervision from Gilbert. Petitioner questioned every decision Gilbert made. She would leave Gilbert's office upset and come back in a matter of minutes, arguing with her supervisor. The problem in the working relationship between Petitioner and Gilbert resulted in high-level District Administration meetings to determine how to resolve the problem. Initially, in early 1983, the high-level District officials met to determine how they could resolve the conflict, and the Deputy District Administrator suggested transferring Petitioner to the Clearwater AFDC Unit under a new supervisor. Petitioner opposed being moved to the Clearwater office, and so the Department did not move her from Pinellas Park to Clearwater. Both Gilbert and Petitioner agreed to try to resolve any problems on their own. As 1983 went on, the work relationship again deteriorated which again resulted in the District Administrator, Deputy District Administrator, Personnel Officer, Gilbert, Petitioner and the Human Services Program Administrator meeting to see if they could resolve the deteriorated relationship. There was a meeting on December 5, 1983, with those persons and another meeting on December 12, 1983. On December 5, 1983, four options were presented to Petitioner: (1), transferring Gilbert to another unit if HRS could find another supervisor willing to trade positions with her; (2), transferring Petitioner to a position in St. Petersburg under a different AFDC supervisor; (3), allowing Petitioner to work at home and equipping her office at home with all the rehabilitation equipment necessary to do her work, under which option she would only have to be involved with Gilbert once a week to have her work reviewed; and (4) having Petitioner stay at the Pinellas Park office but transferring her supervision away from Gilbert, with Petitioner being supervised long distance by Karen Raym Girard who would then drive, initially from Suncoast in St. Petersburg and, when the Wildwood Service Center opened, from the Wildwood office in St. Petersburg once a week or as often as was needed by Petitioner. Option 4 was the option chosen by Petitioner at the December 12 meeting. 2O. The effective date for the transfer of supervision from Gilbert to Karen Raym Girard was to be effective January 3, 1984. Subsequent to December 12, 1983, but before January 3, 1984, Petitioner changed her mind and did not want option 4. Petitioner requested a third meeting with the District Administrator after she had changed her mind about the option she had selected. The District Administrator declined a third meeting and told Petitioner that she could institute an internal grievance if that is what she wanted to do. When the District Administrator did not have yet another meeting, Petitioner filed an internal HRS grievance. Before the grievance committee met, the transfer of supervision did take place on January 3, 1984. During the period January 3, 1984 until February 10, 1984, Petitioner decided she was being segregated because she was working in the Pinellas Park office but was being supervised by Girard who was located in the Suncoast office in St. Petersburg. Petitioner's feelings of segregation were based upon the fact that she was taken off "on-call" duties in Gilbert's office because she was no longer a member of that unit; her name was removed from Gilbert's bulletin board showing the names of the persons in Gilbert's unit; and there was a sign placed on a vacant office in the building reserving it for Girard to use when her supervision of Petitioner required. While Petitioner was under the supervision of Girard from January 3, 1984, until February 10, 1984, Girard had weekly conferences with Petitioner where Girard would come from St. Petersburg to Pinellas Park to the office assigned to her in the Pinellas Park Service Center. Petitioner told Girard that she wanted Gilbert to be a personal friend with her and associate with her after working hours, and that she felt that Gilbert did not like her because Gilbert did not pursue being a personal friend of hers. During the time that Girard supervised Petitioner, she found Petitioner very difficult to supervise. Petitioner would lose her temper, raise her voice, or lose emotional control. The main issue Petitioner always wanted to discuss with Girard was that she wanted Gilbert to be friends with her. Petitioner did not want to discuss work-related issues with Girard. From February 10, 1984 until August 31, 1984, Petitioner was on extended leave -- annual leave, sick leave, and leave without pay. She never physically transferred to Wildwood in St. Petersburg, although her office furniture was moved there while she was on leave. The HRS internal grievance committee consisted of one member of Petitioner's choosing, one of HRS' choosing, and one agreed upon by both HRS and Petitioner. The internal grievance committee found: that an irreconcilable personality conflict existed between Gilbert and Petitioner; that the conflict was based on Petitioner's desire for a relationship that was personal as well as professional and Gilbert's inability to provide that relationship; that Petitioner did not have any problems with performing her job duties and was rated above satisfactory (it did not mention that Petitioner was only evaluated against her own performance) that considerable efforts were made to try to improve and clarify the relationship between Gilbert and Petitioner; that those efforts were not successful and the situation deteriorated rather than improved; that four options or solutions were discussed with Petitioner; that Petitioner participated in the selection of the option to remain in Pinellas Park but transfer her supervision, and that she agreed to that option; that subsequently she experienced a feeling of segregation and decided that the option was not in her best interest; that due to her physical location and supervision, she was segregated from her unit; that the committee was unable to substantiate any instance of discrimination due to Petitioner's handicap on the part of management; that she had been afforded special accommodations due to her handicap not normally given employees; that Petitioner's proposed solution was to return to her previous unit for a 90-day trial period during which all parties should work to improve the relationship. On February 9, 1984, the internal grievance committee recommended that: Both Petitioner and Gilbert be referred to EAP, Petitioner for counseling and more realistic expectations in dealing with management/employee relationships and Gilbert for sensitivity training in dealing with employees with special needs. Petitioner be physically transferred to Girard's unit when the HRS move to the Wildwood Service Center was made for the following reasons: Petitioner was experiencing segregation which could only be alleviated by physically locating her with the unit of which she was a member. The personality conflict between Gilbert and Petitioner could not be solved. The situation was detrimental to Petitioner's emotional and physical well being. By waiting to relocate Petitioner at the time of the HRS move to Wildwood, she would not be singled out as being moved because of a problem. Moving her when others were also being moved would afford her the opportunity to naturally interrelate with staff experiencing the same action. It was hoped that would facilitate her adjustment to her new service center. The Wildwood facility could easily be made accessible for her and a room could be adapted to her needs. Wildwood is on the Interstate and, therefore could be reached from Petitioner's home within a reasonable time frame. In the future, District Management should make every effort to afford Petitioner treatment consistent with treatment afforded all other employees. Special considerations given in the past had exceeded reasonable accommodation and had led Petitioner to have unrealistic expectations and difficulty in adjusting to the normal work setting. The many special considerations had not been to her benefit and, in fact, had been a disservice to her. On February 23, 1984, Petitioner's position was transferred from Pinellas Park to St. Petersburg. The District Administrator accepted the recommendation of the internal grievance committee and agreed to transfer Petitioner from Pinellas Park to Wildwood in St. Petersburg when Wildwood opened in the spring of 1984. The District Administrator was satisfied that Petitioner could drive from Pinellas Park to St. Petersburg where she had previously worked. Petitioner was very unhappy with the HRS internal grievance committee recommendation because she did not want to be transferred from Pinellas Park to St. Petersburg where she had formerly worked. Her preference at that Point was that the District place her back under the supervision of Gilbert and that they attempt to work out any relationship problems. When Gilbert transferred away from her supervisory position in Pinellas Park to a counseling position in the Central Licensing Unit in June, 1984, HRS offered Petitioner the opportunity of coming back to Pinellas Park with a new supervisor, Lawrence R. Raym. Raym supervised Petitioner from July 1, 1984, until