The Issue At issue in this proceeding is whether the Respondent committed the offenses set forth in the Corrected Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. The Respondent, Michael Durrant, was at all times material hereto, employed by the School Board (under a professional service contract),and assigned to North Miami Middle School, North Miami Senior High School, and other work locations. During the 1996/97 school year, E. H. was a fourteen- year-old female student at North Miami Middle School. During that school year, E. H. was in the eighth grade and was an honors student. During that school year, the Respondent was one of her teachers. At the beginning of that school year, E. H. did not like the Respondent, but during the course of the school year, she became attracted to the Respondent. On January 16, 1997, while E. H. was in the Respondent's classroom, the Respondent approached her seat to talk to her. During the course of their conversation, the Respondent put one of his arms around E. H. and asked her to give him a kiss. E. H. gave the Respondent a light kiss on the cheek. The Respondent then told E. H. that she should come back to his classroom after school. After school that same day, E. H. returned to the Respondent's classroom. When E. H. asked him what he wanted, the Respondent approached E. H. and gave her a "French" kiss, which involved inserting his tongue in E. H.'s mouth. On January 23, 1999, E. H. again met the Respondent in his classroom after school. When E. H. arrived, two other students were also in his classroom. Eventually, the two other students left the classroom and E. H. and the Respondent were the only people in the classroom. Shortly thereafter, the Respondent gave E. H. a "French" kiss and began to fondle her vagina. The Respondent then inserted his penis in E. H.'s vagina and they engaged in sexual intercourse for a brief period of time. E. H. had not previously engaged in sexual intercourse and she began to bleed as a result of the sexual intercourse. Due to the bleeding, the sexual intercourse did not last very long. E. H. then cleaned herself up and went home. From February 2, 1997, until April 9, 1997, the Respondent was assigned to work at the regional office. On April 9, 1999, the Respondent was returned back to his teaching position at North Miami Middle School. A few days later,6 the Respondent and E. H. planned a meeting. They met at a grocery store near North Miami Middle School on an early release day, and the Respondent then drove E. H. to his townhouse. At the townhouse, the Respondent and E. H. engaged in two episodes of sexual intercourse involving penile penetration of E. H.'s vagina. On Monday, May 19, 1997, the Respondent took a day off from school and E. H. skipped school. The Respondent met E. H. near her home and drove her to the Respondent's townhouse. On this occasion, the Respondent and E. H. engaged in two episodes of sexual intercourse involving penile penetration of E. H.'s vagina. In addition, they engaged in two episodes of oral sexual activity; one episode involving the Respondent placing his mouth in contact with E. H.'s vagina, and the other episode involving E. H. placing her mouth in contact with the Respondent's penis. During the summer of 1997, E. H. took some summer school classes at North Miami Senior High School. The Respondent was teaching at that school during the summer session. The Respondent and E. H. no longer continued their sexual relationship, but on the last day of summer school, they kissed each other. Eventually, the sexual activity between the Respondent and E. H. was brought to the attention of the school authorities. The matter was investigated by school authorities and by two police departments. On November 5, 1997, the Respondent was arrested on three criminal charges: (1) unlawful sexual activity with a minor under sixteen years of age by an adult over twenty-four years of age; (2) sexual activity with a child in a custodial position; and (3) lewd and lascivious assault on a child.7 The news of the Respondent's arrest was widely published in local newspapers and on local television in the Miami-Dade area. News of the arrest resulted in a considerable amount of disruption at both North Miami Middle School and North Miami Senior High School. A number of students at both schools became aware of the fact that the Respondent had been arrested on charges related to sexual activity with a student. Some students became aware of the fact that E. H. was the student who had been sexually involved with the Respondent. A number of parents expressed concerns about the Respondent's conduct. The Respondent's effectiveness as a teacher has been seriously impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board. DONE AND ENTERED this 6th day of July, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1999.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent from his employment contract.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control and supervise the public schools within Manatee County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22 (1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent was employed by the School District. Mr. Gagnon has been in the education field for approximately 23 years, and has been with the School District since 2002. Mr. Gagnon served as an assistant principal at Lakewood Ranch High School and as principal at Palmetto High School, both of which are in Manatee County. Mr. Gagnon was the principal at MHS beginning with the 2007-2008 school year. Mr. Gagnon served as the MHS principal until he transitioned to the position of assistant superintendent for Curriculum and Instruction for the School District in January 2012. Mr. Gagnon served as the interim superintendent for approximately one month in September/October 2012 and then returned to the assistant superintendent position when another person was appointed interim superintendent. In 2005 the School District posted a position for a specialist in the OPS to investigate alleged School District employee misconduct. The then superintendent wanted to establish a standardized method of investigating employee misconduct. Ms. Horne interviewed for the position, and was appointed as the first OPS specialist. As there were no School District policies or rules in place when she started, Ms. Horne assisted in writing the School District’s OPS policies. Sections 39.201 and 39.202, Florida Statutes, are incorporated into the School District’s policies and procedures as Policy 5.2(1), Policies and Procedures Manual, School Board of Manatee County (2013), which provides: Mandatory Duty to Report Suspected Child Abuse. All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it. Employees or agents so reporting have immunity from liability if they report such cases in good faith. This includes suspected child abuse of a student by an employee. Ms. Horne provided the training on this policy and other policies to School District employees. As the OPS investigator, Ms. Horne was to “investigate alleged employee misconduct and other matters as assigned” to her by her supervisor. Ms. Horne never had the authority to determine whether or not someone had engaged in misconduct or to make any recommendations as to what may or may not have happened. Her role was to simply gather the information, prepare a report of her findings, and provide that report to her supervisor. In November 2012, Mr. Martin was the School District’s assistant superintendent for District Support, and Ms. Horne’s direct supervisor. During her eight-year tenure as the OPS specialist, Ms. Horne investigated over 800 cases of employee misconduct. The School District uses a progressive discipline model for its employees. Should an employee exhibit behaviors that could be considered inappropriate or misconduct, the School District has a step-by-step method of taking disciplinary action, from simply talking with the employee up to termination of employment. If it is an egregious action, such as sexual conduct with a student, immediate termination is an option. The discipline begins on-site by the site-based managers where the incident occurs. Those site-based managers could have that simple conversation, and if need be, it could progress to a verbal directive, a memorandum of conference, and/or a written reprimand. Site-based managers include principals, assistant principals, directors, and assistant directors.3/ In those instances where the disciplinary action could lead to days without pay or termination, actions that could only be taken by the School Board, OPS would open an investigation. During the first two weeks of November 2012, Mr. Rinder was approached by several MHS teachers regarding concerns for their students. When Mr. Rinder spoke with Mr. Sauer, MHS’s principal, about those concerns, Mr. Sauer asked Mr. Rinder to type up the list (Rinder’s List) and give it to Mr. Sauer. Mr. Sauer, in turn, forwarded Rinder’s List to the OPS. Rinder’s List: [1.] One staff member reported a phone call to a female student during class. The student was upset by the call and told the staff member that Mr. Frazier had asked her if “she had gotten her period and did she need him to go to the drug store for her.” [2.] One staff member reported that Mr. Frazier repeatedly called for a female student during class. When asked if it was important, Mr. Frazier said “yes”. [sic] When the staff member asked the student what the problem was, the answer was “My mom wanted to take me to lunch and he helped me do it”. [sic] [3.] Male student was failing a core class. He told the teacher that “Frazier told me that he will change the grade”. [sic] [4.] A female student was observed getting into Mr. Frazier’s vehicle after school hours and was transported. [5.] Female student told a staff member that she overheard students talking about several meetings in the park late at night with Mr. Frazier. She stated that Mr. Frazier placed and [sic] empty water bottle between her legs as she was walking down the sidewalk. [6.] Female student was observed sitting on Mr. Frazier’s lap eating cake off his fork. [7.] Female student reported to a staff member that Mr. Frazier made a comment to a student in the hall that he had put her on skype [sic] and she took a picture and has it saved on her cell phone. She is scared that he will retaliate if she tells. [8.] Female student told a staff member that Mr. Frazier had made comments to her at the Tiki Bar that she was old enough to be there and they could talk. When she refused to talk with him, she started having issues with Mr. Frazier at school. She transferred to LIFE program to get out. [9.] Female student was reported to a staff member by several students who stated that she was having a relationship with Mr. Frazier. She transferred schools. This conversation was overheard by two teachers in the hall. [10.] The Math Department this week was discussing Mr. Fraziers [sic] questionable activities. Upon receipt of Rinder’s List, Ms. Horne was directed to open an investigation into the allegations contained therein. The subject of the investigation was an MHS parent liaison4/ and assistant football coach named Roderick Frazier. In a very general sense, the allegations involved misconduct by a teacher. Rinder’s List initiated the Frazier investigation. However, Rinder’s List contains blatant hearsay which cannot form the basis for a finding of fact without corroboration. There was no testimony provided by any students mentioned in items 2, 3, 5 (first sentence), 7, 8, or 9 above; hence, it is impossible to verify what occurred. Item 10 merely indicates that an entire department at MHS discussed “questionable activities” by an individual, but it provides no specific activities. There was no credible, non-hearsay evidence in this record to substantiate any of these allegations (items 2, 3, 5 (first sentence), 7, 8, 9 or 10). On November 14, 2012, an email with an attached letter from then-Superintendent David Gayler, was sent to Mr. Sauer around 8:40 p.m., advising him that Mr. Frazier was to be placed on paid administrative leave (PAL) on Thursday, November 15. Mr. Sauer notified Mr. Frazier appropriately. The School Board’s policy regarding placing an employee on PAL is dependent upon whether there is a potential for harm to any student and/or the employee could incur a suspension or termination from employment. Due to an on-going investigation at a different school, Ms. Horne did not arrive at MHS to begin the investigation until the afternoon of Thursday, November 15. Ms. Horne first interviewed Mr. Rinder, as Rinder’s List did not contain any names of teachers or students who were allegedly involved. Upon obtaining the names of the teachers who had expressed concerns, Ms. Horne interviewed most of the teachers on November 15. By the time Ms. Horne completed her teacher interviews, the students had been dismissed from school and were no longer available. At some time, Mr. Rinder observed a female student getting into Mr. Frazier’s car after school (Rinder’s List, Item 4). Mr. Rinder was not alarmed by this sight, but merely thought it was Mr. Fazier’s son’s girlfriend getting a ride. There was no testimony that Mr. Rinder ever brought this information to Mr. Gagnon’s attention. Ms. Aragon brought two concerns about Mr. Frazier to Respondent’s attention: 1) she thought that girls were sitting too close to Mr. Frazier in golf carts at MHS; and 2) Mr. Frazier had called her classroom telephone to talk with a female student. Neither Ms. Aragon nor Mr. Gagnon were absolutely certain as to when these concerns were brought to Mr. Gagnon’s attention: Ms. Aragon thought they were brought to his attention during one conversation, and Mr. Gagnon thought there were two separate conversations approximately a year apart, based on the actions that he took to address them. Mr. Gagnon’s testimony is more credible. Upon being told of the golf cart issue, Respondent immediately went to the MHS courtyard and observed Mr. Frazier with a female student sitting in his golf cart. At the same time, Respondent observed two other assistant principals with students of the opposite sex sitting in their golf carts. Respondent addressed Mr. Frazier first, and then issued a directive to his discipline staff that no one was to allow a student to just sit in a golf cart. Respondent directed that if there was a legitimate reason to transport a student, that was fine, but students were no longer to just sit in the golf cart. With respect to the telephone incident (Rinder’s List Item 1), Mr. Frazier called Ms. Aragon’s classroom and bullied his way to speak with the female student. After the student hung up the phone with Mr. Frazier, she appeared to be upset. Ms. Aragon immediately questioned the student, and Ms. Aragon understood that Mr. Frazier had inquired about the student’s menstrual cycle. Ms. Aragon thought it was “inappropriate” for Mr. Frazier to be speaking with a female student about her menstrual cycle, but Ms. Aragon testified that she did not know if the conversation impacted the student’s day. Ms. Aragon was not privy to the actual conversation between the student and Mr. Frazier, and the student with whom the conversation was held did not testify. The actual telephone conversation is hearsay. Ms. Aragon sought guidance from the teacher’s union president as to what to do. When Ms. Aragon spoke with Mr. Gagnon about Mr. Frazier’s telephone call, Mr. Gagnon immediately turned the issue over to an assistant principal for investigation. Based on the report from the assistant principal, Mr. Gagnon was not concerned that anything inappropriate or sexual was happening.5/ At some point in time, Ms. Coates overheard two female students comment about Mr. Frazier. Although Ms. Coates asked the students to tell her directly the basis for their comment, the students declined. (Neither student testified at hearing.) Shortly thereafter, Ms. Coates told Respondent the students’ comment. Ms. Coates heard Mr. Gagnon respond that something was going around on Facebook. Mr. Gagnon did not remember Ms. Coates telling him of the students’ comment. However, Mr. Gagnon