Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of August 1984.
Findings Of Fact During the 1982-1983 school year, Jorge Valdez is a seventh grade student. He was assigned to Lake Stevens Junior High School for this school year. In October 1982, pursuant to a request from his physical education teacher, Respondent was counseled and issued strokes for being repeatedly late and for refusing to "dress out" for class. On two occasions in November 1982, pursuant to requests from his art teacher, Respondent was counseled and issued strokes for being disruptive in art class by walking around the room during class and refusing to participate in class activities. In December 1982, Respondent was suspended from school for three days as a result of an incident at the bus stop. When Respondent returned to school after his suspension, he was wearing a linked chain approximately three feet long hidden under his shirt. On the third day, he was caught using the chain to threaten another student. Respondent was given a ten-day suspension, and a conference was held with his mother. The Student Code of Conduct provides for expulsion of any student possessing a concealed weapon. As a result of his conference with Grizel Valdez, Jorge's principal agreed he would request a waiver of expulsion with an alternative placement instead. As of November 5, 1982, Respondent's grades in his six classes at Lake Stevens Junior High School were one C, one D and four Fs. In conduct, his grades were one A, one C and four Fs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Jorge Valdez to Petitioner's opportunity school program at Jan Mann Opportunity School North. DONE and RECOMMENDED this 31st day of May, 1983, Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 31st day of May, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Grizel Valdez 4901 NW 173rd Street Carol City, Florida 33055 Phyllis O. Douglas, Esquire Assistant Board Attorney Lindsey Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact Background The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. 1 At the conclusion of the hearing, the parties stipulated that students N.E., C.Z., T.C., and S.M., were unavailable, and that their deposition testimony, included within the School Board’s Exhibit No. 12 and Respondent’s Exhibit Nos. 16 through 18, could be received in evidence in lieu of their live testimony. The School Board hired Respondent in 2010 as a teacher at Campbell Drive K-8 Center ("Campbell Drive"), a public school in Miami-Dade County. During the 2016-2017 and 2017-2018 school years and at all times relevant to this case, Respondent was employed at Campbell Drive as an intensive reading teacher pursuant to a professional services contract. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade ("UTD"). The alleged conduct giving rise to the School Board’s proposed suspension and termination of Respondent occurred during the 2016-2017 and 2017-2018 school years. Allegations Involving K.S. The School Board alleges in paragraph 10 of the Notice of Specific Charges that during the 2016-2017 school year Respondent made grossly inappropriate physical and verbal sexual contact with K.S. At the time of the alleged conduct, K.S. was a female 12-year-old student in Respondent’s seventh-grade intensive reading class. Specifically, paragraph 10 of the notice alleges: During the course of the school year, beginning sometime after the Winter Recess, he would touch her private area over her clothing. On one day during lunch, the Respondent requested that this student come to his room during lunch to make up a test. When she arrived in the room, the Respondent initiated physical sexual contact with the student. In addition to touching the girl beneath her clothes, the Respondent exposed himself to her and had her touch his private area. After the brief encounter, the girl exited the room. During the course of the school year the Respondent also asked her to engage in sexual acts and made sexual comments to her. The School Board further alleges in paragraph 10 of the notice that during the 2017-2018 school year, when K.S. was a student in Respondent’s eighth grade intensive reading class, "Respondent requested a sexual favor from [K.S] on a small note that he had handed her." At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with K.S. 2 K.S.’s Written Sworn Statement to Detective Webb On March 2, 2018, K.S. was interviewed by Detective Steven Webb, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. That same day, K.S. gave a written sworn statement to Detective Webb, received into evidence as Respondent’s Exhibit No. 11. In this sworn statement, K.S. stated that during the 2016-2017 school year, Respondent "became sexually active with students, he did multiple things." K.S. went on state that Respondent: started off by touching my private area and then he advanced a couple of days later by pulling his pen[n]is (sic) out and grabbing my hand and, placing it there. One day he sent a student to get me from the cafeteria and on the pass it stated that I had to make up a test, but when I entered his class he rubbed my breast, and started to suck them for about 10 to 15 seconds, and then I pushed him away. He was dropping my grade until I did the things he wanted me to do with him which is to have sex, give him head, thing of that nature. Recently, about 2-3 weeks ago he asked me to do things with him and that’s a reason to why I left early recently. 2 K.S. did not complete her seventh-grade school year at Campbell Drive. Before the school year ended, the principal of Campbell Drive asked K.S. to leave the school because of disciplinary problems involving physical altercations with other students and defiant behavior. K.S. subsequently enrolled in Villa Prep Academy, a private school where she completed her seventh-grade year. K.S. did not attend Villa Prep Academy for very long because she was dismissed from that school during the early part of her eighth-grade year. In December 2017, K.S. re-enrolled in Campbell Drive. Upon her return, K.S.’s mother requested that she be put in Respondent’s classroom and K.S. was a student in Respondent’s eighth-grade intensive reading class for the remainder of the 2017-2018 school year. There was nothing mentioned in K.S.’s written sworn statement about Respondent engaging in any inappropriate conduct toward K.S. while she sat at her desk in Respondent’s classroom. K.S.’s Audio Recorded Interview with Detectives Webb and Ochoa In a subsequent audio recording interview of K.S. on March 2, 2018, by Detective Webb and Detective Gil Ochoa, received into evidence as the School Board’s Exhibit No. 5, K.S. initially described the cafeteria pass incident as follows: K.S. stated she left the cafeteria with her food tray in hand and went to Respondent’s classroom. Upon entering Respondent’s classroom, she began telling him things about her family. K.S. stated Respondent then took away her food tray, set the tray down, and pulled her over to another area of the room, at which time he touched her breasts over her shirt, lifted up her shirt and sports bra, exposed her breasts, and sucked on one of her breasts for about 10 to 15 seconds. K.S. stated she got scared and left the classroom, and that is all he did that day. K.S. failed to mention anything about Respondent pulling out his penis on this occasion until asked specifically about it by Detective Ochoa near the conclusion of the interview. School Board’s Ex. 5 at 13:22. K.S. then stated that she saw his penis, but she was scared and looked away. K.S. made no mention of Respondent placing her hand on his penis. During this interview, K.S. went on to describe another occasion in Respondent’s class that occurred after school was dismissed for the day. According to K.S., on this particular occasion, Respondent asked her "to give him head" and "to have sex with him." However, according to K.S., it never happened. K.S. further stated that recently (two to three weeks ago), Respondent asked that she "give him head." There was no mention in this interview of Respondent touching K.S.’s vaginal area or dropping her grades. The entire audio recorded interview lasted approximately 15 minutes. At the conclusion of the