February, 1985. During that time, Petitioner's temper tantrums continued. It was estimated that her caseload only took from 2 to 7 days to accomplish each month. Susan McPhee supervised Petitioner from March of 1985 until September of 1986 and also had problems with Petitioner's general acceptance of supervisory authority. During McPhee's supervision of her there were times when Petitioner would not like what McPhee told her and would abruptly terminate the conference by simply wheeling out of the room in anger. Martin Ademy became Petitioner's supervisor in October of 1986 when this case was initially scheduled for final hearing. Ademy has not had any difficulty in supervising her. Ademy estimates that it should take her between 10 to 12 days a month to do the work assigned to her. Any work she does not complete is assigned to another AFDC counselor. Ademy does not have Petitioner do "on-call" work because, in his opinion, she cannot handle those duties. Although Petitioner has applied for some unidentified promotions which she has not received, there is no evidence that Petitioner is able to perform the duties of those unidentified positions with reasonable accommodations being afforded her. Additionally, some of those positions were at locations to which Petitioner had refused to be transferred. Respondent has not discriminated against Petitioner based upon her handicap and has not retaliated against her in any way. HRS has provided Petitioner with much more than reasonable accommodation. To the extent that HRS has treated Petitioner differently than other employees, it has been through pampering rather than discrimination or retaliation. Petitioner has not suffered any physical or emotional illness as a result of any conduct on the part of Respondent. Although Petitioner testified that her absence from work from February until August, 1984, was due to illness brought on by Respondent's discrimination and retaliation, her testimony is simply untrue. Petitioner became ill while she was on annual leave. The minimal medical attention she received was for long- standing medical problems. Although Petitioner had provided HRS with reports from her doctor indicating her medical problems were work-related, those opinions were not those of her doctor. Rather, those reports were "doctored" by Petitioner herself before she gave them to HRS.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent has not discriminated or retaliated against Petitioner and dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. DONE and RECOMMENDED this 9th day of July, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. COPIES FURNISHED: Beverly L. Lassor 6333 81st Avenue North Pinellas Park, Florida 34665 Barbara Ann Dell McPherson, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether the Petitioner, the School Board of Pinellas County, should dismiss or suspend the Respondent, Larry Lynn, on charges of gross insubordination and misconduct in office.
Findings Of Fact Larry Lynn (hereinafter 1,Lynn") holds a Teaching Certificate, 563002, issued by the State of Florida. The School Board of Pinellas County, Florida, has employed Lynn as a teacher, since the 1986/1987 school year, and although Lynn is currently suspended without pay, he is employed by a Professional Service Contract. For the first semester of the 1986/1987 school year, Lynn was assigned to Largo High School. For the second semester of 1986/87 school year, Lynn was transferred to St. Petersburg High School. While Lynn was at St. Petersburg High School, one of his female students requested a transfer from Lynn's class due to her perception that Lynn was injecting sexual innuendo into his classroom presentations. Although Lynn denied using such terms, he was counseled by administrators on two occasions to avoid using language that could be construed as containing sexual references. Lynn also received a rating of "I," for "Improvement Expected (growth necessary)" in the judgment category on his annual evaluation for that school year, with a notation that Lynn was "conscious of the need to eliminate off-hand remarks within the lesson." For the 1987/1988 school year and for all further times relevant to the issues presented in this cause, Lynn was assigned to Pinellas Park High School. On September 25, 1987, Richard Allen, an Assistant Principal at Pinellas Park High School, held an initial conference with Lynn to reference the incident at St. Petersburg High the year before and to remind Lynn of the need to avoid using language that was susceptible of being construed as having sexual content. During the 1988/1989 school year, Lynn was seen leaving campus with a female student named Sherry Biafore during lunch time without authorization. It is against school policy to accompany students off campus, or to allow students to leave campus, during school hours without authorization. It also was brought to the attention of the school administration that Lynn allowed Sherry Biafore to be present in his classroom when she was not assigned to that class. At a conference with Marilyn Heminger, the Principal of Pinellas Park High School, to discuss the information the administration had received concerning Biafore, Lynn told her that he had been "counseling" Biafore and that he only left campus with her one or two times. He also admitted to having written two hall passes for Biafore during the fifth period. In fact, Lynn and Biafore had left campus without permission on approximately ten occasions, not just the one or two occasions to which they had admitted. Also, Lynn allowed Biafore to be in his classroom when she was assigned to another class on numerous occasions and at different times during the day. When she was there, in the presence of the students assigned to his class, Lynn would allow her to sit on his lap, to hug and kiss him, and to call him "daddy." He would call her "sweetie cakes," or other terms of endearment, and would give her cigarettes. During the 1988/1989 and 1989/1990 school years, a student named Erica Howell, (DOB 5/25/72), was an office assistant and had to obtain attendance records from teachers who delayed turning them in. Lynn was frequently late in turning in his attendance records, and Howell often had to retrieve this, as well as other information, from Lynn. On one occasion during the fall of the 1989/1990 school year, when Howell had to get attendance records from Lynn, Lynn made comments that could reasonably be perceived as containing sexual innuendo and which were so perceived by Howell, such as "that's not all you can come and get." Also during the 1989/1990 school year, when Howell entered Lynn's classroom to get attendance records, Lynn placed his hands on Howell, in her buttocks area, put his arm around her waist, and around her arm, and touched her on the breast. These actions by Lynn, together with others the previous two years (see Findings 18 through 20, below), disturbed Howell so much that she asked not to be forced to get records from him anymore. When Heminger, the Pinellas Park Principal, heard about the incident, and heard that Erica Howell's parents had called the school to complain, she decided to refer the entire matter to Stephen Crosby, the Pinellas School System's Director of Personnel Services. Crosby began his investigation by interviewing Howell. Howell not only reported the incident during the fall of the 1989/1990 school year, but she also reported incidents which had happened during the 1987/1988 and 1988/1989 school years. 1/ During the 1987/1988 school year, Lynn gave Erica Howell and a foreign exchange student a ride to Howell's home, but instead of going directly home, Lynn took a circuitous route of great length, which concerned Erica Howell and caused the exchange student to cry. During the 1988/1989 school year, when Howell, acting as an office assistant, went to Lynn's classroom to ask for attendance reports, Lynn, in the presence of the students in the class, made remarks that could be reasonably construed as containing sexual innuendo, and which were so perceived by Erica Howell. For example, when Howell asked if she could have the attendance report Lynn would say: "That's not all you can have." On another occasion during the 1988/1989 school year, Lynn overheard Howell and a friend talking about "making connections" with boys during an upcoming weekend. Lynn commented: "I'll be your connection any time." Howell then gave Crosby the name of a friend named Laura Mackie, (DOB 4/6/72), also a former student of Lynn, and reported what Mackie had told her. Crosby next interviewed Mackie. 