routinely reviewed the disciplinary records for the three parent liaisons and was satisfied that Mr. Frazier was not showing favoritism in his discipline to one group of students over another. It is not uncommon for students to perceive that a teacher is showing favoritism towards a student or group of students. At the conclusion of the teacher interviews on November 15, Ms. Horne understood that the allegations had occurred a year or two before they were reported in Rinder’s List. This thought process was reinforced when Ms. Horne met with some of the MHS administrators in Mr. Sauer’s office where they had a telephone conference with Mr. Martin. Following the telephone conference, Ms. Horne returned to the School District’s main office and again conferred with Mr. Martin for directions. On November 15 or 16, 2012, Ms. Horne had a brief conversation with Mr. Gagnon at the School Board building. Mr. Gagnon asked about the Frazier investigation. Ms. Horne responded that the only issues she was hearing had previously been addressed, and that Ms. Horne would be returning for other interviews. Additionally, Mr. Martin had a brief conversation with Mr. Gagnon about the Rinder List allegations. Mr. Gagnon maintained that the allegations were old and had been dealt with appropriately. Ms. Horne shared with Mr. Martin that the Rinder List allegations were old and had been dealt with previously. Based on this information, Mr. Martin, in his sole discretion, determined to remove Mr. Frazier from PAL on November 16, 2012, and return him to work. Ms. Horne was surprised by this, as her investigation was incomplete. Ms. Horne interviewed Mr. Frazier as well as one other teacher, on November 16, 2012. Although Ms. Horne had the name of an alleged victim, Mr. Martin directed her not to interview that student at that time. In January 2013, a former MHS female student, D.K., wrote a letter to MHS alleging that Mr. Frazier did various inappropriate acts towards her while she was a student at MHS during the 2010-2011 and 2011-2012 school years. In her letter, D.K. stated that she became close to Mr. Frazier during her two years at MHS. D.K. met Mr. Frazier at a park near her home, but during her second year at MHS (2011-2012), Mr. Frazier “started being weird with [her] and saying inappropriate things to” her. D.K. admitted that she frequently rode in Mr. Frazier’s golf cart around the school, and that Mr. Frazier put a water bottle (Rinder’s List Item 5, second sentence) in between her legs (between her knees and crotch) as they were sitting in the bleachers at the softball field and while sitting in a golf cart. D.K. came forward with the letter because she had heard of the Frazier investigation and that it was being closed. Several days after D.K.’s letter was received in OPS, Ms. Horne interviewed D.K., who was accompanied by her mother. Ms. Horne was unable to confirm D.K.’s credibility completely because Ms. Horne left OPS prior to the conclusion of the Frazier investigation. The most disturbing part of D.K.’s testimony came when D.K. admitted, and Ms. Peebles confirmed, that during the 2010- 2011 school year, Ms. Peebles walked into Mr. Frazier’s office unannounced and observed D.K. sitting on Mr. Frazier’s lap holding a piece of cake (Rinder’s List Item 6). Ms. Peebles immediately instructed D.K. to get off Mr. Frazier’s lap and to sit in a chair on the other side of his desk. Mr. Frazier appeared to be unfazed by Ms. Peebles entering his office unannounced and witnessing this scene. Mr. Frazier proceeded to handle the disciplinary matter that Ms. Peebles had brought to him. Ms. Peebles reported the observation to an assistant principal, Matthew Kane, but not to Respondent. Ms. Peebles did not believe there was abuse on-going, but thought it was “not appropriate” for Mr. Frazier to have a student sitting on his lap. D.K. testified that “after he [Mr. Frazier] got in trouble he started getting me [D.K.] in trouble for things that I had been getting away with the whole time I was there [at MHS].” D.K. did not provide a time-frame or what “trouble” Mr. Frazier had gotten her into while D.K. was at MHS, and no evidence was provided otherwise. Further, D.K. never told Mr. Gagnon of any issues involving Mr. Frazier. D.K. was enrolled at a different local high school when Mr. Frazier was placed on PAL. Ms. Peebles relayed another issue regarding Mr. Frazier; however, it involved hearsay and was not corroborated by the student who initially reported the issue to Ms. Peebles. The absence of direct, non-hearsay testimony precludes a finding of fact as to that issue. In late January 2013, Ms. Horne transferred to an assistant principal position at a school district elementary school. Both Ms. Horne and Mr. Martin confirmed that the Frazier investigation had not been completed when Ms. Horne left OPS. Ms. Horne had not submitted a written report to her supervisor which would have signaled the completion of the Frazier investigation. The specialist position in OPS remained vacant until July 2013 when Mr. Pumphrey assumed the position. Mr. Pumphrey confirmed that there “had been an ongoing investigation both at the School District level and law enforcement surrounding Rod Frazier.” In an effort to gain speed in his investigation, Mr. Pumphrey reviewed the Frazier investigation file and became aware that the School District “had stalled their investigation pending the outcome of the criminal investigation.” Mr. Pumphrey reviewed Mr. Frazier’s personnel file and determined there was “no documentation of any discipline to Mr. Frazier.” Additionally, Mr. Pumphrey pulled all the published information including media accounts and police reports, and reviewed them. As Mr. Martin had been instrumental in hiring Mr. Pumphrey, the two spoke several times “because this thing [the Frazier investigation] was all over the place.” Several days after re-starting the Frazier investigation, Mr. Pumphrey expressed to the superintendent his concern about the close proximity of Mr. Pumphrey’s office to that of Mr. Gagnon and requested that Mr. Gagnon6/ be placed on PAL. The superintendent did so. During the course of the Frazier investigation, Mr. Pumphrey considered that Mr. Gagnon’s actions or inactions during the course of the Frazier investigation constituted “administrative negligence and/or intentional misconduct.” Mr. Pumphrey broadened the Frazier investigation to determine whether district administrators “had prior knowledge of complaints by female students and faculty regarding inappropriate conduct involving Frazier and, if so, why the complaints were not timely addressed.” There is no credible, non-hearsay evidence in the record to substantiate that Mr. Gagnon failed to investigate or report inappropriate conduct by a faculty member. When apprised of questionable or suspect conduct, Mr. Gagnon took the steps necessary to inquire. The absence of direct, non-hearsay testimony precludes a finding that Mr. Gagnon acted in the fashion alleged in the administrative complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 30th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 30th day of June, 2014.
The Issue The issue is whether Petitioner may terminate Respondent's teaching contract for just cause.
Findings Of Fact Respondent has been a science teacher since 1974. After six and one-half years of service in the military, which included service in Vietnam, Respondent attended college and graduated from St. Louis University with bachelor's and master's degrees in chemistry. After a short career in private industry, Respondent entered the teaching profession in Pennsylvania. In 1983, Respondent moved to Miami to continue teaching. For the first year, Respondent obtained a temporary position, filling in for a teacher out on pregnancy leave, teaching honors physics and biology at Palmetto Senior High School. For the next three years, Respondent taught earth science and physical science at Palm Springs Junior High School, both as a permanent substitute and regular teacher. Starting in August 1987, Respondent taught unspecified science courses at North Dade Junior High School for a year. Respondent's first extended assignment at one school was at Southwood Middle School, where he taught from August 1988 through June 1993. At Southwood Middle School, Respondent was a problem employee from the start; he was explosive, defiant, temperamental, and a bundle of nerves. From March 1989 through October 1991, different Southwood principals had to summon Respondent to the office for six conferences-for-the-record (CFR). In October 1990, the principal at Southwood Middle School directed his assistant principal to schedule an observation of Respondent, who repeatedly deflected her request to schedule a mutually convenient time for an observation. On one occasion, Respondent lacked a lesson plan, but the principal, rather than placing Respondent on probation for that deficiency, instead conducted a CFR on October 31, 1990, at which he reminded Respondent of the requirement of lesson plans. Eventually, the regional coordinator of the science department conducted the observation on November 26, 1990. The science coordinator assessed Respondent as deficient in preparation and planning, subject-matter knowledge, and instructional techniques. At a CFR on December 14, 1990, the principal prescribed appropriate remedies for these deficiencies. The CFR notes that Respondent claimed that the science coordinator had not judged him fairly. Next, Respondent taught at North Miami Senior High School from August 1993 to June 1997. Having obtained certification in physics, Respondent taught physics to advanced placement, international baccalaureate, honors, and regular classes, as well as earth-space science. During the 1997-98 school year and start of the 1998-99 school year, Respondent taught at Killian Senior High School. At Killian, he taught three physics and two chemistry classes. In the late summer and early fall of 1998, district office personnel began painting the interior of Killian Senior High School. The smell of paint was oppressive to students and staff. Based on numerous complaints, as well as his own experience, the principal contacted the district office and asked that they monitor the odor. Respondent was among the persons complaining about the paint, but he was far from alone. On October 5, 1998, unrelated to the paint situation, the principal conducted an observation of Respondent. The resulting evaluation notes numerous deficiencies in preparation (including the lack of a lesson plan), the delivery of instruction, and the management of the classroom. At the hearing, Respondent rejected the validity of this observation largely due to the principal's lack of background in science. In the ensuing days, the principal tried without success to arrange a CFR to discuss the observation and evaluation, although the scheduling problems were not shown to have been due to Respondent. Finally, on October 16, 1998--a teacher workday--the principal directed his assistant principal to get with Respondent and schedule the CFR. The assistant principal summoned Respondent to her office and asked Respondent to sign a notice of CFR setting a date for the conference. Respondent became very angry and called the principal, who is black, a "nigger." Respondent said the entire matter was a "bunch of bullshit." He then promised that he would see that the assistant principal "was taken care of" and "she would be sorry." The assistant principal replied that she only wanted him to sign the notice, but Respondent would not be mollified. In her 38 years in Petitioner's school system, the assistant principal has never seen an outburst like this from a teacher. Shaken, the assistant principal immediately telephoned the principal, who was downtown at a school meeting. She relayed to him what had happened and all that Respondent had said. The principal responded by telling her that he would call Petitioner's police and return to the school immediately. Arriving at the school, the principal met with several school police officers in his office. The officers wanted to arrest Respondent without delay, but the principal said that he wanted to speak to him first. The principal then walked up to the teacher's workroom where Respondent, alone, was working. The accounts of what happened next do not overlap very much. The principal, a sizeable man, claims that Respondent hit him. Respondent, a small man with a sizeable temper, claims that the principal hit him. It is impossible to credit either story. The principal's testimony is inconsistent, and he was an evasive witness. As reflected throughout these findings, Respondent's distorted perceptions, disordered thinking, poor insight, and lack of candor deprive him of credibility. Likely, neither man struck the other, although they may have grabbed or jostled a little. Wisely, Petitioner did not pursue the matter in a manner consistent with a teacher battery upon a principal, nor does Petitioner allege in the present case that Respondent struck the principal. Clearly, though, the two men quarreled loudly, and, when the confrontation escalated into an altercation, the school police entered the room and removed Respondent from the building. Petitioner reassigned Respondent to a region office. On October 21, 1998, Petitioner conducted a CFR for the October 5 observation. This CFR listed various prescribed remedies, but recognized that Respondent's nonacademic placement prevented the accomplishment of most of them. On December 10, 1998, Petitioner conducted a CFR for the October 16 incident. Petitioner presented Respondent with a list of physicians from whom he could choose, so that he could obtain a medical evaluation of his fitness to return to work. The letter memorializing the CFR directs Respondent not to visit the campus of Killian High School or contact any student or staff at the school by any means. Undoubtedly, Respondent had reached a breaking point by the time of the October 16 incident. The primary source of his increasing anxiety seems to have been the paint situation. Eventually, the district office had to have its personnel remove the paint due to toxic substances contained in the paint, and it is not unlikely that Respondent played an important role in the process that led to the eventual removal of the unhealthy paint. However, it is impossible to determine exactly when Respondent obtained evidence of the paint's toxicity. At some point, although not immediately, Respondent obtained the material safety data sheets for the paint and learned that the paint was unsuitable for a school. It is difficult to determine exactly when this occurred, and it is therefore difficult to assess Respondent's behavior. It appears likely, though, that, for a time at least, Respondent, fashioning himself a whistleblower beleaguered by the principal, bypassed normal administrative channels, proclaimed to his class that he would protect them from this toxic paint, and encouraged his students to have their parents complain about the paint. The evidence is sketchy as to whether Respondent violated the directive not to contact students or staff. Respondent probably contacted teachers and possibly contacted students in violation of the directive, but, absent detailed evidence of the conversations, it is impossible to find that these conversations constituted material violations of the directive. After some difficulties in selecting a psychiatrist acceptable to Respondent, he chose Dr. Anastasio Castiello from the names provided to him by Petitioner. Dr. Castiello conducted a psychiatric evaluation of Respondent on January 25, 1999. Based on a 50-minute interview and history largely supplied by Petitioner, Dr. Castiello diagnosed Respondent as suffering from a ”moderately severe psychiatric disorder warranting a recommendation for relatively intensive psychiatric treatment. The condition would also warrant the diagnosis of an involutional disorder with intertwined elements of paranoid and the affective disorders." Dr. Castiello conducted another 50-minute evaluation session with Respondent on August 16, 1999, and reached the same