interview, K.S. was asked if there was anything else that she remembered that she wanted to add. K.S. declined and she did not state any other alleged inappropriate physical and verbal sexual contact by Respondent. K.S.’s Testimony at Hearing At the final hearing, K.S. testified that toward the beginning of the 2016-2017 school year, Respondent moved her seat next to his because she was easily distracted by the other students and failed the first test. Subsequently, the following exchange occurred between counsel for the School Board and K.S.: Q: Now, during that school year, did Mr. Rizo ever do anything inappropriate to you during class time? A: Yes. Q: All right. Can you explain to the Judge what he would do to you? A: He would, like, walk by, ‘cause since I was sitting so close to him, he would just touch me, like, my private areas or he’ll just, like go down on my arm, like that. Stuff like that. Q: All right. Now, this would occur during class time? A: Yes. Q: When specifically--was there a specific time that it would occur during class time? A: Mainly when we were testing or doing our work. T. Vol. 1, pp. 28-29. Counsel for the School Board went on to question K.S. about the testing process and Respondent’s efforts to curtail students cheating on tests. K.S. testified that students placed raised stapled manila folders on their desks to prevent students from seeing each other’s tests. Counsel for the School Board then asked K.S., in leading fashion: "So it was this time, during the testing, when he would touch you? K.S. responded: "Yes." Id., Vol. 1, pp. 29-30. However, K.S. could not describe the number of times "this occurred" during the 2016-2017 school year. Moreover, this alleged inappropriate touching supposedly occurred while 20 to 25 other students were in the classroom. At hearing, K.S. testified at one point that Respondent’s touching of her vaginal area occurred every time they had tests, but she acknowledged that the raised stapled manila folders were not always present on the students’ desks during testing. At hearing, K.S. further acknowledged that had the inappropriate touching occurred as she testified to, any student at any point could have looked and seen Respondent caressing her in her vaginal area. Counsel for the School Board then inquired of K.S. if there was "ever anything more serious that [Respondent] did to [her]" that school year (2016- 2017). In response, K.S. described the alleged cafeteria pass incident as follows: A: I was in lunch--because I was in seventh grade at the time, seventh grade goes to lunch before anybody, and he sent one of his eighth grader students with a pass to go to get me. Because in order to leave the lunchroom, you have to have a pass. Security didn’t let you leave the lunchroom. Security called me and told me that my teacher was calling me to make up a test. When I got in the room, I had my tray in my hand, and he took my tray, put it down, he exposed himself. And then there was a corner and he, like, put me in the corner and he sucked on my breast. T. Vol. 1, pp. 32-33. However, moments later, K.S. described the incident differently: First he pushed me to the corner, and then after he sucked my breast, then he exposed himself. And then I was just scared. And he--when he exposed himself, he grabbed my arm and he made me touch his area, and then I grabbed my tray, I threw it away, and then I left. Id. at p. 33. According to K.S., she was in Respondent’s classroom on this particular occasion between five or ten minutes. The corner of Respondent’s classroom is located right next to the door entering the room. K.S. testified that the incident occurred with just Respondent and K.S. in the classroom, but with the other student who had retrieved K.S. from the cafeteria still waiting outside the door when K.S. left Respondent’s classroom. At hearing, counsel for the School Board also asked K.S., in leading fashion, whether she ever told the police officers that Respondent would "suck on your breasts or try to have sex with you multiple times?" In response, K.S. testified: "I told them--I told them the suck on my breast part, when he exposed him. And then when they asked about my eighth-grade- year, I told them how he wrote on a sticky note that I want to give him head, like oral sex …." Inconsistently, K.S. testified in her deposition that Respondent wrote on the sticky note: "Can I eat her?" According to K.S. in her deposition, Respondent picked up the sticky note, showed it to K.S., and she grabbed it from him and threw the note away. School Board’s Ex. 11, p. 11. At hearing, K.S. testified that Respondent handed her the sticky note and that she then threw it away. K.S. and Respondent never communicated by telephone, text, e-mail, or social media. There are no witnesses to any of the alleged incidents. K.S. never reported any alleged inappropriate conduct by Respondent to her parents, a teacher, or school administrators. However, at hearing, K.S. testified she told V.S.C. about Respondent’s conduct toward her during the 2016-2017 school year when V.S.C. came to her house on a single occasion sometime during K.S.’s eighth grade school year. Allegations Involving V.S.C. The School Board alleges in paragraph 11 of the Notice of Specific Charges that during the 2017-2018 school year, Respondent also made inappropriate comments to V.S.C. during his role as an afterschool care supervisor, and that he would "bump up against" V.S.C., "rubbing himself on her buttocks area." V.S.C. was not a student in Respondent’s classroom. The alleged inappropriate conduct occurred while V.S.C., a female 14-year-old eighth grade student at Campbell Drive, attended the school’s Students with a Goal ("SWAG") afterschool program. SWAG is an outdoor program where students can engage in a variety of recreational activities. Respondent was one of six school staff members that participated in the program. At any given time, there were approximately 100 students in attendance. Students could play soccer, basketball, football, dodge ball, board games, or do homework. Students could freely rotate through the different activities by simply notifying the adult conducting the desired activity. Respondent primarily engaged in soccer, but would occasionally participate in other activities. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with V.S.C. V.S.C.’s Audio Recorded Interview with Detective Bernice Charley On March 6, 2018, V.S.C. was interviewed by Detective Bernice Charley, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. An audio recording of the interview was received into evidence as the School Board’s Exhibit 8.3 During the interview, V.S.C. stated that while she and Respondent were at SWAG during the 2017-2018 school year, Respondent told her he wanted to slap her face with his penis; he asked her if she liked it rough (referring to sex); and he told her his penis was his "third leg." According to V.S.C., she and Respondent would engage in a verbal "back and forth," and he would say these comments in front of other students at SWAG. Additionally, V.S.C. stated she and Respondent would "bump" into each other at SWAG. According to V.S.C., Respondent would bump into her side or back from behind. During the interview, V.S.C. stated she had a bad memory. V.S.C. was reluctant to speak and there were many long pauses by her after questioning by Detective Charley. After much prodding and requests by Detective Charley for V.S.C. to "open-up," V.S.C. actually stated: "There’s nothing to talk about because nothing did happen." School Board’s Ex. 8, at 38:48-38:52. After further pauses, prodding, and requests by Detective Charley for V.S.C. to "open up," V.S.C. stated that Respondent also touched her breasts one time while they were at SWAG. According to V.S.C., this incident occurred with her shirt on. The School Board argues in its proposed recommended order that V.S.C. also described another incident while she and Respondent were at his classroom. According to V.S.C., Respondent was standing at his desk and V.S.C. was standing in the doorway, at which time Respondent stated to V.S.C.: "me and you here and now," followed by Respondent tapping on his desk. V.S.C. interpreted this comment as meaning