2/ During the 1987/1988 school year, Lynn put his arm around Mackie, including around her waist, and on one occasion patted her on the buttocks with his hand. Laura Mackie was disturbed by this patting of her buttock by Lynn, and told her friend, Melissa Logue, as well as her track coach. Crosby also received information that both Lynn and Biafore had been dishonest in their statements about what had occurred during the preceding year. Crosby's new information was that Lynn and Biafore had left campus without permission on approximately ten occasions, not just the one or two occasions to which they had admitted. Also, he received information that Lynn allowed Biafore to be in his classroom when she was assigned to another class on numerous occasions and at different times during the day. When she was there, in the presence of the students assigned to his class, Lynn would allow her to sit on his lap, to hug and kiss him, and to call him "daddy." He would call her "sweetie cakes," or other terms of endearment, and would give her cigarettes. (See Finding 12, above.) Crosby next confronted Lynn with the allegations of Howell (see Findings 14, 15, 19 and 20, above) and Mackie (see Finding 22, above) and with the allegation that he in fact had left campus with Biafore on numerous occasions. Lynn denied the allegations and said he could prove that he did not leave the campus with Biafore more than once or twice. Crosby next interviewed the female students who were in Lynn's classes during the fall of the 1989/1990 school year. 3/ During the 1989/1990 school year, a female student named Jennifer Stroyan, (DOB 7/8/75), was adjusting her hair with one hand, while holding books with her other hand, when Lynn put his arm around her, under the arm with which she had been adjusting her hair. Lynn's hand touched her breast, and Stroyan removed Lynn's hand from her breast by a downward motion of her arm. This action by Lynn caused Stroyan to be uncomfortable around Lynn and to lose respect for him as a teacher. During the 1989/1990 school year, a student named Shonyelle Sampson, (DOB 1/19/75), answered a question in class incorrectly, and Lynn told her to use her "fucking head." The effect on Sampson was that she stopped volunteering to answer questions in Lynn's classroom. During the 1989/1990 school year, Lynn was talking with a female student named Keli Jo Girard, (DOB 8/4/73). Noticing that she was wearing a boy's jacket, Lynn asked her if she had a boy friend. When she replied that she did, Lynn asked her if she was still a virgin. When she replied that she was, Lynn stated that it was good to "wait," and then said that he (Lynn) waited until he was 12 years old. During the 1989/1990 school year, Lynn rubbed the neck and shoulders of a female student named Tracy Peterson, (DOB 1/22/75), and, at one point, put his arm around her so far that his hand touched her breast. Lynn's conduct was so disturbing to Peterson that she told her mother, who advised her to avoid Lynn in the future. Lynn frequently used the initials "S.O.B." and "G.D.M.F." in class. He says that he used "S.O.B." as attention- getting way of referring to "state of being" and that "G.D.M.F." actually was part of "G.D.M.F.T.D.," which was supposed to stand for "golly dern, mighty fine, that's dandy." But several of his students were not aware that they were supposed to stand for anything other than the vulgar expressions commonly understood by those initials. Crosby next interviewed female students who had been in Lynn's classes at Pinellas Park High School during previous years. 4/ During either 1987/1988 school year or the 1988/1989 school year, Lynn frequently spoke to a female student named Leslie Kemp, (DOB 5/22/71), while she was in the company of her friend, Keyma Mitchell, and used sexually suggestive terms in the conversations, including asking Kemp to go to a motel with him, and once asking Kemp if she would like her body licked. On another occasion, Lynn patted Leslie Kemp on the buttocks, which action Leslie Kemp reported to Leroy Kelly, a Pinellas Park Police Officer assigned to Pinellas Park High School. On several occasions during the 1988/1989 school year, Lynn placed his arm around the waist of a female student named Helen Seefeld, (DOB 8/11/73). Lynn's actions made Seefeld feel uncomfortable. She did not perceive similar attentions being paid to male students. During the 1988/1989 school year, Lynn rubbed the neck and shoulders of a female student named Melissa Martinez, (DOB 3/16/73), while showing movies to his class or when she asked questions in class. This disturbed Martinez to the point where she stopped asking for assistance in class. Melissa Martinez also heard Lynn remark in class that the woman with whom he was living was satisfying all his needs, which comment was said in such a way as to be reasonably susceptible of being construed as containing sexual innuendo. During the 1988/1989 school year, Erica Thomas (DOB 2/13/73), heard Lynn use the word "fuck" out loud in class. Lynn also rubbed her back and shoulders, which disturbed Thomas to the extent that she asked Lynn to stop. Several times during the 1988/1989 school year, Lynn placed his arm around Keli Jo Girard closely enough that on at least two occasions his hand brushed her breast. On several occasions during the 1988/1989 school year, Lynn placed his arm around the waist of a student named Angela Garrett, (DOB 3/22/72). When he persisted in asking her to be his assistant, it made her nervous, and she tried to avoid Lynn. Also during the 1988/1989 school year, Lynn would walk about his classroom and stop to rub the neck and shoulders of a student named Amber Wilkinson, (DOB 2/10/71), who disliked it and would tell Lynn angrily under her breath to keep his hands off her. During the 1988/1989 school year, Lynn patted a student named Alison Davis, (DOB 7/12/72), on the buttocks on at least three occasions. It then occurred to Crosby that, although they had evidence of allegations of Lynn's improper use of sexual innuendo when he was at St. Petersburg High, they had no similar information during his tenure at Largo High School. Crosby located a Largo High yearbook and picked out a few female students from the grades Lynn taught who appeared to Crosby from their yearbook pictures to be attractive. 5/ While at Largo High School during the first semester of the 1986/1987 school year, Lynn touched his fingers to the chin of a female student named Lynn Smith, (DOB 9/26/71), and told her that she had a pretty face. On a separate occasion, the Respondent asked Smith to stay behind after class to pick up a paper. Lynn was sitting on the corner of his desk. As Smith came close to him, the Respondent quickly brought his legs together, stating that he almost got her that time. These two incidents made Smith very uncomfortable about Lynn as a teacher. Smith did not report either incident at the time because of her age and because she was nervous, but she is now glad the incidents are known. While at Largo High School, Lynn rubbed his hand on the cheek of another of his female students, Kim McGevna, (DOB 2/11/72), saying he did not believe that she was not wearing makeup. Kim McGevna told her mother, Jean McGevna, and her boy friend about Lynn touching her, and the comment that he made, and informed them that she did not like it. Jean McGevna told Lynn, over the telephone, that he had no business touching her daughter and that in the future he should keep his hands off her, and to speak to her only in the classroom and only about school work. Kim's boy friend expressed similar thoughts to Lynn when he and one or more of his friends approached Lynn after a basketball game in the school gymnasium. It is harmful to the learning process for a teacher to subject students to inappropriate touching or sexual comments. Such behavior by a teacher causes a student to lose respect for a teacher, thereby diminishing the teacher's effectiveness. Parents do not appreciate such behavior by a teacher towards their children, and therefore such behavior decreases parent support for the school. Honesty on the part of a teacher when discussing professional matters with administrators is important to the efficient operation of school. Dishonesty by a teacher is a breach of trust that diminishes the teacher's effectiveness. Neither Crosby nor any other school administrator confronted Lynn with the results of Crosby's further investigation (resulting in Findings 18 and 27 through 50), or the additional information regarding how often Biafore was in Lynn's classroom instead of where she was supposed to be (last two sentences of Finding 24) until the information was used as a basis for Lynn's suspension and the School Superintendent's recommendation that the School Board dismiss him. The Respondent has been a teacher for over fifteen years, the majority of the time teaching English. Except for the evaluation at St. Petersburg High that "improvement [in `judgment' was] expected," Lynn received all "excellent" and "good" evaluations during his teaching career. He never before has been terminated from a teaching job and never has been transferred in lieu of firing. Lynn is a friendly, outgoing, "arm-around" type of teacher, to both boys and girls, without the majority of them perceiving any sexual overtones by his general open nature. It is common for Lynn to place his hands on the neck, shoulder and waist of both boys and girls, and he does this openly, in front of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the School Board of Pinellas County, enter a final order dismissing the Respondent, Larry Lynn, as a teacher at Pinellas Park High School. DONE and ENTERED this 10th day of April, 1990, 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 10th day of April, 1990.