conclusions as he had in the previous session. On January 24, 2000, Dr. Castiello conducted a third and final evaluation session and concluded that Respondent was better and could return to teaching. The two-and-one-quarter, single-spaced report of Dr. Castiello covering the last session casts little light on the means by which Respondent journeyed from a moderately severe psychiatric disorder warranting relatively intensive psychiatric treatment to sufficiently better to return to teaching. It is odd that, after Dr. Castiello opined that Respondent would need relatively intensive psychiatric treatment, Dr. Castiello never obtained the records of other psychiatric treatment, to which Respondent alluded, or discussed Respondent's assertion that the course of that treatment never required medication. For the most part, judging from Dr. Castiello's final report, he seems to have been impressed by Respondent's politeness and lack of pressured, frenzied speech, as well as vague assurances that Respondent had learned his lesson. Unless the lesson was not to pick up another moderately severe psychiatric disorder requiring relatively intensive psychiatric treatment, Dr. Castiello's reasoning remains elusive. Although it almost goes without saying that Dr. Castiello's diagnoses of severe illness and substantial recovery are entitled to no weight, he legitimately observed that his focus was on how Respondent responded to the paint problem, not on whether, eventually, Respondent was proved correct in his claims of toxicity. In February 2000, Petitioner assigned Respondent to teach at Palmetto Middle School. Respondent enjoyed his new assignment, at least for awhile. However, on November 3, 2001, the assistant principal, who had been a science teacher, conducted an observation of Respondent in his classroom. On December 5, 2001, the assistant principal met with Respondent and told him that she had found several deficiencies during the observation and offered him a professional growth team, which he declined. When she offered Respondent help, he told the assistant principal, who is black, that he had been beaten by a black administrator, and the matter was still in litigation. From the start, the observation had been an unofficial observation, meaning that the results would not go into Respondent's personnel file. When the assistant principal informed Respondent of this fact and that she would return for an official observation later, he angrily replied that, if he did not pass the next observation, the assistant principal would have a problem. He told her that he had been a Green Beret in the military and had a considerable background in science. Surprised by Respondent's response to a "freebie" observation, as she called it, and stunned by his threatening behavior, the assistant principal reasonably feared for her personal safety. During November 2001, probably between the observation and meeting with the assistant principal described above, Respondent also had a confrontation with students and a teacher. A teacher across the hall from Respondent had been late returning from lunch, so the students for her next class were milling about in the hallway, waiting for her. Respondent confronted the students and, thinking they were exceptional student education (ESE) students, called them a "bunch of L[earning] D[isabled] students" and said that "LD students were always in trouble." When the students yelled back that they were not LD students, Respondent said, "You're all a bunch of LD losers." As this exchange took place, the teacher who was the ESE department head was approaching the students and Respondent. Her first response was to turn to the students and tell them that LD students are not losers. As she did so, Respondent stood behind her, laughing. The ESE department head then followed Respondent into his room and demanded to know why he was saying such things about ESE students and saying them to other students. Respondent denied saying anything and added that the matter was not any of her business. After a couple of inconsequential exchanges between the two teachers, Respondent warned the ESE department head that she should not be "messing" with him and that he has sued people. The ESE department head told him to do what he wanted to do and that she was going to file a grievance. Twelve years ago, a science coordinator observed Respondent and found him deficient in preparation and planning, subject-matter knowledge, and instructional technique. Respondent's response was to say the science coordinator was unfair. Four years ago, a principal without a science background observed Respondent and found him deficient in preparing a lesson plan, classroom management, and instructional technique--two of the same areas identified in the assessment eight years earlier. Respondent's response was to fault the principal's lack of science background and, to his assistant principal, call the man a "nigger" and the observation "bullshit." Not satisfied, Respondent then threatened the assistant principal, who was merely trying to schedule a CFR. Still not satisfied, Respondent engaged in an altercation with the principal. Three years ago, an assistant principal with a background in science observed Respondent and found several deficiencies. Even though he had been out of work for one year as medically unfit and even though the assistant principal had told him that the observation and evaluation would not go into his personnel file, Respondent's response was to tell her that, if he failed the next observation, she would have a problem. In the same month, Respondent gratuitously confronted students whom he thought to be in the ESE program, demeaned such students, laughed as a teacher tried to repair the damage that he had caused, and, when confronted privately by the teacher, told her to mind her own business and threatened her. This is misconduct in office, and this misconduct is so serious as to impair Respondent's effectiveness as a teacher in the school system.
Recommendation It is RECOMMENDED that the Miami-Dade County School Board enter a final order dismissing Respondent and terminating his contract. DONE AND ENTERED this 13th day of May, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2003. COPIES FURNISHED: Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Number 912 Miami, Florida 33130-1394 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Melinda L. McNichols Legal Counsel Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
The Issue The issues are whether Respondent had good cause to reject the Escambia County School Superintendent's nomination of Petitioner to be principal of Woodham High School, and, if not, what relief should be granted to Petitioner.
Findings Of Fact Pensacola High School (PHS) is located in Pensacola, Escambia County, Florida. It is an inner city school of approximately 2000 students with a diverse population. Petitioner was appointed principal at PHS for the 1994- 1995 school year by Dr. Bill Malloy, the former Superintendent of Escambia County Schools. Petitioner served in that capacity until Superintendent Malloy transferred him in March of 1996 to the position of Director of Student Transfers. At all times material to this proceeding, Respondent had a policy requiring principals to report incidents of suspected child abuse immediately to the Department of Health and Rehabilitative Services (HRS)(currently the Department of Children and Families.) Another policy required principals to immediately report bomb threats to the district office and to proceed with the evacuation of the school property as instructed. Before school began in the fall of 1995, Petitioner assigned Kevin Sanders to be the teacher in charge of the In School Suspension (ISS) class. Petitioner made this assignment because Mr. Sanders previously had developed and successfully operated a similar class at PHS. The school district approved the plan at PHS for an ISS unit as designed by Mr. Sanders. Mr. Sanders also served as a weight training coach at PHS. He was not the only teacher/coach to run an ISS program for Respondent during the 1995-1996 school year. At least three other schools had coaches running their respective ISS programs in the fall of 1995. There is no persuasive evidence that the assignment of a coach to be in charge of an ISS class was in direct contravention of the Superintendent's instructions. No one ever told Petitioner that the Superintendent did not want a coach-like person in charge of the ISS class. Mr. Sanders wanted to work in the weight room at the stadium during the last period of the school day. Petitioner told Mr. Sanders that he could work in the weight room, provided he found someone to supervise his ISS class during that period. There is no credible evidence that Mr. Sanders had permission from Petitioner to take his ISS students to the stadium and leave them unattended in the bleachers. On October 16, 1995, a fifteen-year-old female student skipped school. The police returned the female student to PHS. As a consequence of her actions, the female student was temporarily assigned to the ISS class taught by Mr. Sanders. Normally, the female student attended a class for special students in the Exceptional Student Education (ESE) program. She functioned academically on a third or fourth grade level. On October 17, 1995, Ms. Sanders took his ISS class to the stadium and told them to sit in the bleachers. He then went to the weight room leaving the class unsupervised. The female student went into one of the restrooms in the stadium. She performed fellatio on a number of male students, primarily football players, in the presence of many other students. In the fall of 1995, PHS had several deans who served the general student population. Richard Sousa was the dean of students for ESE participants. He also served as the crisis teacher for the total student population at PHS. On October 18, 1995, Mr. Sousa saw a group of students outside the dean's office. When he investigated, Mr. Sousa found the female student sitting in a chair with her hands on her head. After Mr. Sousa closed the door to the deans' office, the female student stated that other students were falsely accusing her of performing oral sex with some boys. Mr. Sousa then took the female student to an ESE self-contained classroom so that she would not be harassed. Next, Mr. Sousa called the female student's mother and reported the facts as he understood them. The mother told Mr. Sousa that her daughter was not sexually active. Mr. Sousa asked the mother to pick up her daughter from school because the child was visibly upset. Later that day, Mr. Sousa reported to Petitioner that he had heard a rumor about sexual activity occurring in the stadium, on the fifty-yard line, or on the practice field. Mr. Sousa told Petitioner that other students were teasing the female student who denied being involved in any sexual behavior. After receiving this report, Petitioner directed Assistant Principal Leo Carvalis to contact Coach David Wilson, the head football coach. Petitioner instructed Coach Wilson and Mr. Sousa to investigate the rumor regarding the sexual activity. Coach Wilson talked to the football team that afternoon. The team assured him that they knew nothing of any sexual incident in the stadium, the football field, or the practice field. Coach Wilson and Petitioner discussed the situation again later that day. Petitioner told Coach Wilson to continue to listen to what was going on among the students, to ask questions, and to make his findings known. Petitioner gave other members of his staff and faculty the same instructions. Petitioner wanted to determine whether there was any truth to the rumor about the sexual incident. He wanted to discipline any students involved, including football players. However, Petitioner did not want to accuse any student, including the alleged victim, of inappropriate behavior until he had more facts. At the end of the day on October 18, 1995, Mr. Sousa did not believe that the sexual incident had occurred. He knew that special education students are often harassed, ostracized and picked on. Mr. Sousa thought the teasing would blow over and the female student could be returned to her regular classroom. Mr. Sousa expressed this opinion to Petitioner. For the rest of the week, Mr. Sousa took lunch to the female student in the ESE self-contained classroom because other students teased and pointed fingers at her. Mr. Sousa had to walk to the bus with the female student for the same reason. Nevertheless, Mr. Sousa continued to believe the rumor was false. His disbelief was based in part on the female student's persistent denials. Additionally, it was not uncommon for a rumor such as the one at issue here to prove to be unfounded. The next week, the female student requested that she be permitted to return to her regular ESE classes because she believed the teasing was over. Mr. Sousa granted the female student's request; however, after a couple of class periods, Mr. Sousa returned her to the self-contained classroom because even the special education students were saying things about her. Amanda Williams and Naomi Ferguson were guidance counselors at PHS during the fall of 1995. On October 26, 1995, Ms. Ferguson indicated to PHS Assistant Principal Sarah Armstrong that Petitioner knew about the sexual incident involving some of the football players. According to Ms. Ferguson, Petitioner was trying to cover up the situation because the football team was doing well. Later that day, Petitioner held a meeting in his office with Ms. Ferguson, Ms. Williams, Mr. Sousa, Ms. Armstrong, and Mr. Carvalis. During the meeting, Ms. Armstrong advised Petitioner that Ms. Williams had information from a male student (an informant) confirming the sexual incident but would not reveal her source because of confidentiality concerns. Petitioner asked Ms. Williams to speak with him in private. During their private conversation Ms. Williams revealed that an informant had given her information about a second male student who was involved in the sexual incident at the stadium. Ms. Williams gave Petitioner the names of both students. When he and Ms. Williams returned to the meeting, Petitioner stated, "I believe something must have happened. This is a credible witness." He also stated, "To hell with the football team. If these players can get away with this now, what will they think they can get away with in the future?" For the first time, Petitioner began to suspect that the sexual incident was factual and not an unfounded rumor. Ms. Ferguson revealed additional information about the female student at the meeting on October 26, 1995. Ms. Ferguson stated that the female student's mother intended to send her daughter to live with an uncle in Tampa, Florida. The female student did not want to make this move. The female student told Ms. Ferguson that the uncle had sexually molested her in the past. Ms. Armstrong stated that someone needed to call HRS to report the suspected sexual abuse by a family member. The group decided that HRS should also look into the allegations of sexual activity at the school. Petitioner instructed Ms. Ferguson to call HRS. He asked her to wait just long enough for someone to advise the female student's mother that an investigation was pending. There is no persuasive evidence that Petitioner ever intended to cover up the sexual incident. Likewise, he did not unreasonably delay his staff from reporting their suspicions to HRS. On October 26, 1995, Petitioner mistakenly understood that cases of suspected child abuse had to be reported to HRS within 24 hours instead of immediately. The last instructions he gave in the meeting on October 26, 1995, was to remind Ms. Ferguson to call HRS. She made that call on October 27, 1995. The female student was isolated from the general student population in the self-contained ESE classroom at PHS. Therefore, Mr. Sousa recommended at the meeting on October 26, 1995, that the school conduct an Individual Education Plan (IEP) meeting to review the female student's placement. He believed that the female student should be transferred to another school