that Respondent wanted 3 The audio recorded interviews of K.S. and V.S.C. (School Board’s Exhibits 6 and 8) are contained on a thumb-drive accompanying the School Board’s written exhibits received into evidence at the hearing. to have sex with her. According to V.S.C., other students were present when Respondent allegedly made the comment. Notably, this alleged incident is not referred to in the Notice of Specific Charges. The notice was, therefore, insufficient to inform Respondent of the School Board’s contention. The entire recorded interview lasted approximately 52 minutes. Much of the interview involved Detective Charley’s repeated efforts to redirect V.S.C. and her attempts to have V.S.C. "open-up." V.S.C.'s Testimony at Hearing At the final hearing, V.S.C. could not even remember whether she was in seventh or eighth grade during the 2017-2018 school year. In any event, V.S.C. testified that during the 2017-2018 school year, she attended Campbell Drive and the afterschool SWAG program. Respondent and V.S.C. did not have much interaction in the SWAG program. V.S.C. testified that she did not really participate in any of the SWAG activities; rather, she would either just "hang-out with [her] friends or sleep," or watch her friends and Respondent play soccer. However, most of V.S.C.’s time was spent sleeping near a tree, far away from where Respondent spent most of his time with the soccer group. When asked if Respondent ever did anything inappropriate to her during the SWAG program, V.S.C. testified that he talked about his "private part" to her, saying that "it was big," and referring to it once as "his third leg." Counsel for the School Board then asked V.S.C. in leading fashion: "Okay. Did he ever mention anything that he would like to do with his private part," to which V.S.C. responded, "I don’t remember. I just know that he talked about it once." T. Vol. 1, p. 82. V.S.C. described unspecified things that Respondent allegedly said to V.S.C. as "playful, like, in an inappropriate way," and "weird." Counsel for the School Board then asked V.S.C. in leading fashion: "Do you remember telling these things that he would say to you to the police at a given point," to which V.S.C. responded, "I barely remember. It’s, like, such a long time ago now." Id. at p. 83. As with her recorded interview with Detective Charley, V.S.C. was reluctant to testify at hearing and there were many long pauses by her after questioning by the School Board’s counsel. After further prodding and requests by the School Board’s counsel to describe "the things he would say to you, other than his talking about his private part," V.S.C. described the aforementioned verbal incident in Respondent’s classroom. On cross-examination, V.S.C. acknowledged this comment was loud enough so that other students could hear it and that she read a sexual connotation into the comment. Id. at p. 97. Counsel for the School Board again asked V.S.C. if Respondent ever made any other comments to her during SWAG, to which V.S.C. responded, "I can’t remember." Id. at p. 85. Subsequently, the following exchanges occurred between counsel for the School Board and V.S.C.: Q: Did he ever threaten to slap you with anything?" A: Yeah, with his penis. Q: What did he say? A: He said he wants to, like, slap me in the face with his penis. Q: And when did he say that? A: I think in SWAG. Yeah, it was in SWAG. * * * Q: Do you remember Mr. Rizo touching you in any other way other than bumping you with his hip or anything like that? A: When we would play fight, he would, like, put his pelvis, like, on my back area. Q: What would he do with his pelvis? A: He would just, like, be there, like, behind me and play fighting me. Q: Did he ever try to touch you sexually in any way? A: I guess, yeah, if he’s doing that, if he’s behind me like that. Id. at pp. 87 and 92. V.S.C. never reported any alleged inappropriate conduct by Respondent to her parents, teachers, or school administrators. At hearing, V.S.C. acknowledged that she and K.S. were friends. At hearing, V.S.C. admitted that she and Respondent were never alone during the SWAG program and that she was always close to the other students. At hearing, nothing was mentioned about Respondent touching V.S.C.’s breasts. Allegations involving N.E. In paragraph 12 of the Notice of Specific Charges, the School Board alleges that "Respondent also made sexual advances and over the clothing sexual contact with a third female student [N.E.] during the 2017-2018 school year." However, N.E. did not testify live at hearing and the School Board did not present any eyewitness testimony in support of the allegations. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with N.E. Ultimate Findings of Fact At hearing, the undersigned had the opportunity to observe the testimony and demeanor of Respondent, K.S., and V.S.C. The testimony of Respondent is credited and is more persuasive than the testimony of K.S. and V.S.C., which is not credited or persuasive. Notably, K.S.’s and V.S.C’s versions of the events as set forth in their statements to the police and testimony at hearing were vague, differed in key respects, and much of their testimony and statements to the police were obtained through patently leading questions. Moreover, V.S.C. admitted that her memory is bad and that "there’s nothing to talk about because nothing did happen." It is also inconceivable that K.S. would have returned to Respondent’s classroom for intensive reading during the 2017-2018 school year had the alleged conduct during the 2016-2017 school year actually occurred. Had the alleged incidents occurred as testified about by K.S. and V.S.C., who were friends, it is also expected that there would have been eyewitnesses. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in inappropriate physical and verbal sexual contact with K.S., V.S.C., or N.E., as alleged in the Notice of Specific Charges, and Respondent did not engage in conduct with K.S., V.S.C., or N.E., which constitutes misconduct in office or immorality.4 4 K.S. and N.E. were also friends. As detailed above, N.E. did not testify at the hearing. However, an audio statement and a written statement purportedly authored by N.E., both of which are hearsay, were received into evidence at the final hearing as the School Board’s Exhibit Nos. 6 and 16, respectively. Although hearsay is admissible in administrative proceedings, this does not necessarily mean that the undersigned must use the hearsay in resolving a factual issue. The statements cannot be used as the sole basis to support a finding of fact, because they do not fall within an exception to the hearsay rule. Furthermore, the statements do not supplement or explain other non-hearsay evidence. See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). At hearing, the parties stipulated to the receipt into evidence of N.E.’s deposition testimony in lieu of her live testimony. Even if the audio statement and written statement could be used by the undersigned, however, the audio statement, written statement, and deposition testimony would not be given any weight based on the live testimony Respondent presented at hearing. Unlike N.E., who did not testify live