The Issue Whether Respondent's state teaching certificate should be suspended or revoked pursuant to Chapter 231, , Florida Statutes, asset forth in Petition, dated May 21, 1979. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on two counts of misconduct arising from the teacher/pupil relationship. The first count alleges that the Respondent had sexual intercourse with a seventh grade student on one or more occasions during the 1972 school year. The other alleges that during the 1978 school year, the Respondent kissed a female student on the lips on one or more occasion. The Petitioner herein was filed pursuant to directions of the State Commissioner of Education who, on May 18, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by his answer to the Petition, dated June 20, 1979.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 157255, Graduate, Rank II, valid through June 30, 1989, covering the areas of English elementary education, and junior college. He received a Maser's Degree in education from South Carolina State College in 1969, and obtained Florida teaching certification in August, 1969. At the time of the incidents alleged in the Petitioner, Respondent was employed as a teacher in the public schools of Orange County. (Testimony of Respondent, case pleadings) During the 1971-72 school year, Respondent was a sixth grade teacher at the Grand Avenue Elementary School, Orlando, Florida. At some undisclosed time subsequent to the end of the school year, an Information was filed against Respondent by the State Attorney, Ninth Judicial Circuit of Florida, as a result of allegations that he had engaged in sexual intercourse with one of his twelve- year-old female students in 1972. The case was thereafter nolle prossed by the State Attorney for insufficient evidence. (Testimony of Nagel, Bailey) The alleged victim, Harriett Moten, testified at the hearing that on a number of occasions during the period January or February through May, 1972, while a twelve-year-old student in Respondent's sixth grade class, Respondent had sexual intercourse with her in a storage area behind the stage of the school auditorium. She testified that such incidents occurred approximately twice a week at about 11:00 A.M. during a class period. At those times, Respondent allegedly sent her out of class on an errand, such as obtaining film, and then joined her in the backstage area. She stated that these encounters would consume approximately 20 or 25 minutes by the time she returned to class, and the Respondent came back to class a short time later. Although music classes were conducted in the auditorium practically every day of the school week during the times in question, Moten testified that she never saw the auditorium in use or heard music while she was behind the stage. She stated that she submitted to Respondent's advances because she was afraid of him. She further testified that on one occasion Respondent had brought another female student to the rear of the stage who observed his activities with her. The deposition testimony of another former student, Thomas Grier, was admitted in evidence wherein he testified that he had once observed Respondent lying on top of the student who supposedly had once witnessed Respondent and Moten behind the stage. This incident also allegedly took place behind the auditorium after a music class. He further testified that he had observed Respondent enter the classroom on a number of occasions with one or the other of the tow female students. The witness was deposed at Zephyrhills Corrections Institute, Zephyrhills, Florida, where he was incarcerated for possession of a firearm. It was his third conviction of a felony. Harriet Moten testified that she gave birth to a child in January 1973. Although her blood type and that of Respondent is 0, she was informed by an Assistant State Attorney that her child's blood type was A. She had been a failing student during her sixth grade year and had been paddled a number of times by Respondent for disciplinary reasons. She informed her mother of Respondent's actions in the summer of 1972 when she experienced irregular menstrual periods and was found to be pregnant after her mother took her to a physician. She had not informed her mother earlier concerning the matter because they did not get along with each other. She claimed that she had not had sexual relations with anyone other than Respondent. Respondent denied the allegations at the hearing and said that, although the student had been one of his "problem children" whom he had to discipline on occasion, she had appeared to like him and was the only student who had brought him a Christmas present in 1971. From the foregoing, it is considered that the improbable and uncorroborated testimony of Harriet Moten, when viewed against Respondent's unequivocal denial of the allegations, is insufficient upon which to predicate a finding that Respondent had sexual intercourse with the student, as alleged in the complaint. The deposition testimony of Grier which, in part, supports the allegations, is not deemed credible. (Testimony of Moten, Grier (deposition, Petitioner's Exhibit 3), Respondent, Petitioner's Exhibit 5, Respondent's Exhibits 1, 2, 5). During the 1978-79 school year, Respondent taught sixth grade at the Cypress Park Elementary School, Orlando, Florida. On November 20, 1978, one of his students, Patricia Foster, accompanied by another member of her class, Lola Ortega, reported to the school principal that in the preceding October, Respondent had kissed her in the classroom during a-recess period when no one else was present. Lola told the principal that she had opened the classroom door at the time and observed the incident. The principal reported the matter to a school board Area Administrator who interviewed the two girls on the following day. Patricia told this official that Respondent had kissed her twice on the lips during the recess period and that, after the first kiss, he had said he "didn't mean it." Patricia said that on the second occasion, she looked up and saw Lola open the door and then close it. She further stated that she had not told her parents of the incident because her stepfather would have become angry, and that she had not told the principal earlier because she didn't want to get Respondent in trouble. Lola told the Area Administrator that she had opened the door to the classroom and observed Respondent stoop over and kiss Patty on the lips, at which time she closed the door and returned to the playground. At the hearing, Patricia testified that Lola had opened the door when Respondent kissed her the first time. Lola testified that at the time she opened the classroom door, Respondent had his back toward her and that she only saw him bend over the desk. She conceded that she had not seen Respondent actually kiss Patricia and denied that she had told anyone that she had. However, upon further inquiry, she admitted telling the principal that she had seen Respondent kiss the student and could not explain why she had done so. Patricia later told one of her classmates at a "slumber party" about the incident. That girl, Michelle Cridelle, testified that she thought Patricia had told her Respondent had kissed her twice on different days. Respondent had disciplinary problems with Lola during the previous school year and at the beginning of the 1978-79 school year. Also, on a prior occasion, she and another female student had fabricated a letter purportedly written by a male student to them containing coarse language which she admitted was designed to get the boy in trouble when it was delivered to her father. In another instance, Patricia and Lola had been untruthful in telling Patricia's mother where they had been on one occasion. Lola had been a frequent disciplinary problem for the school principal who considered her to be a leader and catalyst in creating problems at school. Respondent testified that, on the day of the alleged kissing incident, another student was in the classroom with Patricia during the recess period, and that he had simply gone to her desk and colored some leaves on a box. He denied kissing her on this or any other occasion. The school principal is of the opinion that Respondent is a very truthful individual. It is considered that the improbable, contradictory, and uncorroborated testimony of Patricia concerning the alleged kissing incident, coupled with Respondent's denial of the same, is insufficient upon which to base a finding