so that she could attend classes with the general population. After receiving Petitioner's authorization, Mr. Sousa contacted the Exceptional Student Education (ESE) district staff to arrange for an IEP meeting. Mr. Sousa also called the female student's mother on October 27, 1995, to advise her of his recommendation. On October 27, 1995, Petitioner talked to the male student who, according to Ms. Williams' informant, participated in the sexual incident at the stadium. The male student confirmed that the sexual incident occurred in the stadium. However, there is no evidence that the student admitted his personal involvement in the sexual activity to Petitioner at that time. The police investigation later revealed that the male student was one of the students who had participated in the sexual incident. At the IEP meeting on October 31, 1995, the entire IEP team, including ESE teachers from PHS and Woodham High School (WHS), ESE district staff, and the female student and her mother, discussed the reasons for changing the student's placement to WHS. Everyone on the IEP team, except the female student, believed that she should be transferred to a new school environment with peers who did not know her. The female student begged her mother not to permit the transfer. However, the parent agreed that the transfer was in her daughter's best interest and offered to provide transportation. On November 1, 1995 or November 2, 1995, the female student was supposed to enroll at WHS. Instead, she returned to PHS. Mr. Sousa called the mother to pick up her daughter and take her to WHS. On November 3, 1995, Mr. Sousa called the female student's mother. She stated that everything was all right with her daughter at WHS. On Monday, November 6, 1995, the female student's mother called Mr. Sousa because her daughter had run away from home. The mother wanted Mr. Sousa to be on the lookout for her daughter. During the conversation, the mother stated for the first time that the rumors about the sexual incident might be true because, despite her daughter's denials, it had been confirmed by one of her daughter's friends. Mr. Sousa informed Petitioner about the suspicions of the female student's mother. Petitioner then directed Coach Wilson to talk with the football team again. No one on the team would admit their involvement in the sexual incident. Petitioner also told the deans and the assistant principals to see if they could determine what had happened and who was involved. The efforts of the faculty and staff to verify the rumors were unsuccessful. On November 9, 1995, Petitioner received a letter from Ms. Ferguson suggesting that he was responsible for trying to cover up the sexual incident. He also received a call from Special Assistant to the School Superintendent Jerry Watson, stating that he had heard "bad things" were going on at PHS. Petitioner called a meeting with the appropriate PHS staff to discuss information about the alleged sexual incident. They reviewed information furnished by the male students and the female student's mother. During this meeting, Petitioner expressed his concern that someone in the group was acting unprofessionally by leaking confidential information about students to persons outside of PHS. Petitioner advised the group that he would try to transfer anyone who breached the students' confidentially. Petitioner did not make these comments to threaten or intimidate his staff and faculty or to cover up the sexual episode. After the meeting on November 9, 1995, Petitioner took Ms. Ferguson's letter to the district office where he met with Sherman Robinson, Deputy School Superintendent. Petitioner told Mr. Robinson about the facts leading up to the receipt of the letter. Mr. Robinson told Petitioner to contact Joe Hammons, the Superintendent's attorney, for advice as to the appropriate action. Petitioner then made an appointment with Mr. Hammons for Monday, November 13, 1995, because Friday, November 10, 1995, was a holiday. On November 13, 1995, Mr. Hammons met with Petitioner. At this meeting, Petitioner told Mr. Hammons what he knew concerning the sexual incident. Mr. Hammons then scheduled a meeting for November 14, 1995, with Petitioner, Mr. Robinson, and two members from the school district's risk management department. At the meeting on November 14, 1995, the group determined that information available from the male students and the female student's mother, justified contacting the Pensacola Police Department. Upon leaving that meeting, Petitioner contacted Sergeant Potts at the police department. The deans at PHS generally handled all disciplinary problems until they determined that a crime had been or might have been committed. At that point, the staff involved the school resource officer. In this case Petitioner relied on his staff to investigate the rumors of the sexual incident and did not involve the school resource officer. Until November 1995, Petitioner was not aware that, if the rumors of the sexual incident proved true, a crime had been committed. Shortly thereafter, Dusty Cutler of the Pensacola Police Department was assigned to investigate the sexual incident at PHS. On November 15, 1995, Officer Cutler talked to the female student who continued to deny all allegations. The female student did not admit to being involved in the sexual incident for several weeks after Officer Cutler began her investigation. Pursuant to Petitioner's suggestion, Officer Cutler also talked to the male student identified by Ms. Williams' informant as one of the participants in the sexual incident. The female student's mother told Officer Cutler that she did not want a police investigation. The mother became upset with the way Officer Cutler was talking to her. Petitioner complained to Lieutenant Knowles of the Pensacola Police Department about Officer Cutler's "abusive" behavior to the mother of the female student. From that time forward, Officer Cutler never spoke to Petitioner even though she spent six months investigating the sexual incident on a daily basis. There is no persuasive evidence that Petitioner interfered with Officer Cutler's investigation or failed to cooperate with her in any way. Officer Cutler reported the sexual incident to HRS. The agency gave her the same response they had given Ms. Ferguson, i.e., HRS would not investigate or follow the case because the sexual activity was not a rape and a family member was not involved. After Officer Cutler was assigned to the case, Petitioner was instructed by the school district to do nothing further until the police investigation was concluded. The Grand Jury released its Amended Report on Pensacola High School on April 15, 1996. The report indicted several male students involved in the sexual incident. Petitioner did not have an opportunity to discipline the students because he was not working at PHS at that time. In the spring of 1996, a number of middle school and high schools in the Pensacola area received bomb threats over the telephone. PHS received bomb threats on at least three occasions. The school evacuated to the adjoining football stadium on one occasion, to the fairgrounds on another occasion, and to Pensacola Junior College on a third occasion. On March 29, 1996, about 7:00 a.m., a school secretary, received a bomb threat call at PHS. Mr. Sousa received a second bomb threat call at PHS around 7:15 or 7:30. On both occasions the caller's voice was a raspy, young man's voice. The school secretary and Mr. Sousa recognized the voice of the caller as a young man in one of the self-contained classrooms. The student had created problems in the past. Each time he behaved improperly, the student would use his raspy voice. Mr. Sousa reported the first bomb threat to Mr. Carvalis. Mr. Carvalis called Petitioner at his home. Petitioner was not at school because he was not feeling well because he had been at the emergency room much of the night before. Petitioner instructed Mr. Carvalis to initiate a search. The search included a sweep of the stadium in case the school had to evacuate to that area. Petitioner advised Mr. Carvalis that he was on his way to the school. When Petitioner arrived at PHS, Mr. Carvalis informed him of the second threatening call. The staff again assured Petitioner that they knew the caller's identity, and that both calls had been made by the same student. The student was not at school. Therefore, Petitioner directed Mr. Sousa and the resource officer, Max Cramer, to go to the student's home and request the student's parent to bring the student to school. In the meantime, a third call was received from the same caller. Next, Petitioner phoned Deputy Superintendent Sherman Robinson. Petitioner explained to Mr. Robinson about the bomb threat and the school's discovery of the identity of the caller. Jones believed from his discussion with Mr. Robinson that his handling of the situation and his decision not to evacuate the school had the tacit approval, if not the explicit permission, of the district office. Petitioner believed Mr. Robinson concurred in his decision not to evacuate. The student with the raspy voice and his parent subsequently arrived at the school. After questioning the student, Petitioner believed the student was the caller. Petitioner decided to continue the search of the school without evacuating it. Petitioner directed Mr. Carvalis and the maintenance men to divide into teams and sweep the campus using the techniques taught by a handler of a bomb sniffing dog after previous threats. On one occasion a bomb sniffing dog and his handler came to PHS from Eglin Air Force Base in Ft. Walton. The PHS campus was so large that the dog got tired and refused to work about half way through the search. On that occasion, the search continued in the same manner employed by Petitioner on March 29, 1996. During the search on March 29, 1996, seven different groups looked for anything that was out of place. All of the deans had assigned areas where they searched trash bins, open lockers, and open classrooms. Later in the school day, Mr. Carvalis reported that the entire campus, including the portables, had been swept and nothing found. Petitioner does not dispute that he did not follow the Superintendent's policy regarding bomb threats on the day in question. Petitioner believed that he knew the identity of the caller. He also was concerned about the disruption that the bomb threats were causing to the academic programs at PHS. The students in the gifted program were preparing to take their advanced placement tests. The students in the International Baccalaureate program were studying for their exams. Additionally, March 29, 1996 was the last chance for some students to take the high school competency test before graduation. Superintendent Malloy was particularly concerned that Petitioner failed to evacuate the school. The previous day he had reiterated his policy of evacuation to all principals. However, Petitioner did not attend the meeting; one of Petitioner's assistant principals attended that meeting in his absence. On March 30, 1996, Superintendent Malloy placed Petitioner on administrative leave with pay, pending an investigation of his failure to evacuate PHS after a bomb threat. Superintendent Malloy subsequently assigned Petitioner to his current position as Director of Student Transfers. On June 3, 1996, Superintendent Malloy issued a letter reprimanding Petitioner for the following reasons: (1) failing to ensure that the ISS class had appropriate supervision; (2) failing to follow up on information regarding sexual activity in the stadium in a timely manner; and (3) failing to evacuate the school after receiving a bomb threat. In November of 1996, Jim May was elected Escambia County School Superintendent. On or about June 10, 1997, the Commissioner of Education, Frank T. Brogan, filed an Administrative Complaint against Petitioner in Education Practices Commission (EPC) Case Number 956-1609-B. This complaint alleged that Petitioner failed in his responsibilities to ensure that all students under his charge were properly supervised. The complaint also alleged that Petitioner failed to evacuate the school after receiving a bomb threat. On June 24, 1997, Superintendent May nominated Petitioner to be principal of WHS. At the time of the nomination, Superintendent May was aware of the relevant facts concerning the PHS sex incident and bomb threat incident. Additionally, he had been in contact with counsel for the Florida Department of Education regarding EPC Case Number 956-1609-B. Respondent rejected Petitioner's nomination to be principal of WHS. On a 3 to 2 vote, Respondent found good cause to reject the nomination based on the following: Among the reasons articulated by the three Board Members who voted against the nomination were, in addition to the reasons presented by the other speakers, Mr. Jones' unsatisfactory past performance of his duties when he served as Principal of Pensacola High School (which events were the subject of a grand jury report and are the subject of an administrative complaint by the Commissioner of Education now pending before the Education Practice Commission proceeding, . . . his lack of subsequent training to improve his skills in the areas in which his poor performance resulted in his 1996 removal as Principal of Pensacola High School, and his apparent violation of certain of the principles of Professional Conduct for the Education Profession in Florida, in addition to gross insubordination and willful neglect of duty in connection with the Pensacola High School incidents. In sum the three Board Members who voted against the nomination felt that Mr. Jones is presently unqualified to be a Principal. After Respondent rejected his nomination, Petitioner told Superintendent May that it was unfair to the students of WHS to make them wait for a principal. On July 22, 1997, Superintendent May nominated another person to be principal at WHS. On or about November 6, 1997, the Florida Department of Education decided that it would withdraw its probable cause determination against Petitioner and enter into a Deferred Prosecution Agreement with him. The department requested the Education Practices Commission to close EPC Case Number 956-1609-B. On or about March 9, 1998, Superintendent May advised the Florida Department of Education that Petitioner had performed his assigned duties and responsibilities in a professional manner during the period of January 10, 1997 and March 1, 1997. Petitioner had fully complied with all district and state rules and regulations. On or about March 26, 1998, Education Commissioner Brogan determined that there was no probable cause to suspend or revoke Petitioner's teacher's certificate. Petitioner was released from his Deferred Prosecution Agreement with the department. Petitioner holds the proper state certification for a high school principal. Except for the two incidents in question, Petitioner's performance at PHS was exemplary. Under his leadership, the school population was stable and well under control. Petitioner created an atmosphere at PHS where high quality performance on the part of a number of students was recognized, encouraged, and supported by the faculty and staff. Petitioner had an excellent relationship with students, teachers, and the PHS Advisory Council. Petitioner genuinely cared for the health, safety and welfare of the students at PHS. He was concerned more about the feelings and self-esteem of the students than with winning academic and athletic competitions, and he did not make accusatory judgments about his students until he had the necessary facts and proof to support those accusations.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order finding that there is no good cause to reject Superintendent May's nomination of Petitioner to be principal at WHS, promoting him to that position, and awarding him any back pay to which he may be entitled. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged misconduct which is set forth in an Administrative Complaint. The misconduct alleged consists primarily of allegations that the Respondent engaged in inappropriate physical touching of a female student.