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension and termination of Respondent, Oscar D. Rizo, and reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 18th day of May, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the School Board of Dade County has cause to terminate Respondent's employment on the grounds that Respondent was "willfully absent from duty without leave," within the meaning of Section 231.44, Florida Statutes, as alleged in the Notice of Specific Charges filed in the instant case? If not, what relief should Respondent be afforded?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was employed as a teacher by the Dade County School Board during the 1988-89 school year on an annual contract basis. His employment commenced on August 31,1988. At all times he was assigned to the ESOL (English for Speakers of Other Languages) program at Carver Middle School. The principal of Carver Middle School, and Respondent's immediate supervisor, was Samuel Gay. Simine Heise was one of Gay's assistant principals. In Gay's absence, Heise served as acting principal. At around 12:00 p.m. on Monday, January 30, 1989, following a meeting with Gay, Respondent became physically ill at school. He left school for the day after notifying Gay and securing his authorization. Respondent was placed on sick leave for the remainder of the school day. At no time thereafter did Respondent report back to work. Various substitute teachers covered Respondent's classes during the period of his absence. Effective April 20, 1989, he was suspended by the School Board and it initiated action to terminate his employment on the ground that he had been willfully absent without authorization. During the period of his absence, Respondent was under the care of a psychiatrist, Dr. Adolfo M. Vilasuso. He was suffering from depression, insomnia, stress, anxiety and stress- induced gastrointestinal distress. He was treated by Dr. Vilasuso with psychotherapy and medication. Respondent's condition was primarily the result of personal problems involving his son and former wife. He was obsessed by these matters. He paid very little attention to anything else, including his teaching responsibilities. Although he was physically able to report to work, he was so distracted and preoccupied by his personal problems that he could not effectively discharge his teaching duties. The School Board requires that, in order to continue to obtain sick leave, a teacher absent because of illness must contact his immediate supervisor or the supervisor's designee by 2:00 p.m. of each day of absence and give notice that he will be out sick the following day. Teachers are advised of this "2:00 p.m. notification" requirement in the teacher handbook, a copy of which Respondent had received prior to his absence. Throughout the period of his absence, Respondent was capable of understanding and complying with this requirement. A teacher who complies with the "2:00 p.m. notification" requirement, but has exhausted all of his accrued sick leave credits, will automatically be placed on authorized leave without pay for illness for a maximum of 30 days, without the necessity of formal School Board approval. The leave will be extended beyond 30 days only if the teacher submits an appropriate application for an extension, accompanied by a "statement from [the teacher's] physician explaining why such [extended] leave is necessary." After leaving school on January 30, 1989, Respondent did not contact any member of the Carver Middle School administration or its staff concerning his absence until Saturday, February 11, 1989, when he telephoned Principal Gay's secretary, Maria Bonce, at her home and left a message with her daughter that he would not be at work the following Monday. On February 15, 1989, Dr. Vilasuso telephoned Carver Middle School and spoke with Assistant Principal Heise. Dr. Vilasuso told Heise that Respondent was under his care. He was vague, however, regarding the nature of Respondent's illness and he did not indicate when Respondent would be able to return to work. On February 21, 1989, not having heard anything further from either Respondent or Dr. Vilasuso, Principal Gay sent Respondent the following letter: The purpose of this communication is to determine your intentions for the balance of this school term. You've been absent from your teaching position at Carver Middle School since 12:00 a.m [sic] on January 30, 1989. On Saturday, February 11, you called my secretary, Mrs. Bonce, indicating you would return to work next week. On February 15, an individual identifying himself as your doctor called Carver Middle School and spoke to the assistant principal, Mrs. Heise. When he was requested [to provide information] about your illness, medical status and your ability to return to work, he stated he would not give further information without your approval. Until now we have not heard from you since February 11 when you contacted Mrs. Bonce at home. Also, the phone number and address we have on record obviously are no longer yours, therefore, I am unable to ccntact you. In addition to the above, we have no lesson plans, roll books, grade books for your students. It has been reported to me by custodial staff that you are frequently observed in the building after duty hours yet you have failed to communicate with me personally or the assistant principal or speak with your department head or the assistant principal for curriculum. I must call your attention to the contract between Dade County Public Schools and UTD and the teacher handbook which has information whiih addresses teachers' absences. You are clearly in violation of these documents. Finally, may I remind you of a memorandum given to you on January 27. A written response was due to me on February 1st. In addition, a conversation for the record was scheduled for February 1st. That conference will be held. You simply need to tell me when. I must remind you that failure to comply with district and local rules can result in non-reappointment for the 1989-90 school year. After receiving the letter, Respondent, on Thursday, February 23, 1989, telephoned Carver Middle School and spoke with Gay. Although he did not indicate to Gay when he was going to return to school, he did leave Gay with the impression that his condition was improving. Respondent also intimated during the telephone conversation that Gay would be receiving a letter from Dr. Vilasuso concerning Respondent's illness. The following Monday, February 27, 1989, at around 9:00 p.m., Respondent telephoned Secretary Bonce at her home and told her that he would be absent from school the remainder of the week due to illness. On Wednesday, March 8, 1989 Respordent telephoned Gay at school. He told Gay that he wanted to apply for sick leave and asked how he would go about doing so. Gay responded that he had referred Respondent's case to the School Board's Office of Professional Standards and that therefore the matter was "out of his hands" and Respondent would have to contact that office. On no occasion other than during the foregoing telephone conversations of February 11, 23 and 27, 1989, and March 8, 1989, did Respondent communicate with Gay or any member of Gay's administrative staff concerning his absence. Respondent's failure to so communicate with either his immediate supervisor or anyone on his immediate supervisor's administrative staff was willful. On March 28, 1989, Dr. Joyce Annunziata, the head of the School Board's Office of Professional Standards, sent Respondent a letter, which provided in pertinent part as follows: The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not obtain authorized leave from your supervisor. Florida Statute 231.44 provides: Any District school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board. Your absence without authorized leave constitutes willful neglect of duty and subjects your employment with the Dade County Schools to immediate termination. Please be advised that unless you provide within five days from receipt of this letter a written notification to the Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, FL 33132, of your resolution of your unauthorized leave status, your termination will be submitted to the School Board for final action at its meeting of April 19, 1989. Respondent received Dr. Annunziata's letter on April 10, 1989. He did not provide the Office of Professional Standards with the requisite "written notification" within five days of his receipt of the letter. Accordingly, the matter was considered by the School Board at its April 19, 1989, meeting. Thereafter, Respondent submitted to the Office of Professional Standards a written request for leave without pay for illness. The request sought leave for the period from February 8, 1989, through June 19, 1989. Although the form on which Respondent made his request noted that a "[d]octor's statement indicating diagnosis [and] length of time required for leave" was required, no such statement accompanied Respondent's request. A letter from Dr. Vilasuso concerning Respondent's condition was subsequently received by the Office of Professional Standards on April 28, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board of Dade County enter a final order