that Respondent committed the acts alleged in the Petition. (Testimony of Foster, Richardson, Ortega, Cridelle, Cossairt, Taylor, Brady, Respondent, Petitioner's Exhibit 1). Respondent was relieved of his duties as a classroom teacher by the Superintendent of Orange County Public Schools on November 28, 1978, and reassigned to an Assistant Superintendent's office to perform administrative duties pending investigation of the 1978 allegations by Petitioner. He had been supervised by the principal of the Cypress Park Elementary School for a period of six years. The principal testified that the other teachers respected him, but that he should not be working with children due to his abrasive personality with students. During the three year period 1976-78, Respondent's performance evaluations were uniformly "Satisfactory," except in those areas reflecting his relations with students and parents, and in his support of "state laws and county policies." It was noted in the 1977 and 1978 evaluations that improvement was needed in those areas. Narrative comments of the evaluations further indicated his lack of rapport with students and parents, lack of support of corporal punishment practices, and his ridicule of students. One fellow teacher at Cypress Park Elementary School submitted a letter to Petitioner in January, 1978, stating that Respondent had always conducted himself properly with students and parents on the occasions when she had observed him at the school and during school functions. (Testimony of Cossairt, Petitioner's Exhibit 2, Respondent's Exhibit 3, supplemented by Respondent's Exhibit 4).
Recommendation That the charges against Respondent Isadore Smith be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801 Professional Practices Council 319 West Madison Street - Room 1 Tallahassee, Florida 32301
The Issue The issue is whether Respondent's employment with the Pinellas County School Board should be terminated for just cause for violations of Pinellas County School Board Policies 8.04(4) and 8.25(1)(a), (d), and (x).
Findings Of Fact Based upon observation of the witnesses while testifying, their ability for accurate recall and the review of exhibits in evidence and pleadings contained in the file, the following relevant and material facts are found. Petitioner, Pinellas County School Board, is the governing board of the Pinellas County School District. In 1995, the Board adopted School Board Policy 8.25 "Discipline of Employees." Respondent, Thaddeus Starling (Starling), has been a teacher for 23 years with the last 17 of those years spent in Pinellas County as a full-time teacher. Starling has worked for the last three years as a physical education instructor at the John Hopkins Middle School, located on 16th Street in St. Petersburg, Florida. At all times relevant and material to these proceedings, Starling was employed pursuant to a professional services contract with the School Board pursuant to Section 231.36, Florida Statutes (2001). Mr. James Baldwin, a principal for over 15 years and the current principal of John Hopkins Middle School, testified that he has personally known Starling for 15 to 16 years and has been his supervisor and principal for three years. As far as he knows, Starling has never done anything wrong to suggest that he was not a good man. He is good with the students and has received good annual evaluations. There is no evidence in the record to suggest that Starling has ever been disciplined by the School Board. Starling has been with his wife 14 years and married to her for the last eight years. Their pastime over the years has been fishing in and around the St. Petersburg area. Starling and his wife regularly fish for mullet in and around the St. Petersburg area during September and October, when the mullet are running. Each day that fishing is planned, Starling calls his wife to identify the spot where they will fish, and she meets him at the identified spot with their fishing equipment. On September 5, 2001, Starling left school driving a 1983 Camaro by pulling onto 16th Street going toward 22nd Avenue. He turned left onto 22nd Avenue to Third Street where he made a left turn. Located along Third Street is one of the several fishing locations where Starling and his wife regularly fished. Third Street at 20th Avenue was under construction on September 5, 2002, and Starling had to detour off Third Street onto 20th Avenue. Starling followed 20th Avenue to the intersection of 20th Avenue and Fourth Street, which is controlled by posted stop signs facing the 20th Avenue traffic. Because it was raining hard, all the windows in his vehicle were rolled up when he stopped at the 20th Avenue and Fourth Street intersection. In response to complaints made to the St. Petersburg Police Department, a prostitution decoy detail was dispatched to the area of 20th Avenue and Fourth Street on September 5, 2001. Sergeant Quandt, the ranking officer, was in charge of the detail consisting of Detective Christina Bentham, posing as the prostitute decoy, and Detective Landrem, who was an observer or "eyeballer" responsible for looking out for the safety of the female decoy. The crime of solicitation for prostitution focuses on the conversation between the "John" (the person who initiates conversation with the decoy for the purpose of sex in exchange for something of value) and the decoy prostitute. No consummation need occur. The crime is committed by the specific "words spoken" by the accused. While on the decoy detail, Detective Bentham wore an electronic device that transmitted her voice to Detective Landrem, who was equipped with an electronic receiver. Detective Bentham was also wired with an electronic device that transmitted her voice and the voice(s) of persons speaking to her to Sergeant Quandt, who controlled the electronic receiving and recording device. The electronic communication devices enable the members of the prostitution detail to communicate among themselves. The electronic recording device is to record, as factual evidence, the solicitation for sex made by the "John" to the decoy prostitute. On September 5, 2001, Sergeant Quandt had the electronic recording device in his vehicle. He is the only member of the prostitution decoy detail with personal knowledge of when the recording device was actually operating during this decoy detail, but was not called by the Board to give testimony. After approximately four hours of waiting in the pouring-down rain at the intersection of 20th Avenue and Fourth Street, South, decoy Detective Bentham had not arrested anyone for soliciting her for prostitution. Sergeant Quandt drove up to Detective Bentham and ordered her to "get in he was calling it off." By her admission, Detective Bentham steadfastly refused to enter Sergeant Quandt's vehicle and insisted she would stay out longer. Thereafter, Sergeant Quandt drove away to another location. Detective Bentham went to stand under a tree approximately 20 yards away from the intersection. According to Starling, as he sat at the stop sign, waiting for traffic to clear for his turn onto Fourth Street, Detective Bentham came from the grass area, walked onto the sidewalk to the passenger side of his vehicle, and motioned for him to lower his passenger window. Detective Bentham yelled something to Starling that he did not understand, so he slightly rolled down the passenger window of his vehicle. According to Starling, he saw a lady out in the rain waving at his car, and he thought maybe she needed some help. Starling's testimony is plausible. According to Detective Bentham, Starling yelled something to her through his rolled-up passenger window while at the stop sign. She did not understand what he was saying, prompting her to walk approximately 20 yards in the pouring-down rain to the passenger window of his car. This testimony is not credible. Starling and Detective Bentham gave conflicting testimony about who initially said what to whom. According to Starling, Detective Bentham's first statement to him was, "What can I do for you?" and he replied, "Well, nothing, I'm headed to the wall." According to Detective Bentham, her first statement to Starling was, "What are you looking for?" and he replied, "Head." Considering the totality of circumstances, Starling's habit of fishing, the planned fishing at the specific location, calling home to his wife to meet him, and the road construction in the area causing detours resulting in Starling's arrival in the rain at the