Findings Of Fact M. A. is a thirteen year old student at West Miami Middle School. At the time of the alleged incident, she was twelve years of age, was approximately five feet, three inches, tall, and weighed about one hundred sixty pounds. She had gained about twenty or thirty pounds more as of the time of the formal hearing in this case. The School Trust Counselor, Diana De Cardenas, had been seeing M. A. and M. A.'s sister for eating disorder problems because both girls were somewhat overweight. The counsellor had seen M. A. on several occasions because of allegations that M. A.'s mother and M. A.'s brother were hitting her at home. Her brother did not want her to eat and when he saw her eating he would beat her. M. A. saw the counsellor because of these facts and was often upset and crying. The Respondent, Millard Lightburn, is forty-two years old and has been a teacher for over fifteen years. The Respondent is Hispanic. He previously taught school in Nicaragua and speaks both English and Spanish. The accusing child, M. A., is also Hispanic. The Respondent taught a computer application course and from time to time he would use students to help file papers and keep records. Shortly before the time of the alleged incident, the Respondent asked two students, M. A. and a male student named L. D., to help him file papers and perform other similar paperwork tasks. The student named L. D. did not come to help the Respondent on the day in question because L. D. was asked by another teacher to help with a problem in the cafeteria. On the day in question, the Respondent was having lunch while working in his classroom. M. A. was in the class alone with him helping him file papers and perform other similar paperwork tasks. This was the second day that M. A. had assisted the Respondent with the paperwork. As the work was finished, the Respondent said to M. A., "Thank you very much; thank you for your help." He put his hand on her shoulder and put his cheek next to hers and gave her a peck on the cheek in a manner that is customary and traditional among Hispanics in Dade County, Florida. The Respondent demonstrated this gesture at the hearing. This same gesture was also demonstrated by two other witnesses, Shirley B. Johnson and Assistant Principal Eldon Padgett. West Miami Middle School is about 93 percent or 94 percent Hispanic. In that school and in the Hispanic community served by the school, it is customary for people to hug and to touch one another on the cheek or to give one another a peck on the cheek. Such conduct is common at all Hispanic schools in Dade County, Florida. The gesture demonstrated by the Respondent and by two other witnesses is a customary Hispanic gesture in Dade County, Florida, and is not considered to be offensive or inappropriate by other members of the Hispanic community. The Respondent, Millard E. Lightburn, did not at any time touch the student, M. A., in an inappropriate or offensive way.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 11th day of October, 1993, at Tallahassee, Leon County, Florida. 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 11th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-06174 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, and 5: Accepted in substance. Paragraph 6: Accepted in substance, but with the additional findings to the effect that another student had been invited to be present at the same time as the student, M. A. Paragraph 7: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 8: Rejected as constituting subordinate and unnecessary details, or as irrelevant. Paragraph 9: Rejected in part as subordinate and unnecessary details and in part as contrary to the greater weight of the persuasive evidence. Paragraph 10: Accepted in substance. Paragraphs 11 and 12: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 13: First line rejected for reasons stated immediately above. The remainder of this paragraph is accepted in substance. Paragraphs 14, 15, 16, 17, and 18: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraphs 19, 20, 21, 22, 23, 24, and 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted in substance. Paragraphs 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details. Paragraph 32: The first three full lines and the first four words of the fourth line are accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the persuasive evidence. Paragraph 33: Rejected as contrary to the greater weight of the persuasive evidence. Findings submitted by Respondent: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as subordinate and unnecessary details and as also irrelevant. Paragraph 12: Accepted in substance. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Manatee County School Board (Petitioner or Board) has just cause to terminate the employment contract of Matthew Kane (Respondent or Mr. Kane).
Findings Of Fact Petitioner is a duly-constituted school board, charged with the duty to operate, control, and supervise all free public schools within the District. Respondent has been employed by the District since September 25, 1997. Respondent was a teacher at the District’s Lakewood Ranch High School from fall 2003 through spring 2007. Respondent became an assistant principal at Manatee High School (MHS) for the 2007-2008 school year, and served in that position through January 1, 2012. On January 2, 2012, Respondent became the MHS interim principal for the rest of the school year. Respondent returned to his prior position of assistant principal at MHS on July 1, 2012, when Don Sauer was hired as the new MHS principal. Respondent was an MHS assistant principal for most of the 2012-2013 school year; six weeks before the school- year end, he was transferred to an assistant principal position at the District’s Southeast High School. At the time of hearing, Respondent held an annual contract for an assistant principal position for the 2013-2014 school year. As a teacher, assistant principal, and interim principal, Respondent was at all times required to abide by all Florida laws pertaining to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (adopted as State Board of Education rules), and the Board’s policies and procedures that have been promulgated as rules (hereafter Board policies).5/ On August 1, 2013, Respondent was placed on paid administrative leave during the pendency of an investigation that ultimately led to this proceeding. On August 14, 2013, Respondent was charged with felony failure to report known or suspected child abuse, and with providing false information to a law enforcement officer. The latter charge was subsequently dismissed. By letters dated September 25, 2013, and October 4, 2013, hand-delivered to Respondent, the superintendent provided written notice of his intent to recommend termination of Respondent’s employment. The Complaint, with allegations and charges against Respondent on which the recommendation was based, was delivered with the October 4, 2013, letter. Respondent was also informed that the superintendent would recommend to the Board that Mr. Kane be suspended without pay pending final resolution of the Complaint. On October 14, 2013, during a Board meeting at which Respondent was represented, the Board adopted the superintendent’s recommendation to suspend Respondent without pay pending the outcome of any administrative hearing requested by Respondent. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee’s Answer to Administrative Complaint. At issue in this proceeding is whether Mr. Kane was informed of alleged improprieties with female students by an MHS paraprofessional, Rod Frazier, who was an administrative parent liaison handling student discipline and a football coach. If so, the issue then becomes whether Mr. Kane violated obligations imposed by Florida law and Board policies related to protecting students, including the obligations to report suspected child abuse and to report allegations of misconduct by instructional personnel affecting the health, safety, or welfare of students. The core allegations in the Complaint are that Mr. Kane was apprised of prior alleged inappropriate incidents involving Mr. Frazier and female students, yet he did nothing to intervene, which allowed Mr. Frazier to remain at MHS, placing the safety and well-being of students at risk. Following Mr. Kane’s stint as MHS interim principal, a new principal arrived for the 2012-2013 school year, Don Sauer. Others--not Mr. Kane--were instrumental in bringing some of the allegations of Mr. Frazier’s improprieties to the attention of the new MHS principal in November 2012. The person who coordinated the effort to bring these matters to Mr. Sauer’s attention was Steven Rinder. Mr. Rinder is the coordinator of the student assistance program, which offers advice and assistance to students and families regarding non-academic issues that can affect students’ academic performance. Mr. Rinder credibly testified that over the few weeks preceding his communication with Mr. Sauer, he was approached independently by several MHS teachers and other instructional staff, including Mike Strzempka (teacher), Lynn Aragon (teacher), Stephen Gulash (administrative parent liaison), Keltie O’Dell (teacher), and Jackie Peebles (teacher), regarding their concerns about Mr. Frazier’s inappropriate interactions with students. Mr. Rinder found these independent reports unusual, indicative of a problem needing attention, and significant enough that he went to Mr. Sauer about the concerns. Mr. Sauer told Mr. Rinder to make a list of the allegations, without names, and Mr. Sauer would do what ought to be done with a “hot potato”: pass it on. Mr. Rinder put together a list of the allegations that had been conveyed to him. In addition, he obtained a list from Mr. Gulash of the incidents he had observed or had been informed of, and Mr. Rinder added those items to his list. Mr. Rinder then gave the document to Mr. Sauer, who passed the “hot potato” on to the District’s Office of Professional Standards (OPS). As witnesses uniformly agreed, there was no question that the list, taken as a whole, raised serious concerns about Rod Frazier’s conduct with female students that would amount to, at the least, employee misconduct. Several allegations, standing alone, raised serious concern of inappropriate touching of female students, such as Mr. Frazier behind closed doors with a female student sitting on his lap feeding him cake, and Mr. Frazier shoving a water bottle between a female student’s legs. Upon receipt of the Rinder list on November 14, 2012, OPS initiated an investigation of Mr. Frazier. A letter from the superintendent notified Mr. Frazier as follows: “Effective Thursday, November 15, 2012, you are being placed on paid administrative leave pending the outcome of our investigation of possible misconduct on your part.” On Thursday afternoon, November 15, 2012, OPS specialist Debra Horne went to MHS and interviewed four of the persons contributing to the list of allegations. Ms. Horne spoke with Mr. Rinder and Mr. Gulash and got some information regarding the names of the sources for each allegation, and the names of the students involved in the alleged incidents. Ms. Horne also interviewed Mike Strzempka and Lynn Aragon, sources for several allegations. Ms. Horne did not interview Jackie Peebles that day, but learned that Ms. Peebles was the teacher who walked in on Mr. Frazier in his office and found a female student sitting on his lap feeding him cake. Ms. Horne also learned that the female student on Mr. Frazier’s lap was D.K., a senior, no longer at MHS, but at the District’s Palmetto High School. Ms. Horne did not interview Keltie O’Dell that day, nor Rod Frazier, nor D.K. or any of the other students whose names she had. After those four interviews, Ms. Horne met with MHS principal Sauer and assistant principals Kane and Greg Faller, in Mr. Sauer’s office. She called her boss, Scott Martin, a District assistant superintendent, and he participated by speaker phone. The purpose of the meeting was to bring everyone up to speed as to where Ms. Horne was in the investigation. Although the testimony was conflicting, the credible evidence established that during this meeting, Ms. Horne and Mr. Martin discussed the contents of the Rinder list, if not line by line, then item by item, and Ms. Horne reported that each allegation was either unverified or old. As to the old allegations, Ms. Horne reported that the concerns had been brought to the attention of either former principal Robert Gagnon or one of the assistant principals, and those administrators had already addressed the concerns with Mr. Frazier. When Ms. Horne made that statement, the two assistant principals present and listening--Mr. Kane and Mr. Faller--expressed agreement by nodding their heads. At that point, Mr. Martin told Ms. Horne to wrap it up and return to their office. Strangely, despite Ms. Horne having learned that “old” allegations had been reported to and addressed by administrators, Ms. Horne apparently did not interview the administrators about their knowledge of the allegations or what had been done to address those allegations with Mr. Frazier, either on that day or at any other time before she left OPS in late January 2013. There was no documentation in Mr. Frazier’s file of any kind of discipline for inappropriate interactions with female students-- no documentation of any conferences with administrators, directives, warnings, reprimands, or suspensions. Mr. Kane acknowledged that at the meeting with Ms. Horne, the Rinder list itself was there; he skimmed the document, he did not read it item by item. It is difficult to imagine that as an assistant principal, Mr. Kane would not have been more interested in the specific allegations made against an instructional staff member, particularly when Mr. Kane nodded in agreement with Ms. Horne’s report that the allegations were old and had been reported to and addressed by administration. Mr. Kane did not offer any information to Ms. Horne about the allegations he had skimmed. At hearing, he explained that he thought he was required to stay out of the OPS investigation. Inconsistently, he volunteered information about three staff members contributing to the list of allegations, stating at the meeting that Mr. Gulash, Ms. Aragon, and Mr. Strzempka all had grudges against Mr. Frazier. Ms. Horne left MHS and returned to the District office to meet with Mr. Martin. Mr. Martin testified that he pressed Ms. Horne regarding whether she had gone down every rabbit trail, with the implication that he was satisfied that Ms. Horne had exhausted her investigative options by conducting only four interviews in the span of a few hours. Ms. Horne testified that she asked to interview D.K. and the other students whose names she had obtained, and also suggested conducting random interviews of students at MHS. Mr. Martin cut her off from this notion, stating that since no student “victim” had come forward, there was no reason to interview any students. Prior to meeting with Ms. Horne, Mr. Martin discussed the investigation with Mr. Gagnon. Mr. Gagnon was MHS principal until January 2, 2012, when he was promoted to an assistant superintendent position in the District office and Respondent became MHS interim principal. Mr. Gagnon’s message to Mr. Martin was that Mr. Frazier had been the subject of rumors before that had allegedly ruined his marriage, and that it would be bad if Mr. Frazier was still suspended by