terminating Respondent's employment as an annual contract teacher pursuant to Section 231.44, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1990. STUART M. LERNER 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 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3231 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: School Board's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Rejected because it adds only unnecessary detail. Rejected because it adds only unnecessary detail. First, second and third sentences: Rejected because they add only unnecessary detail; Fourth and fifth sentences: Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: To the extent that it suggests that Respondent "never" complied with the "2:00 pm. notification requirement," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Second sentence: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Accepted and incorporated in substance. To the extent that it suggests that Respondent was absent without authorization during a portion of the period from January 30, 1989, to April 19, 1989, it has been accepted and incorporated in substance. To the extent that it suggests that he was absent without authorization during the entire period, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it is irrelevant and immaterial. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Respondent's Proposed Findings of Fact: Rejected because it is a summary of rather than a finding of fact based upon such testimony. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is more in the nature of argument than a finding of fact. Accepted and incorporated in substance. First sentence: Rejected because it is more in the nature of argument than a finding of fact; Remaining sentences: Rejected as contrary to the greater weight of the evidence to the extent it suggests that a teacher need not comply with the "2:00 p.m. notification" requirement to obtain authorized leave for illness and that Respondent was on such authorized leave during the first 30 days of his absence. Otherwise, they have been accepted and incorporated in substance. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue, Suite One Miami, Florida 33134 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County School Board School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact This matter comes on before the undersigned for consideration following an Administrative Complaint brought by Ralph D. Turlington, Commissioner of Education for the State of Florida, against Robert J. Browne, Respondent. No genuine factual issue is in dispute because no communication, including an election of rights or an appearance from the Respondent, has ever been received. Pursuant to the above-cited rule, the matter was required to proceed to hearing before the undersigned for the presentation of a prima facie case by the Petitioner, regarding the establishment of the reputed facts alleged in the Administrative Complaint upon which the Petitioner seeks revocation of the Respondent's Certificate. The Administrative Complaint is dated July 1, 1981. After the Administrative Complaint was filed, various efforts were made to achieve service of the same on the Respondent. The Respondent never responded to the Administrative Complaint. Diligent search and inquiry failed to locate the Respondent, or a means or location whereby he might be served with the Complaint. Attempts to serve him at his last-known forwarding address resulted in the certi- fied mail being returned unclaimed and unforwardable. The undersigned attempted to serve notice of this proceeding itself upon the Respondent at the last known address with the same result. Service by publication of the Administrative Complaint was achieved by the Petitioner. The Respondent holds Florida Teaching Certificate Number 440435, Post Graduate, Rank II, which expires on June 30, 1998, authorizing him to engage in the profession of teaching in the areas of mental retardation, junior college, administration, and supervision. At all times pertinent hereto, he was employed at the Exceptional Student Educational Center in Broward County, Florida, at Eastside Elementary School. The Respondent's position was that of administrator or assistant principal at the school. The Respondent was employed at the school during the summer of 1980. Mrs. Annie Turner was employed at the school as the custodian during that same summer. She worked from the hours of 3:00 p.m. to 7:00 p.m. in the evening. She often took her son Ronnie, who was the youngest of seven children, to the school with her during her working hours. She did this in order for him to assist her in her job duties. On an early visit to the school, Ronnie met the Respondent, Mr. Browne. They met on frequent occasions thereafter, when Ronnie was at the school with his mother and talked of sports and other things of interest to Ronnie, and they ultimately struck up a friendship. Mrs. Turner began noticing that her son would go to a distant bathroom in the school and stay an inordinate period of time. This happened on a number of occasions and she noticed that Mr. Browne would follow her son into the mens' bathroom while she was engaged in cleaning another room nearby in the school. She did not feel anything was amiss until this happened on a regular basis. Finally, on a Thursday evening (she does not remember the date), in the summer of 1980, Mr. Browne and Ronnie entered the bathroom and stayed so long she opened the door to check on her son and observed the Respondent on his knees committing a homosexual act on the person of her son. She was not observed by Mr. Browne. She ultimately informed-the County Superintendent and Mr. Browne was confronted with the subject accusation by his superiors. Sometime thereafter the Respondent resigned his position at the school. Mrs. Turner no longer respects Mr. Browne and would not want one of her children in a school where he was principal or a teacher due to her apprehension regarding their physical and emotional welfare. The testimony of Ronnie Turner corroborates that of his mother, Annie Turner, and in addition, establishes that the homosexual act observed by Mrs. Turner occurred on three (3) other occasions in a substantially similar fashion and location. The occasion when Annie Turner discovered the Respondent committing a homosexual act on her son was the fourth and last of those occasions, all of which occurred during a three-week period during the summer of 1980. Ronnie Turner sougnt on several occasions to avoid association with the Respondent during this time after he became aware of the Respondent's intentions. He would not want to attend a school at which the Respondent was employed and fears that the same fate will befall other children at any school at which the Respondent should be employed. Ronnie Turner was fourteen years of age at the time the pertinent events occurred. After the Respondent resigned from his position with the Broward County School System, there ultimately ensued an Administrative Complaint brought by Ralph Turlington, Commissioner of Education of the State of Florida, seeking revocation of the Respondent's Florida Teacher's Certificate.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of counsel for the Petitioner, it is, RECOMMENDED: That the Respondent, Robert J. Browne, have his Teacher's Certificate in and for the State of Florida revoked permanently. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF 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 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER 203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302 Mr. Robert J. Browne 1771 Northeast 12th Street Fort Lauderdale, Florida 33304
The Issue Whether just cause exists to terminate Respondent's employment with the Lake County School Board.