intersection of 20th Avenue and Fourth Street, Starling's testimony are credited. Detective Landrem was in a parked vehicle approximately 100 yards from Detective Bentham and had control of a radio that he testified "received" only the words spoken by Detective Bentham. According to Landrem, he could not and did not heard any incriminating statements allegedly made by Starling. It is undisputed that the decoy prostitution detail, with electronic recording equipment in their control and on their person, failed to record the alleged incriminating statements during the conversation between Detective Bentham and Starling. Sergeant Quant, ranking police officer in charge of this detail, was not called by the School Board to testify. According to Starling, when Detective Bentham began to speak with him, he said, "Wait a minute," and [I'm going] "fishing," and rolled his window up with the intent of turning right onto Fourth Street. Moments before making his right turn, Starling, looking in his side view mirror, saw Detective Bentham step off the curb onto the road and walk to a white car that was directly behind his car when he was on Twentieth Avenue. Unknown to Starling at that time, the white car was driven by a male, Mr. Perry, whom Detective Bentham arrested for solicitation for prostitution, again without recording that conversation. After Starling turned onto Forth Street East driving without stopping toward Ninetieth Avenue, Starling was followed by Sergeant Quant, but was stopped by and arrested by a uniformed St. Petersburg Police Office and charged with solicitation for prostitution. Under Section 796.07, Florida Statutes, this criminal offense is a misdemeanor. Starling obtained local counsel to represent him in the criminal proceeding. On November 20, 2001, Starling was advised by counsel that he would best be served by dropping his plea of not guilty and entering a plea of nolo contendere. Starling was advised that his fine would be the amount of his posted bond, and he would have to take a sexually transmitted disease test. Starling agreed with the understanding the agreement would be acceptable to the School Board. The County Court of Pinellas County accepted Starling's plea of nolo contendere, withheld adjudication of guilt, and placed Starling on four months' probation that he successfully completed. Starling was advised by his counsel that he did not have to report his arrest to the School Board until time for his professional service contract renewal in May of 2002. In January of 2002, after Starling and a colleague saw a newspaper article about another School Board employee who was disciplined, in part, for failing to report an arrest and a withholding of adjudication, they found a policy manual and talked to a school administrator who advised them to report any such occurrence to the Office of Professional Standards. Thereafter, Starling reported the arrest to the School Board. Starling failed to report his arrest to the Office of Professional Standards immediately after his release from jail on bond. Starling's failure to immediately report his arrest to the School Board was not an intentional violation of Policy but was, at worst, excusable neglect based upon the advice received from counsel. Starling reported his arrest by the St. Petersburg Police Department, the charge of solicitation and the disposition by the court to the Office of Professional Standards on January 9, 2002. Starling's prolonged delay in reporting his arrest to the Board is a violation of Pinellas County School Board Policies 8.04(4) and 8.25(1)(x). By letter of January 25, 2002, as amended thereafter, the Office of Professional Standards, the School Board's attorney and the Pinellas County Sheriff's Office, Superintendent J. Howard Hinesley sent the following notice of suspension and dismissal letter to Starling: January 25, 2002 Dear Mr. Starling: This is to advise you that you were suspended with pay effective January 11, 2002, until the School Board meeting on February 12, 2002. The Board will meet at 1:00 p.m. in the conference hall of the Administrative Building located at the address on this letterhead. At that meeting, I shall recommend that the Board sustain your suspension and dismiss you. If the Board enters its Final Order at that meeting, the effective date of your dismissal will be February 13, 2002. My recommendation for dismissal is based on the fact that on September 5, 2001, you were arrested by St. Petersburg Police for solicitation for prostitution. On November 15, 2001, you pled nolo contendere to the charge. Your actions are violation of School Board Polices 8.04(4) and 8.25(1)(a),(v), and (x), the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and constitute just cause for your dismissal pursuant to Florida Statute 231.36. You are entitled to a hearing regarding my recommendation. This hearing, if requested will be pursuant to Chapter 120, Florida Statutes. Your request for a hearing must be submitted, in writing, to Staff Attorney, Jackie Spoto Bircher, no later than 4:30 p.m. on Monday, February 11, 2002. If you do not request a hearing, this failure constitutes an admission of the allegations made in this letter. Due to the nature of the charges against you, I will recommend that you be suspended without pay effective February 13, 2002, until the conclusion of the administrative hearing process, if you request such a hearing. If you have any questions regarding these procedures, you may contact the Staff Attorney's office at 588-6221. (Emphasis added.) During the final hearing, counsel stipulated to an error in the above Notice in charging a violation of Pinellas County School Board Policy 8.25(1)(v). Counsel agreed that the charge should be violation of Pinellas County School Board Policy 8.25(1)(d). The stipulation amending the charge against Starling was accepted. Dr. Hinesley testified that on those occasions when he considers his recommendation to discipline employees, he adheres to the following process: first, when an employee is alleged to have committed a criminal act involving solicitation of prostitution he listens to his Staff's version of whether or not there is any question of guilt in terms of whether this act actually occurred; and second, if in the opinion of Staff and of the people who investigated the incident, the criminal act did occur, he was limited by Board Policy to recommending dismissal based on the penalty range contained in School Board policy 8.25(a). With regard to this case, Dr. Hinesley testified that at the time Mr. Barker presented this case to him, he did not know whether Mr. Barker's investigation consisted of cross- examination of police officers or merely reading and relying upon reports, including police reports, provided by staff; he did not talk to the police officers nor did he talk to Starling. He had no knowledge of whether Mr. Barker or his staff questioned all the parties involved for purpose of determining whether, in fact, the alleged solicitation for prostitution had occurred. Dr. Hinesley affirmed that had his staff provided him with a report that Starling had not committed the alleged criminal act of solicitation for prostitution, his recommendation to the Board would not have been dismissal. Dr. Hinesley also agreed that should the result of this administrative proceeding conclude that the alleged solicitation for prostitution had not occurred, his recommendation of discipline less than dismissal is permissible under his understanding of Board's policy 8.25(1)(a). Based upon his authority and extensive experience in the Pinellas County Education system, I accept the opinions of Dr. Hinesley and find his testimony credible and conclusive regarding application of Pinellas County School Board's discipline policy. Based on the Finding of Facts herein above, the School Board has failed to prove, by a preponderance of the evidence, that Starling solicited for prostitution decoy Detective Bentham, on September 5, 2001, as alleged in the School Board's Notice of a Recommendation of Dismissal dated January 25, 2002. Based upon the foregone Findings of Fact, Starling has rebutted the presumption of guilt based on his plea of nolo contendere for solicitation of prostitution. However, based upon the foregone Findings of Fact, the School Board has proven by a preponderance of evidence that Starling violated Subsections 8.04(4) and 8.25(1)(x) of the School Board's Policy for not timely reporting his September 5, 2001, arrest.