the next evening (Friday, November 16, 2012), because there was an important football game, and rumors would fly if Mr. Frazier was not coaching at the big game on Friday night. Mr. Gagnon also told Mr. Martin that the investigation should proceed and that if Mr. Frazier did what he was alleged to have done, then the District should “bury him under the school.” Mr. Gagnon characterized this latter message as the primary message. Nonetheless, at best he was sending a mixed message by suggesting that the District should thoroughly investigate, as long as it did so in one day so the coach could return to work in time for the big game Friday night. Apparently keying on the game-night part of the mixed message, Mr. Martin made the decision after meeting with Ms. Horne that the investigation was going nowhere. He directed that Mr. Frazier be removed from paid administrative leave and returned to work the next day, Friday, November 16, 2012. Meanwhile, Ms. Horne went back to MHS on Friday to complete at least a few of the obviously missing steps in the investigation, by interviewing Jackie Peebles, Keltie O’Dell, and Mr. Frazier. Ms. Peebles credibly testified that in her interview, Ms. Horne made it clear that she only wanted to hear about recent incidents, not old matters that had been reported in the past. Ms. Peebles found Ms. Horne more interested in allegations of grudges against Mr. Frazier than in allegations of inappropriate interactions with female students. Ms. Horne testified that she was surprised to learn that Mr. Frazier had been taken off paid administrative leave and returned to work Friday morning, because she believed the investigation was still ongoing. However, since Mr. Frazier was placed on leave pending the investigation’s “outcome,” by taking Mr. Frazier off leave and returning him to work on Friday, November 16, 2012, the implication was that the investigation had reached its “outcome” and was concluded. Consistent with that implication, if the investigation was not formally closed it at least went dormant after November 16, 2012. The investigation got a second life in early January 2013, when a letter written by D.K. was delivered to Mr. Sauer, detailing some of Mr. Frazier’s inappropriate interactions with D.K. while she was at MHS in 2010-2011 and 2011-2012. D.K.’s letter corroborated some aspects of the Rinder-list allegations, and described additional incidents, such as more closed-door meetings in Mr. Frazier’s office, when Mr. Frazier would hug her, rub her upper leg, and grab her thigh and buttocks. Mr. Sauer immediately sent the letter to OPS. With an alleged student victim now having come forward, OPS was compelled to resume the dormant investigation, and finally interview D.K. Shortly after D.K. was interviewed, Mr. Frazier was put back on paid administrative leave. This time, the allegations were shared with the Bradenton Police Department, which initiated its own investigation, culminating in criminal charges against Mr. Frazier for battery and interfering with school attendance. The Board issued an administrative complaint seeking to terminate Mr. Frazier’s employment, but Mr. Frazier resigned in lieu of termination proceedings. As an outgrowth of both the Board’s investigation into Mr. Frazier’s alleged misconduct and the Bradenton Police Department’s investigation of Mr. Frazier, both the Board and the Bradenton Police Department initiated investigations into the actions and inactions of Respondent and others. What Did Respondent Know And When Did He Know It? As the prelude above suggests, the underlying matters involving Mr. Frazier must be described in order to address the core allegations against Respondent. However, the focus of this proceeding is not on whether there is proof of the allegations against Mr. Frazier, nor is the focus on how the investigations were handled; neither Mr. Frazier nor OPS personnel are on trial. Instead, as charged in the Complaint, the focus here is on whether allegations of Mr. Frazier’s inappropriate interactions with students were brought to Respondent’s attention; if so, when; and if so, what he did or did not do in response. 2009-2010: Patting Behinds; Closed Door Meetings; Lingerie Party At MHS, assistant principals have a variety of duties; they may be assigned primarily to certain areas, with assignments changing from time to time. For the 2009-2010 school year, one of Mr. Kane’s primary duties was to serve as head of the MHS discipline office. The discipline office is staffed by administrative parent liaisons (liaisons). The liaisons are the school’s disciplinarians--they handle student disciplinary referrals, communicate with parents about student discipline, and teach/supervise students serving in-school suspensions and “time- outs.” The liaisons also monitor areas such as the courtyard, cafeteria, and parking lot. As discipline office head in 2009- 2010, Mr. Kane supervised the liaisons, including Mr. Frazier. L.S. has been a school bus driver for the District for ten years. In the 2009-2010 school year, L.S.’s daughter, R.S., was a senior at MHS and L.S. had an MHS bus route. On several occasions during the 2009-2010 school year, while waiting at MHS in her bus, L.S. observed Mr. Frazier patting female students on their behinds. Also during that year, L.S. occasionally went to Mr. Frazier’s office with student discipline referrals, and she would find Mr. Frazier in his office behind closed doors with female students. She found this conduct inappropriate, and reported it to Mr. Kane. L.S.’s daughter, R.S., frequently got in trouble, and was often in time-out. According to R.S., one day in February 2010, near Valentine’s Day, when she was in the time-out room supervised by Mr. Frazier, a female student, C.H., came in to ask Mr. Frazier if he would be attending her “lingerie party,” and Mr. Frazier responded that he would be there. The lingerie party discussion made R.S. uncomfortable, and she asked to go to the principal’s office. When Mr. Frazier refused, R.S. walked out and headed toward the principal’s office. R.S. testified that she was intercepted by Mr. Kane and Student Resource Officer Freddy Ordonez. R.S. said that she told them about the “lingerie party” dialog with Mr. Frazier, and Officer Ordonez told R.S. that she would be arrested if she kept making false accusations. R.S.’s testimony about her “lingerie party” report to Mr. Kane was inconsistent with a prior statement she gave during an investigation of Rod Frazier. In that prior statement, R.S. told the investigator that it was Robert Gagnon, then-principal of MHS, who was with Officer Ordonez when R.S. reported the “lingerie party” incident. Regardless of whom R.S. may have reported to that day, R.S.’s mother testified credibly that R.S. told her about the “lingerie party” incident when R.S. came home from school upset that day. L.S. then went to MHS to talk to Mr. Kane in his office to express her concerns about Mr. Frazier. In addition to relaying what R.S. had told her about the “lingerie party,” L.S. also told Mr. Kane about Mr. Frazier’s inappropriate conduct that she had personally observed on several occasions: L.S. told Mr. Kane that she had seen Mr. Frazier patting girls on their behinds, and that when she went to see Mr. Frazier in his office, she found him with female students and the door closed. Mr. Kane told L.S. that he would check into the allegations. At hearing, Mr. Kane testified that he has no recollection of the meeting L.S. described; he did not deny it occurred, saying only that he does not remember it and does not recall L.S.’s report about Mr. Frazier. Nonetheless, L.S.’s testimony was credible and is credited.6/ Mr. Kane’s testimony that he has no memory of L.S.’s allegations reported to him during the 2009-2010 school year means that, despite telling L.S. that he would look into her report about Mr. Frazier, Mr. Kane did nothing to document, investigate, or report the allegations. 2010-2011: Calling Girls Out Of Class; Cake Incident; Golf Carts Jackie Peebles has been a teacher at MHS for eight years. In the 2010-2011 school year, she taught remedial math. Ms. Peebles described how she noticed that Mr. Frazier tended to call female students out of class when they were dressed inappropriately. The students would leave for a while, and return wearing appropriate clothes. Ms. Peebles credited Mr. Frazier with doing his job to correct dress code violations. However, the calls increased in frequency, for one student in particular, D.K., in her remedial math class. Mr. Frazier would frequently call to ask Ms. Peebles to send D.K. to his office. At first, D.K. would leave class wearing short- shorts and return in sweat pants from lost and found, or she would leave wearing a tank top and return wearing Mr. Frazier’s football jacket. Again, Ms. Peebles thought Mr. Frazier was just doing his job, but she became concerned because D.K. had an attendance problem and needed to be in class. The problem got worse, with D.K. leaving when called to Mr. Frazier’s office and not coming back. Ms. Peebles confronted Mr. Frazier, telling him that she was going to keep D.K. in her classroom whether she was dressed right or not, because D.K. was falling further and further behind. Mr. Frazier stopped calling Ms. Peebles to release D.K. Instead, Ms. Peebles would hear D.K.’s telephone buzz, watch D.K. look at the phone, and then D.K. would announce that she forgot to tell Ms. Peebles that she has to go to Mr. Frazier’s office. Ms. Peebles reasonably surmised that Mr. Frazier was sending text messages to D.K. After this happened a few times, one day Ms. Peebles took D.K.’s phone, put it in her drawer, and kept teaching. The phone kept buzzing and buzzing. Ms. Peebles opened her drawer to turn off the phone, and saw a message on the screen asking why D.K. hadn’t come to his office yet, and that he heard she was wearing her short-shorts again. Ms. Peebles reasonably inferred that this message was from Mr. Frazier. Ms. Peebles testified that her concerns about Mr. Frazier calling girls (especially D.K.) out of class and texting were heightened by the rather alarming “cake incident,” which occurred shortly after the short-shorts text message. Ms. Peebles testified that one afternoon, she had broken up a fight between two students and escorted the students to the discipline office for referral to a liaison. Ms. Peebles found the discipline office’s secretary/receptionist, Aida Coleman, at her desk in the large outer area. Ms. Peebles looked around and found that the doors to the liaisons’ interior offices were all open and the offices empty, except that Mr. Frazier’s office door was closed. Ms. Peebles looked at Ms. Coleman with frustration because no one seemed available to help her with her disciplinary problem, but Ms. Coleman volunteered that it was all right, Mr. Frazier was in his office with a student. Ms. Peebles took this to mean that she could go in, so she left the two students in separated chairs, one by Ms. Coleman’s desk. Ms. Peebles walked the short distance (estimated at around twenty feet) to Mr. Frazier’s office door. She knocked and opened the door simultaneously, and stepped a few feet inside. She was shocked to find Mr. Frazier seated behind his desk with D.K. sitting sideways across his lap, feeding him cake. Ms. Peebles said that she yelled something like: “What the hell is going on in here?” Although she described it as a “yell,” when asked to gauge how loud she was by comparison to others speaking at the hearing, Ms. Peebles did not attribute a great deal of volume to her “yell”--it was more a matter of what she said than how loudly she said it. Ms. Peebles was troubled by the fact that Mr. Frazier and D.K. did not move, and both acted like nothing was wrong with their seating arrangement and activity. Ms. Peebles then told D.K. to “get off” Mr. Frazier’s lap. D.K. did so, but she only moved as far as Mr. Frazier’s desk, where she perched facing him. Ms. Peebles then told D.K.: “No, come around here and sit in a chair like a lady.” D.K. did as she was told. Ms. Peebles then told Mr. Frazier that she had a referral requiring his attention, with two students waiting outside. Mr. Frazier got up and went out with Ms. Peebles to address the awaiting disciplinary matter. Ms. Peebles reported this incident to Respondent the next day. Ms. Peebles had a clear recollection of her conversation with Respondent in which she described the cake incident, and Respondent assured her he would take care of it. Ms. Peebles was relieved, because she assumed she could count on Respondent to address the matter with Mr. Frazier. Ms. Peebles also told another liaison, Stephen Gulash, about the cake incident at some point shortly after it occurred-- her best recollection was that she told Mr. Gulash the next morning. Mr. Gulash corroborated that Ms. Peebles told him about the cake incident--he thought it may have been right after it occurred, because she seemed upset. Ms. Peebles does not recall being upset when she told Mr. Gulash about the incident. While Respondent suggests this is an inconsistency that undermines the credibility of both Ms. Peebles and Mr. Gulash, this minor difference in perception and recollection is immaterial and understandable. The incident itself was not a happy thing to observe or describe. Even a number of years later, Ms. Peebles seemed upset when describing the upsetting incident at hearing. When Ms. Peebles told Mr. Gulash about the cake incident, Mr. Gulash asked Ms. Peebles if she had reported the incident to Mr. Kane. Ms. Peebles told him either that she had just done so or that she was about to. The material details provided by Ms. Peebles--that the cake incident occurred as she described it, that she reported the incident to Respondent the next day, and that Respondent assured her he would take care of it--were credible and are credited. The most alarming aspect of the cake incident is that D.K. was sitting on Mr. Frazier’s lap feeding him cake in the privacy of his office, a clearly inappropriate and suggestive intimacy between this MHS staff disciplinarian and the female student he frequently called out of class to come visit him behind closed doors. D.K. provided credible corroborating testimony of this most troubling aspect of the cake incident, acknowledging that she was sitting on Mr. Frazier’s lap feeding him cake when Ms. Peebles walked in and was shocked. Respondent contends that Ms. Peebles’ testimony was undermined by D.K.’s testimony that she could not recall what, if anything, Ms. Peebles said when she opened the door and by Ms. Coleman’s testimony that she did not recall an encounter when Ms. Peebles was yelling at Mr. Frazier. Ms. Peebles’ verbal reaction to the shocking scene pales in significance to the scene itself. Moreover, the inability of D.K. and Ms. Coleman to recall did not effectively undermine Ms. Peebles’ clear, credible testimony. It is by no means clear that Ms. Peebles’ words to Mr. Frazier and D.K. (which D.K. might well want to forget or minimize), delivered while Ms. Peebles was standing a few feet inside the office with her back to the door, would have been heard by Ms. Coleman at her desk twenty feet away from the door, particularly since Ms. Peebles had deposited one of the fighting students in a chair next to Ms. Coleman’s desk. Respondent testified that he does not recall Ms. Peebles reporting the cake incident to him. He added that if she had reported the incident as she described