Findings Of Fact The Parties Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Lake County, Florida. At all times relevant hereto, Respondent was employed as a teacher in the School Board's online learning program. Events of March 26, April 11, and April 14, 2014 The first incident giving rise to this proceeding occurred on March 26, 2014, in Mount Dora, Florida. On that occasion, Brandy Herron, a former School Board employee, was shopping with an acquaintance (Kelly Richter) at an Office Depot store. Respondent, accompanied by his 15-year-old daughter, was also present in the establishment. The record reflects that Mrs. Herron and Respondent were no strangers, having worked together——acrimoniously——at the same elementary school from 2007 to 2008. As such, it is not surprising that, upon seeing Respondent in the store, Mrs. Herron noted his presence to Ms. Richter. Regrettably for all involved, Respondent misinterpreted Mrs. Herron's innocent remark to Ms. Richter as a personal affront. Eschewing self-restraint, Respondent approached Mrs. Herron and demanded to know if she was talking about him. Moments later, while gazing at Mrs. Herron's breasts, Respondent uttered, "fakey, fakey, fakey." Predictably, Mrs. Herron asked Respondent to back away. Respondent eventually did so, but not before he told Mrs. Herron that, because he was unwilling to fight a woman, he would instead "beat [her] husband's ass." For good measure, and to the dismay of Mrs. Herron, Respondent repeated his "fakey, fakey, fakey" refrain. On the heels of his encounter with Mrs. Herron, Respondent drove (with his daughter in tow) to Mr. Herron's place of business. Upon his arrival, however, Respondent was informed by a member of Mr. Herron's staff that Mr. Herron was out of the office.1/ The second encounter at issue occurred on the evening of April 11, 2014, on the campus of Lake Tech College ("Lake Tech"), a vocational charter school located in Lake County. At approximately 9:00 p.m., Respondent accompanied two of his minor children to Lake Tech, where Respondent's father-in-law, Jack Miller, is employed as the school's assistant director. It is undisputed that the presence of Respondent and his children at Lake Tech was at the invitation of Mr. Miller, who had arranged for his secretary to notarize certain test registration documents. (Respondent's children were scheduled to take the ACT examination early the next morning.) Per Mr. Miller's instructions, Respondent accompanied his children to an office adjacent to Lake Tech's welding classroom, where a school secretary proceeded to notarize the documents. At that time, a welding class was wrapping up, one of whose students, 21-year-old Ozzie Villafranca, nodded a greeting to Respondent. From this innocent nod, Respondent erroneously concluded that Mr. Villafranca had ogled his 15-year-old daughter. By all accounts, Respondent overlooked this perceived slight (temporarily at least), completed the business at hand, and accompanied his two children to the parking lot. At that point, and without provocation, Respondent returned to the entrance to the welding classroom, where Mr. Villafranca was getting some fresh air. Respondent approached Mr. Villafranca and demanded to know if he had a "problem." Taken aback by Respondent's peculiar conduct, Mr. Villafranca replied that there was no problem. Moments later, Mr. Villafranca's cousin, Eddie Villafranca (also an adult vocational student), joined the encounter, at which time Respondent asked if he, too, had a problem. When Eddie did not respond, Respondent inquired of the cousins, "do you little boys want to get your asses beat?" Fortunately, much of the foregoing incident was witnessed by Mr. Miller, who repeatedly implored Respondent to go home. After three explicit warnings, Respondent returned to the parking lot and drove away. The next incident, which occurred on April 14, 2014, was comparatively less serious. On that occasion, Stephanie Burnett, a School Board employee, was shopping in a Target store when she was approached by Respondent's wife, Sue-Ellen Anselmo. During the brief conversation that ensued, Mrs. Anselmo identified herself to Ms. Burnett, accused Ms. Burnett of trying to destroy her family (by supposedly providing, some years earlier, misinformation to the School Board during an investigation of Respondent), and called Ms. Burnett a "bitch." Mrs. Anselmo then proceeded to walk away, at which point Ms. Burnett, who was rattled by the exchange, began to wheel her shopping cart elsewhere. Moments later, Ms. Burnett encountered Respondent, who, upon seeing her, exclaimed, "I read your statement and you're a liar." Needless to say, the foregoing incidents were reported to and investigated by the School Board. Although one or more of the episodes——particularly the first two——likely would have warranted Respondent's termination, the School Board instead issued a "Level II Written Reprimand." The reprimand, whose relevant content is quoted below, was issued on June 3, 2014, by Dominick Pedata, the School Board's supervisor of employee relations: This Level II reprimand is to put you on notice of your three separate incidents involving your behavior outside of the office. An investigation proceeded regarding these allegations. On March 26, 2014, it was documented by a police report that you harassed one former employee and her husband regarding a prior Lake County Schools investigation that you were involved in. On April 11, 2014, it was reported that you threatened two students at Lake Tech Education Center in the parking lot with physical harm and were asked to leave on several occasions or the police would be called to escort you off the campus. On April 14, 2014, it was documented by a police report that you and your wife threatened a Lake County Schools employee regarding a prior Lake County Schools investigation. These are clear violations [of] Florida Administrative Code [Rule] 6A-10.081 Principles of Professional conduct for the Education Profession in Florida . . . . Moving forward you are not to approach any employee regarding a prior investigation, and/or enter a Lake county School campus and act in an aggressive or harassing manner toward a student. Any similar issues will lead to further disciplinary action up to and including termination. Please let me know if you have any questions. (emphasis added). The foregoing language makes plain that the School Board had completed its investigation regarding the incidents of March 26, April 11, and April 14, 2014, and that Respondent's "Level II Reprimand" constituted formal disciplinary action in connection with those events.2/ Thus, as discussed later in this Order, the School Board is now precluded from terminating Respondent for the same misconduct. Psychological Evaluation As noted previously, the School Board advances an alternative basis for termination, namely, that Respondent is guilty of "incompetency." On this issue, the record reflects that on June 3, 2014, Mr. Pedata directed Respondent to report for a "Medical Fit for Duty Examination" with Dr. Wally Austin, a licensed psychologist. At or around that time, Mr. Pedata furnished Dr. Austin with police reports and other investigative documents relating to the incidents of March 26, April 11, and April 14, 2014. Consistent with Mr. Pedata's directive, Respondent thereafter reported to Dr. Austin's office and submitted to a psychological evaluation. The evaluation, which Dr. Austin conducted on June 24, 2014, comprised three elements: a one- hour interview; the Minnesota Multiphasic Personality Inventory- 2 ("MMPI-2"); and a follow-up interview of approximately 5 to 10 minutes. Dr. Austin concedes that, during the interview, Respondent's speech was "clear, logical, and coherent," and that there was "no evidence of a thought disorder, perceptual disturbance, or psychosis." Nevertheless, Dr. Austin was troubled by the fact that, when pressed about the episodes of March 26, April 11, and April 14, Respondent provided descriptions of the events that varied significantly from the accounts of the other involved parties (as documented in the police reports and other materials provided to Dr. Austin by the School Board). For example, Respondent insisted that he was not present at the Target store on April 14, 2014, and, thus, did not interact with Ms. Burnett on that date. Operating under the premise that Respondent had engaged in "grossly inappropriate behavior" during the episodes of March 26, April 11, and April 14,3/ Dr. Austin thought it prudent to "get objective information." To that end, Dr. Austin administered the MMPI-2, a