The Issue Whether cause exists for the Petitioner's proposed termination of the Respondent's employment as a bus driver for alleged inappropriate conduct with a student.
Findings Of Fact At all times material to this case, Respondent Howard Jessie (Respondent) was employed as a bus driver by the Pinellas County School Board. On an unidentified day during the first semester of the 1993-1994 school year, the Respondent was observed fraternizing on campus with several Pinellas Park High School students. The Respondent was tossing a football with students in an area which was "off-limits" to students. A female student identified herein as T.C. was present. A school resource officer approached the Respondent, and informed him that the area was off-limits to the students and that it was not appropriate for him to socialize with students at that time. The Respondent informed the officer that he was a bus driver and his association with students was not inappropriate. On a later unidentified day during the first semester of the 1993-1994 school year, the school's assistant principal observed the Respondent walking with T.C. in the "mall" area of the high school campus. The assistant principal instructed the Respondent to cease fraternizing with students. On a third day during the first semester of the 1993-1994 school year, the assistant principal observed the Respondent standing near the school bus area and speaking with several students including T.C. The assistant principal contacted a supervisor at the school board's transportation department and informed him of the Respondent's behavior. Upon receiving the phone call from the assistant principal, the supervisor summoned the Respondent to his office and directed the Respondent to cease his association with the students. The Respondent agreed to refrain from having further contact with the students. On or about January 10, 1994, the school resource officer observed the Respondent and T.C. standing on campus next to a parked school bus, and watched as the Respondent kissed T.C. on her cheek. The student did not appear to resist the kiss. The officer reported his observations to the assistant principal who contacted another transportation supervisor and requested that the Respondent be removed from his employment as a bus driver at Pinellas Park High School. The Respondent was called to a meeting with the administrator of the School Board's Office of Professional Standards. During the discussion of the matter, the Respondent admitted that he had hugged and kissed T.C. on campus. During the discussion, the Respondent also admitted that he and the student had engaged in oral sex in January, 1994. By letter of March 3, 1994, the Respondent was notified that he was suspended with pay and that the superintendent would recommend dismissal to the school board at the meeting of March 23, 1994. A number of stories related to this matter have appeared in the local press, including the March 18, 1994 issues of the St. Petersburg Times and the Tampa Tribune. Engaging in sexual activity with a student is conduct serious enough to impair the Respondent's effectiveness in the school district and to bring the service of the School Board of Pinellas County into disrepute.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Howard Jessie. DONE and RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1876 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County P. O. Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board P.O. Box 2942 Largo, Florida 34649 Mr. Howard Jessie 15695 Waverly Street, Apartment 2 Clearwater, Florida 34620
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts are found: With respect to an appropriate bargaining unit: Employees of the Pinellas County School system are classified into three categories for pay purposes. These classifications are for non-instructional or support persons, administrative persons, and instructional persons. The instructional classification or teacher salary schedule is reflected in a document entitled Pinellas County School Board Instructional Lists by Job Code, which was received into evidence as Exhibit No. 10 and contains approximately 5,200 persons. Members of the administrative and supervisory staff do not appear on this list, nor do supporting services personnel. Principals, deans, registrars and substitute teachers do not appear on this list. Curriculum specialists and coordinators, social workers, psychologists, learning disability specialists and attendance officers do appear on this list. Exhibit No. 16 depicts the organization of administration of the Pinellas County School system as it presently exists. Principals would appear on this organizational chart in the place marked "x" on Exhibit No. 16 in the box labeled local schools. All personnel above that level effectively recommend the hiring and firing of employees, direct other Employees, are paid on the administrative salary schedule, and participate in the preparation of budgets, the adjustment of grievances and in the process of collective bargaining. A stipulation that all persons depicted on this chart above the level of principals (whom are not depicted, but would appear at the local school levels) be excluded from the bargaining unit could not be reached. The following persons or classifications effectively participate in the preparation of the budget, have the ability to hire and fire or effectively recommend hiring and firing and are paid on the administrative salary schedule: the Superintendent, the associate Superintendent and assistant Superintendents. The School Board, CTA & AFT all stipulated that these three positions should be excluded from the bargaining unit. Attendance officers are included on the instructional, teacher's salary list, but they do not hold teaching certificates. They report to the administrative assistant to the associate superintendent and work out of the central administrative offices. It was stipulated by all the parties that attendance officers would not be appropriate in a bargaining unit. Principals and deans effectively recommend the hiring and firing of other employees, participate in the preparation of the budget and in the adjustment of employee grievances and are paid on the administrative salary schedule. It was stipulated that principals and deans should be excluded. The duties and functions of assistant principals are essentially the same as those of principal in the principal's absence. They are certificated, but generally not do classroom teaching. They participate in the formulation of the school budget and in the disposition of employee grievances. They effectively recommend the hiring, firing or disciplinary actions of employees, evaluate employees and are paid according to the administrative salary level. Not every school has an assistant principal. The elementary schools generally do not have one, unless they are on double session. Assistant principals are approved by the School Board, as is anyone who is on a supplement. No stipulation was reached as to assistant principals. Registrars participate in budgeting, are paid on the administrative salary schedule and come in contact with confidential material from time to time. They do have an office in the school, have daily contacts with students, receive essentially the same fringe benefits as classroom teachers. They do not have the authority to direct other teachers or employees in the performance of duties. By reason of their confidential status, it was stipulated by all the parties that registrars be excluded from the unit. The Pinellas County school system hires persons known as directors, associate directors and assistant directors. In a vocational program or center, the principal is known as the director and the assistant principal is also called an assistant director. Also there is a director of the budget and other types of directors. There are now approximately 50 directors, 2 or 3 assistant directors and no associate directors. They are paid on the administrative pay scale, have supervisory functions, assist in the preparation of the budget and in the collective bargaining process, deal with confidential materials, supervise employees and recommend hiring, firing or discipline and adjust employee grievances. They are generally at the county level and not the school level. It was stipulated that directors should be excluded from the bargaining unit, but no stipulation was reached with respect to assistant and associate directors. Supervisors are generally curriculum persons who supervise the formulation of the curriculum and supervise the teacher in working with the curriculum. They are paid pursuant to the administrative salary schedule, work out of the central office, evaluate other employees and effectively recommend hiring, firing or discipline, prepare and handle confidential materials and participate in both budgetary policies and the processes leading to collective bargaining. It was stipulated by all parties that supervisors should be excluded. Activity directors work in the schools, but