it at hearing, he believes there is no way he would not have acted, by documenting the report in writing or having Ms. Peebles do so, bringing it to the principal’s attention, and confronting Mr. Frazier with what was plainly inappropriate, improper, unprofessional conduct. Ms. Peebles, however, was steadfast and credible in maintaining that she reported the cake incident to Mr. Kane the day after it occurred (corroborated by Mr. Gulash). Ms. Peebles also reported the cake incident to Mr. Faller a year later, after reporting another inappropriate Frazier incident to Mr. Faller (discussed below in school year 2011-2012).7/ Respondent attempted to undermine Ms. Peebles’ credibility by dwelling on the lack of clarity on insignificant points, including when the cake incident occurred, what Mr. Kane’s duties were at the time, and where Ms. Peebles and Mr. Kane were when she told him about the incident. Respondent’s attempt was not effective. For the purposes of this proceeding, it is enough to know that the cake incident took place either in the 2010-2011 school year or the 2011-2012 school year--the only two years that D.K. was a student at MHS. The incident most likely occurred in the 2010-2011 school year, when D.K. was in Ms. Peebles’ math class. Ms. Peebles could not recall exactly when the incident occurred; she volunteered early on in her testimony, and repeated often, that she has never been good at remembering dates.8/ Likewise, regardless of Mr. Kane’s duties at the time of the cake incident report, Ms. Peebles explained why he was an appropriate administrator for her to report to. Ms. Peebles testified initially that she thought Mr. Kane was head of discipline when she reported the cake incident to him. That was shown to be not true. Mr. Faller took over the assignment as discipline office head in the 2010-2011 and 2011-2012 school years. However, Ms. Peebles added that after Mr. Faller assumed that role, Mr. Kane became Ms. Peebles’ direct supervisor (not disputed by Respondent), and that she may have reported the cake incident to him for that reason. Later still, Mr. Kane was MHS interim principal, and if the cake incident occurred then, she might have reported it to him for that reason. Ms. Peebles credibly summed it up this way: “Mr. Kane never left the realm of being someone I thought that I would go to.” (Tr. 568). As to the setting where Ms. Peebles reported the cake incident to Mr. Kane, Ms. Peebles offered her recollection that they were in the discipline office, in the corner interior office assigned to the assistant principal serving as head of the discipline office. But whether Ms. Peebles reported the cake incident to Mr. Kane in the office assigned to the head of discipline, as she recalled, or in an office in the adjacent building when he became Ms. Peebles’ direct supervisor, the setting is insignificant and the lack of clarity does not undermine the credible testimony regarding the material details. Ms. Peebles was genuinely troubled to be offering testimony adverse to Mr. Kane. Ms. Peebles likes and respects Mr. Kane as an educator and administrator, and spoke highly of his performance as an assistant principal and as her supervisor. Her general regard for him is why she was relieved to report the cake incident to him--she trusted him to follow through when he assured her that he would take care of it. Mr. Kane was equally complimentary of Ms. Peebles, describing her as one of the good teachers, and as someone who would not set out to hurt him. Respondent’s testimony expressing no recollection of Ms. Peebles’ cake incident report to him and offering hindsight assurance that he would have acted on such a report was not as credible as Ms. Peebles’ testimony and is not credited. Instead, Ms. Peebles’ report was the second time Respondent was informed of Mr. Frazier’s inappropriate closed-door sessions with female students--this time, with the added observation that Mr. Frazier was engaged in inappropriate physical contact with the female student in that particular closed-door session. As Respondent himself acknowledged, such a report should have spurred him to immediate action, but it did not. Moreover, because Respondent took no action in response to L.S.’s prior report, there was no record that this was the second report to Respondent of Mr. Frazier’s improprieties. As with L.S.’s report, this second report was also received and ignored, instead of being documented, investigated, and addressed with Mr. Frazier. Lynn Aragon is a teacher employed by the District. She taught at MHS for over ten years, until the end of the 2012-2013 school year, and is currently on a medical leave of absence. During the time period relevant to this proceeding, she served as the representative for the teacher’s union at MHS, and because of that role, teachers at MHS often would come to her with concerns. Ms. Aragon testified that during the 2010-2011 school year, a number of teachers came to her to express concerns about Mr. Frazier having female students in his office behind closed doors, calling female students to his office in the middle of class, texting female students in class, and going around in the courtyard on a golf cart with female students hugging him. Ms. Aragon testified that she reported these concerns to then- principal Bob Gagnon, but not to Mr. Kane.9/ Mr. Gagnon acknowledged that while he was still the MHS principal, he became aware of an issue with students on golf carts, although he did not say that Ms. Aragon was the source of his awareness or that Mr. Frazier was the subject of the “issue,” or complaint. Mr. Gagnon testified that he went out and told all of the staff using golf carts--not just Mr. Frazier--to stop allowing students on their golf carts. Several witnesses spoke generally about the legitimate use of golf carts by liaisons to monitor the parking lot and courtyard, and to transport a student when necessary. Often students congregate in the courtyard for lunch breaks, and it was not unusual, at least before Mr. Gagnon’s directive, for a student to sit on a golf cart with a liaison. However, as Ms. Peebles credibly explained, the student-on-golf-cart issue was decidedly different where Mr. Frazier was concerned. Whereas other liaisons and administrators might have a couple of students on a golf cart to sit and talk or to drive them someplace, Ms. Peebles described what she saw on Mr. Frazier’s golf cart: “[T]he students hanging around on Mr. Frazier’s golf cart mostly tended to be female students . . . more female students than could fit on the seats. There would be so many stacked on there that you literally couldn’t drive the golf cart anyplace.” 2011-2012: Groping At A Bar; More Golf Cart Issues; Horseplay Ms. Peebles testified that the year after the cake incident, another incident involving alleged inappropriate physical contact by Mr. Frazier was reported to her by MHS female student, A.P. Ms. Peebles told Mr. Faller about the allegations. When Mr. Faller seemed not interested, she told him about the prior cake incident, and she also told him that she had reported the cake incident to Mr. Kane. Ms. Peebles’ testimony was credible. Mr. Faller did not testify. Ms. Peebles did not say that she reported the A.P. incident to Mr. Kane. Nonetheless, Respondent offered A.P.’s testimony, apparently in an attempt to undermine the credibility of Ms. Peebles’ overall testimony. Instead, just as was the case with D.K., A.P.’s testimony corroborated the material facts, as reported by Ms. Peebles to Mr. Faller, regarding another troubling incident with Mr. Frazier. As A.P. testified, she snuck into a bar using fake identification, when she was still underage. She had a few drinks and was tipsy. Mr. Frazier approached her and grabbed her in “too friendly” a hug, putting his arms around the lower region of her back, or further down. Mr. Frazier had “his hands down there;” he was groping her and hanging all over her. Respondent attempted to elicit testimony from A.P. that she never told Ms. Peebles about being groped in a bar by Mr. Frazier. Instead, A.P. testified that although she could not say with certainty that she went to Ms. Peebles about this incident, it would make sense that she would have gone to Ms. Peebles: “I could see myself going to her[.]” A.P.’s testimony varied in some of the details from Ms. Peebles’ description of what A.P. told her. Ms. Peebles testified that she does not recall the word A.P. used in lieu of “erection,” she understood A.P. to be saying that Mr. Frazier had an erection and was rubbing himself against her buttocks. A.P. testified that she did not tell Ms. Peebles that Mr. Frazier had an erection; Ms. Peebles agreed that that was not the word A.P. used. Ms. Peebles also recalled A.P. showing her inappropriate text messages from Mr. Frazier regarding A.P.’s private body parts that Mr. Frazier inappropriately groped at the bar; A.P. denied receiving text messages from Mr. Frazier. Their testimony was in sync regarding Mr. Frazier’s inappropriate groping of A.P., who, at the time, was a minor and a student at MHS. Several years after the fact, the testimony by Ms. Peebles and A.P. is considered substantially and materially consistent. The variances do not undermine Ms. Peebles’ credible testimony. Not only was Ms. Peebles’ testimony regarding the bar- groping incident and her reports to Mr. Faller credible, but it highlights the problem of serial undocumented “isolated incidents.” An incident is reported to one administrator who ignores the report and takes no action; then when the next “isolated incident” is reported, the administrator receives that report as if nothing has ever been brought to his attention before, and again, takes no action; then when the next “isolated incident” is reported to a different administrator, there is nothing documenting that similar incidents had ever occurred before. Despite this pattern, Mr. Kane and Mr. Faller were the two administrators in the room nodding their heads in agreement when Ms. Horne reported to Mr. Martin that the allegations in the Rinder list were old news that had been reported to and handled by administrators. Two of the incidents on the Rinder list were the cake incident and the bar encounter. If brushing the allegations under the rug can be called handling them, they were, indeed, handled. While Mr. Kane was interim principal in 2012, two separate matters regarding Mr. Frazier were reported to him. In February 2012, Ms. Horne from OPS called Mr. Kane to inform him of an anonymous complaint received by the superintendent’s office regarding female students riding with Mr. Frazier on his golf cart and that it “didn’t look right.” At the direction of Ms. Essig, who was Mr. Kane’s immediate supervisor, Ms. Horne relayed the complaint to Mr. Kane, and asked him to look into it and speak to Mr. Frazier about it. Ms. Horne did not hear back from Mr. Kane within a reasonable time, so she called him back. Mr. Kane told Ms. Horne that he issued a verbal directive to Mr. Frazier to be professional in his dealings with students at all times. As Mr. Kane described it, he told Mr. Frazier to stop riding around with girls on his golf cart because others might perceive it to be inappropriate. Mr. Kane did not document his verbal directive to Mr. Frazier. The only evidence that there was a verbal directive comes from the hard-to-decipher scribbled note Ms. Horne made of her phone call to Mr. Kane to find out if he had responded to her request that he look into the complaint. There was no credible evidence that Respondent looked into the 2012 complaint at all, in the sense of trying to find out whether Mr. Frazier had conducted himself, with females on his golf cart, in a way that “did not look right” (such as by allowing so many female students to pile onto the golf cart with him that he and the females necessarily would be sitting on top of each other, as Ms. Peebles described). Instead, Mr. Kane apparently did not ask Mr. Frazier what he was doing with girls on his golf cart. Mr. Kane explained that because the complaint lacked details (such as names, dates, times, locations, or what exactly did not look right), he could not ask Mr. Frazier about the details because Mr. Kane did not have them. That explanation is unreasonable; a reasonable interim principal performing the duty of looking into a complaint asks questions to find out details. An absence of documentation about prior golf cart issues with Mr. Frazier resulted in yet another “isolated incident.” The absence of documentation of Mr. Gagnon’s student- on-golf-cart issue that caused him to tell all staff operating golf carts to stop letting students on the golf carts meant that the 2012 complaint about Mr. Frazier on his golf cart with female students and that it did not look right was never investigated as insubordination, for not following Mr. Gagnon’s prior directive. Also while Mr. Kane was interim principal, Mr. Gulash reported to Mr. Kane that Mr. Frazier shoved a water bottle between D.K.’s legs at the softball field. Mr. Kane had no recollection of Mr. Gulash reporting this incident to him. Mr. Gulash acknowledged that he mentioned the incident to Mr. Kane while they were walking together into the cafeteria; that he described the incident to Mr. Frazier as “horseplay”; and that he did not make a big deal of it. Nonetheless, one would expect that a description of “horseplay” involving a male liaison/coach placing anything between the legs of a female student would not only get the interim principal’s attention but also trigger immediate action. D.K. corroborated the occurrence of bottle-between-the legs “horseplay” by Mr. Frazier. She testified that Mr. Frazier had shoved water bottles or Gatorade bottles between her legs on more than one occasion, both at the softball field and while D.K. was hanging out with Mr. Frazier on his golf cart. While there were discrepancies in the details offered by Mr. Gulash and D.K., once again, their testimony was in harmony with regard to the troubling aspect of the incident they described--that Mr. Frazier engaged in a form of “horseplay” with a minor female student that involved him putting a plastic bottle between the student’s legs. Respondent claimed that Mr. Gulash was biased and not credible for several different reasons; Mr. Gulash responded with explanations. On balance, the undersigned accepts Mr. Gulash’s testimony, notwithstanding the attacks on his credibility. But even if Mr. Gulash did not tell Mr. Kane about the bottle- between-the-legs incident, those incidents should have, and would have, come to light much sooner than they did if Mr. Kane had responded appropriately to the reports of Mr. Frazier’s improprieties when they were made to him. D.K.’s credible testimony that one of these bottle-between-the-legs incidents occurred when she was on a golf cart with Mr. Frazier underscores the significance of the patterned failure to document or act on reports of Mr. Frazier’s inappropriate conduct with female students on golf carts. Likewise, D.K.’s description of Mr. Frazier’s inappropriate physical contact during closed-door sessions in his office underscores the significance of the patterned failure to document or act on reports of Mr. Frazier’s inappropriate closed-door meetings with female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Matthew Kane. DONE AND ENTERED this 30th day of September, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 30th day of September, 2014.