widely-used, standardized test of adult personality. Unfortunately, Respondent's answers to the MMPI-2 resulted in a high "lie" (or "L") scale (one of the test's three "validity" scales) that rendered the entire evaluation invalid. As Dr. Austin explained, a high L scale typically occurs when test takers attempt to depict themselves as unrealistically virtuous. Notably, however, Dr. Austin equivocated whether the high "L scale" resulted from conscious behavior on Respondent's part. At one point, for example, Dr. Austin testified that Respondent "had the ability to answer [] in a more forthright manner."4/ Later, though, Dr. Austin credibly opined that Respondent believed in the truthfulness of his test responses: Well, that's the part we didn't get into. He faked it – when I say "faked it good," there is [sic] other scales that indicate that John believes what he is saying. So for him, he is not faking it. * * * [B]ecause by [the L scale] being so high, it invalidates the report because it lowered all of the other scores. And the psychopathology would come up, but you don't know what it is because he denies everything. But it is not a conscious denial, he believes what he believes. Pet'r Ex. 10, p. 68:5-9; 68:23-69:3 (emphasis added). Upon the completion of the MMPI-2, Dr. Austin conducted a brief follow-up interview with Respondent, at which point the evaluation concluded. The following day, on June 25, 2014, Dr. Austin notified the School Board that, in his view, Respondent was "not fit to return to work in the school system." A charging document soon followed, wherein the School Board alleged that Respondent is guilty of incompetency: Based on the results of the medical fit for duty you are also charged with "Incompetency." Under F.A.C. 6A-5.056(3), Incompetency is the "inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Inefficiency under 6A- 5.056(3)(a)2 is "Failure to communicate appropriately with and relate to students[,]" and 6A-5.056(3)(a) is "Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents." Incapacity under 6A- 5.056(3)(b)1 is "Lack of emotional stability." Your actions clearly reflect incompetency in this regard. Pet'r Ex. 17. In its Proposed Recommended Order, the School Board reiterates its position that Dr. Austin's findings and/or the incidents of March 26, April 11, and April 14, 2014, demonstrate Respondent's incompetency. For the reasons explicated below, the undersigned is not so persuaded. First, the School Board is precluded from basing the incompetency charge upon the episodes for which Respondent was previously reprimanded. The psychological evaluation likewise cannot support the incompetency charge, as it is evident that Dr. Austin's opinion was informed almost exclusively by Respondent's previously-punished misconduct. Consider the following exchanges between Dr. Austin and School Board counsel: Q. Okay. And what are those duties, just in your own words, that you would expect for a teacher who is, in fact, fit for duty to perform? A. I think the question is very broad. Because I would like to answer it by ruling out what I don't expect. Q. Okay. A. I don't expect there to be threats of violence to hit other students – to hit students where the teachers now are starting to get violent with the kids, or young men, students of the county. Or I don't expect teachers or adults to conduct themselves inappropriately in the school setting or in public to the point that you were going down the street to fair it out with someone's husband. You know, those kinds of things, I don't think that is becoming of a school teacher. * * * A. All right. I am not assessing his ability to teach. I am assessing: Is he fit to be in the room. Q. Correct. A. I am looking at an individual who has had five episodes of grossly inappropriate behavior: The Triangle School thing one, the Home [sic] Depot lady, the flirting, the technical school, the Target. He has had inappropriate behavior in multiple settings; in the school setting, in the public with the school teachers; he is going over to people's work environments. His inappropriate behavior has involved teachers, it has involved students, it has involved administrators. He has been called on the carpet and had consequences of police reports filed on him, changes in school, three-days [sic] suspension. And it keeps going on and on . . . . If a person has done something twice, three times, four times they are very likely to do that behavior again. What faith do I have that [Respondent] is not going to threaten violence to teachers or to students when he leaves my office . . . ? Pet'r Ex. 10, p. 35:7-22; p. 36:3-8. The only reasonable interpretation of the foregoing testimony is that Respondent's earlier misdeeds were a necessary component of Dr. Austin's opinion. At bottom, then, the School Board is attempting to accomplish indirectly (i.e., terminate Respondent by channeling his previously-punished misconduct through an expert, who opines that the misconduct demonstrates unfitness) what it cannot do directly (i.e., terminate Respondent for the previously-punished misconduct). As noted shortly, basic due process precludes such an outcome. Moreover, and in any event, Dr. Austin's evaluation, which comprised a single office visit, was insufficiently comprehensive to evaluate properly Respondent's fitness to carry out his required duties. On this point, the undersigned credits the testimony of Respondent's expert witness, Dr. DeLeon, who opined that an appropriate evaluation would necessarily include multiple office visits over a period of time.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order: dismissing the charges brought against Respondent in this proceeding; and awarding Respondent any lost pay and benefits. DONE AND ENTERED this 26th day of March, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2015.
The Issue The basic issue in this case is whether the Respondent should be dismissed from his employment as a teacher. The Petitioner seeks such dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) violation of the Principles of Professional Conduct, (b) immorality, (c) misconduct, (d) willful neglect of duties, and (e) moral turpitude. The Respondent denies any misconduct.
Findings Of Fact Based on the evidence received at the hearing and on the parties's stipulations, I make the following findings of fact: Facts stipulated to by the parties Virgil L. Morgan is the duly appointed Superintendent of Schools of Broward County, Florida, and is legally authorized to represent to the School Board of Broward County, Florida, pursuant to statute, that any member of the instructional and/or administrative staff be dismissed from or with the Broward County School System. The address of Virgil L. Morgan is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The address of the School Board of Broward County, Florida, is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The Respondent, Marion Wright, is an employee of the School Board of Broward County, Florida, holding a continuing contract of employment since December 5, 1968, and has currently been employed at Nova High School, 3600 College Avenue, Davie, Broward County, Florida, as an American History and Geography teacher. The last known address of the Respondent is 151 Northwest 33rd Terrace, Fort Lauderdale, Broward County, Florida. Other general facts While employed at Nova High School, the Respondent was also the coach of the girls junior varsity basketball team. Facts regarding motor vehicle operations The Respondent's ex-students and assistant coaches often moved his car from one place to another on the Nova campus during the school day. These ex- students and assistant coaches were licensed drivers. The Respondent sometimes also permitted several students who were seniors and who were licensed drivers to move his car while it was on campus. It is not unusual for teachers at Nova High School to permit students to drive their cars. There is no credible competent substantial evidence in this case that the Respondent permitted unlicensed students to operate his motor vehicle. On January 22, 1988, Andrea Session and Kim Williams, both students at Nova High School who were also members of the girls basketball