do not teach classes. They are more of a business management type of person. They schedule activities and events, handle ticket or club monies, and hire teachers as ticket sellers at events. While they have occasion to work in the preparation of the budget for their particular school, they do not evaluate other employees, do not assist in the adjustment of Employee grievances, do not effectively recommend the hiring, firing or discipline of other employees and do not handle or prepare confidential records. They are on the instructional salary schedule. While they are not required to hold a teaching certificate, almost all do, and they are on ten-month contracts. No stipulation was reached as to the inclusion or exclusion of activities directors. Curriculum assistants, curriculum coordinators psychologists learning disabilities specialists and social workers are all regular, full-time instructional personnel and are listed on the instructional salary schedule, are not paid for vacations and do not accrue vacation time, have no power or control over budgeting and do not hire, fire or promote. In the same manner as classroom teachers, they earn sick leave, receive group health insurance, have the same retirement benefits and pay increases, have pupil contact and are certified employees. All are located within the schools, with the exception of psychologists and social workers, who are not assigned to a specific school, but work out of the county office. There is a classification known as specialist. There are approximately twelve persons in this classification such as a computer specialists and they are paid pursuant to the administrative salary schedule. If they perform supervisory and/or managerial functions, it would generally be over service personnel rather than instructional personnel. However, there is a group of specialists who fall within a category of a federal program which is in contact with students. No stipulation was reached as to this classification. In addition to curriculum coordinators, there is a classification known as coordinators. Some are purely classroom teachers such as a diversified education coordinator. Coordinators work predominantly in the schools with children and are paid on the instructional salary schedule. There are approximately 75 coordinators, and they receive the same paid holidays, the same group health insurance, the same retirement benefits and earn sick leave the same as classroom teachers. These people are required to hold a teaching certificate, although there may be one or two who do not. Most are in the vocational field. They do not supervise other employees nor do they have the ability to effectively recommend hiring or firing of other personnel. They have no power to establish a budget. No stipulation was reached on this position, or any of the remaining positions which follow. 1/ There is also a vocational teacher coordinator. The person occupying this classification teaches students in class and then coordinates their work outside of class and sees to it that students obtain jobs. They are generally assigned to a school and report directly to the principal of that school. They have no budgetary functions and they do not evaluate other teachers. They are usually certified. Also, there is a classification known as health coordinator. Most are certified and they work primarily with students. They coordinate the various phases of the health programs in the school to which they are assigned. They are on the instructional pay scale, have no power to make budgetary determinations and do not supervise instructional personnel. There are also secondary education coordinators who deal with the vocational aspects of a school. They work with students, receive regular retirement benefits and do not evaluate other teachers. There is one person involved in a classification known as RESRVOL. This is a federal program pertaining to the recruiting of adult volunteers to help senior citizens. While she is on the instructional payroll, she does not teach and she is not certificated. On the instructional payroll, there is a classification known as self- renewal. This too is a federal program comprising about four persons. While certification is not required, all who occupy the position are certified. Their function is to deal with children who have lost confidence in themselves and attempt to restore self-confidence. They receive the same emoluments as a classroom teacher and are not involved in the evaluative process of other teachers. They are not assigned to any particular school, but work out of a county office. This description would also fit a Position known as educational self-renewal. Enhanced learning personnel supplement the classroom teachers with respect to teaching the gifted child. They do not evaluate other teachers nor do they have any role in the budgetary Process. Some are permanently assigned to a school and others are on a county-wide basis. Their emoluments with respect to retirement, sick leave and vacation are the sane as classroom teachers. A curriculum assistant helping a kindergarten teacher exists on the instructional salary list. Only one person is involved. This person does evaluate teachers, has no classroom duties and is involved in the budgetary process. She reports to the supervisor of kindergarten and receives the same emoluments as classroom teachers with respect to retirement, sick leave and pay and vacations. Other helping teachers do exist and the positions are supervisory, supportive type positions. They evaluate teachers and report to their supervisors. A junior high school work experience teacher teaches children and finds them jobs outside of school. They do not coordinate teachers and they receive the same emoluments as a classroom teacher with respect to retirement, sick leave and vacation. An adult home economics teacher teaches post high school students in the evenings. They do not evaluate other teachers and report to their supervisor in the evening program. Substitute teachers are hired and paid on a daily basis. They are not required to be certified. However, there is a distinction between a short-term and a long-term substitute teacher. The long-term substitute takes a regular teacher's place over a long period of time. After the first ten days, the long term substitute is allowed to go on a teacher's contract (whatever contract they would be eligible for were they a regular teacher) for the period of time they are going to be substituting, if it is determined that the period of substitution will be extended. It was not determined whether long-term substitutes go on the same instructional list as Exhibit No. 10, but no long- term substitutes are now on said list due to the recent opening of school. They do not participate in the same retirement or receive the same insurance that a classroom teacher does. While several other positions were discussed, there were no other employees who were in the list of instructional personnel (excluding personnel heretofore discussed) who have the ability to effectively recommend the hiring or firing of other employees, who participate in the adjustment of Employee grievances or evaluate other employees, or who work in the preparation of the budget. All remaining positions receive their pay on the same day, earn sick leave in the same fashion, participate in the same group insurance and retirement benefits as regular classroom teachers and are required by the School Board to be certified. With respect to requests for recognition and bargaining history: Pursuant to local legislation enacted in 1971 granting to instructional personnel employed by the School Board the right to bargain collectively, the CTA has engaged in collective bargaining with the School Board. The first contract was ratified in September of 1971. The last contract expired on August 1, 1975. The 5,018 employees covered by this latter contract included counselors, librarians, classroom teachers, media specialists, special education teachers, vocational teachers, curriculum coordinators, psychologists, social workers and other employees of the public schools having whole or in part classroom teaching duties. This is essentially the same group listed in Exhibit 10. The CTA made a formal request for voluntary recognition by the School Board on April 30, 1975. Certain events (unfair labor practice charges and the filing of RC petitions) then ensued, which events are well known and are on file with the Public Employees Relations Commission. On or about April 24, 1975, the AFT requested, by letter, the School Board to officially recognize the AFT for the rights to bargain collectively with the School Board for the teachers. As noted above in the Introduction, the parties agreed that the School Board is a public employer; that both petitioners are employee organizations, and that there is no contractual bar to the holding of an election. In accordance with F.S. s. 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 22nd day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