Findings Of Fact At all times relevant hereto, respondent, Carlos C. Garay was a student in the school system of petitioner, School Board of Dade County. Most recently, he was a seventh grader at South Miami Junior High School until he withdrew from school on January 5, 1987. Petitioner proposes to reassign Carlos from the regular school program to J.R.E. Lee School. The basis for reassignment is Carlos' "disruptive behavior and failure to adjust to the regular school." This action was formalized in a letter dated December 17, 1986, a copy of which was forwarded to Carlos' mother. The reassignment prompted a request for a due process hearing. Carlos has been a student in the Dade County public school system since at least academic year 1984-85. That year he attended West Miami Junior High School (WJHS), and received final grades of F in all six subjects. His effort was generally rated insufficient, and his conduct was unsatisfactory in most classes for all grading periods. As a result of having a knife in his possession on or about June 7, 1985, Carlos was expelled from WJHS for the first semester of school year 1985- 86, and reassigned to another school for second semester. On February 3, 1986, he enrolled at South Miami Junior High School (SMJHS). At SMJHS, Carlos exhibited a continuing pattern of disruptive and rebellious behavior. This is documented in numerous case management referral forms received in evidence as petitioner's exhibits 2, 3 and 6. These forms are prepared whenever a student is referred by a teacher to the principal's office for disciplinary action. Carlos' conduct included incidents of disruptive behavior in class, hitting other students and refusing to obey his teachers. This conduct not only prevented Carlos from learning in the classroom, but also interfered with the educational process of other students. As a result of the above referrals, school officials held a number of conferences with Carlos' parents in an effort to improve his behavior. In addition, Carlos was given frequent counseling, and was referred to a child team study. None of these measures produced any positive change in his behavior. During 1986 Carlos did not demonstrate satisfactory academic progress. Indeed, he received more F's than any other grade. He also had numerous absences from class, and his effort in class was generally rated unsatisfactory. Because of his disruptive behavior and lack of academic progress, a reassignment of Carlos to an alternative school is justified.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Carlos C. Garay be reassigned to J.R.E. Lee School. DONE AND ORDERED this 23rd day of September, 1987, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Frank R. Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Ms. Carmelino Garay 6707 Southwest 215th Terrace Miami, Florida 33155 Dr. Leonard Britton Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 DONALD R. ALEXANDER 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 23rd day of September, 1987.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent held Florida Teaching Certificate No. 139016 covering the area of history and qualifying him to teach grades 7 through 12. From on or about January 27, 1988, until August 29, 1989 the Respondent was employed by the Board as a teacher at Sandalwood Junior/Senior High School, teaching 8th grade gifted students ranging in age from 13 to 14 years and 11th and 12th grade advanced placement history students ranging in age from 16 to 18 years. Respondent is presently employed by the Board, assigned to the Media Center in Jacksonville, Florida where he was assigned on August 29, 1989. Prior to his present employment with the Board, the Respondent had been employed by the Florida Community College of Jacksonville (FCCJ) for 21-1/2 years as a teacher/administrator. Before assuming his teaching duties at Sandalwood, Respondent had read the Code of Ethics of the Education Profession and understood and accepted the obligations and responsibilities placed on him by the code. On June 21, 1989, S.L.W. ran away from her home in North Carolina and while standing outside of a local fast food restaurant, a short distance from her home, an individual called Adrian Freeman offered her a ride. S.L.W. was not acquainted with Freeman before he offered her a ride. Freeman learned from S.L.W. that she had run away from home and offered to help her and not tell anyone. S.L.W. spent the night at Freeman's house and while there she became intoxicated and "passed out." While S.L.W. was passed out, Freeman sexually assaulted her. The next day, June 23, 1989, S.L.W. decided to leave Freeman's house and he drove her to the bus station. At first, S.L.W. was going to Myrtle Beach but because the bus for Jacksonville, Florida left earlier she decided to go to Jacksonville. Before S.L.W. left for Jacksonville, Freeman made arrangements with the Respondent for him to meet S.L.W. in Jacksonville and find her a place to stay. Upon arriving in Jacksonville, S.L.W. was met at the bus station by Respondent. The Respondent told S.L.W. that he was a high school teacher. S.L.W. told Respondent that she was in the tenth grade and a runaway. Respondent then told S.L.W. that she would be staying at the home of Lee Daniels. Respondent then bought S.L.W. some food. When S.L.W. finished eating he carried her to the home of Lee Daniels but they were told to come back later. Respondent and S.L.W. later returned to the home of Daniels around 10:00 a.m. Respondent showed S.L.W. to her room and told her to take a shower. After taking she shower she put on her clothes and got under the cover. At this point, Respondent returned to the room with an alcoholic beverage for S.L.W. Respondent then told S.L.W. to remove her clothes item by item and once she was undressed began to massage her body. Later Respondent attempted sexual intercourse with S.L.W. and, although Respondent did not have an ejaculation he did penetrate S.L.W.'s vagina with his penis. Respondent then left Daniels' home and was seen by S.L.W. on only two other occasions. There was no physical contact between them on these occasions. S.L.W. remained at Daniels' home for approximately three weeks. Eventually, S.L.W. was picked up by a State Trooper at a bar and through the Jacksonville Sheriff's Department was returned to her mother. S.L.W. identified Respondent for the sheriff's department as the person who sexually assaulted her by pointing him out in a high school year book. Based on this identification, Respondent was arrested and charged with lewd and lascivious assault upon a minor. Respondent's conduct involving S.L.W. was immoral, reflects on his character, not only as an individual but more specifically as a teacher, and is in violation of the Duval County Teacher's Tenure Act and the Code of Ethics of the teaching profession. Although the publicity of Respondent's involvement with S.L.W. created by several newspaper articles and television stories and by word of mouth of the students, teacher and parents of Sandalwood seriously impaired his effectiveness as a teacher at Sandalwood, there was insufficient evidence to show that Respondent's effectiveness as a teacher had been seriously impaired in the Duval County School System as a whole.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of having violated Section 4(a) of the Duval County Teacher Tenure Act and terminating his employment with the Board. DONE AND ENTERED this 12th day of July, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6704 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4. Adopted in Findings of fact 1, 3, 2 and 4, respectively. 5-7. Rejected as not being material or relevant to this case or not being supported by any substantial competent evidence in the record. 8. Adopted in Finding of Fact 5. 9-10. Adopted in Finding of Fact 2. 12-55. Adopted generally in Findings of Fact 6 through 19, otherwise rejected as not being material or relevant, or being redundant or subordinate, or not supported by any substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Facts 2 and 3. 3.-4. Adopted generally in Finding of Fact 17, otherwise rejected as not being material or relevant. Rejected as not being material or relevant. Covered in Preliminary Statement. 7.-10. Adopted generally in Findings of Fact 6-17, otherwise rejected as not being material or relevant, or redundant or subordinate, or not supported by any substantial competent evidence in the record. 11.-15. Adopted in Findings of Fact 19, otherwise rejected or not being material or relevant, or being redundant or subordinate, or not being supported by any substantial competent evidence in the record. 16. Rejected as not being supported by any substantial competent evidence in the record. See Findings of Fact 10 through 18. COPIES FURNISHED: Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207 Gail A. Stafford, Esquire 421 West Church Street, Suite 715 Jacksonville, Florida 32202 David A. Hertz, Esquire 1601 Atlantic Boulevard Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether the respondent should be reassigned to the Opportunity School?
Findings Of Fact Joseph Hernandez attended Glades Junior High School during the 1984-85 school year. During that period of time, he had numerous referrals to the guidance counselor and assistant principal. He cut class, he was disruptive in class, he had a very short attention span, he would not follow instructions, and he was physically abusive to smaller children. Respondent was very disruptive in art class. He destroyed art material, and he would push and shove other students. On occasion, Joseph would sneak out the back door of the art room and skip the rest of the class. He also would take a bathroom pass and then use it later in the day. On one occasion Mr. Clark observed the respondent grab a smaller child by the child's head and lift the child off the ground. When respondent was told to release the child, he refused to do so. Joseph's grades at Glades Junior High were not much better than his behavior. He received a "B" in woodshop, a "B" in math, a "C" in physical education, a "C" in art, an "F" in language arts and an "F" in social studies. Joseph was in a low level math class but all the other classes were regular level. Joseph was capable of performing the work in a regular classroom and probably should have been in a regular level math class. Joseph did not have any desire to move out of lower level math. When his math teacher stated in front of the class that Joseph had done so well he would be placed in a regular math class the following year, he got very upset. He told the teacher that if she put him in a regular class he would flunk and she would think of him every night and feel guilty. When the teacher responded, "I think of all my students every night before I go to bed." Joseph replied, "You must not have any wet dreams." The guidance counselor at Glades held several guidance sessions with Joseph and his father. Joseph had no serious psychological problems, but he was unstable and needed guidance. On a one-to-one basis, Joseph was quite personable. However, he liked to be the center of attention. The personnel at Glades Junior High believe that Joseph would be much better off in the smaller classes offered at the alternative school. Joseph enrolled in West Miami Junior High for the 85-86 school year. Joseph's behavior at West Miami was no better than his behavior had been at Glades. He rebelled against authority, he showed up late for class, he was rude to the teachers, and he would come to class without any books or materials. On September 19, 1985, he was referred to indoor suspension for three days due to his disruptive behavior. However, he refused to follow the SCSI rules and therefore was on indoor suspension ten days rather than the original three. Joseph not only disrupted his own classes, he disrupted other classes. One day he sauntered into a seventh grade computer class, walked around the room, and said that he had come to fix the air conditioning. He refused to leave the classroom when the teacher told him to leave and was quite arrogant. Finally, when he was ready, he left the room. On November 6, 1985, Joseph was assigned to the alternative school, but he never attended. Therefore he was carried on the rolls of West Miami Junior High School throughout the semester. Of the ninety days in the semester, Joseph was in class for a total of 13 days.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the assignment of the respondent to the alternative school program at Douglas McArthur Senior High School-South. DONE and ENTERED this 26th day of March, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986. COPIES FURNISHED: Mark A. Valentine, Esq. Assistant School Board Attorney 3050 Biscayne Boulevard Suite 800 Miami, FL 33137-4198 Mr. Pedro L. Hernandez 10001 West Flagler Street Lot #L1214 Miami, FL 33174 Madelyn P. Schere, Esq. Ms. Maeva Hipps 1450 N.E. Second Avenue, Ste. 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. Second Avenue Miami, F1 33132