team, went to the Respondent's classroom shortly after first period began. Neither of the two girls had a driver license. Kim Williams asked the Respondent for the keys to his pickup truck in order to retrieve her school books which were locked in the truck. The Respondent gave the keys to the two girls and they left. It was not uncommon for the girls to leave their books in the Respondent's truck or car, because the Respondent would frequently drive these two girls (and others) from their home to early morning basketball practice before school. They would often leave their school books in the Respondent's vehicle during basketball practice and pick them up later. On January 22, 1988, while in possession of the keys to the Respondent's pickup, Kim Williams attempted to move the pickup and ran into a parked car in the school parking lot. The Respondent did not authorize Kim Williams to drive his pickup truck on January 22, 1988. Facts regarding taking students out of class The Respondent never requested that Kim Williams, Andrea Session, or any other student or member of his basketball team be excused from other classes, except as was consistent with being excused from class on game days. The Respondent did not write passes requesting that students be excused from other classes. Nor did he usually permit students without passes to remain in his classroom. When Kim or Andrea would come to the Respondent's class without a pass, the Respondent would usually ask them to return to their class. On occasion, Kim and Andrea would skip classes and not go to the Respondent's classroom. There is no credible competent substantial evidence in this case that the Respondent arranged for the unauthorized or illegal removal of any student from scheduled class periods. There is no credible competent substantial evidence in this case that the Respondent provided females students on his basketball team with passes to remove them from their regular scheduled classes on the days that basketball games were scheduled in order for them to rest or relax for the game. Facts regarding transportation of students off campus and to liquor stores The Respondent frequently transported students from their homes to early morning basketball practice. The Respondent has taken adult female assistant coaches to the Double Feature Liquor Store, and to other liquor stores, and has purchased beer for them on occasion. There is no credible competent substantial evidence in this case that the Respondent took students to a liquor store, bought alcoholic beverages, and consumed alcoholic beverages with students. There is no credible competent substantial evidence in this case that the Respondent took students off campus on personal errands during the students' scheduled class periods. Facts regarding soliciting false statements and submitting a false affidavit After the Respondent became aware that he was being accused of providing alcoholic beverages to two students, he went to see Ms. Bonnie Session, the mother of one of the students. The Respondent told Bonnie Session about the situation he was in and asked her to sign a statement on his behalf. Thereafter, Adrienne Session, an older daughter of Ms. Session, called the Respondent and told him she had something for him from her mother. Adrienne gave the Respondent a written statement that purported to be signed by Bonnie Session. The Respondent took the statement to a notary public and asked that it be notarized. The notary called on the telephone and spoke to someone she believed to be Bonnie Session. The person to whom the notary spoke acknowledged having signed the statement. The notary then notarized the document and gave it back to the Respondent. At a later date, under circumstances that are not at all clear, Bonnie Session and her two daughters went to the same notary, after having been guided there by the Respondent, and had some additional documents notarized. The Respondent made some efforts, directly and indirectly, to obtain exculpatory statements from several people, but the nature of those efforts cannot be discerned from the credible evidence in this case. There is no credible competent substantial evidence in this case that the Respondent encouraged any students to falsify their accounts of any matters related to the issues in this case. There is no credible competent substantial evidence in this case that the Respondent intentionally distorted, or caused to be misrepresented, any facts regarding an affidavit that was purportedly signed by Bonnie Session.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Broward County issue a final order in this case dismissing all administrative charges against the Respondent, Marion Wright, and reinstating him with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June 1989. MICHAEL M. PARRISH 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 30th day of June 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4734 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. To facilitate an understanding of the rulings which follow, attention is directed to the fact that, for the most part, the testimony of the two principal witnesses against the Respondent has been found to be unworthy of belief and to be an insufficient basis for findings of fact. The two principal accusers have both, while under oath, changed major portions of their stories on more than one occasion. The credibility of their stories is also impaired in large part by the fact that the stories told by the two principal witnesses are inconsistent in a number of telling details, and those stories also conflict with the testimony of other witnesses who are much more worthy of belief. It is also noted that the candor of Respondent's testimony was not without its own tarnish in places. While the Respondent's denial of the charges against him has been accepted in substance, this is largely because of the absence of believable evidence in support of the charges rather than because of any great reliance on the Respondent's candor. Findings proposed by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Paragraph 3: First sentence rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Second sentence accepted. Paragraph 4: For the most part, rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. It is accepted that there was an on-campus accident involving Respondent's vehicle. Paragraph 5: Rejected as irrelevant in light of other evidence in the record. Paragraph 6: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 7: Rejected as irrelevant. [The presentation of the testimony of the Assistant State Attorney appears to have been primarily for the purpose of vouching for the truthfulness of the other witnesses against Respondent. Such vouching is an inappropriate form of proof. See Fuller v. State, 450 So.2d 182, 184 (Fla. 5th DCA 1989).] Paragraph 8: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Findings proposed by Respondent: Paragraph 1: First sentence rejected as subordinate and unnecessary details. Remainder accepted in substance with a few unnecessary details omitted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance with some unnecessary details omitted. Paragraphs 5 and 6: Accepted in substance with some unnecessary details omitted. Paragraph 7: Accepted in substance. Paragraph 8: Rejected as a summary of testimony rather than proposed findings of fact. In any event, the subject matter of the summary consists of subordinate and unnecessary details. Paragraphs 9, 10, 11, and 12: Rejected as subordinate and unnecessary details. Paragraph 13: Accepted in substance. Paragraphs 14 and 15: Rejected as subordinate and unnecessary details. Paragraphs 16 through 30: Rejected as constituting, for the most part, a summary of the history of many of the reasons for not making findings of fact rather than actual proposed findings. (Many of the details in this summary form the basis for the conclusion that the testimony of the two principal witnesses against the Respondent is unreliable.). COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Thomas W. Young, III, Esquire General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida =================================================================
